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315 A.2d 483 (1974) SEAWAY SHOPPING CENTER CORPORATION v. The GRAND UNION STORES, INC., OF VERMONT, and the Grand Union Company. No. 3-73. Supreme Court of Vermont, Chittenden. February 5, 1974. *484 James D. Foley, of Yandell, Page & Archer, Burlington, for plaintiff. Wilson, Curtis, Bryan, Quinn & Jenkins, Burlington, for defendants. Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ. SHANGRAW, Chief Justice. This is an appeal from a judgment entered in a civil action tried by the Chittenden County Court on December 6, 1972. Jury trial was waived and following a hearing by the court plaintiff was awarded damages in the amount of $14,839.05 and its costs. A judgment for this amount followed, and the defendants have appealed therefrom. Plaintiff, a Vermont corporation, owns and operates the Seaway Shopping Center in South Burlington, Vermont. Its principal stockholder and officer is Thomas Farrell, who developed the shopping center. The Grand Union Stores, Inc., of Vermont, is also a Vermont corporation, and a wholly owned subsidiary of The Grand Union Company. The Grand Union company is a Delaware corporation with its principal office in East Paterson, New Jersey. The Grand Union Company is a guarantor of the performance of its subsidiary company under the lease here in question. For the purposes of this opinion, Seaway Shopping Center is hereinafter referred to as "Seaway", The Grand Union Stores, Inc., of Vermont, as "Tenant", and The Grand Union Company as "Parent Company." The original lease, here in question, was between Thomas Farrell and the above Tenant. The Parent Company was guarantor of the Tenant. The lease was subsequently assigned by Farrell to Seaway. Its terms are not in dispute. Without reciting verbatim all of the pertinent provisions of the lease, the court determined under finding No. 5 that it provided, in substance, as follows: (a) That the Landlord would maintain the surface of the parking area, rights of way, curb-cuts, approaches and sidewalks in good condition. (b) That if the Landlord failed to carry out any of its obligations, the Tenant might, after reasonable notice or without notice if in the Tenant's judgment an emergency should exist, perform the obligation at the expense of the Landlord. (c) That if Tenant did so, it would be entitled to reimbursement from the Landlord, and could apply the claim against subsequent rent installments. (d) That the Landlord should also mark and reline the parking areas as often as necessary. (e) That notices or demands under the lease should be given by each party to the other by mail, to the addresses therein set forth. The trial court continued with the following findings. 6. It is undisputed, and we find, that the Tenant in July 1971, caused a substantial part of the parking area adjacent to its store premises to be repaired and repaved, and subsequently remarked. The cost of the paving was $14,050.00, and of the remarking $903.15, both costs being reasonable. *485 7. It is also conceded, and found, that Tenant made withholdings from its rent as follows: January 1, 1972 $2,500.00 February 1, 1972 2,500.00 March 1, 1972 2,500.00 April 1, 1972 2,500.00 May 1, 1972 2,500.00 June 1, 1972 2,453.15 8. It is virtually, if not actually, conceded, and we find, that the remarking in question was required and necessary, whether or not the repaving was, and we find that the deduction of $903.15 by Tenant was justified and is an allowable reduction of plaintiff's claim. 9. Since the rental obligation itself is not in question, the central issue here involved is the condition of the parking lot before the repaving was done, i. e. whether it was in "good condition" as required by the lease. We find that it was, and that the repaving by the Tenant was not justified. Additionally, no notice of the repaving was given to the Landlord, the notice which was given referring only to "repair." (Def.Ex. T) 10. Over the course of six years prior to the repaving, Tenant had from time to time notified Seaway of the recurrent need for repairs to the lot, and Seaway had made them, presumably to the satisfaction of Tenant, since the non-performance clause had not previously been invoked. 11. When repairs were needed, Seaway had an arrangement with one Armand Pare and one Rene Barsalou to make them, using their equipment and hot mix (or cold patch in winter) purchased from local suppliers. 12. The cost of these repairs to Seaway were as follows: 1966, $760.65; 1967, $20.15; 1968, $670.09; 1969, $232.01; 1970, $469.91; and 1971, $1,835.91. The total is $3,968.72, almost half of which was just before the repaving in question. 13. Mr. Farrell testified that the repaving was done by Tenant, not because of necessity, but because it desired to give the premises a "new look" and to upgrade the store to meet growing competition. We so find, for the following reasons: (a) By letter of May 5, 1970, the parent company advised Seaway (Def.Ex.L) that the parking area was badly in need of repair, "creating a very shabby appearance in comparison to the other Shopping Centers in the area." (b) It then, in August, 1970, proceeded to get an estimate of the cost of repaving from L. M. Pike & Son, Inc., (Pl.Ex. 2, p. 4) even though it did not proceed with the work. (c) On June 25, 1971, in a telephone conversation with Farrell, Mr. Hayes, Vice-president for the real estate of the parent company (which handled all these matters completely without reference to its subsidiary), asked Seaway to pay half of the cost of repaving, to upgrade the store to meet competition. Mr. Farrell refused, advising Hayes that substantial repairs had already been made and more were in process. (d) At that time, a second quotation for repaving had already been obtained by defendants, and another was in the process. (e) We are unable to find, and defendants' evidence could not make clear, who made the decision to repave. Notice was mailed July 1, 1971, although it did not specify that repaving was to be done, referring only to repairs. This notice came from Mr. Charles Bailey, assistant maintenance supervisor for the parent company. The following day he accepted the low quote for the work, and it proceeded. (f) When Mr. Bailey gave this notice and accepted the quote, he did *486 not know repairs had been made, was unaware of the then condition of the lot and had had no communication from local officials of the Tenant about the repairs. (g) Mr. Bailey testified he did not know who in the chain of command made the decision to repave. He thought it might have been the "legal department." A representative of the legal department was present through the trial, but did not testify. The vagueness of this whole line of testimony as to individual decisionmaking within the corporate structure tends to reinforce the conclusion that the reasons for repaving were other than as stated in the formal notice. 14. The defendants, although entitled to deduct the sum of $903.15 from the rent, were not entitled to deduct the further sum of $14,050.00. Plaintiff is entitled to recover from defendants that sum, with interest to date in the amount of $789.05, for a total of $14,839.05, plus its taxable costs. In its conclusions the court, in part, stated: No substantial legal questions are here presented. As agreed, by the parties, the main issue involved is one of fact, whether the parking lot in question was in good condition under the terms of the lease when the repaving was done, or in such bad condition, unremedied by the landlord after tenant's request, that repaving was necessary. Strengthened by the information that tenant's responsible officials did not know of, or take into consideration, the substantial repairs which landlord had made, we have concluded that the repaving was not necessary, but was done for purposes of "upgrading" to meet competition, a worthy motive but not the landlord's responsibility under the lease. The issues raised by the defendants on appeal are primarily challenges to the findings of fact made by the trial court which they claim are clearly erroneous. The standard by which such a challenge is tested is stated in V.R.C.P. 52(a) thus: Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses and the weight of the evidence. The above Vermont rule is similar to Rule 52(a) of the Federal Rules of Civil Procedure. Defendants argue that this Court should not follow the long history of Vermont case law, but should adopt a new standard now used by the Federal Courts. It is claimed that under the Federal test, this Court should consider all of the evidence when reviewing findings of fact and not only that evidence which would be most favorable to the prevailing party in order to determine whether or not the findings are "clearly erroneous". The defendants contend that the crucial findings are clearly erroneous. This Court has interpreted the clearly erroneous test to require it to "take the evidence in the light most favorable to the prevailing party, . . . excluding the effect of modifying evidence." Green Mountain Marble Co. v. Highway Board, 130 Vt. 455, 457, 296 A.2d 198, 200 (1972). Our test, as stated in Armstrong v. Hanover Ins. Co., 130 Vt. 182, 185, 289 A.2d 669, 671 (1972), appears as follows: The prescribed law of this state is that findings must stand if there is any credible evidence which fairly and reasonably supports them, and this Court must construe them so as to support the judgment, if possible, and further, that the weight of the evidence, the credibility of the witnesses and the persuasive effect of the testimony is for the sole determination of the trier of fact. This Court thus uses the same interpretation of V.R.C.P. 52(a) as it did *487 under the previous statutory requirement found in 12 V.S.A. § 2385. In essense, the defendants urge that this Court should reconsider the case of Green Mountain Marble Co. v. Highway Board, supra, and follow the Federal practice of looking to the evidence in its entirety on appeal. They cite United States v. United States Gypsum Co., 333 U.S. 364, 394, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948), as a definitive Federal case on the "clearly erroneous" test. That opinion, in part, states: [F]indings of fact in actions tried without a jury "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.". . . A finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. When findings are challenged on appeal, it is the recognized duty of this Court to search such portions of the record as are called to our attention, in order to determine whether or not there is substantial evidence to support them. We must read the evidence in support of the findings if reasonably possible, "when considered as a whole." Little v. Little, 124 Vt. 178, 182, 200 A.2d 276 (1964). In construing Federal Rule 52(a), the Gypsum case, supra, in effect held that a reviewing court should consider the "entire evidence". Under our Vermont Rule 52(a), it was held in the Little case, supra, that the evidence should be "considered as a whole." This leaves very little difference in result between the Federal rule and our case law as applied to our Vermont rule, which we now reaffirm. We are not inclined to give a different meaning to V.R.C.P. 52(a) than has been previously enunciated by this Court in our case law. The central issue is whether the parking lot in question was in "good condition" after it had been repaired by Seaway in June, 1971. It is the contention of the Tenant that the court's finding that the lot was in "good condition" prior to repaving is clearly erroneous and that Seaway's evidence as to the good condition of the parking lot after repairs had been made by Seaway was inclusive and equivocal. A number of witnesses were called by the Tenant who testified that prior to the repairs there were depressions, ruts, cracks, holes and soft spots in the parking lot and that the repairs made by Seaway in 1971 at a cost of $1,835.51 were faulty. Also, notwithstanding the repairs, there were six or seven clay spots which, at time of repaving, had to be dug out at a maximum cost of $700. The tenant introduced other evidence that following the repairs made by Seaway the general condition of the lot was poor and needed resurfacing. To the contrary, Seaway's evidence in the transcript reveals that the repairs made in June, 1971, were done in a good and workmanlike manner, that resurfacing was not necessary, and that following such repairs the parking lot was in good condition. Thus, the controversial issue relating to the condition of the parking lot at the time of repaving was left to the court for resolution. Finding No. 9 that the parking lot was in good condition prior to repaving and that the repaving by the Tenant was not justified is amply supported by the evidence. The Tenant next claims that the trial court's findings of fact that the repaving was done by tenant, not because of necessity, but because it desired to give the premises a "new look" and to upgrade the store to meet growing competition is clearly erroneous. On the contrary, Seaway urges that the trial court's finding of fact, No. 13, determining that the repaving was done *488 by the Tenant in its desire to give the premises a "new look" is substantially supported by the record. The question as to whether or not the Tenant was interested in obtaining a "new look" is not pertinent to the issue as to whether or not the parking lot was in "good condition" at the time of the repaving job done by the Tenant. By finding No. 13 the court determined that ". . . the repaving was done by Tenant, not because of necessity, but because it desired to give the premises a `new look' and to upgrade the store to meet growing competition. . . ." This finding is reinforced by subparagraphs thereof. In addition to the foregoing finding, and in support thereof, we note the following testimony of the witness, Charles J. Bailey, an employee of the Tenant. Q. It's not necessary to have an even blacktop surface, is it? A. It would be nicer than holes, sir. Having a good parking lot is good advertising. We find no basis in the record for disturbing finding No. 13. We are bound to confirm this result unless, as a matter of law, it is unsupportable. Villeneuve v. Commissioner of Taxes, 128 Vt. 356, 357, 264 A.2d 774 (1970) citing Forslund v. Cookman, 125 Vt. 112, 114, 211 A.2d 190 (1965). The prescribed law of this jurisdiction is that findings must stand if there is any credible evidence which fairly and reasonably supports them. Largess v. Tatem, 130 Vt. 271, 280, 291 A.2d 398 (1972). The issue was raised below as to whether, under the terms of the lease, the Tenant gave "reasonable notice" in writing to Seaway that the parking lot needed repaving before the Tenant proceeded to do so. This became a controverted issue. The trial court found that the notice given referred only to "repair." As stated in the findings and conclusions, the court below determined that the parking lot was in good condition by reason of the repairs made by Seaway and that the repaving done shortly thereafter by the Tenant was not necessary. This is the critical and controlling issue upon which the judgment is predicated. Therefor, the above referred to notice, or lack thereof, becomes immaterial in disposing of this appeal, and requires no consideration by this Court. Judgment affirmed.

United States Court of Appeals FOR THE EIGHTH CIRCUIT __________ No. 02-3035 __________ Dan McCarthy, as Parent and as Next * Friend of his Minor Daughter, * * Plaintiff - Appellant, * * Appeal from the United States v. * District Court for the Western * District of Arkansas. Ozark School District; Faye Boozman, * in his Official Capacity as Director, * State of Arkansas Department of Health; * John Doe, 1 through 20, in their Official * Capacities as Agents, Servants, * Employees or Officials of the State of * Arkansas, Department of Health, * * Defendants - Appellees. * ___________ No. 02-3094 ___________ Shannon Law, as Parent and Legal * Guardian of her Minor Children Joey * Law, Rob Law, and Claire Law; * * Plaintiff, * * Susan Brock, as Parent and Legal * Guardian of her Minor Children Harley * Brock, Mason Brock, Kathrine Brock * and Michael Jarrell, * * Plaintiff - Appellant, * * Appeal from the United States v. * District Court for the Eastern * District of Arkansas. * Fay W. Boozman, in his Official * Capacity as Director of the Arkansas * Department of Health; Cutter Morning * Star School District; Lake Hamilton * School District; Raymond Simon, in his * Official Capacity as Director of the * Arkansas Department of Education, * * Defendants - Appellees. * __________ No. 02-3104 __________ Cynthia Boone, Individually and as * Next Friend of Ashley Boone, * * Plaintiff - Appellant, * * Appeal from the United States v. * District Court for the Eastern * District of Arkansas. Cabot School District; Fay Boozman, in * his Official Capacity as the Director of * the Arkansas Department of Health; * John Doe, 1 through 20, in their Official * Capacities as Agents, Servants, * -2- Employees or Officials of the State of * Arkansas, Department of Health, * * Defendants - Appellees. * ___________ No. 02-3195 ___________ Shannon Law, as Parent and Legal * Guardian of her Minor Children Joey * Law, Rob Law, and Claire Law, * * Plaintiff, * * Susan Brock, as Parent and Legal * Guardian of her Minor Children Harley * Brock, Mason Brock, Kathrine Brock, * Appeal from the United States and Michael Jarrell, * District Court for the Eastern * District of Arkansas Plaintiff - Appellee * * v. * * Fay W. Boozman, in his Official * Capacity as Director of the Arkansas * Department of Health, * * Defendant, * * Cutter Morning Star School District; * Lake Hamilton School District, * * Defendants - Appellants, * * Raymond Simon, in his Official * -3- Capacity as Director of the Arkansas * Department of Education, * * Defendant. * ___________ Submitted: March 10, 2003 Filed: March 8, 2004 ___________ Before HANSEN1, Chief Judge, RILEY and MELLOY, Circuit Judges. ___________ MELLOY, Circuit Judge. These consolidated appeals involve the application of an Arkansas statute that requires the immunization of Arkansas schoolchildren against Hepatitis B. Ark. Code Ann. § 6-18-702(a).2 The district courts3 held that the statute's religious beliefs 1 The Honorable David R. Hansen stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on March 31, 2003. He has been succeeded by the Honorable James B. Loken. 2 Ark. Code Ann. § 6-18-702 (2002), as in effect at the time of the district courts’ decisions, provided: (a) Except as otherwise provided by law, no infant or child shall be admitted to a public or private school or child care facility of this state who has not been age appropriately immunized from poliomyelitis, diphtheria, tetanus, pertussis, red (rubeola) measles, rubella, and other diseases as designated by the State Board of Health, as evidenced by a certificate of a licensed physician or a public health department acknowledging the immunization. .... (d)(2) The provisions of this section shall not apply if the parents or legal guardian of that child object thereto on the grounds that -4- exemption violated the Establishment Clause of the First Amendment because the exemption applied only to the “religious tenets and practices of a recognized church or religious denomination.” Ark. Code Ann. § 6-18-702(d)(2) (2000) (emphasis added). The district courts then determined that the exemption was severable from the remainder of the statute. Construing the statute without the exemption, the district courts held that the underlying immunization requirement survived Due Process, Equal Protection, Free-Exercise, and Hybrid Rights challenges. On appeal, we do not reach the merits of the claims raised below because the Arkansas legislature rendered these issues moot when it broadened the exemption to encompass philosophical as well as religious objections. See Ark. Code Ann. § 6-18-702(d)(4)(A) (2003). Instead, we set forth the general history of these matters, explain the changes in Arkansas law, and address the issue of mootness as discussed by the parties in their supplemental, post-argument briefs. I. Background Because the issues in this case do not turn on the specific facts that differentiate each individual party, we forgo a detailed discussion of the individual parties and the specific facts that gave rise to their actions. Instead, we describe the parties generally immunization conflicts with the religious tenets and practices of a recognized church or religious denomination of which the parent or guardian is an adherent or member. (Emphasis added). The State Board of Health, in cooperation with the Board of Education, on July 27, 2000, promulgated regulations that listed Hepatitis B as one of the designated diseases under Ark. Code Ann. § 6-18-702(a). 3 The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas (Case No. 02-3035), and the Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas (Case Nos. 02-3094, 02-3104, and 02-3195). -5- by their respective roles. The first group of parties consists of Arkansas schoolchildren who were excluded from school or threatened with exclusion from school for failure to receive immunization treatments for Hepatitis B. This group also includes the parents of the schoolchildren (collectively, the “Schoolchildren”). The second group consists of the Arkansas Departments of Health and Education and various officials from these two departments, including Fay W. Boozman, the Director of the Arkansas Department of Health (collectively, the “Officials”). The final group consists of various individual Arkansas school districts (collectively, the “School Districts”). In each case, the Schoolchildren brought suit against the School Districts and/or the Officials. The Schoolchildren in each case alleged that they held sincere religious beliefs that prevented each child from being immunized for Hepatitis B. The Schoolchildren did not belong to any recognized religion that had as one of its tenets opposition to immunization for Hepatitis B. We, like the district courts, assume for the purposes of our analysis that the Schoolchildren held sincere religious beliefs against Hepatitis B vaccination. In Case No. 02-3035 the Schoolchildren argued that the religious beliefs exemption violated the Establishment Clause of the First Amendment by permitting exemptions only for beliefs associated with a recognized religion. They also argued that the underlying immunization requirement violated their Equal Protection and Due Process rights under the Fourteenth Amendment. The district court accepted the Schoolchildren's arguments regarding the Establishment Clause challenge, but held the religious beliefs exemption severable. The district court then rejected the Schoolchildren’s Equal Protection and Due Process challenges to the underlying immunization requirement, finding that the Supreme Court had repeatedly ruled such requirements permissible. See Zucht v. King, 260 U.S. 174, 176-77 (1922); Jacobson v. Massachusetts, 197 U.S. 11, 27-29 (1905). Accordingly, the district court preserved the immunization requirement but severed the exemption. -6-  Noting the hollow nature of the Schoolchildren's victory, the district court stated: Our holding does not afford relief of any real value to the Plaintiff because his daughter remains subject to receiving the required shots as a condition of attending school within the state of Arkansas. This decision will also be of understandable concern to those who previously enjoyed the immunization exemption as adherents or members of a recognized church or religious denomination. However, the recourse of both groups is to communicate their concerns to the Arkansas Legislature, for it is within the province of the legislature and not this Court to enact a religious exemption provision that comes within constitutional boundaries. In Case No. 02-3104, the Schoolchildren brought suit against the Officials and School Districts. The district court adopted the analysis of the earlier opinion and, in addition, set forth a separate analysis to conclude that the religious beliefs exemption was unconstitutional and severable. The district court rejected the Schoolchildren's argument that the First Amendment’s Free Exercise Clause demanded a compelling interest analysis of the compulsory immunization requirement. Instead, the district court found that the statute was a neutral statute of general applicability that did not target religious beliefs. The district court also rejected the argument that other constitutional rights, such as, inter alia, a parent's right to control a child's education, reinforced the underlying Free Exercise Rights challenge and mandated the application of compelling interest review under a Hybrid Rights analysis. See, e.g., Employment Div., Oregon Dep’t of Human Res. v. Smith, 494 U.S. 872, 881 (1990) (discussing the application of compelling interest review in cases that involve alleged First Amendment violations in combination with other alleged constitutional violations). Finally, the district court rejected a Substantive Due Process challenge under the Fourteenth Amendment in which the Schoolchildren alleged that the right to refuse medical treatment was a fundamental liberty interest that mandated compelling interest review of the compulsory immunization statute. -7-  In Case No. 02-3094, the Schoolchildren brought suit against the Officials and the School Districts and argued issues similar to those described above. In addition, the Schoolchildren argued that because the compulsory immunization statute provided individualized exemptions for secular purposes, such as medical exigencies, a general religious exemption was necessary to avoid a Free Exercise violation. The district court rejected these arguments. Finally, Case No. 02-3195 involves a cross-appeal from two of the School Districts, the Morningstar and Lake Hamilton School Districts. The Morningstar and Lake Hamilton School Districts moved for dismissal arguing that they were involved in no justiciable case or controversy with the Schoolchildren. Pointing to the fact that the relevant Arkansas statutes and rules provide for criminal sanctions against school officials who fail to enforce the immunization requirements, the Morningstar and Lake Hamilton School Districts characterized themselves as disinterested bystanders caught in the crossfire between the Schoolchildren and the Officials. See Ark. Code Ann. § 6-18-702(c)(2)(B) (2000) (“Any school official, parent, or guardian violating the regulations shall be subject to the penalties imposed herein.”); Id. § 6-18-702(e) (2000) (“any person found guilty of violating the provisions of this section or the regulations promulgated by the State Board of Education or the division for the enforcement hereof shall be guilty of a misdemeanor.”). The district court rejected the motion to dismiss, finding that the Lake Hamilton and Morningstar School Districts were proper parties to the litigation. After obtaining jurisdiction, we entered a temporary stay to permit the non- immunized Schoolchildren to attend school pending resolution of their appeals. After oral arguments, we noted that the Schoolchildren had followed the district court’s suggestion and communicated their concerns to the Arkansas legislature. As a result, the Arkansas legislature had amended the exemption portion of the statute to omit reference to “recognized” religions and to provide broader exemptions based on -8- “religious or philosophical beliefs.” Id. § 6-18-702 (d)(4)(A) (2003).4 It appeared, 4 Ark. Code Ann. § 6-18-702 (d)(4) provides: (A) The provisions of this section shall not apply if the parents or legal guardian of that child object thereto on the grounds that immunization conflicts with the religious or philosophical beliefs of the parent or guardian. (B) The parents or legal guardian of the child shall complete an annual application process developed in the rules and regulations of the Department of Health for medical, religious, and philosophical exemptions. (C) The rules and regulations developed by the Department of Health for medical, religious, and philosophical exemptions shall include, but not be limited to: (i) A notarized statement requesting a religious, philosophical, or medical exemption from the Department of Health by the parents or legal guardian of the child regarding the objection; (ii) Completion of an educational component developed by the Department of Health that includes information on the risks and benefits of vaccination; (iii) An informed consent from the parents or guardian that shall include a signed statement of refusal to vaccinate based on the Department of Health’s refusal-to-vaccinate form; and (iv) A signed statement of understanding that: (a) At the discretion of the Department of Health, the unimmunized child or individual may be removed from day care or school during an outbreak if the child or individual is not fully vaccinated; and -9- however, that the broadened exemption was not yet in force because the Arkansas Department of Health had not passed necessary implementing regulations and the amended statute specifically prohibited the granting of exemptions prior to passage of the implementing regulations. See Id. § 6-18-702 (d)(4)(D). Accordingly, it was not clear whether any Schoolchildren would be excluded from school in the absence of our temporary stay. We directed the parties to submit supplemental briefs to address whether the anticipated availability of a broadened exemption mooted the underlying challenges to the immunization requirement. Subsequently, the Arkansas Department of Health passed the necessary implementing regulations.5 No claims under the newly amended exemption are before the court at this time, and no Schoolchildren claim to have been (b) The child or individual shall not return to school until the outbreak has been resolved and the Department of Health approves the return to school. (D) No exemptions may be granted under this subdivision (d)(4) until the application process has been implemented by the Department of Health and completed by the applicant. 5 Rules and Regulations Pertaining to Immunization Requirements, § IV(A), (C) and (D), slip at 4-5, at http://www.healthyarkansas.com/rules_regs/immunization _requirements_2003.pdf (promulgated in part under the authority of Ark. Code Ann. § 6-18-702, signed by Governor Mike Huckabee on July 31, 2003). The relevant provisions of the new exemption requirement require religious and philosophical objectors to complete an annual application, sign a notorized statement claiming conflict with religious or philosophical beliefs, complete an educational component regarding the risks and benefits of vaccination, and sign a statement of informed consent for the exclusion of a non-immunized child from school in the event of an outbreak. -10- denied the benefit of the new exemption under the amended statute and the new, implementing regulations. II. Analysis We first address the basic question of any mootness analysis: whether the plaintiffs still hold a personal interest in the outcome of the action or whether changed circumstances already provide the requested relief and eliminate the need for court action. Next we address exceptions to the mootness doctrine, namely, whether the controversy of the present cases is one that is likely to recur but evades review and whether the Arkansas legislature’s amendment of the statute is merely a voluntary cessation of challenged conduct that is insufficient to protect the Schoolchildren on an ongoing basis. Finally, we do not address the Schoolchildren’s newly raised challenges to certain procedural requirements of the new statute and regulations because such challenges are not ripe for review. A. Mootness “Under Article III of the Constitution, federal courts ‘may adjudicate only actual, ongoing cases or controversies.’” National Right to Life Political Action Comm. v. Connor, 323 F.3d 684, 689 (8th Cir. 2003) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990)). Various doctrines, including the doctrine of mootness, provide the tools used to determine whether a plaintiff presents a justiciable case or controversy. Our court has stated: The Supreme Court has repeatedly described the mootness doctrine as “the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 538 U.S. 167, 189 (2000) (citations omitted). Thus, “[w]e do not have jurisdiction over -11-  cases in which ‘due to the passage of time or a change in circumstances, the issues presented . . . will no longer be ‘live’ or the parties will no longer have a legally cognizable interest in the outcome of the litigation.’” Van Bergen v. Minnesota, 59 F.3d 1541, 1546 (8th Cir. 1995) (quoting Arkansas AFL-CIO v. FCC, 11 F.3d 1430, 1435 (8th Cir. 1993) (en banc)). National Right to Life Political Action Comm., 323 F.3d at 691. The first question we address, then, is whether the current litigation still presents to the Schoolchildren an opportunity for redress or whether the Schoolchildren have received the entirety of their requested relief from the Arkansas legislature and, therefore, no longer possess a personal interest in the litigation. In each of the appealed cases, the Schoolchildren sought an exemption to allow them to attend public school in Arkansas without receiving immunization against Hepatitis B. Review of the amended immunization statute and its implementing regulations make clear that the statutory exemption now available to all the individual Schoolchildren provides precisely this relief. The Schoolchildren point to no other relief that they requested in the lower courts. Instead, they argue that an exception to the mootness doctrine applies and that we must address the merits of their cases to eliminate the risk that Arkansas might later repeal the newly enacted exemption provision. Further, they argue that the new exemption provision itself is unconstitutional because it discriminates against religious objectors and imposes undue burdens through the exemption application process.6 These arguments, however, do not speak to the underlying issue of mootness. Looking, as we must, at the relief requested and the scope of the relief made available by the Arkansas 6 The Schoolchildren also argued against mootness on the grounds that, at the time of supplemental briefing, the implementing regulations were open for comment and, therefore, not yet effective. This argument, however, was transitory and became irrelevant on July 31, 2003 when the governor of Arkansas signed the implementing regulations. -12- legislature, and finding no further relief that might be appropriate or available, it is clear that the Schoolchildren no longer present a live case or controversy. Their claims are moot. B. Exceptions to Mootness Notwithstanding this finding of mootness, we may still decide a case on its merits if the controversy in the case is “capable of repetition yet evad[es] review.” Arkansas AFL-CIO v. F.C.C., 11 F.3d 1430, 1435 (8th Cir. 1993) (en banc). One condition that must exist before this exception applies is “a reasonable expectation that the same complaining party will be subject to the same action again.” Van Bergen v. Minnesota, 59 F.3d 1541, 1547 (8th Cir. 1995). The Schoolchildren argue that this exception applies because Arkansas voluntarily ceased the challenged action when it amended the immunization statute, and, therefore, might repeal the new exemption provision at any time if not prohibited from doing so by court order. In advancing this argument, however, the Schoolchildren speculate as to a mere theoretical possibility. A speculative possibility is not a basis for retaining jurisdiction over a moot case. Id. (“The party need not show with certainty that the situation will recur, but a mere physical or theoretical possibility is insufficient to overcome the jurisdictional hurdle of mootness.”). Review of the facts makes clear the speculative nature of the Schoolchildren’s argument. The Arkansas legislature promptly acted to provide a broadened exemption for philosophical and religious objectors as well as objectors who claimed medical necessity. The legislature took this action even though the outstanding district court decisions held the existing statute constitutional even without a religious exemption. The legislature took this action not only to protect the Schoolchildren, but also to protect additional children not involved in this litigation who had received exemptions under the earlier, unconstitutional exemption provision. These additional children, like the Schoolchildren, would have been subject to exclusion from school -13- under the district courts’ decisions. Simply put, the legislature acted quickly for the benefit of the Schoolchildren and other citizens of Arkansas to replace the stricken exemption provision with an exemption it believed would pass constitutional muster. In providing relief for philosophical objectors as well as eliminating the requirement that religious objectors belong to a “recognized religion,” the legislature provided relief greater than that requested in the present litigation. The Department of Health also acted quickly by passing regulations before the start of a new school year. In sum, we find nothing to suggest a likelihood that Arkansas might repeal its exemption or that Arkansas voluntarily ceased the challenged behavior merely to thwart our jurisdiction. With no “reasonable expectation” that the Schoolchildren will again face forced immunization for Hepatitis B without the possibility of exemption, the exception to the mootness doctrine does not apply. The Schoolchildren argue not only that the general mootness exception applies, but also that, because the state voluntarily altered its own laws, the specialized exception for voluntary cessation applies. City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982) (“It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.”). This exception, however, is merely a specialized form of the general exception discussed above and provides no basis for retaining jurisdiction in the present case. “[T]he standard we have announced for determining whether a case has been mooted by the defendant’s voluntary conduct is stringent: ‘a case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’” Young v. Hayes, 218 F.3d 850, 852 (8th Cir. 2000) (quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968)). As explained above, there is no basis on which to conclude that the challenged behavior–mandatory immunization against Hepatitis B without the availability of an exemption–might reasonably be expected to recur. -14-  Finally, we reject the Schoolchildren’s new challenges to the procedural requirements of the amended legislation and the accompanying implementing regulations. These requirements include an annual exemption application, submission of a notorized statement to request the exemption, completion of an educational component that “includes information on the risks and benefits of vaccination,” submission of a signed informed consent statement regarding refusal to vaccinate, and submission of a signed statement authorizing the Department of Health to exclude non-immunized children from school during the presence of an outbreak of a covered disease. See Ark.Code Ann. §6-18-702(4)(A) (2003). The Schoolchildren conceded during the course of these proceedings that a state may exercise its police power to exclude non-immunized children from public schools during an actual emergency, such as an outbreak. Further, none of the procedural requirements of the amended statute and new regulations empowers Officials to assess the merits of the Schoolchildren’s beliefs, and the requirements for religious objectors mirror those for philosophical objectors. Finally, the basis of their challenges to the educational components and application requirements are not entirely clear as these requirements apply equally to philosophical objectors as well as religious objectors. We need not resolve these challenges, however, because any challenges to the procedural requirements are not yet ripe. To the extent the Schoolchildren challenge the educational component or other aspects of the application process under the new exemption, their claims are speculative and involve no concrete injury–no Schoolchildren have applied for nor been denied exemption under the new statute. The purpose of the ripeness doctrine is “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbot Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). Were we to address the newly enacted exemption statute and regulations before first giving the Department of Health the opportunity to work with the -15- Schoolchildren, we would inappropriately and prematurely entangle the court in an abstract disagreement. In Case Nos. 02-3035, 02-3094, 02-3104, and 02-3195 we dismiss all pending claims as moot and all newly raised challenges as unripe for review. ______________________________ -16- 

274 Kan. 939 (2002) 58 P.3d 716 STATE OF KANSAS, Appellee, v. JAMES McINTOSH, Appellant. No. 86,386. Supreme Court of Kansas. Opinion filed December 6, 2002. *940 Paige A. Nichols, assistant appellate defender, argued the cause, and Reid T. Nelson, assistant appellate defender, Steven R. Zinn, deputy appellate defender, and Jessica R. Kunen, chief appellate defender, were with her on the briefs for appellant. Keith E. Schroeder, district attorney, argued the cause, and Thomas R. Stanton, deputy district attorney, and Carla J. Stovall, attorney general, were with him on the briefs for appellee. The opinion of the court was delivered by LOCKETT, J.: Defendant petitions for review from the Court of Appeals' affirmance of his convictions of rape, aggravated indecent liberties with a child, and two counts of aggravated criminal sodomy and his sentence of 316 months' imprisonment. Defendant claims (1) the trial court erred in finding that he failed to establish a compelling reason to require the victim to submit to an independent psychological examination; (2) the Court of Appeals erred in finding that a district court has no authority to order an independent physical examination of a victim in a criminal case; and (3) the trial court erred in admitting expert testimony. The facts as set forth in the Court of Appeals' opinion provide sufficient background in this case. Further facts are incorporated in the opinion as necessary. "McIntosh lived with Zoe D., his girlfriend, from December 1995 until July 1999. After McIntosh moved out, Zoe's daughter, A.D., told her mother that McIntosh had sexually abused her. Zoe reported the sexual abuse to the police. "A.D. was interviewed by Detective Eric Buller, but the interviews were not recorded. A.D. told Detective Buller that McIntosh raped her using his finger and penis and that he anally and orally sodomized her. A.D. stated that the incidents occurred in several different locations throughout their residence and in the *941 family van. A.D. also told the detective that the sexual abuse began when McIntosh moved into the house when A.D. was 7 years old and ended when McIntosh moved out of the house when she was 10 years old. "McIntosh was charged [in a complaint attested to by the prosecuting attorney] with five counts of rape, nine counts of aggravated criminal sodomy, five counts of aggravated indecent liberties with a child, and two counts of aggravated indecent solicitation of a child. Two counts of aggravated criminal sodomy and two counts of aggravated indecent solicitation of a child were dismissed at the preliminary hearing. Single counts of aggravated criminal sodomy and rape were dismissed by the State after it conceded that it could not prove that those offenses occurred in Reno County, Kansas. A jury convicted McIntosh of two counts of aggravated criminal sodomy and single counts of rape and aggravated indecent liberties with a child. McIntosh was sentenced to 316 months' imprisonment." State v. McIntosh, 30 Kan. App.2d 504, 505-06, 43 P.3d 837 (2002). The Court of Appeals affirmed McIntosh's convictions. McIntosh filed a timely petition for review. We granted review solely upon the three issues briefed to this court. See K.S.A. 20-3018(c); Supreme Court Rule 8.03(a)(5)(c) (2001 Kan. Ct. R. Annot. 56). DISCUSSION Prior to trial, McIntosh filed a motion requesting both a physical and psychological examination of the victim, A.D. The trial judge denied the motion. Psychological Examination A trial court's denial of a defendant's motion to compel the victim, who is not a party in the State's criminal action but is often referred to as the complaining witness or complainant, in a sex abuse case to undergo a psychological examination is reviewed for abuse of discretion. See State v. Gregg, 226 Kan. 481, 489, 602 P.2d 85 (1979); State v. Bourassa, 28 Kan. App.2d 161, 164, 15 P.3d 835 (1999), rev. denied 269 Kan. 934 (2000). The party who asserts the court abused its discretion bears the burden of showing such abuse. State v. Thompkins, 271 Kan. 324, 334-35, 21 P.3d 997 (2001). "Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, it cannot be said that the trial court abused its discretion." State v. Doyle, 272 Kan. 1157, 1168, 38 P.3d 650 (2002). *942 In Gregg, this court was faced, as a matter of first impression, with whether the trial court abused its discretion in denying the defendant's motion for the victim in a criminal case involving a sex crime to submit to a psychiatric examination. The victim in Gregg was an 8-year-old girl who was the sole witness to corroborate the charges against the defendant. The Gregg court first looked to other jurisdictions for guidance and noted that other jurisdictions fell into one of the following three categories: (1) The court has no inherent power to compel a psychiatric examination; (2) the defendant has an absolute right to an order compelling a psychiatric examination; and (3) the trial judge has the discretion to order a psychiatric examination of a complaining witness where compelling reason is shown. The court noted that the minority view was that the court had no inherent power to compel a psychiatric examination, while the majority of jurisdictions recognized that the trial judge has discretion to order a psychiatric examination when a compelling reason exists. 226 Kan. at 485-87. The Gregg court adopted the majority view, stating: "We, too, adopt the `middle ground' and hold a trial judge has the discretion to order a psychiatric examination of the complaining witness in a sex crime case if the defendant presents a compelling reason for such examination. Even if a trial court finds a compelling reason for ordering the psychiatric examination, the further safeguard as to its admissibility remains." 226 Kan. at 489. The Gregg court, in finding that the trial court did not abuse its discretion in denying the defendant's motion for psychiatric examination of the victim, relied upon the fact that the defendant in that case failed to put forth evidence as to (1) the victim's mental instability; (2) the victim's lack of veracity; (3) the victim's having asserted similar charges against other men that were later proven to be false; or (4) other reasons why the victim should be required to submit to such an examination. 226 Kan. at 490. In reaching its decision, the Gregg court quoted in length from Ballard v. Superior Court, 64 Cal.2d 159, 49 Cal. Rptr. 302, 410 P.2d 838 (1966) (statutorily overruled by Cal. Penal Code § 1112 [West 1985]): "`We therefore believe that the trial judge should be authorized to order the prosecutrix to submit to a psychiatric examination if the circumstances indicate a *943 necessity for an examination. Such necessity would generally arise only if little or no corroboration supported the charge and if the defense raised the issue of the effect of the complaining witness' mental or emotional condition upon her veracity. Thus, in rejecting the polar extremes of an absolute prohibition and an absolute requirement that the prosecutrix submit to a psychiatric examination, we have accepted a middle ground, placing the matter in the discretion of the trial judge.' 64 Cal.2d at 17[6]-177, []." Gregg, 226 Kan. at 489. See State v. Rucker, 267 Kan. 816, 822, 987 P.2d 1080 (1999) (recognized trial judge has discretion to order psychological examination of victim in sex crime case if defendant presents compelling reason); State v. Lavery, 19 Kan. App.2d 673, Syl. ¶ 1, 877 P.2d 443, rev. denied 253 Kan. 862 (1993); see Annot, 45 A.L.R. 4th, 310. Unlike the California Legislature, the Kansas Legislature has not statutorily overruled the 22-year-old decision in Gregg. Thus, it can be said that the legislature approves of the court ordering such examinations. Cf. In re Adoption of B.M.W., 268 Kan. 871, 881, 2 P.3d 159 (2000) (when legislature fails to modify statute to avoid standing judicial construction of statute, legislature is presumed to agree with court's interpretation). The trial court in this case found: "Here, the defense hasn't put on any evidence or any reason whatsoever that would get to a level of compelling. The defense is more than free at trial to attack the findings of Horizons [John Theis], and they are more than free to attack Dr. Glover's examination. But the fact that this defendant simply wants to have those findings verified is not a compelling reason to have a little eleven-year-old girl subjected to a psychological exam and particularly to a physical exam." Regarding this issue, the Court of Appeals stated: "Here, McIntosh argues that an independent psychological examination was required because a State witness completed a sexual abuse evaluation of A.D. and that he wanted his own expert to evaluate A.D. Specifically, McIntosh wanted an independent psychological examination of A.D. to determine whether A.D. suffered from post traumatic stress disorder as found by the State's witness. In addition, McIntosh wanted to ascertain the effect of the repeated questioning of A.D.'s memory of the alleged events. The trial court denied McIntosh's motion for a psychological examination of A.D. after finding that none of the factors cited by the Gregg court were argued by McIntosh. "We find that the trial court correctly determined that McIntosh failed to establish a compelling reason for A.D. to submit to an independent psychological examination. At the hearing on the motion for a psychological examination, McIntosh *944 did not argue that A.D. was mentally unstable, that she lacked veracity, or that she had made false charges against other men. Moreover, the grounds argued by McIntosh did not constitute a compelling reason to require an independent psychological examination. McIntosh could have attacked the finding of post traumatic stress disorder without conducting an independent examination of A.D. Similarly, McIntosh could have cross-examined the State's witnesses concerning the psychological evidence as to the effect of repeated questioning of A.D.'s recollection of the alleged incidents. As a result, we find that McIntosh has failed to carry his burden to show that the trial court erred in denying his motion for an independent psychological evaluation of A.D." McIntosh, 30 Kan. App.2d at 507-08. Before this court, McIntosh asserts the Court of Appeals erred because he did in fact state compelling reasons for an independent psychological examination, including mental instability and lack of veracity of the victim. McIntosh specifically cites to A.D.'s bedwetting, diagnosis of attention-deficit disorder for which she never took her medication, behavioral problems at school, and resentment for the fact her biological father was not around, that were present prior to McIntosh's moving into the home, as showing A.D.'s mental instability. In support of his claim that A.D. lacked veracity, McIntosh points out: (1) A.D. did not report her allegations until 2 months after McIntosh moved out of the home; (2) A.D. demonstrated friendly feelings toward McIntosh before and after the alleged abuse; (3) A.D. gave implausible, inconsistent, and continually inflated accounts of what allegedly happened between herself and McIntosh; and (4) the medical evidence was inconsistent with A.D.'s complaints of anal sodomy. Additionally, McIntosh claims that because A.D. was subjected to multiple psychological examinations, independent examination was necessary to determine (1) the validity of the State's examining experts' conclusions and (2) whether A.D.'s recollections had been altered by the multiple previous interviews. Kansas courts have addressed similar assertions in other cases involving child victims of sexual abuse. See Rucker, 267 Kan. 822-23, (no abuse of discretion in denying defendant's motion for independent psychological examination where defendant contended victim had been under psychological care related to alleged acts, nature of victim's testimony was critical to defense, victim had psychological *945 motivations for making the charge, and evidence would be relevant to issue of credibility of victim); Gregg, 226 Kan. at 490 (no abuse of discretion where no compelling reason for independent psychiatric examination was shown or alluded to; motion was "clearly fishing expedition embarked upon in the hope something damaging and admissible in the trial would be unearthed"); Lavery, 19 Kan. App.2d 673 (no abuse of discretion in denying defendant's motion for independent psychiatric examination where defendant contended and put forth evidence that victim was inappropriately exposed to sex and was using knowledge to falsely accuse, was unsupervised most of the summer, used foul language, was possibly molested by another man, and had told false story about killers in the school basement to neighborhood girls; trial judge had also noted there was episode of victim "`playing doctor'" with neighborhood children); State v. Blackmore, 15 Kan. App.2d 539, 542, 811 P.2d 54, affd in part and rev'd in part 249 Kan. 668, 822 P.2d 49 (1991) (no abuse of discretion in denial of defendant's motion for independent psychiatric examination where victim had been taken to health center for treatment of behavioral problems and had problematic behavior that consisted of hyperactivity, sleeplessness, bowel movements in his pants, and gagging himself at night until he vomited); cf. Bourassa, 28 Kan. App.2d at 167 (abuse of discretion in denying defendant's motion for independent psychological examination where defendant proffered evidence of victim's mental instability, which involved recent charge that her father had sexually molested her, that she had mutilated two kittens the previous summer, and that she had tendency to soil herself; victim was taking Prozac and undergoing mental health counseling for behavioral disorders at time of motion; and victim's sister contradicted victim's testimony as to abuse). The October 1999 psychological examination of A.D. performed by John Theis, a licensed clinical social worker, was videotaped and provided to the defense. McIntosh was able to cross-examine Theis and other State's witnesses who interviewed A.D. In addition, McIntosh had the opportunity to put forth his own experts to testify as to whether Theis' conclusions were accurate. We note that McIntosh did call Robert Barnett, a licensed clinical psychologist, as *946 a witness to demonstrate to the jury that children are easily influenced during the interview process; that the most important interview is the first interview, which in this case was not recorded; that repeat interviews can affect the accuracy of the information conveyed; and that it is well understood that there are no behaviors or groups of behaviors that are exhibited by sexually abused children that are not also exhibited by children who are not abused. The testimony of the individuals who interviewed and counseled A.D. did not reflect that there was an attempt to influence A.D.'s account of the events. In general, A.D.'s accounts of the abuse were consistent throughout all interviews and at trial. After reviewing the record, we affirm the Court of Appeals' finding that the trial court did not abuse its discretion in finding that McIntosh did not establish a compelling reason for A.D. to submit to an independent psychological examination. Physical Examination In his motion requesting a physical examination of the victim, McIntosh relied for support upon Gregg, 226 Kan. 481, and K.S.A. 2001 Supp. 22-3212. At the hearing on the motion, defense counsel argued that the physical examination conducted by Dr. Reagan Glover was not "of a definite character to say that [A.D.] was sexually abused." Defense counsel noted that there was no photographic record of the injuries sustained to A.D. Defense counsel asserted that under such circumstances McIntosh's due process right to challenge the State's physical examination evidence of the victim required an independent examination. The State noted that the defense failed to state the relevance of a physical examination conducted more than a year after the cessation of abuse. As stated previously, the trial court, relying upon Gregg, found that McIntosh also failed to meet his burden of establishing a compelling reason for an independent physical examination. After his conviction, McIntosh asserted in his motion for judgment of acquittal or new trial that the trial court's denial of his motion for physical examination denied him the opportunity to confirm or refute the findings of Dr. Glover. The motion was denied by the trial judge. *947 Before the Court of Appeals, McIntosh claimed the trial court's denial of an independent examination of the victim infringed upon his due process rights under the United States and Kansas Constitutions. For support, McIntosh relied upon the Kansas Code of Civil Procedure, specifically K.S.A. 2001 Supp. 60-235, and Turner v. Com., 767 S.W.2d 557 (Ky. 1988). Furthermore, McIntosh asserted the standard for ordering the examination was "good cause" rather than "compelling reason." The State argued that K.S.A. 2001 Supp. 60-235 applied only to civil matters. The State maintained that the issue was not a constitutional question as McIntosh claimed, but an evidentiary ruling that is reviewed for abuse of discretion. The State asserted that following the reasoning set forth in Gregg regarding psychiatric examinations, McIntosh failed to set forth a compelling reason for an independent physical examination. The Court of Appeals agreed with the State and held that K.S.A. 2001 Supp. 60-235 does not apply in criminal cases. McIntosh, 30 Kan. App.2d at 507. The Court of Appeals also determined that the decision of the trial court was subject to review for abuse of discretion because it involved an evidentiary ruling and not a violation of a constitutional right. The Court of Appeals did not, however, address the trial court's denial of McIntosh's motion for independent physical examination based upon the rationale for a psychiatric examination under Gregg. Instead, the Court of Appeals examined the statutes and determined that the district court did not have the authority to order an independent physical examination under K.S.A. 2001 Supp. 22-3212, which governs discovery in a criminal action and provides: "(a) Upon request, the prosecuting attorney shall permit the defendant to inspect and copy or photograph the following, if relevant:.... (2) results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, or copies thereof, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney.... "(b) Upon request the prosecuting attorney shall permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies, or portions thereof, which are or have been within the *948 possession, custody or control of the prosecution, and which are material to the case and will not place an unreasonable burden upon the prosecution." In reaching its conclusion, the Court of Appeals relied upon State v. Dressel, 241 Kan. 426, 738 P.2d 830 (1987). McIntosh, 30 Kan. App.2d at 507. We note that the lack of jurisdiction was not argued to the district court, nor was the Dressel case cited by either party on appeal. In Dressel, 241 Kan. 426, this court was faced with whether a trial court had the authority under K.S.A. 22-3212 to compel discovery from the complaining witness in a criminal case. The Dressel court concluded it did not. In Dressel, attempted felony theft and felony theft was alleged by Cargill, Inc. (Cargill). The defendants sought discovery of certain items from Cargill and sanctions for destruction of evidence. The district court noted that Cargill was not a party to the criminal case and, therefore, was outside its jurisdiction. The court denied the defendants' discovery motions and refused to impose sanctions. The court concluded that the defendants had the ability to obtain relevant records of a nonparty by use of subpoena. On appeal, the Court of Appeals held that because Cargill had hired an attorney to assist in the prosecution pursuant to K.S.A. 19-717 and this attorney had knowledge and control of the items requested by the defendant, the items were subject to discovery under K.S.A. 22-3212. On petition for review, this court reversed the Court of Appeals and affirmed the trial court, noting that because Cargill was not a party to the criminal prosecution, the trial court did not have the authority to compel discovery from Cargill under K.S.A. 22-3212. 241 Kan. at 432. The court concluded that an attorney employed under K.S.A. 19-717 to assist the prosecutor is bound by K.S.A. 22-3212 to turn over items subject to K.S.A. 22-3212 that are within that attorney's possession, custody, or control. 241 Kan. at 434. In rendering its decision, the Dressel court stated: "Failure to impose the discovery mandates of K.S.A. 22-3212 on a complaining witness does not foreclose discovery; it merely forecloses one method of discovery. Criminal defendants have the right to subpoena witnesses and to compel the production of documents. This right is statutorily provided by K.S.A. 22-3214 and *949 was explicitly recognized by this court in State v. Humphrey, 217 Kan. 352, 361, 537 P.2d 155 (1975)." 241 Kan. at 432. When determining that the district court did not have jurisdiction to subject the victim to a physical examination in this case, the Court of Appeals noted that K.S.A. 2001 Supp. 22-3212 fails to provide that an independent physical examination may be ordered but specifically provides for numerous others items that are subject to discovery. Therefore, pursuant to the maxim "expressio unius est exclusio alterius, which means `the inclusion of one thing implies the exclusion of another,'" the Court of Appeals held K.S.A. 2001 Supp. 22-3212 precluded the district court from ordering an independent physical examination of the victim. McIntosh, 30 Kan. App.2d at 510. This reasoning assumes that K.S.A. 2001 Supp. 22-3212 sets forth every possible item subject to discovery in a criminal case. The Court of Appeals failed to note that this court specifically recognized the contrary in State v. Davis, 266 Kan. 638, Syl. ¶ 1, 972 P.2d 1099 (1999). The Davis court was faced with determining whether the district court had the authority to order the county attorney to mail documents to the defense that were clearly subject to discovery and under the control of the State. K.S.A. 2001 Supp. 22-3212 provides that the prosecutor must permit the defense to "inspect and copy, or photograph" the documents, but does not specifically provide that the county attorney must mail the documents. The Davis court held that the district court had the discretionary authority to order the county attorney to mail the documents. In reaching its decision, the Davis court observed: "K.S.A. 22-3212 is based on Fed. R. Crim. Proc. 16. See State v. Jones, 209 Kan. 526, 528, 498 P.2d 65 (1972). The Federal Advisory Committee, in its notes on Rule 16, states: `[Rule 16] is intended to prescribe the minimum amount of discovery to which the parties are entitled. It is not intended to limit the judge's discretion to order broader discovery in appropriate cases. For example, subdivision (a)(3) is not intended to deny a judge's discretion to order disclosure of grand jury minutes where circumstances make it appropriate to do so.' Federal Advisory Committee's Notes on 1974 Amendment on Rule 16. *950 "Federal courts interpreting Rule 16 have held that it is within the sound discretion of the district judge to make any discovery order that is not barred by higher authority. See United States v. Campagnuolo, 592 F.2d 852, 857 n.2 (5th Cir. 1979); United States v. Sawyer, 831 F. Supp. 755, 757 (D. Neb. 1993)." Davis, 266 Kan. at 642-43. See also United States v. Richter, 488 F.2d 170, 173 (1973) ("The Federal Rules of Criminal Procedure are intended to constitute a comprehensive procedural code for criminal cases in the federal courts. But even the rules themselves do not purport to set outer limits of the power of the court."). The text of K.S.A. 2001 Supp. 22-3212 is not all-inclusive. The fact submission to physical examinations is not specifically provided for under the statute does not mean the district court does not have the authority to order the examination in a particular case. Therefore, the Court of Appeals erred in relying upon K.S.A. 2001 Supp. 22-3212 to divest the district court of the authority to order a physical examination. McIntosh's best argument is that the Court of Appeals' decision is inconsistent with this court's decision in Gregg. Although the decision and reasoning of Gregg involved a psychiatric examination, Gregg is the logical point at which to begin in determining whether a district court in this state has the authority to order a victim in a sex crime case to submit to a physical examination upon a defendant's request. The reasoning of other jurisdictions that have addressed the issue of the more intrusive physical examination is also relevant. In State v. Barone, 852 S.W.2d 216 (Tenn. 1993), the highest court in Tennessee was faced for the first time with this exact issue. Barone was convicted of two counts of aggravated rape and one count of aggravated sexual battery involving his minor daughter. On appeal, Barone contended the trial court erred in denying his motion to have the victim submit to a physical examination. The victim had been examined previously, just shortly after the abuse was reported. In rendering its decision that the trial court had the authority to order a victim to submit to a physical examination, the Barone court stated: *951 "We begin our analysis by observing that, as a matter of background, `the common law does not authorize a court to require the physical examination of a witness, because discovery in criminal cases was unknown to the common law.' State v. Smith, 260 So.2d 489, 491 (Fla. 1972). Nor does there exist in Tennessee a statutory right to a compelled physical examination of a witness by a criminal defendant, either in the Tennessee Rules of Criminal Procedure or otherwise. It is also true that there are several state courts that, in the absence of such a statutory right, have held there is no constitutional or other basis for defense-demanded physical examinations of alleged sex-offense victims. See State v. Smith, 260 So.2d 489, 489-90 (Fla. 1972); State v. Holmes, 374 N.W.2d 457, 459 (Minn. App. 1985); State, ex rel. Wade v. Stephens, 724 S.W.2d 141, 143 (Tex. Crim. App. 1987). "There are no reported cases in Tennessee addressing this issue. However, there are a number of Tennessee cases dealing with a defendant's right to request a psychological examination of sex-abuse complainants. The analysis to be followed by a trial court in ruling on that type of request is set out in Forbes v. State, 559 S.W.2d 318, 321 (Tenn. 1977), where this Court followed the general rule when it stated: "We hold that in any case involving a sex violation, the trial judge has the inherent power to compel a psychiatric or psychological examination of the victim, where such examination is necessary to insure a just and orderly disposition of the cause. Such power should be invoked only for the most compelling of reasons, all of which must be documented in the record. This discretion should be exercised sparingly.' "A number of state courts have determined that as in the case of psychological examinations, a trial court may exercise its discretion to order an involuntary physical examination of sex-abuse complainants when the defendant demonstrates a compelling reason for the examination. People v. Chard, 808 P.2d 351 (Colo. 1991); State v. DRH, 127 N.J. 249, 604 A.2d 89 (1992); State v. Ramos, 553 A.2d 1059 (R.I. 1989); State v. Delaney, 187 W. Va. 212, 417 S.E.2d 903 (1992). The decision of a trial court judge to grant or deny a motion for an independent physical examination should not be reversed on appeal absent a manifest abuse of discretion. Lanton v. State, 456 So.2d 873, 874 (Ala. Crim. App. 1984); 75 C.J.S. Criminal Law § 80 (1952). "State courts have adopted a number of approaches to determining whether an accused sex-offender is entitled to a compulsory physical examination of a complainant. First is the material assistance inquiry, which requires a physical examination when it could lead to evidence of material assistance to the defendant. See Turner v. Commonwealth, 767 S.W.2d 557 (Ky. 1988). Second is the compelling need inquiry, which balances the defendant's interest in the evidence against the burden the examination imposes upon the complainant. Some states include a factor-based balancing approach. See People v. Glover, 49 Ill.2d 78, 273 N.E.2d 367 (1971); State v. Ramos, 553 A.2d 1059 (R.I. 1989); State v. Garrett, 384 N.W.2d 617 (Minn. App. 1986). Third is the exculpatory approach, which allows a defendant a physical examination only when the evidence likely to be *952 obtained could absolutely bar his conviction. See People v. Nokes, 183 Cal. App. 3d 468, 228 Cal. Rptr. 119 (1986); State v. Hewett, 93 N.C. App. 1, 376 S.E.2d 467 (1989). Fourth is the medically deficient standard, which permits an examination only if the prosecutor's examination failed to conform to proper medical procedures. See State v. Drab, 546 So.2d 54 (Fla. Dist. Ct. App. 1989), rev. denied, 553 So.2d 1164 (Fla. 1989). See also Note, A Fourth Amendment Approach to Compulsory Physical Examinations of Sex Offense Victims, 57 U. Chi. L. Rev. 873 (1990). "Initially, we are satisfied that the Forbes rule of compelling need should be extended to physical examinations of sex-abuse complainants. We think the practice of granting such physical examinations should be engaged in with great care and only upon a showing of compelling need by the defendant. Other courts have observed, and we agree, that the highly intrusive nature of a physical exam raises the same concerns about emotional trauma, embarrassment, and intimidation to the child victim that are present with psychological examinations. People v. Chard, 808 P.2d 351, 355 (Colo. 1991). In addition, we think those concerns should be balanced against the likelihood of the examination producing substantial material evidence that will be beneficial to the defendant's case. Id. We recognize that there is a delicate balance to be struck, and that the critical inquiry is whether the evidence sought by the defendant is of such importance to his defense that it outweighs the potential for harm caused by the invasion of the complainant's privacy, including the prospect that undergoing a physical examination might be used for harassment of a prosecuting witness. See Turner v. Commonwealth, 767 S.W.2d 557, 559 (Ky. 1988)." 852 S.W.2d at 221-22. We note that the result in Barone is not unique; other jurisdictions have also reached similar conclusions. See State v. Chard, 808 P.2d 351, 357 (Colo. 1991); People v. Visgar, 120 Ill. App.3d 584, 587, 457 N.E.2d 1343 (1983); State v. D.R.H., 127 N.J. 249, 259-60, 604 A.2d 89 (1992); State v. Ramos, 553 A.2d 1059, 1062 (R.I. 1989);. However, there are other jurisdictions that refuse to recognize that a defendant could ever have the right to obtain an order for a victim to submit to a physical examination. See State v. Joyce, 97 N.C. App. 464, 467, 389 S.E.2d 136 (1990); State ex rel. Wade v. Stephens, 724 S.W.2d 141, 144-45 (Tex. App. 1987); Clark v. Commonwealth, 262 Va. 517, 521, 551 S.E.2d 642 (2001). Following the reasoning stated in Gregg and case law from other jurisdictions, we determine that where there is a compelling reason, the district court has the discretion to order a victim in a sex crime case to submit to an independent physical examination. We *953 note that it is important for district courts to recognize that the victim in a criminal case is not a party to the action. This court must now determine whether the district court abused its discretion in denying McIntosh's motion for independent physical examination. The factors from Gregg that establish a compelling reason for an independent psychological examination do not apply to the more intrusive physical examination. In addition, there is a notable distinction between psychological examiners and physical examiners. A psychological examiner is an expert witness specifically retained by the prosecution for the purpose of examining the victim. A physical examination, however, is usually conducted by a medical doctor and hospital staff. The standard of review over a trial court's decision to grant or deny a motion for discovery is abuse of discretion. See Davis, 266 Kan. at 643-44; Gregg, 226 Kan. at 489; Bourassa, 28 Kan. App.2d at 168. The Rhode Island Supreme Court set forth factors that a trial court should consider in determining whether to grant a defendant's motion for independent physical examination: "(1) the complainant's age, (2) the remoteness in time of the alleged criminal incident to the proposed examination, (3) the degree of intrusiveness and humiliation associated with the procedure, (4) the potentially debilitating physical effects of such examination, and (5) any other relevant considerations." Ramos, 553 A.2d at 1062. See also State v. Delaney, 187 W. Va. 212, 217, 417 S.E.2d 903 (1992) (in addition to factors set forth in Ramos, also consider emotional effects of examination on victim, probative value of examination to issue before court, and evidence already available for defendant's use). McIntosh argued the following reasons before the trial court as support for an independent physical examination being warranted: (1) Examination of Dr. Reagan Glover did not show sexual abuse was definite; (2) there was no photographic evidence of injuries sustained by A.D.; (3) independent examination was the best way to challenge the prosecution's evidence; (4) denial of the examination was a violation of due process; (5) defendant was denied the opportunity to challenge the evaluation of Dr. Glover; (6) Dr. Glover found no physical evidence to corroborate A.D.'s claim of *954 repeated anal sodomy; (7) A.D. delayed reporting the abuse until 2 months after McIntosh left the home; and (8) A.D.'s mother's animosity toward McIntosh was the source of A.D.'s allegations. Before the Court of Appeals, McIntosh took issue with the fact Dr. Glover was made aware of the purpose of the examination prior to conducting it and was guided through the examination by A.D.'s providing a history of the events. McIntosh cited for the first time to a study that concluded that a diagnosis is often affected and changed when a history of the examinee is given. Additionally, McIntosh cited studies and articles that he contended were are at odds with the testimony and conclusions of Dr. Glover. At trial, McIntosh did not present or attempt to present evidence to refute Dr. Glover's conclusions. The Court of Appeals noted in its decision that denying McIntosh an independent physical examination was not unfair because the objective results of the State's examination of A.D. were available through discovery, McIntosh could have cross-examined Dr. Glover on the results of the examination, and McIntosh had presented experts who had reviewed Dr. Glover's findings to refute those findings. McIntosh, 30 Kan. App.2d at 510-11. A.D. was 11 years old at the time of trial. The abuse was claimed to have begun within a couple of months of McIntosh moving into the home in December 1995. A.D. was 7 years old at the time. The abuse was alleged to continue until a couple of weeks before McIntosh moved out of the home in July 1999, when A.D. was 10 years old. The physical examination was performed on September 28, 1999. The complaint was filed against McIntosh in November of 1999, yet McIntosh failed to request an independent physical examination until September of 2000. Thus, a year passed between the first examination which occurred only 2 months after the cessation of the alleged abuse and McIntosh's request for a subsequent examination. McIntosh did not put forth an explanation for the delay, nor did he put forth any support to refute the natural assumption that signs of the physical abuse would be different, if not less evident, a year later. Requiring an 11-year-old victim to submit to a physical examination would undoubtedly be humiliating and traumatizing. McIntosh *955 attempts to downplay the humiliation and trauma that A.D. would experience by noting that A.D. has already been examined by Dr. Glover. This assertion is not convincing. Since the cessation of abuse, A.D. has undoubtedly begun to heal both physically and mentally. An additional physical examination could only serve as a setback to the healing process and should only be granted upon a showing of compelling reason. In a situation such as this, where there has already been a physical examination performed, the argument that a second physical examination is necessary must be especially compelling. Factors that a court must consider in determining whether to grant a defendant's motion for independent physical examination are (1) the victim's age; (2) the remoteness in time of the alleged criminal incident to the proposed examination; (3) the degree of intrusiveness and humiliation associated with the procedure; (4) the potentially debilitating physical and emotional effects of such examination; (5) the probative value of the examination to the issue before the court; (6) the evidence already available for the defendant's use; and (7) any other relevant considerations. The findings and testimony of the medical doctor who performed the prior physical examination for the State can, in most instances, be sufficiently challenged on cross-examination and through defense expert witness testimony. McIntosh had the burden of proving the trial court abused its discretion. See Thompkins, 271 Kan. at 334-35. McIntosh did not meet this burden. Thus, the trial court did not abuse its discretion in finding that McIntosh failed to put forth a compelling reason for A.D. to submit to an independent physical examination. Admission of Expert Witness Testimony McIntosh contends the trial court erred in admitting over objection the testimony of John Theis, a licensed clinical social worker, that A.D. exhibited behavioral patterns consistent with a child who had been sexually abused. Qualification of a witness as an expert and admission of expert witness testimony is within the broad discretion of the trial court. See State v. Heath, 264 Kan. 557, 573, 957 P.2d 449 (1998); State v. Rice, 261 Kan. 567, 589, 932 P.2d 981 (1997). *956 "Two requirements must be present before expert testimony is admissible at trial. First, the testimony must be helpful to the jury. Second, before expert scientific opinion may be received into evidence at trial, the basis of that opinion must be shown to be generally acceptable within the expert's particular scientific field." State v. Hodges, 239 Kan. 63, Syl. ¶ 1, 716 P.2d 563 (1986). Expert conclusions or opinions are inadmissible where the normal experiences and qualifications of lay persons serving as jurors permit them to draw proper conclusions from given facts and circumstances. State v. Colwell, 246 Kan. 382, 389, 790 P.2d 430 (1990). The trial judge allowed Theis to testify over McIntosh's objection. In denying McIntosh's motion for judgment of acquittal or new trial on this ground, the trial judge relied upon State v. Reser, 244 Kan. 306, 767 P.2d 1277 (1989). In Reser, this court addressed whether there was an adequate foundation to qualify a State's witness as an expert on symptoms consistent with child sexual abuse. The State's witness was a licensed clinical specialist with 12 years of experience in the area of mental health, had a master's degree in social work, and had worldwide recognition in the field of child sexual abuse. The witness testified that sexually abused children have common patterns of behavior resulting from the trauma, including failing to report the abuse immediately. The witness testified that it was her opinion that the victim exhibited behavior consistent with a child who had been sexually abused. The Reser court looked to other jurisdictions in which expert testimony regarding characteristics of sexually abused children had been held proper to provide helpful information to the jury and concluded that the expert was "imminently qualified" as an expert to testify as to common patterns of behavior resulting from child sexual abuse and that this victim had symptoms consistent with those patterns. 244 Kan. at 315. Before the Court of Appeals, McIntosh contended that there was no foundation for Theis' testimony that A.D. fit the profile of a sexually abused child. McIntosh acknowledged that the Reser court had specifically approved this type of testimony but contended that in the 10 years since Reser, research demonstrates that such testimony is no longer generally accepted. The Court of Appeals held: *957 "McIntosh argues that this court should decline to follow Reser because the court failed to address whether characteristics of child sexual abuse have been generally accepted. McIntosh adds that Reser is a decade old, and research subsequent to the case shows that the supposed indicators of child sexual abuse cited in that case are not generally acceptable. While it may be true that there is not a universally accepted profile for sexually abused children, the Reser court held that expert testimony on common patterns of behavior by child victims of sexual assault is admissible as corroborating evidence of the abuse. This court is duty bound to follow our Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Maybin, 27 Kan. App.2d 189, 205, 2 P.3d 179, rev, denied 269 Kan. 938 (2000). Because our Supreme Court has not indicated that it is departing from its previous position that expert testimony on common patterns of behavior of child victims of sexual assault is admissible corroborating evidence, this court is duty bound to follow Reser. "McIntosh suggests that this court follow State v. Bressman, 236 Kan. 296, 689 P.2d 901 (1984). In Bressman, a physician testified that in her opinion the complaining witness had been raped. On appeal, the defendant argued that the trial court erred in admitting the expert witness testimony because it was without sufficient foundation. The Bressman court agreed, finding that the trial court committed prejudicial error in permitting the expert witness testimony because there was not a sufficient foundation to qualify the physician as an expert to give such an opinion since there was no showing that she was trained as an expert in psychiatry and that she had examined the complaining witness for the purpose of rendering a diagnosis as to whether she evidenced rape trauma syndrome. 236 Kan. at 304, 689 P.2d 901. "Bressman, however, is distinguishable from the instant case. The Bressman court recognized that under State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982), qualified expert psychiatric testimony regarding rape trauma syndrome is relevant and admissible. Although expert opinion testimony on rape trauma syndrome is admissible, the Bressman court found that the physician did not qualify as an expert witness because she was not trained in psychiatry and because she did not examine the victim for the purpose of rendering a psychiatric diagnosis. Accordingly, McIntosh's reliance on Bressman is misplaced because the case supports the admission of expert witness testimony as to the characteristics of sexual assault victims, provided the testimony is given by a qualified expert. "As a result, we follow our Supreme Court precedent in Reser and hold that qualified expert witness testimony on the common patterns of behavior of a sexually abused child was admissible to corroborate the complaining witness' allegations. In addition, we find that Theis was qualified as an expert on child sexual abuse. Theis was a licensed clinical social worker with a master's degree in social work and had regularly conducted sexual abuse evaluations. In fact, Theis' qualifications were very similar to the qualifications of the expert witness in Reser, who was found to be a qualified expert on child sexual abuse. Accordingly, we find that Theis was qualified as an expert witness in this case. *958 "We further find that the trial court did not abuse its discretion in admitting Theis' testimony. There was a sufficient foundation for the expert witness testimony and Theis was qualified as an expert witness. Moreover, the expert testimony was not used to prove that A.D. was sexually abused, but rather was used to corroborate her allegations. As a result, we find that the trial court did not abuse its discretion in admitting expert witness testimony that A.D. fitted the profile of a sexually abused child." McIntosh, 30 Kan. App.2d at 520-21. As the trial court and Court of Appeals correctly recognized, Reser controls. Many of the cases from other jurisdictions relied upon by the Reser court remain good law today. See Rodriquez v. State, 741 P.2d 1200 (Alaska App. 1987); State v. Radjenovich, 138 Ariz. 270, 674 P.2d 333 (Ariz. App. 1983); Poyner v. State, 288 Ark. 402, 705 S.W.2d 882 (1986); State v. LeBrun, 37 Or. App. 411, 587 P.2d 1044 (1978), rev. denied 286 Or. 149 (1979). We note, however, State v. Cressey, 137 N.H. 402, 628 A.2d 696 (1993) (child abuse expert testimony may not be offered to prove child has been sexually abused; such evidence may only be used to explain behavioral characteristics commonly found in child abuse victims to preempt or rebut inferences the child was lying; recognized there was no difference between expert testifying the child was abused and testifying that child exhibited behaviors consistent with sexually abused children), and State v. Michaels, 264 N.J. Super. 579, 599, 625 A.2d 489 (1993) (held child abuse expert evidence is admissible only for rehabilitation purposes, e.g., explaining traits often found in children who have been abused when trait may seem inconsistent with abuse). McIntosh urges this court to reconsider the holding in Reser. For support, McIntosh cites numerous articles and cases from other jurisdictions which have concluded that such evidence should be inadmissible. McIntosh argues the identification of common characteristics associated with sexual abuse is unreliable and that some jurisdictions admit such evidence only to rehabilitate the victim. On direct examination, Theis detailed the format he underwent in evaluating A.D. and the information obtained from the interview. Theis also testified on direct that there are common patterns of abuse among sexually abused children. Upon objection from the *959 defense, the prosecutor contended Theis was qualified to testify to such because of his extensive training in dealing with sexually abused children and his performance of numerous sexual abuse examinations of children. The trial judge found Theis qualified to testify as to whether there are established patterns. Theis stated that the common patterns of abuse include: nightmares, extreme guilt, social withdrawal, acting-out behavior, firesetting, avoidance of school, aggressive behavior, inappropriate sexual acting-out, as well as other symptoms not specifically set forth. Theis then testified, over defense objection, that in interviewing A.D. he had observed behaviors that were "consistent with" a child who had been sexually abused. The behavior that Theis was referring to consisted of A.D.'s extreme nervousness when talking about the abuse, tearful and emotional breakdown, sleep disturbance, fear for her safety, distressing thoughts about the abuse, distrust of others, hypervigilance (anticipatory anxiety—worry about negative events happening again), feelings of guilt, and delayed disclosure. It must be noted that Theis testified on cross-examination that the behaviors he had identified as being consistent with children who have been sexually abused are also capable of being seen in children who have not been abused. Additionally, McIntosh put forth Robert Barnett, a licensed clinical psychologist, to testify that it is well understood that there is no single behavior or group of behaviors that are exhibited solely in sexually abused children. In cases involving sexual abuse, the evidence is often centered entirely upon the credibility of the victim and the alleged abuser. Theis' testimony provided circumstantial support in favor of A.D.'s credibility by demonstrating that her behavior was not inconsistent with someone who had been sexually abused. Theis did not testify that in his opinion A.D. was abused. McIntosh, through testimony elicited on cross-examination and later in his case in chief, made the jury aware that the presence of such behaviors in a child victim does not prove sexual abuse. Although jurisdictions differ as to the allowance of such testimony, McIntosh does not state a significant reason for this court to exclude such evidence in Kansas. *960 The Court of Appeals did not err in finding that the trial court did not abuse its discretion in qualifying Theis as an expert for the purpose of testifying as to common behaviors among sexually abused children and allowing Theis to testify that A.D. exhibited behavior consistent with a sexually abused child. The Court of Appeals and the district court are affirmed.

Cite as 2014 Ark. 184 SUPREME COURT OF ARKANSAS No. CR-13-223 ROBERT LEANDER STIGGERS Opinion Delivered April 24, 2014 APPELLANT APPEAL FROM THE PULASKI V. COUNTY CIRCUIT COURT, FIFTH DIVISION [NO. CR2003-793] STATE OF ARKANSAS APPELLEE HONORABLE WENDELL LEE GRIFFEN, JUDGE AFFIRMED. KAREN R. BAKER, Associate Justice On June 16, 2005, a Pulaski County jury convicted appellant, Robert Leander Stiggers, of first-degree murder and first-degree battery. He was sentenced to forty years imprisonment for the murder conviction and twenty years imprisonment for the battery conviction with the sentences to run consecutively. Stiggers’s convictions and sentences were affirmed in Stiggers v. State, CACR 05-1399 (Ark. App. May 31, 2006) (unpublished). Stiggers’s convictions and sentences stem from a January 10, 2003 shooting that occurred in the Hollingsworth Courts neighborhood in Little Rock. Raynaud Muldrew and Wardell Newsome were both shot. Muldrew was found in a vehicle, and Newsome was lying near it. Muldrew died as a result of his injuries. Despite being shot in the back of the head, Newsome survived his injuries. Immediately after the shooting and at trial, Newsome identified Stiggers as the shooter. The relevant facts, as recounted by the court of appeals in Stiggers’s direct appeal are as follows:  Cite as 2014 Ark. 184 Sergeant Sidney Allen . . . discovered Wardell Newsome lying on the ground near the vehicle. He had been shot four times in the right shoulder and once behind his right ear. While at the scene, Newsome told Sgt. Allen that [Stiggers] was the person who shot him. . . . Detectives Eric Knowles and Keith Cockrell questioned Newsome about the incident while he was undergoing treatment at UAMS. Newsome explained that he had borrowed a friend’s car earlier in the evening and picked up Muldrew. He told the detectives that Muldrew had purchased marijuana and then the two of them went to a liquor store to purchase cigarettes and a couple of Swisher cigars. While there, they saw [Stiggers] who asked for a ride to Hollingsworth Courts. [Stiggers] was riding directly behind Newsome in the back seat of the car, and during the ride, [Stiggers] apparently became aggressive and started yelling. Newsome stated that, at one point, he turned around and noticed that [Stiggers] was holding a small handgun. While following [Stiggers’s] directions into the Hollingsworth Courts neighborhood, Newsome testified that [Stiggers] told them to “say goodnight” and “say your prayers” because he was going to kill them. Newsome indicated that he did not think [Stiggers] was serious because they had known each other and been friends for years. Newsome explained that, as he pulled into an alley in the residential complex at [Stiggers]’s request, [Stiggers] shot him behind the right ear. He pointed out that he lost consciousness immediately, and when he regained consciousness, he noticed Muldrew slumped over in the front passenger seat. Newsome explained that he then crawled out of the vehicle to look for help, and a neighbor called the police. Newsome recognized [Stiggers]’s picture in a group of photos presented by Detectives Knowles and Cockrell, and he again identified him as the shooter. Stiggers, CACR 05-1399, slip op. at 1. After the court of appeals issued its mandate, on August 20, 2006, Stiggers filed his initial Rule 37.1 petition in Pulaski County Circuit Court. After several continuances due to issues related to Stiggers’s representation, on July 2, 2012, Stiggers filed an amended petition and the circuit court held a hearing that same day. On November 16, 2012, the circuit court denied Stiggers’s petition. Stiggers now brings this appeal and presents one issue for review: the circuit court erred by denying Stiggers’s Rule 37.1 petition because Stiggers received unconstitutional ineffective assistance of counsel when his counsel failed to interview 2  Cite as 2014 Ark. 184 and call certain witnesses. “On appeal from a circuit court’s ruling on a petitioner’s request for Rule 37 relief, this court will not reverse the circuit court’s decision granting or denying post-conviction relief unless it is clearly erroneous. E.g., Prater v. State, 2012 Ark. 164, at 8, 402 S.W.3d 68, 74. A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id., 402 S.W.3d at 74.” Mason v. State, 2013 Ark. 492, at 1–2, ___ S.W.3d ___, ___. Our standard of review requires that we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984). Claims of ineffective assistance of counsel are reviewed under the following standard: A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. Burton v. State, 367 Ark. 109, 111, 238 S.W.3d 111, 113 (2006) (quoting Strickland, 466 U.S. at 687). The reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. The petitioner claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying 3  Cite as 2014 Ark. 184 the acts and omissions of counsel which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. See id. Therefore, Stiggers must first show that counsel’s performance fell below an objective standard of reasonableness and then that counsel’s errors actually had an adverse effect on the defense. Id. Stiggers must satisfy both prongs of the test, and it is not necessary to determine whether counsel was deficient if Stiggers fails to demonstrate prejudice as to an alleged error. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). Further, with respect to an ineffective-assistance-of-counsel claim regarding the decision of trial counsel to call a witness, such matters are generally trial strategy and outside the purview of Rule 37.1. Banks v. State, 2013 Ark. 147. Where a petitioner alleges ineffective assistance of counsel concerning the failure to call witnesses, it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Moten v. State, 2013 Ark. 503 (per curiam); Stevenson v. State, 2013 Ark. 302 (per curiam) (citing Hogan v. State, 2013 Ark. 223 (per curiam)). In order to demonstrate prejudice, the petitioner is required to establish that there was a reasonable probability that, had counsel performed further investigation and presented the witness, the outcome of the trial would have been different. See Carter v. State, 2010 Ark. 231, 364 S.W.3d 46 (per curiam). Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to the client. Id. Nonetheless, such strategic decisions must still be supported by reasonable professional judgment. Id. Finally, “[w]hen assessing an attorney’s decision not to call a particular witness, it must be taken into account 4  Cite as 2014 Ark. 184 that the decision is largely a matter of professional judgment which experienced advocates could endlessly debate, and the fact that there was a witness or witnesses that could have offered testimony beneficial to the defense is not in itself proof of counsel’s ineffectiveness. Huls v. State, [301 Ark. 572, 785 S.W.2d 467 (1990)]; Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988).” Johnson v. State, 325 Ark. 44, 49, 924 S.W.2d 233, 236 (1996). We now turn to the sole issue raised by Stiggers. Stiggers’s allegation of ineffective assistance of counsel is that his trial counsel failed to interview four potential witnesses in preparation for Stiggers’s defense or call them as a witness at trial: Eddie Pride, Temika Donley, Kristopher Johnson, and Damika Mitchell. Stiggers contends that these witnesses would have supported his argument that another person, a person named “Jason,”1 was the shooter. He further asserts that the witnesses’ testimony was admissible under hearsay exceptions but that his trial counsel did not interview or call the witnesses at trial to determine what exceptions applied. Stiggers asserts that the witnesses’s testimony would have impeached the State’s witness. Finally, Stiggers asserts that he was prejudiced by his defense counsel’s failure to call these witnesses. Stiggers’s theory at trial was as follows: while he was purchasing drugs from the two victims, two unnamed men came up to the vehicle and shot the victims. Stiggers testified at trial that the two men approached the vehicle and let Stiggers run away prior to the shooting, and that as he was running away he heard the gunshots. In sum, Stiggers’s theory of the case was that someone else was the shooter. 1 The record does not reflect Jason’s last name. 5  Cite as 2014 Ark. 184 Prior to trial, on April 8, 2005, the circuit court conducted a pretrial hearing. The State made a Zinger motion to prohibit Stiggers from eliciting testimony from witnesses regarding “Jason” because the testimony was inadmissible hearsay.2 The circuit court granted the motion. Stiggers acquiesced to the circuit court’s ruling and agreed that the “Jason” testimony was hearsay, but explained that there could be a chain of events in the testimony where Stiggers could elicit such testimony. Stiggers complied with the circuit court’s ruling but reserved the right to approach the bench if such circumstances arose. At trial, defense counsel did not call Pride, Mitchell, Donley, or Johnson as witnesses. In his petition, Stiggers asserted that counsel was ineffective for not interviewing or calling the four witnesses, three of which he alleges would have provided “Jason” testimony. 2 A Zinger motion refers to Zinger v. State, 313 Ark. 70, 75–76, 852 S.W.2d 320, 323 (1993), where we held that the standard for admissibility of evidence tending to incriminate other persons in the crime being charged is as follows: A defendant may introduce evidence tending to show that someone other than the defendant committed the crime charged, but such evidence is inadmissible unless it points directly to the guilt of the third party. Evidence which does no more than create an inference or conjecture as to another’s guilt is inadmissible. [T]he rule does not require that any evidence, however remote, must be admitted to show a third party’s possible culpability . . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime. Id. (quoting State v. Wilson, 367 S.E.2d 589 (N.C. 1988) and People v. Kaurish, 802 P.2d 278 (Cal. 1990)). 6  Cite as 2014 Ark. 184 At the postconviction hearing, Stiggers introduced statements from two of the “Jason” witnesses: Donley and Johnson. The third “Jason” witness, Pride, also provided a statement; however, the circuit court did not accept Pride’s statement because Pride was not known at trial, there was no statement in the case file, and Pride had not testified at a previous hearing. Stiggers did not introduce a statement from Mitchell. At the Rule 37 hearing, defense counsel testified that he did not recall interviewing the four witnesses and did not call them as witnesses. Stiggers first asserts that Eddie Pride would have testified that Newsome told Pride that Stiggers was not the shooter but that it was “Jason.” Second, Stiggers asserts that Donley, Muldrew’s girlfriend, would have testified that Muldrew told her that “Jason” had threatened to kill Muldrew, Muldrew’s child, and the child’s mother. Third, Stiggers asserts that Johnson would have testified that “Jason” had threatened to kill Muldrew. He contends that Johnson would have testified that he overheard Muldrew on the phone with “Jason” four or five days before the shooting, and heard “Jason” discussing a “bad drug deal” or “theft of drugs” involving “Jason’s” drugs, and threatening to kill Muldrew and others. Fourth, Stiggers contends that Mitchell would have testified that she saw both victims prior to the shooting and that the vehicle’s lights were off, which was contrary to the State’s witness’s testimony. First, with regard to Pride, although Stiggers testified that he informed his counsel about Pride, defense counsel testified that prior to trial he had likely heard Pride’s name, but did not recall knowledge of Pride’s allegations that Newsome had told Pride that Stiggers was not the shooter. Defense counsel further testified that, 7  Cite as 2014 Ark. 184 that certainly would have been something . . . very important. . . . I don’t recall that ever being told to me. If I had been given that information, that would certainly would have been the diligent thing to do, to look for Mr. Pride. I would say if I had recognized that there was possibly a prior statement out there saying that someone else had done it coming from a living witness, I would have absolutely asked him about it. With regard to Donley and Johnson, defense counsel testified that after reviewing Donley and Johnson’s police statements in the file, he considered both witnesses’s testimony to be in the group of people he categorized as Zinger witnesses and concluded that their testimony would have been inadmissible hearsay. Defense counsel said “My analysis was that it didn’t come in because of Zinger and there were hearsay issues obviously, but beyond that, even beyond the hearsay, the Zinger issue kept it out.” Finally, with regard to Mitchell’s testimony, defense counsel testified that although he could “see there was some argument” that Mitchell’s testimony regarding the lights in the car being off at the time of the shooting would have helped Stiggers, he did not recall interviewing Mitchell or making a strategic decision to not interview her. Defense counsel testified that he cross-examined every witness that came near the vehicle regarding the facets of the vehicle, including the surviving witness, Newsome. Defense counsel further testified that there “was a huge amount of discrepancies” in the testimony from witnesses regarding whether the lights were on or off and that he cross-examined every witness. Here, Stiggers fails to substantiate his claim that counsel was ineffective based on the failure to interview or call the “Jason” witnesses. Stiggers has failed to meet his burden under the first prong of Strickland because he has not demonstrated that his counsel’s performance fell below an objective standard of reasonableness. Additionally, Stiggers has failed to demonstrate 8  Cite as 2014 Ark. 184 that the “Jason” testimony would have been admissible hearsay and makes conclusory allegations that it may have fit under an exception to hearsay. Further, the record supports that defense counsel’s decision to not interview or call the witnesses was based on reasonable professional judgment. The testimony was inadmissible pursuant to Zinger, as it did no more than create an inference or conjecture as to “Jason’s” involvement, the testimony was hearsay, and Stiggers failed to demonstrate that it was admissible. Nor has Stiggers met the second prong under Strickland because he has failed to demonstrate that he was prejudiced by defense counsel’s failure to interview the witnesses. Stiggers must do more than allege prejudice; he must demonstrate it with facts. Walton v. State, 2013 Ark. 254 (per curiam). Here, Stiggers provides no evidence that he suffered any prejudice as a result of counsel’s failure to call the “Jason” witnesses. We find no merit in Stiggers’s claim regarding Pride, Donley, or Johnson. Finally, with regard to Mitchell’s testimony, as discussed above, our law requires that Stiggers name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Moten v. State, supra. The objective in reviewing an assertion of ineffective assistance of counsel concerning the failure to call certain witnesses is to determine whether this failure resulted in actual prejudice that denied the petitioner a fair trial. Woody v. State, 2009 Ark. 413 (per curiam). In order to demonstrate prejudice, Stiggers must establish that there was a reasonable probability that, had counsel performed further investigation and presented the witness, the outcome of the trial would have been different. Id. While Stiggers claims that Mitchell’s testimony regarding the vehicle would have discredited Newsome’s testimony, defense counsel testified that he cross-examined every 9  Cite as 2014 Ark. 184 witness that came into contact with the vehicle. Based on the record, we are not persuaded that had defense counsel interviewed and called Mitchell as a witness regarding the lights of the car, the outcome of the trial would have been different. Stiggers simply did not provide any support for his conclusory claims that counsel was ineffective and made no showing that counsel committed any specific error that prejudiced the defense. See Johnson v. State, 325 Ark. 44, 49, 924 S.W.2d 233, 236 (1996) (“[T]he fact that there was a witness or witnesses that could have offered testimony beneficial to the defense is not in itself proof of counsel’s ineffectiveness.”). In reviewing the record before us, we conclude that Stiggers has not met his burden. Based on the discussion above, we do not find that the circuit court erred. Affirmed. Ronald L. Davis, Jr. Law Firm, PLLC, by: Ronald L. Davis, Jr., for appellant. Dustin McDaniel, Att’y Gen., by: Nicana C. Sherman, Ass’t Att’y Gen., for appellee. 10 

994 F.2d 1433 Bankr. L. Rep. P 75,277In re Gilbert G. BEEZLEY, Debtor.Gilbert G. BEEZLEY, Appellant,v.CALIFORNIA LAND TITLE COMPANY, Appellee. No. 91-55809. United States Court of Appeals,Ninth Circuit. Submitted Oct. 6, 1992.*Decided June 4, 1993. Gilbert G. Beezley, pro se. Mark E. Rohatiner, Ellen L. Frank, Schneider, Goldberg, Rohatiner & Yuen, Beverly Hills, CA, for appellee. Appeal from the Ninth Circuit Bankruptcy Appellate Panel. Before O'SCANNLAIN and RYMER, Circuit Judges, and ZILLY,** District Judge. PER CURIAM: 1 Debtor Gilbert G. Beezley appeals the decision of the Ninth Circuit BAP, affirming the bankruptcy court's denial of his motion to reopen his bankruptcy case under 11 U.S.C. § 350(b). We have jurisdiction pursuant to 28 U.S.C. § 158(d), and we affirm. 2 Beezley argues that the bankruptcy court abused its discretion by failing to grant his motion to reopen his case. See In re Herzig, 96 B.R. 264, 266 (9th Cir. BAP 1989) (bankruptcy court's refusal to reopen a closed case under 11 U.S.C. § 350(b) reviewed for an abuse of discretion). We disagree. Based on the assumption that amendment was necessary to discharge the debt, Beezley sought to add an omitted debt to his schedules. Beezley's, however, was a no asset, no bar date Chapter 7 case. After such a case has been closed, dischargeability is unaffected by scheduling; amendment of Beezley's schedules would thus have been a pointless exercise. See American Standard Ins. Co. v. Bakehorn, 147 B.R. 480, 483 (N.D.Ind.1992); In re Stecklow, 144 B.R. 314, 317 (Bankr.D.Md.1992); In re Tucker, 143 B.R. 330, 334 (Bankr.W.D.N.Y.1992); In re Peacock, 139 B.R. 421, 422 (Bankr.E.D.Mich.1992); In re Thibodeau, 136 B.R. 7, 10 (Bankr.D.Mass.1992); In re Hunter, 116 B.R. 3, 5 (Bankr.D.D.C.1990); In re Mendiola, 99 B.R. 864, 865 (Bankr.N.D.Ill.1989). If the omitted debt is of a type covered by 11 U.S.C. § 523(a)(3)(A), it has already been discharged pursuant to 11 U.S.C. § 727. If the debt is of a type covered by 11 U.S.C. § 523(a)(3)(B), it has not been discharged, and is non-dischargeable.1 In sum, reopening here in order to grant Beezley's request would not have "accord[ed] relief to" Beezley; thus, there was no abuse of discretion. 3 AFFIRMED. O'SCANNLAIN, Circuit Judge, concurring: 4 The simple question with which we are presented--whether the bankruptcy court abused its discretion by denying the debtor's motion to reopen--requires, in my view, more than a simple answer. I write separately to address certain matters that the per curiam opinion does not discuss, but which are squarely presented on the record before us and implicate important principles of bankruptcy law. 5 * Beezley filed for bankruptcy under Chapter 7 on June 10, 1987. Because he had no assets available for distribution to his creditors in bankruptcy, no bar date was set by the court establishing a deadline for creditors to file proofs of claim. 6 Three years earlier, California Land Title Co. ("Cal Land") had obtained a default judgment against Beezley in California state court arising out of a 1979 transaction in which Beezley was the seller and Cal Land the title insurer of certain real property. Beezley made no mention of Cal Land's claim or of its judgment against him in any of his schedules. Consequently, Cal Land did not receive notice of Beezley's bankruptcy. Beezley received his discharge on November 6, 1987, and his case was thereafter closed. 7 In January 1990, Beezley moved to reopen his bankruptcy case for the purpose of amending his schedules to add the omitted debt to Cal Land. Cal Land filed a memorandum with the bankruptcy court in opposition to Beezley's motion to reopen, advising the court that Cal Land would seek to establish that its claim was nondischargeable. The bankruptcy court held a hearing, at the conclusion of which it denied Beezley's motion, citing the case of In re Stark, 717 F.2d 322 (7th Cir.1983) (per curiam). The Bankruptcy Appellate Panel ("BAP") subsequently affirmed by memorandum, citing the same authority. II 8 The source of the bankruptcy court's power to reopen a closed case is section 350(b).1 This section gives the court discretion to reopen a case "to administer assets, to accord relief to the debtor, or for other cause." The question posed by this appeal is whether the bankruptcy court abused that discretion in denying Beezley's motion to reopen. See In re Herzig, 96 B.R. 264, 266 (9th Cir. BAP 1989) (decision on motion to reopen reviewed for abuse of discretion). Answering this question is a complicated affair, and requires close attention to the difficult language of sections 523 and 727 of the Bankruptcy Code. 9 * Section 727(b) of the Bankruptcy Code states in part: "Except as provided in section 523 of this title, a discharge under subsection (a) of this section discharges the debtor from all debts that arose before the date of the order for relief under this chapter [i.e., the date of the bankruptcy filing]...." "The operative word is 'all'. There is nothing in Section 727 about whether the debt is or is not scheduled. So far as that section is concerned, a pre-bankruptcy debt is discharged, whether or not it is scheduled." In re Mendiola, 99 B.R. 864, 865 (Bankr.N.D.Ill.1989). See In re Stecklow, 144 B.R. 314, 317 (Bankr.D.Md.1992) ("breadth of the discharge" under § 727 is "comprehensive"); In re Thibodeau, 136 B.R. 7, 8 (Bankr.D.Mass.1992) ("s 727(b) itself makes no exception for unlisted debts"). Thus, unless section 523 dictates otherwise, every prepetition debt becomes discharged under section 727. Section 523(a) provides in part: 10 (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt-- 11 (3) neither listed nor scheduled ... in time to permit-- 12 (A) if such debt is not of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim, unless such creditor had notice or actual knowledge of the case in time for such timely filing; or 13 (B) if such debt is of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim and timely request for a determination of dischargeability of such debt under one of such paragraphs, unless such creditor had notice or actual knowledge of the case in time for such timely filing and request[.] 14 Unscheduled debts are thus divided into two groups: those that are "of a kind specified in paragraph (2), (4), or (6) of this subsection," and those that are not. Loosely speaking, the paragraphs in question describe debts arising from intentional wrongdoing of various sorts (respectively, fraud, fiduciary misconduct, and the commission of malicious torts). What distinguishes these from all other debts is that, under section 523(c) and rule 4007(c), a creditor must file a complaint in the bankruptcy court within 60 days after the date established for the first meeting of creditors in order to assert their nondischargeability. Failure to litigate the dischargeability of these sorts of debts right away disables the creditor from ever doing so; an intentional tort debt will be discharged just like any other. 15 Section 523(a)(3) threatens nondischargeability in order to safeguard the rights of creditors in the bankruptcy process. The difference between subparagraphs (A) and (B) reflects the different rights enjoyed by and requirements imposed upon different kinds of creditors. For most creditors, the fundamental right enjoyed in bankruptcy is to file a claim, since this is the sine qua non of participating in any distribution of the estate's assets. Section 523(a)(3)(A) safeguards this right by excepting from discharge debts owed to creditors who did not know about the case in time to file a claim. By contrast, for creditors holding intentional tort claims the salient rights are not only to file a claim but also to secure an adjudication of nondischargeability. Thus, section 523(a)(3)(B) excepts intentional tort debts from discharge notwithstanding the creditor's failure to file a timely complaint under section 523(c) if the creditor did not know about the case in time to file such a complaint (even if it was able to file a timely proof of claim). 16 With this in mind, the convoluted language of section 523(a)(3) can be paraphrased as follows: 17 (a) A discharge does not cover-- 18 (3) an unscheduled debt if-- 19 (A) with respect to a debt not covered by § 523(c), the failure to schedule deprives the creditor of the opportunity to file a timely claim, or 20 (B) with respect to an intentional tort debt covered by § 523(c), the failure to schedule deprives the creditor of the opportunity to file a timely claim or a nondischargeability complaint. B 21 In applying section 523(a)(3) to the case before us, it is preferable to begin with subsection (A). 22 As noted, the entire thrust of subparagraph (A) is to protect the creditor's right to file a proof of claim, and so to participate in any distribution of the assets of the estate. However, "[i]n a case without assets to distribute the right to file a proof of claim is meaningless and worthless." Mendiola, 99 B.R. at 867. The bankruptcy rules therefore permit the court to dispense with the filing of proofs of claim in a no-asset case. 23 In a chapter 7 liquidation case, if it appears from the schedules that there are no assets from which a dividend can be paid, the notice of the meeting of creditors may include a statement to that effect; that it is unnecessary to file claims; and that if sufficient assets become available for the payment of a dividend, further notice will be given for the filing of claims. 24 Bankr.Rule 2002(e). 25 When a no-dividend notice under Rule 2002(e) is sent out, an exception is made to the basic rule requiring proofs of claim to be filed within 90 days after the date established for the first meeting of creditors. Under this exception, creditors need not file a proof of claim unless and until the clerk sends notice that non-exempt assets have been located which may permit a dividend to be paid. Bankr.Rule 3002(c)(5). In practice, "[t]he exception has now subsumed the rule, so that in most cases there is no time limit (bar date) set by the Clerk's office for creditors to file their proofs of claim." In re Corgiat, 123 B.R. 388, 389 (Bankr.E.D.Cal.1991). See In re Tucker, 143 B.R. 330, 332 (Bankr.W.D.N.Y.1992). 26 The critical point here is that in most cases filed under Chapter 7 (i.e., no asset, no bar date cases), "the date to file claims is never set and thus § 523(a)(3)(A) is not triggered." In re Walendy, 118 B.R. 774, 775 (Bankr.C.D.Cal.1990). That is, in a no asset, no bar date case, section 523(a)(3)(A) is not implicated "because there can never be a time when it is too late 'to permit timely filing of a proof of claim.' " Mendiola, 99 B.R. at 867. See In re Tyler, 139 B.R. 733, 735 (D.Colo.1992); In re Peacock, 139 B.R. 421, 424 (Bankr.E.D.Mich.1992); Walendy, 118 B.R. at 776. 27 "Thus, in the typical no asset Chapter 7 case, where the no dividend statement of [rule] 2002(e) is utilized by the clerk and no claims bar date set, the prepetition dischargeable claim of an omitted creditor, being otherwise unaffected by § 523, remains discharged. In other words, in the typical Chapter 7 case, the debtor's failure to list a creditor does not, in and of itself, make the creditor's claim nondischargeable." Corgiat, 123 B.R. at 391. Stated differently, where section 523 does not except a prepetition debt from discharge, the debt remains within the scope of the discharge afforded by section 727. Scheduling, per se, is irrelevant. See Mendiola, 99 B.R. at 867 ("since Section 523(a)(3)(A) does not apply, the debts the Debtor seeks to add to the schedules are already discharged, even though they were not listed or scheduled"); accord American Standard Ins. Co. v. Bakehorn, 147 B.R. 480, 487 (N.D.Ind.1992); Tyler, 139 B.R. at 735; Stecklow, 144 B.R. at 315; Tucker, 143 B.R. at 334; Peacock, 139 B.R. at 424; Thibodeau, 136 B.R. at 8. Since dischargeability is unaffected by scheduling in a no asset, no bar date case, "reopening the case merely to schedule the debt is for all practical purposes a useless gesture." In re Hunter, 116 B.R. 3, 5 (Bankr.D.D.C.1990); accord American Standard, 147 B.R. at 483 (of "no legal effect"); Stecklow, 144 B.R. at 317 ("futile"); Tucker, 143 B.R. at 334 ("unnecessary" and "unwarranted"); Peacock, 139 B.R. at 422 ("pointless"); Thibodeau, 136 B.R. at 10 ("meaningless"). 28 Similarly, even if an omitted debt falls under section 523(a)(3)(B), no purpose is served by reopening solely in order to amend the schedules; scheduling, per se, is irrelevant to dischargeability even under this subparagraph once a case is closed. As noted above, section 523(a)(3)(B) provides that, if the debt flows from an intentional tort "of a kind specified" in the relevant paragraphs, the debtor's failure to schedule in time to provide notice to the creditor of the need to seek an adjudication of dischargeability is conclusive (at least in the absence of actual knowledge of the bankruptcy on the part of the creditor). The debt is not discharged. "Scheduling makes no difference to outcome. 'Reopening a case does not extend the time to file complaints to determine dischargeability. Either the creditor had actual, timely notice of the [case] or he didn't. Amending the schedules will not change that.' " Mendiola, 99 B.R. at 868 (quoting In re Karamitsos, 88 B.R. 122, 123 (Bankr.S.D.Tex.1988)); accord American Standard, 147 B.R. at 484; Thibodeau, 136 B.R. at 10. III 29 Beezley moved to reopen his bankruptcy case in order to add the omitted debt to Cal Land to his schedules, apparently in the mistaken belief that by amending his schedules he would discharge the debt. Cal Land, upon receiving notice of Beezley's motion, vigorously opposed it, also, apparently, under the mistaken impression that the listing of the previously omitted debt would accomplish its discharge. As the analysis set forth above shows, however, because Beezley's was a no-asset, no-bar-date Chapter 7 proceeding, the amendment of Beezley's schedules, in and of itself, could not possibly have had any effect on the status of his obligation to Cal Land. Either the debt was long ago discharged by the operation of sections 523 and 727 or it was not. 30 Beezley's request for leave to amend his schedules was therefore a request for that which is legally irrelevant. The bankruptcy court was surely not required to involve itself in such a pointless exercise. The court thus could, without abuse of discretion, have simply rejected Beezley's motion out of hand. See Mendiola, 99 B.R. at 867. 31 Were this what the bankruptcy court did in fact, I would feel no need to add to what is said in our per curiam opinion. But it did not do so, and the substance of the bankruptcy court's actual ruling (and the BAP's affirmance) reveals, I submit, a misconception that we should not allow to pass uncorrected. 32 The bankruptcy court denied Beezley's motion only after it concluded that the omission of Cal Land from Beezley's schedules was not inadvertent, but was the result of an "intentional design" on Beezley's part. The court reached this conclusion based on the evidence provided by a letter that Beezley had written in 1983 and sent to the state court in which Cal Land's suit against him was then pending. The letter, signed by Beezley, is addressed "To Whom it May Concern," and bears the caption, "Re: Ventura County Superior Court Filing No. 74389, Cal Land Title v. G. Beezley or Air Trans Systems." 33 The bankruptcy court observed that "the existence of the lawsuit and your reference to the lawsuit [in the letter] evidences your knowledge that [Cal Land] want[ed] money from you. It's clear that you knew they had a claim against you." It was this that persuaded the court that the case should not be reopened. "There is other authority from other circuits that states that amending--reopening this case--reopening the case to amend the schedules to add omitted creditors is appropriate where there is no evidence of fraud or intentional design behind the omission. And that's In Re: Stark out of the 7th Circuit. It's a circuit level case."Whatever else might be said, it is incontrovertible that the bankruptcy court did not rely on the reasoning that underlies the per curiam opinion in concluding that Beezley's motion should be denied. Rather, both the bankruptcy court in denying the motion, and the BAP in affirming the denial, treated the rule in Stark as authoritative. Why did the bankruptcy court not simply reject Beezley's motion out of hand as a pointless waste of time? Why did the court feel the need to rely upon authority from another circuit to decide Beezley's motion? 34 The answer, I believe, is that the bankruptcy court thought it was adjudicating the dischargeability of Beezley's debt when it denied his motion to reopen and amend his schedules. That is, the bankruptcy court, just like Beezley and Cal Land, proceeded here on the basis of the erroneous assumption that it would be necessary (and sufficient) for Beezley to reopen the case and add Cal Land to his schedules in order to discharge the omitted debt. 35 This is apparent from examining In re Stark itself. In June 1980, the Starks incurred certain hospital bills. In August 1980, they filed a bankruptcy petition. No bar date was set, and no assets distributed. Because the Starks believed that the hospital bills would be paid by their insurance company, they did not include the hospital in their schedule of creditors. The Starks received their discharge in November 1980. As it happened, however, the hospital bills were not paid by the insurance company. The hospital obtained a judgment against the Starks in November 1981. The Starks then moved to reopen their bankruptcy case to amend their schedule of creditors to include the hospital. The Seventh Circuit ruled that they should be permitted to do so. 36 As explained above, there was no need whatsoever to "permit" the Starks to amend their schedules. Since theirs was a no-asset, no-bar-date case, the Stark's debt to the hospital was discharged by the operation of section 727 along with all their other prepetition debts in November 1980. The Seventh Circuit panel that decided the case failed to recognize this. Indeed, the panel believed that if section 523 were literally applied, the Starks' debt would have been excepted from discharge. In this respect, the panel stated that it agreed with the district court that "section 523(a) should not be mechanically applied to deprive a debtor of a discharge in a no asset case...." Id. at 323. 37 Thus the Stark panel believed that it had to "exercise its equitable powers" in order to allow the debtors to discharge their omitted debt. Id. Further the panel believed that exercising those powers to permit the debtors to amend their schedules would achieve the desired end. This explains the holding in the case: "In a no-asset bankruptcy where notice has been given [that no bar date will be set], a debtor may reopen the estate to add an omitted creditor where there is no evidence of fraud or intentional design." Id. at 324. 38 The analysis presented above clearly demonstrates that Stark misstates the law. Stark treats the question whether to reopen a closed no-asset, no-bar-date case to amend the schedule of creditors as equivalent to the question whether to permit discharge of the omitted debt.2 But, again, scheduling, per se, is irrelevant. The legal standard articulated in Stark is simply incorrect, and I would disapprove reliance on it in the bankruptcy courts of this circuit. IV 39 The damage done by an incautious reliance on Stark is far from trivial. By applying Stark, both the bankruptcy court and the BAP effectively held that Beezley was not entitled to litigate the question whether his debt to Cal Land had been discharged by the operation of sections 523 and 727 unless his omission of Cal Land from his schedules was in good faith. Such a holding interposes an equitable barrier between the debtor and his discharge that Congress simply did not enact in the Bankruptcy Code. Nowhere in section 523(a)(3) is the reason why a debt was omitted from the bankruptcy schedules made relevant to the discharge of that debt.3 Courts are not free to condition the relief Congress has made available in the Bankruptcy Code on factors Congress has deliberately excluded from consideration.4 40 It cannot be overemphasized that we deal here with matters that are absolutely fundamental to the integrity of the Bankruptcy Code: the balance struck between the rights of creditors on the one hand, and the policy of affording the debtor a fresh start on the other. How to strike that balance is an inordinately difficult question--a question of public policy--as to which reasonable minds may and quite frequently do differ. Our task is, perhaps, a relatively easier one, for we have only to apply the law as Congress has written it. What Congress deemed a proper balancing of the equities as between debtor and creditor with respect to unlisted debts it has enacted in section 523(a)(3) of the Bankruptcy Code. It is not for the courts to restrike that balance according to their own lights. 41 Yet this, albeit inadvertently, is what the panel in Stark did. Stark stated that a debtor must prove his good faith before the discharge of an omitted debt will be recognized. There, this rule passed unnoticed as a sort of boilerplate--the Starks' good faith was never in question. As applied by the bankruptcy court in the circumstances of this case, however, this rule operated to supplant the analysis mandated by section 523, and to substitute in its stead a test involving equitable considerations wholly foreign to that section. See Peacock, 139 B.R. at 427 ("whether or not the debtor was reckless in omitting [the] claim is of no moment" with respect to the discharge of the omitted debt). The result is fundamental error affecting significant rights under the Bankruptcy Code.5 42 The analysis the Code requires is, I submit, as follows: Because Beezley's was a noasset, no-bar-date case, section 523(a)(3)(A) does not bar the discharge of his debt to Cal Land under section 727(b). Cal Land has alleged, however, that Beezley committed fraud in connection with the transaction that was the subject of its lawsuit against him, and that the debt evidenced by the default judgment it obtained against Beezley is therefore nondischargeable under section 523(a)(3)(B). Had Beezley listed this debt in his bankruptcy schedules, Cal Land would have been required under Bankruptcy Rule 4007(c) to litigate this nondischargeability question "within 60 days following the first date set for the meeting of creditors," which had long since passed when this litigation commenced. However, because Beezley failed to schedule the debt, Bankruptcy Rule 4007(b) affords Cal Land the right to litigate dischargeability outside the normal time limits, again in accordance with section 523(a)(3)(B). See American Standard, 147 B.R. at 484 ("In effect, a debtor who fails to list a creditor loses the jurisdictional and time limit protections of Section 523(c) and Rule 4007(c)."). See also In re Lochrie, 78 B.R. 257, 259-60 (9th Cir. BAP 1987). 43 This is the only right Cal Land can claim by virtue of its omission from Beezley's schedules. In particular, Cal Land cannot escape the need to prove nondischargeability merely because Beezley's failure to list his debt to Cal Land may have been intentional or may have prejudiced its ability to show that Beezley committed fraud years ago, as the holding in Stark would suggest. Stark has no place in the analysis of the matter at hand. IV 44 Faced with Beezley's motion on the one hand, and Cal Land's opposition on the other, I believe the bankruptcy court could have construed the matter as a request under Bankruptcy Rule 4007(b) for a determination of dischargeability--for this, as the court itself recognized, was really what both parties wanted.6 This, however, is now of little moment from the standpoint of the litigants. The important point is that whether Beezley's debt to Cal Land is in fact nondischargeable remains to be adjudicated. 45 In sum, Stark introduces a notion of "good faith" into the Bankruptcy Code's finely tuned system for determining the dischargeability of omitted debts. Because adequate and explicit means for determining dischargeability are provided in the Code itself, the bankruptcy courts of this circuit should place no reliance on Stark. * The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a), Ninth Circuit Rule 34-4 ** The Honorable Thomas S. Zilly, United States District Judge for the Western District of Washington, sitting by designation 1 We express no opinion as to whether the omitted debt was or was not discharged 1 All references are to the Bankruptcy Code, Title 11, United States Code 2 That the Stark case proceeds on this erroneous premise has been repeatedly recognized in the bankruptcy courts. See In re Peacock, 139 B.R. 421, 426 & n. 9 (Bankr.E.D.Mich.1992) (warning against "misplaced reliance on confusing comments in Stark ": "[T]he train began to run off the track when the lawyers in Stark misperceived the issue. The Seventh Circuit failed to put the train back on the track in time to prevent the analytical chaos which has ensued."); In re Thibodeau, 136 B.R. 7, 10 (Bankr.D.Mass.1992) (Stark "is based upon the unexamined assumption ... that in a no-asset case where no claim filing deadline has been fixed, a debt must be listed in order to be discharged"); In re Guzman, 130 B.R. 489, 491 n. 4 (Bankr.W.D.Tex.1991) (Stark "erroneously assumed that, unless the case were re-opened as the debtor requested, the creditor's claim would not be discharged"); In re Musgraves, 129 B.R. 119, 121 n. 6 (Bankr.W.D.Tex.1991) (same); In re Bulbin, 122 B.R. 161, 161 (Bankr.D.D.C.1990) (refusing to follow "dicta in [Stark ] which assumed for purposes of decision and without discussion that listing of an omitted creditor was necessary to make the omitted creditor's claim dischargeable"); In re Hunter, 116 B.R. 3, 5 (Bankr.D.D.C.1990) (same); In re Crull, 101 B.R. 60, 61 (Bankr.W.D.Ark.1989) (Stark "incorrectly assume[d] that if a case is reopened and an omitted creditor's claim is listed by amendment, the discharge automatically and retroactively applies"); In re Mendiola, 99 B.R. 864, 868 (Bankr.N.D.Ill.1989) ("it is clear from the opinion in Stark that the Court assumed that the purpose that would be served by the reopening and addition of the omitted creditor was the discharge of that creditor's claim"); In re Anderson, 72 B.R. 495, 496 (Bankr.D.Minn.1987) (Stark is "based on false premises regarding the nature and effect of a discharge") 3 There need be no concern that applying section 523(a)(3) according to its terms will encourage debtors to ignore their obligation to list all claims in their schedules. A debtor must declare under penalty of perjury that the statements made in his schedules are true and correct. A debtor who knowingly and fraudulently omits a creditor thus risks global denial or revocation of his discharge--that is, the withholding of all bankruptcy relief--under section 727 of the Bankruptcy Code. See 11 U.S.C. §§ 727(a)(4)(A), 727(d)(1). In addition, knowing and fraudulent misstatements in connection with a bankruptcy proceeding may be penalized by up to five years in prison and a $5,000 fine. See 18 U.S.C. § 152 4 That this was a deliberate congressional choice is plain from the legislative history of the Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, 92 Stat. 2549. The Senate Report notes that the new section 523(a)(3) "follows current law, but clarifies some uncertainties generated by the case law construing 17a(3) [of the old Bankruptcy Act]." S.Rep. No. 95-989, 95th Cong., 2d Sess. 78-79, reprinted in 1978 U.S.C.C.A.N. 5787, 5864. The formal statements of both the House and Senate leaders responsible for the final shape of the new Bankruptcy Code leave no doubt as to which "uncertainties" were intended to be clarified: "Section 523(a)(3) ... is intended to overrule Birkett v. Columbia Bank, 195 U.S. 345, 25 S.Ct. 38, 49 L.Ed. 231 (1904)." 124 Cong.Rec. H11089 (Sept. 28, 1978), reprinted in 1978 U.S.C.C.A.N. 6436, 6522 (statement of Rep. Edwards); 124 Cong.Rec. S17406 (Oct. 6, 1978), reprinted in 1978 U.S.C.C.A.N. 6505, 6522 (statement of Sen. DeConcini) In Birkett, the Supreme Court construed the predecessor of section 523(a)(3), which excepted from discharge any debt "not ... duly scheduled in time for proof and allowance, ... unless [the] creditor had notice or actual knowledge of the proceedings in bankruptcy." The Court stated that: Actual knowledge of the proceedings contemplated by the section is a knowledge in time to avail a creditor of the benefits of the law--in time to give him an equal opportunity with other creditors--not a knowledge that may come so late as to deprive him of participation in the administration of the affairs of the estate or to deprive him of dividends.... That the law should give a creditor remedies against the estate of a bankrupt, notwithstanding the neglect or default of the bankrupt, is natural. The law would, indeed, be defective without them. It would also be defective if it permitted the bankrupt to experiment with it--to so manage and use its provisions as to conceal his estate, deceive or keep his creditors in ignorance of his proceeding without penalty to him. 195 U.S. at 350, 25 S.Ct. at 39 (emphasis added). The legislative history of section 523(a)(3) declares unambiguously that Birkett was intended to be overruled. Assuming that we require such an explicit directive before we will be moved to heed the clear command of the Bankruptcy Code itself, I see no way to avoid the force of this one. Congress has expressly disapproved the importation of equitable notions of a debtor's good faith or a creditor's fair opportunity to participate in the bankruptcy process into the interpretation and analysis of section 523(a)(3). See Mendiola, 99 B.R. at 869-70 ("[T]he clear language of Section 523(a) is not an aberration, but represents a Congressional policy choice. Congress could have excepted from the debtor's discharge debts that were omitted, intentionally or otherwise, from the schedules. Congress might simply have continued pre-Code law.... Instead, the legislative history shows that Congress expressly overruled that prior law and created the narrow exception found in § 523(a)(3)...."). 5 The equitable rule applied in Stark to a no-asset, no-bar-date case was originally developed for use in a very different kind of bankruptcy. The incautious use of such a standard outside the context in which it originated is at the heart of the problems we confront here The typical Chapter 7 bankruptcy is the no-asset, no-bar-date case. In some instances, however, the debtor has no assets to distribute to creditors, but a bar date is set by the clerk's office. See In re Corgiat, 123 B.R. 388, 390-91 (Bankr.E.D.Cal.1991) (recognizing the importance of this distinction); In re Walendy, 118 B.R. 774, 775-76 (Bankr.C.D.Cal.1990) (same). In such a case, section 523(a)(3)(A) operates with respect to an omitted creditor as follows: a deadline for filing claims is established; the omitted creditor receives no notice of the debtor's bankruptcy; the deadline for filing claims passes; the debtor's case is closed, with no assets having been distributed; the omitted creditor, technically, has been deprived of the right protected by section 523(a)(3)(A), i.e., the right to file a timely proof of claim; thus, by operation of the plain language of the Bankruptcy Code, the omitted debt would appear to be excepted from discharge. Many courts, however, have felt that this is an inequitable result. After all, since no assets were distributed, the omitted creditor has suffered no real prejudice because of its inability to file a timely proof of claim. Such a creditor is in exactly the same situation as the creditors that did file. Allowing this creditor to retain its pre-bankruptcy claim against the debtor seems to amount to an undeserved windfall, for the creditor is left in a better position than all other creditors merely by virtue of having been left off the debtor's schedules. These courts have thus recognized an equitable exception to the operation of section 523(a)(3). The exception, usually associated with the case of Robinson v. Mann, 339 F.2d 547 (5th Cir.1964), provides that in a no-asset bankruptcy where a bar date was set, a debtor may reopen the case to add an omitted creditor to its schedules nunc pro tunc where there is no evidence of fraud or intentional design, or any material prejudice to the creditor. In this context, technically, it is indeed necessary to reopen the case and add the omitted creditor to the schedules, for only this permits the relation back nunc pro tunc of the scheduling. This procedure is obviously a legal fiction, but it provides a means of avoiding the results of a literal application of section 523(a)(3)(A), thus discharging the omitted debt and fostering the debtor's fresh start. A comparison of Stark and Robinson shows that the rules they announce are, in fact, identical. Yet there is no need for such a rule in a no-asset, no-bar-date Chapter 7, hence no justification for its application. In the Robinson-type case, the debtor, in effect, asks the bankruptcy court to do him a favor, to intercede on his behalf so as to shield him from the operation of the plain language of the Code, and so permit the discharge of his omitted debt. It is entirely appropriate in this context to impose an equitable requirement of good faith on the debtor: if a court is to invoke its equity powers to do the debtor a favor it is not too much to ask that his hands be clean. In a no-asset, no-bar-date case like this one, however, the debtor needs no favors from the bankruptcy court, since his omitted debt will be discharged by the straightforward operation of section 523(a)(3). Applied here, what developed as an equitable condition precedent to the court's granting the debtor additional relief beyond that afforded by the Bankruptcy Code becomes an equitable barrier to the debtor's receiving the relief the Code itself expressly grants. I express no opinion on the propriety of the equitable exception announced in Robinson as applied in its proper context. A debate is currently raging among the bankruptcy courts of this circuit regarding this very issue. Compare In re Laczko, 37 B.R. 676, 678-79 (9th Cir. BAP 1984) (rejecting Robinson and adopting "strict" view of § 523(a)(3)), aff'd without op., 772 F.2d 912 (9th Cir.1985), with In re Brosman, 119 B.R. 212, 213-16 (Bankr.D.Alaska 1990) (refusing to follow Laczko ). My point is simply that, whereas Robinson contravenes the plain language of the Code for what is perhaps a good reason, Stark contravenes the Code for no reason whatsoever. 6 The Memorandum filed by Beezley (acting, let us recall, pro se) in support of his motion to reopen in the bankruptcy court requested "relief from a judgment by court after default ... by reopening the estate and permitting scheduling and listing of this debt." So styled, I must agree that the denial of this motion by the bankruptcy court did not constitute an abuse of discretion, for the reasons stated in the per curiam opinion--that is, that the "relief" requested (amendment of the schedule of creditors) was no relief at all

137 F.3d 326 AVONDALE INDUSTRIES, INC., Petitioner,v.Rodney PULLIAM; Director, Office of Worker's CompensationPrograms, U.S. Department of Labor, Respondents. No. 97-60569 Summary Calendar. United States Court of Appeals,Fifth Circuit. March 31, 1998. Joseph J. Lowenthal, Jr., R. Scott Jenkins, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, LA, for Petitioner. Joseph Paul Demarest, Favret, Demarest, Russo & Lutkewitte, New Orleans, LA, for Pulliam. Thomas O. Shepherd, Jr., Clerk, Benefits Review Bd., Washington, DC, Carol DeDeo, Assoc. Sol., U.S. Dept. of Labor, Dir., Office of Workers Comp. Programs, Washington, DC, for Director, Office of Worker's Compensation Programs, U.S. Dept. of Labor. Petition for Review of an Order of the Benefits Review Board. Before DUHE, DeMOSS and DENNIS, Circuit Judges. DUHE, Circuit Judge: 1 Appellee injured his shoulder and sued Appellant, his former employer, for permanent and total disability payments under the Longshore and Harbor Workers' Compensation Act. The administrative law judge awarded him permanent, partial disability payments and calculated his wage earning capacity by averaging the hourly wage of five jobs which Appellant had found for Appellee. The Benefits Review Board affirmed. The res nova issue presented is the proper method of computing post-injury wage earning capacity when the employer locates more than one suitable job for the claimant. We affirm the ALJ's use of averaging. 2 * In May 1992, Rodney Pulliam ("Pulliam"), a sheet metal mechanic for Avondale Shipyards ("Avondale"), fell off a scaffold and injured his shoulder. Pulliam continued to work for Avondale until July when he quit. 3 In February 1994, Pulliam underwent surgery on his shoulder but was not able to return to work until January 1995. In the meantime, Avondale hired a certified rehabilitation counselor to analyze Pulliam's ability to be re-employed. The counselor conducted a labor market survey to identify jobs within Pulliam's mental and physical capabilities as well as his geographic area. The counselor found forty-four such jobs, none of which Pulliam secured. 4 Pulliam sued Avondale for permanent, total disability compensation under the Longshore and Harbor Workers' Compensation Act ("LWHCA"). In attempting to establish total disability, Pulliam argued to the administrative law judge ("ALJ") that he had diligently tried to obtain other employment, but that no one would hire him. He pointed to the fact that he contacted all but five1 of the prospective employers. The ALJ disagreed, finding that Pulliam had not been diligent in his job search. Rather, the ALJ found that Pulliam had, in at least two instances, misrepresented the status of his injury so as to hurt his chances of being hired. Thus, Pulliam was entitled only to permanent, partial disability.2 5 In calculating Pulliam's post-injury wage earning capacity, the ALJ averaged the hourly wage of the five jobs for which Pulliam did not apply. Avondale unsuccessfully appealed to the Benefits Review Board ("BRB") arguing alternatively that the ALJ should have based Pulliam's compensation using the highest wage of the five jobs and that the ALJ should have considered all forty-four jobs in his calculation. The BRB affirmed the ALJ's findings and adjusted the ALJ's calculation of the average.3 Avondale now appeals. II 6 When the BRB affirms an ALJ's decision, we may reverse the ALJ's decision only if it is not supported by substantial evidence and is not in accordance with the law. New Thoughts Finishing Co. v. Chilton, 118 F.3d 1028, 1030-31 (5th Cir.1997). Substantial evidence is evidence that "a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 564-65, 108 S.Ct. 2541, 2549-50, 101 L.Ed.2d 490 (1988) (internal quotation marks omitted). 7 * While 33 U.S.C. § 908(c)(21) sets forth the formula for calculating an employee's lost wage earning capacity, it gives no guidance for determining what the post-injury earning capacity is. Thus, the courts have determined post-injury earning capacity on a case by case basis. See Licor v. Washington Metropolitan Area Transit Authority, 879 F.2d 901 (D.C.Cir.1989); Pilkington v. Sun Shipbuilding and Dry Dock, 9 B.R.B.S. 473. 8 Avondale argues that the BRB should have vacated and remanded the ALJ's decision because the ALJ used the average of the wages rather than the highest wage. In P & M Crane v. Hayes, 930 F.2d 424 (5th Cir.1991), this Court held that an employer could satisfy its burden of proving alternate employment by showing that there was one job available in the local community. Here, Avondale points out that it more than satisfied its burden by showing that there were forty-four jobs available. Moreover, Avondale could have avoided this litigation altogether by finding the highest paying alternate employment for Pulliam. Instead, it provided Pulliam with a choice of forty-four jobs. 9 Avondale also urges this Court to reverse the ALJ's judgment based on policy. It contends that were we to affirm the ALJ, we would be discouraging other employers from attempting to find a range of suitable, alternate employment. To get around the averaging scheme, an employer would have to find only one, high paying job. Thus, should we reverse the ALJ, we would be encouraging employers to find a range of alternate employment. We disagree. 10 First, we find the policy argument unpersuasive. The employer, to avoid paying permanent, total disability benefits, has to show that there is suitable, alternate employment. We think it unlikely that an employer would risk having to pay permanent, total disability benefits by showing only one job available. Rather, the presumption that the employee is permanently and totally disabled would seem to encourage the employer to find as many alternate jobs as possible. 11 Second, in Shell Offshore, Inc. v. Cafiero, 122 F.3d 312, 318 (5th Cir.1997), we held that averaging was a reasonable method for determining an employee's post-injury wage earning capacity. We now explain why. We have held that an employer need not show that a specific job opening is available when proving suitable, alternate employment. See, Avondale Shipyards, Inc. v. Guidry, 967 F.2d 1039 (5th Cir.1992) (holding that an employer has to show only general availability). Thus, the courts have no way of determining which job, of the ones proven available, the employee will obtain. Averaging ensures that the post-injury wage earning capacity reflects all jobs available. B 12 We now address Avondale's argument that the ALJ should have calculated Pulliam's post-injury wage earning capacity by using all forty-four jobs. Avondale argues that the ALJ acted improperly in finding that Pulliam was not diligent and that he had applied for all but five of the forty-four jobs. While we agree that these findings seem inconsistent, we give deference to an ALJ's findings of fact. Wilkerson v. Ingalls Shipbuilding, Inc., 125 F.3d 904, 906 (5th Cir.1997). It is reasonable that the ALJ could find that Pulliam merely applied for most of the forty-four jobs and yet was not diligent in his job search. Thus, we do not find error in the ALJ using the five jobs to determine the average. CONCLUSION 13 For the above reasons we AFFIRM. 1 We note that the ALJ stated that Pulliam contacted all but six of the prospective employers; however, we are concerned with only five of those jobs because Pulliam gave no explanation for failing to contact those prospective employers 2 Under the LWHCA, the ALJ calculates loss of wage earning capacity by taking two thirds of the difference between the average of what the worker had earned and what the worker can earn post-injury. See 33 U.S.C. § 908(c)(21) 3 The ALJ had initially found that the average of the five jobs was $5.25/hour. The BRB adjusted the average to $5.99/hour

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS § Leonardo Ramirez, § No. 08-19-00097-CR Appellant, § Appeal from the v. § 41st District Court The State of Texas, § of El Paso County, Texas State. § (TC# CR 20170D04632) § ORDER The Court GRANTS the Court Reporter’s third request for an extension of time within which to file the Reporter’s Record until August 12, 2019. NO FURTHER REQUESTS FOR EXTENSION OF TIME TO FILE THE REPORTER’S RECORD WIL BECONSIDERED BY THIS COURT. It is further ORDERED that Bertha A. Prieto, Official Court Reporter for the 41st District Court, for El Paso County, Texas, prepare the Reporter’s Record for the above styled and numbered cause and forward the same to this Court on or before August 12, 2019. IT IS SO ORDERED this 29th day of July, 2019. PER CURIAM Before McClure, C.J., Rodriguez and Palafox, JJ. 

611 S.E.2d 750 (2005) 272 Ga. App. 91 REYNOLDS v. The STATE. No. A05A0768. Court of Appeals of Georgia. March 9, 2005. Certiorari Denied June 6, 2005. *751 George Jackson, Jackson & Schiavone, Savannah, for Appellant. Daniel Craig, District Attorney, Henry Syms, Jr., Madonna Little, Assistant District Attorneys, for Appellee. BLACKBURN, Presiding Judge. Having pled guilty in 1999 to aggravated child molestation and child molestation, Gary Reynolds directly appeals the trial court's denial of his motion to set aside his sentence, which motion was filed more than four-and-one-half years after his unappealed sentence was entered. We hold that since Reynolds's sentence fell within the range of allowable sentences for the charged crimes, his claim that the sentence was void is without merit. Accordingly, his motion to set aside that sentence was untimely, depriving this direct appeal of jurisdiction. For this reason, we must dismiss the appeal. *752 In March 1999, Reynolds was charged with six counts of child molestation[1] and one count of aggravated child molestation[2] arising out of conduct that took place between October 1992 and December 1994. In May 1999, he pled guilty to one count of child molestation and to one count of aggravated child molestation. At the guilty plea hearing, attorneys for both sides, Reynolds himself, and the judge all believed and discussed that the range of punishment for the aggravated molestation count was ten to thirty years, with the range for the child molestation count five to thirty years. All were further under the impression that Reynolds faced a mandatory minimum sentence of ten years to serve on the aggravated child molestation count. The court sentenced Reynolds to twenty years on each count (ten to serve and ten on probation), with the sentences to run concurrently. The final sentence was entered on May 17, 1999. After serving four-and-one-half years of his prison sentence, Reynolds in December 2003 moved the court to set aside his sentence on the ground that at the time he committed the crimes, former OCGA § 16-6-4 set the punishment range for aggravated child molestation from two to thirty years (not ten to thirty years with a ten-year-imprisonment mandatory minimum as was believed at the sentencing hearing) and set the punishment range for child molestation from one to twenty years (not five to thirty). Reynolds argued that he had received a sentence greater than that prescribed by law and that therefore his sentence was void. He claimed that, as his sentence was void, no time restriction precluded him from bringing the present motion to set aside, even though it was filed four-and-one-half years after his sentencing. The trial court disagreed. The court held that a motion to set aside a sentence (based on the ground that the court had misapprehended the law and had therefore failed to exercise its discretion) was required to be filed within the term of court during which the sentence was entered. The court further held that even though void sentences may be challenged at any time, the twenty-year sentences here fell within the range of allowable sentences even under the former OCGA § 16-6-4, and that therefore the sentences were not void. As four-and-one-half years were far beyond the term of court, the court found it had no jurisdiction and denied the motion. We agree. 1. It is undisputed that the court misapprehended the law at the time it sentenced Reynolds. Where the court has made such a mistake, a defendant is normally entitled to have his sentence vacated and to be resentenced by a court that has a correct apprehension of the possible range of punishments. See Banks v. State;[3]Mallarino v. State.[4] However, the defendant's right to have his sentence so modified is not unlimited. He may raise the issue in his initial direct appeal of his conviction (the procedure followed in Banks and Mallarino; Reynolds, however, filed no initial direct appeal here). Otherwise, he must make a timely motion in the trial court below. "Except as provided by statute, a sentencing court has no power to modify a valid sentence of imprisonment after the term of court in which it was imposed has expired." State v. Hart.[5] See Sasser v. Adkinson[6] ("in the absence of a statute providing to the contrary, the trial court's authority to vacate or modify a judgment ends with the expiration of the term of court in which the judgment was entered") (punctuation omitted). *753 Subsequent to the 1992 amendment of OCGA § 17-10-1(a) and prior to 2001, no statute purported to extend beyond the court's term the time in which a court could modify a sentence. Levell v. State;[7]Latham v. State.[8] See Ga. L. 1992, p. 3221, § 1. Thus, at the time the court imposed Reynolds's sentence in May 1999, the court's power to modify the sentence was limited to the court's term. In 2001, however, the General Assembly enacted OCGA § 17-10-1(f), which provides: Within one year of the date upon which the sentence is imposed, or within 120 days after receipt by the sentencing court of the remittitur upon affirmance of the judgment after direct appeal, whichever is later, the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed. Ga. L. 2001, p. 94, § 5. Regardless of whether OCGA § 17-10-1(f) should be applied to Reynolds's December 2003 motion to set aside his sentence, that motion was far too late. It was not filed in the term in which the sentence was entered,[9] nor was it filed within a year of the date upon which the sentence was imposed, nor was it filed within 120 days of the trial court's receipt of a direct-appeal remittitur (as no direct appeal was filed). Accordingly, the trial court lacked subject matter jurisdiction and did not err in denying the motion. Kinsey v. State.[10] 2. Reynolds argues, however, that his sentence was void and therefore could be challenged at any time. Crumbley v. State[11] held that "[w]here a sentence is void, . . . the court may resentence the defendant at any time." See Jones v. State[12] ("a trial court's jurisdiction to modify a sentence extends beyond its statutory limitation only when the sentence is void") (footnote omitted); Howard v. State[13] ("`if the sentence imposed was a void sentence, then a new and valid sentence can be imposed by the trial judge at any time'"). The sentence here, however, was not void. "A sentence is void if the court imposes punishment that the law does not allow." Crumbley, supra at 611(1), 409 S.E.2d 517. "When the sentence imposed falls within the statutory range of punishment, the sentence is not void and is not subject to post-appeal modification beyond that provided in OCGA § 17-10-1(f)." Jones, supra at 670, 604 S.E.2d 483. See Daniel v. State.[14] Here, Reynolds's two twenty-year concurrent sentences (ten to serve, ten on probation) on the child molestation count and on the aggravated child molestation count fell within the ranges of punishment allowed in former OCGA § 16-6-4 (one to twenty for child molestation; two to thirty for aggravated child molestation) that applied to such offenses committed between October 1992 and December 1994. Accordingly, the sentences were not void. See Rehberger v. State;[15]Kinsey, supra at 653-654(1), 578 S.E.2d 269; Daniel, supra at 475(3), 585 S.E.2d 752. Compare Gonzalez v. State[16] (where fines were not authorized by controlling statute, sentence was void); Hahn v. State[17] (where imprisonment not authorized, *754 imprisonment sentence was void); McCranie v. State[18] (incest sentence void where incest merged with rape charge). Thus, the motion to set aside those sentences, filed four-and-one-half years after sentencing, was untimely. See Barber v. State;[19]Shaw v. State.[20] Reynolds argues that the court's misapprehension of the applicable range of sentences voids the sentences. However, "[a]ssertions taking issue with the procedure employed in imposing a valid sentence or questioning the fairness of an imposed sentence do not allege a sentence is void and therefore are not a means for post-appeal, post § 17-10-1(f) sentence modification." Jones, supra at 670-671, 604 S.E.2d 483. See Williams v. State[21] (failure to conduct required hearing did not render a sentence void). A court which misapprehends the law and therefore fails to properly exercise its discretion in sentencing commits a procedural error; since the procedural error does not void the resulting sentence, a dissatisfied defendant must challenge the sentence in a timely manner. Daniel, supra at 475(3), 585 S.E.2d 752; Newby v. State;[22]Shaw, supra at 232-233, 504 S.E.2d 18. Absent such a timely challenge, the only avenue for reviewing the sentence lies in a petition for writ of habeas corpus. See Jones, supra at 671, 604 S.E.2d 483. 3. Where the untimely challenge in the trial court below does not raise valid allegations that the sentence was void, the Supreme Court of Georgia recently held that not only is the trial court without jurisdiction to modify the sentence, but that the trial court's "[r]ulings on pleadings asserting erroneous procedure or unfair treatment are not subject to direct appeal because they are not rulings on whether the sentence is void." (Emphasis supplied.) Jones, supra at 671, 604 S.E.2d 483. See Williams, supra at 688-689(1), 523 S.E.2d 857 (direct appeal only authorized where petition properly alleges sentence was void). Accordingly, appeals on such rulings are to be dismissed, not affirmed. Jones, supra at 671, 604 S.E.2d 483. See Boyd v. State[23] (dismissing direct appeal where it was not an attack on a void sentence). For this reason, we dismiss this appeal. Appeal dismissed. MILLER and BERNES, JJ., concur. NOTES [1] OCGA § 16-6-4(a). [2] OCGA § 16-6-4(c). [3] Banks v. State, 225 Ga.App. 754, 756-757(5), 484 S.E.2d 786 (1997). [4] Mallarino v. State, 190 Ga.App. 398, 399-400(1), 379 S.E.2d 210 (1989). [5] State v. Hart, 263 Ga.App. 8, 9, 587 S.E.2d 164 (2003). [6] Sasser v. Adkinson, 245 Ga.App. 719, 720, 538 S.E.2d 800 (2000). [7] Levell v. State, 247 Ga.App. 615, 616-617(1), 544 S.E.2d 523 (2001). [8] Latham v. State, 225 Ga.App. 147, 148-150, 483 S.E.2d 322 (1997). [9] See OCGA § 15-6-3(5)(A). [10] Kinsey v. State, 259 Ga.App. 653, 654(1), 578 S.E.2d 269 (2003). [11] Crumbley v. State, 261 Ga. 610, 611(1), 409 S.E.2d 517 (1991). [12] Jones v. State, 278 Ga. 669, 670, 604 S.E.2d 483 (2004). [13] Howard v. State, 234 Ga.App. 260, 261(1), 506 S.E.2d 648 (1998). [14] Daniel v. State, 262 Ga.App. 474, 475(3), 585 S.E.2d 752 (2003). [15] Rehberger v. State, 267 Ga.App. 778, 779-780, 600 S.E.2d 635 (2004). [16] Gonzalez v. State, 201 Ga.App. 437, 438, 411 S.E.2d 345 (1991). [17] Hahn v. State, 166 Ga.App. 71, 72-74(1), 303 S.E.2d 299 (1983). [18] McCranie v. State, 157 Ga.App. 110, 111(2), 276 S.E.2d 263 (1981). [19] Barber v. State, 240 Ga.App. 56, 57, 522 S.E.2d 238 (1999). [20] Shaw v. State, 233 Ga.App. 232, 233, 504 S.E.2d 18 (1998). [21] Williams v. State, 271 Ga. 686, 691(2), 523 S.E.2d 857 (1999). [22] Newby v. State, 261 Ga.App. 96, 581 S.E.2d 659 (2003). [23] Boyd v. State, 253 Ga.App. 238, 239, 558 S.E.2d 787 (2002).

FILED UNITED STATES COURT OF APPEALS DEC 06 2011 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS RICHARD RAYMOND TUITE, No. 09-56267 Petitioner - Appellant, D.C. No. 3:08-cv-01101-J-CAB Southern District of California, v. San Diego MICHAEL MARTEL, Warden, ORDER Respondent - Appellee. Before: NOONAN, BERZON, and CALLAHAN, Circuit Judges. The memorandum disposition filed on September 8, 2011 is hereby withdrawn. A new disposition will be filed. The majority of the panel votes to deny the petition for rehearing. Judge Callahan votes to grant the petition for rehearing. Judge Berzon votes to deny petition for rehearing en banc and Judge Noonan recommends denying the petition for rehearing en banc. Judge Callahan votes to grant the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.  The petition for rehearing is DENIED and the petition for rehearing en banc is DENIED. No further petitions for rehearing and for rehearing en banc will be entertained. 2  FILED NOT FOR PUBLICATION DEC 06 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RICHARD RAYMOND TUITE, No. 09-56267 Petitioner - Appellant, D.C. No. 3:08-cv-01101-J-CAB v. MEMORANDUM* MICHAEL MARTEL, Warden, Respondent - Appellee. Appeal from the United States District Court for the Southern District of California Napoleon A. Jones, District Judge, Presiding Argued and Submitted December 9, 2010 Pasadena, California Before: NOONAN, BERZON, and CALLAHAN, Circuit Judges. Richard Raymond Tuite appeals the denial of his petition for a writ of habeas corpus. Applying Brecht v. Abrahamson, 507 U.S. 619 (1993), and holding that there is at least “grave doubt” as to whether the confrontation clause error at * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. The panel finds that a published opinion might cast unjust aspersions upon those not before the court. issue had a substantial and injurious effect or influence on the verdict, we reverse and remand. See Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010). FACTS AND PROCEEDINGS On January 20, 1998, Stephanie Crowe, aged twelve, was stabbed nine times by knife in her own bed in her own bedroom. She had been on the phone about 10 p.m. and died before midnight. Her body was discovered by her grandmother about 6 a.m., the next day. Within two weeks of her death, the Escondido police had identified three teenage boys as suspects, had interrogated them, and had obtained confessions. On May 22, 1998, these suspects were indicted for Stephanie’s murder. The district attorney of San Diego County prepared the case for trial, calling on an F.B.I. expert, Mary Ellen O’Toole, for help in developing the case. But in February 1999, the state Attorney General dismissed the indictments without prejudice. This court recently reversed the dismissal of a § 1983 lawsuit brought by the former suspects against the investigating police officers, so that case is going forward. See Crowe v. County of San Diego, 608 F.3d 406 (9th Cir. 2010). Here, however, we consider only the record as it developed in Tuite’s criminal trial. That record shows that the day after Stephanie’s death, the police picked up Tuite, an itinerant known to have been as close as one quarter of a mile 2 to the Crowe house at one point on the fatal evening. They took hair samples and fingernail scrapings, photographed him and impounded some of his clothes, in particular a red turtleneck shirt and a white T-shirt. These items were examined on April 28, 1998 for bloodstains. Wetting the red shirt completely and using a fluoroscopic process, the police found no blood on the red shirt. The red shirt was subsequently photographed using a tripod that had previously been used at the scene of the crime without using protective coverings for the legs so as to avoid contamination. The white T-shirt had visible bloodstains and was sent to a laboratory for DNA testing. The test excluded Stephanie as the donor. Search of the Crowe house found no physical evidence of Tuite ever having been there. Tuite was a mentally deficient person, without known employment or home, who had been living in the San Diego area. On the evening of January 20, he had bothered three residences as he sought “the girl” or “Tracy.” After Stephanie’s death, he continued this quest during the rest of January, February and March 1998. Sometimes he annoyed residents enough that they called the police. On no occasion was he violent or did he use a weapon. The San Diego District Attorney recused himself. The state Attorney General took over the case. In May 2002, the Attorney General obtained the indictment of Tuite for murder in the first degree. 3  At trial, the state presented evidence that a criminologist in 1999 had retested the red shirt worn by Tuite and found Stephanie’s DNA in a stain on it; in April 2003, a second criminologist had retested Tuite’s white T-shirt and found her DNA on it. The defense countered these reports with expert testimony that the police could have inadvertently contaminated the shirts while they were in their custody as they investigated the case. O’Toole, the F.B.I. expert first retained by the district attorney to prosecute the boys, testified for the defense that in her judgment “the crime scene” reflected organization, that is, control of the victim and of surrounding events and circumstances so that the murder could be brought off without alarming the family members sleeping nearby, and without the murderer leaving fingerprints or the murder weapon. The prosecution rebutted O’Toole with its last witness, Gregg O. McCrary, who had been an agent of the F.B.I. for nearly thirty years, and was now in the business of consulting on criminal behavior. He testified that the crime scene was, on the whole, “disorganized,” reflecting a random attack. The defense moved to impeach McCrary by cross-examining him on a letter he had written, attacking O’Toole’s analysis of the crime scene, accusing her of undermining the prosecution of this case, suggesting that she had acted unethically, and expressing a strong desire that O’Toole be persuaded not to testify at Tuite’s 4 trial. After a hearing outside the presence of the jury, the court excluded the letter and cross-examination based on the letter. McCrary’s excluded letter, dated February 24, 2004, was written to the International Criminal Investigative Analysis Fellowship (ICIAF) about O’Toole’s proposed testimony for the defense, and what he termed “ethical issue[s]” that testimony raised. He wrote that Tuite was the “true killer,” and that he was hopeful O’Toole would not testify. He went on: Neither the San Diego County Sheriff’s Office nor the Office of the Attorney General for the State of California has requested the assistance of the NCAVC [National Center for the Analysis of Violent Crime] or the ICIAF in this matter. Both agencies are shocked and dismayed that Mary Ellen O’Toole, a representative of both the FBI and [the] ICIAF, has injected herself into this case in what they view as an attempt to obstruct justice and undermine the successful prosecution of Richard Tuite. (emphasis added). At the hearing, McCrary admitted that he had not spoken to anyone from the Sheriff’s Office. He also admitted that no one had accused O’Toole of obstructing justice or undermining Tuite’s prosecution. A jury found Tuite guilty of manslaughter. The court sentenced him to thirteen years imprisonment. He appealed to the California Court of Appeal for the Fourth District, which found that the trial court had committed constitutional error in excluding McCrary’s letter and cross-examination on it, but held the error to be 5 harmless and affirmed. The Supreme Court of California denied review. The federal district court denied Tuite’s petition for habeas. Tuite’s appeal to us focuses on the California’s court’s ruling of harmlessness. That court held: Under the above-stated legal principles, we agree Tuite’s counsel should have been allowed to cross-examine McCrary about his February 24, 2004 letter, and the trial court violated Tuite’s constitutional right to confront adverse witnesses when it precluded such cross-examination. The letter was relevant because it demonstrated bias and impacted McCrary’s credibility in a manner that could lead a reasonable jury to question the reliability and validity of his testimony. (See Evid. Code, §§ 210, 780, subd. (f).) The letter bore directly on McCrary’s credibility and reliability by indicating McCrary had a personal interest in convicting Tuite, whom he referred to as “the true killer.” The letter also demonstrated McCrary had prejudged Tuite’s case and was acting more as an advocate for the prosecution than as a forensic expert. Moreover, McCrary’s unusual attempt to dissuade O’Toole from testifying revealed a bias in favor of the prosecution and a bias against O’Toole. The letter also revealed McCrary’s tendency to exaggerate; his statement that the sheriff’s office and the prosecuting agency viewed O’Toole as obstructing justice was not only a gross overstatement but was also unreliable because no one from the sheriff’s office had talked to him about O’Toole’s upcoming testimony. For all these reasons, it is likely that a reasonable jury would have received “a significantly different impression of [the witness’s] credibility had [the excluded cross-examination] been permitted.” (Delaware v. Van Arsdall, supra, 475 U.S. at p. 680). Nonetheless, the court of appeal held this constitutional error to be harmless beyond a reasonable doubt. 6  The court of appeal weighed the harm of the constitutional error. It held that the jury itself was informed of the elements making up “the crime scene”; the jury was not dependent on the experts in determining whether the crime scene was organized or disorganized. The court of appeal added: “Further, the error in excluding McCrary’s letter had no impact on the central evidence against Tuite – the DNA evidence that Tuite had Stephanie’s blood on his clothing.” In assessing the harmlessness of the constitutional error, however, the court of appeal left out of the account these considerations: (1) the improbability of the prosecution’s case – namely, that a stranger could enter a house he did not know without leaving any signs of forced entry, make his way to a bedroom occupied by a girl without being seen or heard by the five other family members in the house, be moved to kill a girl he did not know, and depart from the house leaving no trace of any kind of his having been there to commit a motiveless murder; (2) the lack of explanation regarding how Tuite could have entered or exited the home, given the fact that the door commonly used to enter and exit the home was found deadbolted from the inside the morning after the murder, and the other doors did not appear to have been used to enter or exit the house; (3) the jury’s view of the evidence as shown by the length of deliberations and the jury’s reported deadlock after a week of deliberation; (4) the jury’s compromise verdict of voluntary manslaughter rather 7 than murder, reached after another week of deliberation, a verdict virtually impossible to square with the evidence of a series of deliberate knife wounds inflicted on a helpless victim. The court of appeal did note the strength of the DNA evidence. But if that evidence had been seen as dispositive, the jury would neither have reported deadlock nor compromised in reaching a manslaughter verdict in a case in which the victim was stabbed nine times with a knife. In fact, members of the jury could well have regarded the DNA evidence as not entirely persuasive, given the contradictions between the earlier and later test results and the alternative, contamination explanation offered by the defense. No view of the evidence was advanced by the prosecutor or by the defense that would have justified mitigating murder, deliberately inflicted on a defenseless child, into a manslaughter conviction. Only a deeply-divided jury could have reached a compromise agreement of that sort. All these factors increase the likelihood that the Confrontation Clause error with regard to the expert testimony had a substantial and injurious effect on the verdict. Moreover, the court ignored the weight that McCrary’s testimony likely carried, given its strategic presentation. Coming at the end of a long trial, McCrary was presented by the prosecution as an essential rebuttal witness to O’Toole. He was her superior in experience and in his past position at the F.B.I. He was a 8 government witness no longer in government, speaking with apparent impartiality on his speciality while in government. Absent some reason not to do so, the jury would trust his honest evaluation of the scene. To establish that he was jealous and resentful of O’Toole, that he was seeking to dissuade her from testifying by sullying her reputation, that he had developed a personal interest in the case, and that he was willing to misrepresent the stance of two governmental agencies to maintain his position was to destroy the impartial, measured image of him presented by the prosecution. Without that evidence in the record, the prosecution was able to emphasize that McCrary was providing his testimony for free, so he had no motive to lie: But really interesting, it was fascinating to me, Gregg Mc Crary was criticized by the defense for coming into this courtroom and sharing with you his knowledge, his experience, his expertise and not charging us for it; while at the same time, Dr. Leo comes in and testifies and charges for it and he gets hammered for charging for it. What is it? Which is it? You do it for free, you got to be a creep; if you do it for money, you’re still bad, evil. You know, Gregg Mc Crary explained to you when he testified here he does things sometimes pro bono, for no charge, to the extent that he can. He does have to pay for a mortgage and he does have children and a family and obviously expenses. And I would submit to you that Gregg Mc Crary when he testified in this case was completely credible, it was an honor to have him in the courtroom, it was an honor to have him share his knowledge with us, and it was a courageous thing for him to do. He is a lifetime F.B.I. agent. 9  Having promoted him to “lifetime F.B.I. agent,” the prosecution emphasized McCrary’s independence and integrity and lack of personal animus in challenging O’Toole: Why would he be willing to do that? Because he could see how honestly wrong and inaccurate Ms. O’Toole was. It was courageous for him to do that. And for him to be criticized for not charging the prosecution, I feel like calling the Attorney General’s Office, calling Attorney General, or calling the Governor and saying, you know, I know we don’t have that much money, but isn’t it nice we got Mr. Mc Crary to testify and not charge. The prosecutor returned to attack O’Toole and to praise McCrary: I want to stay on the subject of means for a second. Let’s talk about crime scene assessment. There were two witnesses; the defense called. Mary Ellen O’Toole and we called Gregg Mc Crary. And you recall Mr. Mc Crary described to you his experience with the F.B.I. and crime scene assessment, had I would say phenomenal, extensive, international, the number of cases he’s been involved with, the number of crime scene assessments he’s been involved with, and the number of times that he has testified. Ms. O’Toole doesn’t have the benefit of that, of that experience. And I would submit to you that it was reflected in the work done and the conclusions drawn. If you recall, Gregg Mc Crary said for a crime scene assessment to be done, there are four things that you look at in combination. The four things are: all of the evidence, and we’ll talk about that in a second, victimology, the crime scene location, and suspect evidence. And he said something that I did think really kind of stands out; that is, if any one of those is ignored, then the findings become then 10  unreliable. And unfortunately, that is what Ms. O’Toole did. She ignored evidence in the evidence prong, if you will, and she ignored all of the suspect information. As a result, her findings were, honestly, flat-out inaccurate. As we were going through her findings, undoubtedly, as you were seated there, you probably were thinking, well, that is wrong, that is not true. You know organized versus disorganized. When you see the crime scene itself, there is nothing about the crime scene that is organized at all. And then luckily, Mr. Mc Crary can describe for you what an organized crime scene is, was actually involved in doing an organized case. It is not reflected in this case whatsoever. One of the things that stood out, I think, in Mr. Mc Crary’s testimony is simply the reality of it as he is touching on different factors. And, you know, we asked – asked him, well, you know, does luck have anything to do with basically in the commission of a crime? Oh yeah, of course it does. And you know in real life it does; good luck, bad luck, always has some – some play of what is going on. In this case there is a ton of both. Depends on who you are and which way you see it. With regard to, for example, Stephanie, it was all bad luck completely. In contrast to the prosecutor’s argument, as the California Court of Appeal recognized, “[t]he letter bore directly on McCrary’s credibility and reliability”; it showed that “McCrary had a personal interest in convicting Tuite”; that McCrary’s own letter showed that he “was acting more as an advocate for the prosecution than as a forensic witness.” His own letter “could lead a reasonable jury to question the reliability and validity of his testimony.” Moreover, the letter actually contained unsubstantiated accusations – that the San Diego Sheriff’s office and the office of 11 the Attorney General of California viewed O’Toole as “injecting herself into this case” in “an attempt to obstruct justice.” These were accusations made up by McCrary without foundation in fact. These accusations revealed a witness with a passionate animus against O’Toole. Cross examination on the letter would have significantly undermined his credibility to the jury. Given the lack of evidence tying Tuite to the crime, the problems with the DNA evidence, the jury’s deadlock and compromise verdict, and the weight and strategic position of McCrary’s testimony, this case is one of those “unusual” circumstances in which we find ourselves “in virtual equipose as to the harmlessness of the error.” O’Neal v. McAninch, 513 U.S. 432, 435 (1995). We must treat the error as affecting the verdict, and are compelled to grant the writ. Id. The state argues that, instead of or in addition to our analysis under Brecht concerning whether the confrontation clause error caused actual prejudice, AEDPA requires us to analyze whether the state appellate court's determination was unreasonable under Chapman v. California, 386 U.S. 18 (1967), again asking if the confrontation clause error was harmless beyond a reasonable doubt. In other words, the state, persistently and passionately, asks us to apply a standard of review less favorable to the state than the one we have employed. As the Supreme Court has recognized, the Brecht standard "obviously subsumes" "the more liberal 12 AEDPA/Chapman standard." Fry v. Plyler, 551 U.S. 112, 120 (2007). Therefore, "it certainly makes no sense to require formal application of both tests." Id. We note that -- as Fry predicts -- were we to apply the AEDPA/Chapman standard, we would conclude, for the same reasons stated in the text with regard to the Brecht standard, that the state court Chapman harmless error ruling was unreasonable. For the foregoing reason, the judgment of the district court is REVERSED and REMANDED with instruction to issue a conditional writ of habeas corpus. 13  FILED Tuite v. Martel, No. 09-56267 DEC 06 2011 MOLLY C. DWYER, CLERK CALLAHAN, Circuit Judge, dissenting: U.S. COURT OF APPEALS Tuite is entitled to habeas relief only if the error had a substantial, injurious effect on the verdict. Slovik v. Yates, 556 F.3d 747, 755 (9th Cir. 2009). Because the excluded cross-examination would likely have discredited both the prosecution’s and defense’s experts, and would have proven relatively unimportant in light of the other evidence at trial, I would affirm the denial of habeas relief. In assessing the effect of the error on the verdict, we assume that the damaging potential of the cross-examination would have been fully realized. Id. As the state court described, the cross-examination would have revealed McCrary’s strong personal bias toward the prosecution and against O’Toole, his belief that Tuite was guilty, and his ability to exaggerate. However, the potential damage cut both ways. O’Toole’s own credibility likely would have been sullied. In a cross-examination outside the jury’s presence, McCrary explained that O’Toole’s report of the crime had been “pulled” and that he had prepared the letter at someone else’s request for an ethics investigation. The jury might also have been influenced by McCrary’s assessment of Tuite’s guilt, given McCrary’s vast investigative experience. Additionally, in assessing the error’s effect we consider (1) the testimony’s 1 importance; (2) whether it was cumulative; (3) whether there was evidence that corroborated or contradicted the testimony’s material points; (4) the extent of cross-examination allowed; and (5) the full strength of the prosecution’s case. Id. 1. The dueling testimony was relatively unimportant to both sides, in light of the other evidence. As Tuite conceded, the DNA evidence was the strongest aspect of the prosecution’s case. The prosecution only used McCrary to rebut O’Toole’s testimony concerning whether the crime was organized. The defense’s case was directed toward establishing that the original suspects killed Stephanie. Most important to the defense’s case were the video and audiotapes of the suspects’ inculpating statements during their interrogations by the police. In addition to O’Toole’s testimony, the defense put on an expert who testified that the nature of the attack suggested more than one attacker. Moreover, the defense put on an expert who testified that after 600 hours of investigation, he had found nothing placing Tuite inside the house. 2. Although McCrary’s testimony was not cumulative of other testimony in favor of the prosecution, this factor is outweighed by the other factors that all suggest the error did not substantially affect the verdict. 3. The jury could assess for itself whether the extensive crime scene 2 evidence corroborated McCrary’s or O’Toole’s analysis. 4. Although the defense was prevented from fully exploring McCrary’s bias based on the letter, it was able to establish McCrary’s general bias for the prosecution as a paid witness. Further, defense counsel skillfully challenged McCrary’s interpretation of various crime scene factors and his final assessment that the crime scene was disorganized. 5. Despite the improbabilities of the commission of the crime, the prosecution had a workable theory on how it was done, and showed that Tuite was bold and irrational in his hunt for a girl on the night of the murder. Tuite had approached several homes looking for a “girl,” who he later declared he wanted to “kill.” Tuite had opened the front door of one of the homes. He was last seen that night heading up the road leading to Stephanie’s house, which was the only home on that part of the road. The prosecution showed that he could have entered through the laundry room door and left through one of two different doors.1 Further, although family members heard pounding in the house around the time of the murder, and Stephanie’s mother woke up and realized that her bedroom door was opened and shut, none of the family members investigated the noises. 1 Tuite’s ability to slip through the unfamiliar house seems less improbable in light of his wily escape from handcuffs and the courtroom holding tank during trial, which ended with his apprehension hours later in another town. 3  The jury was also presented with evidence placing Tuite in the house. Stephanie’s DNA was found on the shirt Tuite wore that night. Investigators found a wrapper from an uncommon cough drop and a torn Snickers bar wrapper in Tuite’s pockets, and found wrappers from the same cough drops and a torn Snickers wrapper in Stephanie’s room. Moreover, although the investigators did not find a knife on Tuite when he was detained the day after the murder, the jury received evidence that Tuite was found with a knife on three prior occasions. The DNA evidence was the strongest aspect of the prosecution’s case, although it was disputed. During its lengthy deliberations, the jury requested read backs of DNA testimony, but not the testimony at issue. In light of these considerations, I am convinced that the limitation on cross- examination did not have a substantial and injurious effect on the jury’s verdict. Thus, I would affirm the denial of habeas relief. 4 

22 B.R. 447 (1982) In re Maris K. RINEER and Diane M. Rineer, Debtors. Maris K. RINEER and Diane M. Rineer, Plaintiffs, v. BANK OF the NORTH SHORE, Defendant. Bankruptcy Nos. 82 B 00044, 82 A 1250. United States Bankruptcy Court, N.D. Illinois, E.D. August 17, 1982. E. Paul Rustin, Chicago, Ill., for plaintiffs. Sherwin Willens, Wilmette, Ill., for defendant. MEMORANDUM OPINION FREDERICK J. HERTZ, Bankruptcy Judge. This cause of action comes to be heard on a motion for summary judgment filed by the debtors, Maris and Diane Rineer (hereinafter referred to as plaintiffs) against the Bank of the North Shore (hereinafter referred to as North Shore) to rescind a security interest held by North Shore in the plaintiffs' home. In May of 1978, North Shore financed plaintiffs' purchase of a 1978 Dodge motor home under a retail installment contract. Subsequently, the plaintiffs defaulted on the contract. North Shore notified the plaintiffs that the vehicle would be repossessed unless the arrearages were paid in full. Plaintiffs requested that North Shore refrain from repossessing the vehicle, and North Shore agreed, provided that the plaintiffs give North Shore a second mortgage lien on their home at 6922 Chestnut, Hanover Park, Illinois as additional collateral for the obligation existing under the retail installment contract. On June 3, 1980, the plaintiffs executed an addendum to their original contract which gave North Shore a second mortgage on their home. The plaintiffs executed a Trust Deed-second mortgage, which North Shore recorded in Cook County, Illinois on June 6, 1980. In April of 1981, the plaintiffs, who presumably were either unable or unwilling to make their payments under the contract, voluntarily returned the vehicle to North Shore. In his affidavit, plaintiff Maris Rineer alleges that the transaction in which North Shore obtained a second mortgage on the plaintiffs' home is subject to Regulation Z of the Federal Truth in Lending Act.[1] The *448 plaintiffs further claim that: (1) under Regulation Z, North Shore is required to furnish the plaintiffs with notice of their right to rescind the June, 1980 transaction which resulted in North Shore's acquisition of a second mortgage in the plaintiffs' home, (2) this notice was not given to the plaintiffs, and (3) in October of 1981, the plaintiffs rescinded the transaction through their own Notice of Rescission sent to North Shore. Accordingly, the plaintiffs believe that North Shore's security interest in their home should be set aside. On December 19, 1981, North Shore sold the motor home for $6,250.00, leaving a deficiency due from the plaintiffs in the amount of $10,757.57. North Shore filed a Proof of Claim for this amount in the plaintiffs' Chapter 13 proceeding. North Shore's position is that summary judgment should be denied because the right of rescission under Regulation Z does not apply to a closed end credit transaction where the security interest in a consumer's principal dwelling is acquired as additional collateral after the close of the consumer transaction and is given for a forebearance against repossession of the original collateral. Under Federal Rule of Civil Procedure 56(c), summary judgment should be issued only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of right. Consequently, the issues to be decided by this court are (1) whether there exists a genuine issue of material fact and (2) if not, whether the plaintiffs are entitled to a judgment as a matter of right. The movant bears the burden of proving that no genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Thus, summary judgment may be denied even where the opposing party offers no evidence, if the movant fails to meet his burden. Garza v. Chicago Health Clubs, Inc., 347 F.Supp. 955, 965 (N.D.Ill.1972). Doubts as to the existence of an issue of fact are resolved in favor of the party opposing the motion. If different inferences and conclusions can reasonably be drawn from the facts offered, summary judgment should be denied. Harvey v. Great Atlantic and Pacific Tea Co., 388 F.2d 123, 124-25 (5th Cir. 1968). See also, In re Chong, 16 B.R. 1, 5 (Bkrtcy.Hawaii 1980). In the case at bar, the plaintiffs have merely made a naked assertion that Regulation Z applies to North Shore's acquisition of a security interest in their home. The plaintiffs did not file a brief in support of their position or respond to North Shore's arguments concerning Regulation Z's inapplicability to the transaction herein. Moreover, research indicates that there is considerable doubt whether the transaction constitutes a "credit transaction" under Section 226.9 of Regulation Z. Even if it is a "credit transaction," it may qualify as a type of refinancing agreement which is an exception to the Right to Rescind. See 12 C.F.R. § 226.903 (1982). Since all of these factors indicate that the relationship between the transaction in question and Regulation Z is not clear or certain, reasonable minds can draw different conclusions from the facts offered. Consequently, this court holds that the plaintiffs have not met their burden of proving that no genuine issue of material fact exists. The plaintiffs' motion for summary judgment is denied. North Shore is to prepare a draft order in accordance with this opinion within 5 days.[*] NOTES [1] The Consumer Credit Protection Act, 15 U.S.C. § 1601 et seq. (1976), is popularly known as the "Truth in Lending Act." Its purpose "is to improve consumer credit protection through a more informed use of credit." Dumas v. Home Constr. Co. of Mobile, Inc., 440 F.Supp. 1386, 1388 (S.D.Ala.1977). Regulation Z is a body of regulation promulgated by the Federal Reserve Board under the Act. 12 C.F.R. § 226.1 et seq. (1982). [*] This decision is entered in compliance with the stay of enforcement until October 4, 1982 of the United States Supreme Court decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., ___ U.S. ___, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) and the General Order of the United States District Court for the Northern District of Illinois (July 14, 1982).

434 So.2d 1031 (1983) Rafael Humberto PALACIOS, Appellant, v. STATE of Florida, Appellee. No. AO-373. District Court of Appeal of Florida, First District. July 22, 1983. Rehearing Denied August 4, 1983. *1032 Michael E. Allen, Public Defender, Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant. Jim Smith, Atty. Gen., Andrew Thomas, Asst. Atty. Gen., Tallahassee, for appellee. ERVIN, Chief Judge. Appellant, Rafael Humberto Palacios, appeals from a conviction for the offense of trafficking in marijuana, contending, inter alia, that the trial court erred in denying his motion to suppress physical evidence seized subsequent to a non-consensual search not incident to arrest. We agree and reverse. The record discloses that Palacios was driving a rental truck north on Interstate 75 in Hamilton County at 4:00 a.m. on December 1, 1981, when he failed to stop at an agricultural inspection station. Inspector Davis, a uniformed officer on duty at the time, saw the truck by-pass the station and accordingly pursued it in an official marked car with blue lights flashing. He stopped the truck some 2 1/2 miles north of the station and then informed the driver, Palacios, first that he was required to stop at the station, and second that he needed to inspect the truck's cargo section. Palacios, a recent Cuban immigrant who speaks only Spanish, said, "No English." Davis again attempted to explain that he needed to inspect the rear of the truck and motioned to Palacios to open the rear door. Palacios complied with Davis' gestures by opening the door. At that point, a second man, Ferrer, who had been following the truck in an automobile, told Inspector Davis that he could not open the boxes in the rear of the truck which, he contended, contained ceramic vases. Davis then informed Palacios and Ferrer to return to the station, where Palacios was again directed, by motions, to re-open the cargo section of the truck. By that time Sheriff's Deputy Beck had approached the open door of the truck, smelled marijuana within it, and proceeded to open the boxes inside it, which were found to contain marijuana. Palacios' motion to suppress alleged that he did not knowingly, freely and voluntarily consent to a search of the truck and that the evidence thus seized was the fruit of an illegal search and seizure. At the hearing on the motion, Palacios testified, through an interpreter, that he believed Inspector Davis had ordered him to open the truck's door; that he did not know he could refuse to obey Davis' order, because in Cuba officers generally have the right to conduct searches without consent, and that, had he known he could lawfully refuse, he would not have opened door to the truck. Ferrer also testified and confirmed the fact that Palacios does not speak or understand English. The trial court denied the motion, finding no coercion because, in its opinion, Inspector Davis was soft spoken, mild mannered and not authoritative. We reverse. Nothing in the record discloses that the state met its burden of proving, by a preponderance of the evidence, that Palacios consented knowingly, freely and voluntarily to the search. See Denehy v. State, 400 So.2d 1216, 1217 (Fla. 1980). In reversing, we adopt the reasoning in our recent decision of Rosell v. State, 433 So.2d 1260, (Fla. 1st DCA 1983), which we find controls the facts in the present case. In this case, as in Rosell, we do not find that Palacios' action, in opening the rear door of the truck upon request, was anything more than mere submission to the apparent authority of Inspector Davis and, as such, was far short of the knowing, free *1033 and voluntary consent necessary to comply with fourth amendment protections. REVERSED. THOMPSON and WIGGINTON, JJ., concur.

29 Wn. App. 461 (1981) 629 P.2d 912 THE STATE OF WASHINGTON, Respondent, v. DONALD R. WEDDEL, Appellant. No. 4250-II. The Court of Appeals of Washington, Division Two. May 29, 1981. Stephen Whitehouse, for appellant. Patrick D. Sutherland, Prosecuting Attorney, and Chris Pomeroy, Deputy, for respondent. REED, C.J. Defendant Donald R. Weddel appeals his conviction of second degree burglary. We affirm. On March 18, 1979, Larry and Jacqueline Wassman returned to their home in Lacey and discovered a gray Chevrolet Chevelle in their driveway with a young woman in the front seat. After the Wassmans had a brief conversation with the woman, who indicated that she thought their house was the residence of "the Hansons," a man they later identified as defendant Weddel came out from behind the house. He circled on foot to a vacant lot next to the house and then approached the vehicle, asking if the lot was for sale. After the man and woman left, Mr. Wassman, suspicious because of their inconsistent explanations for being at *463 the house, wrote down the Chevelle's license number, NET 900, and subsequently reported the incident to the police. There was no evidence, however, of any attempted entry to the Wassman residence. On March 19, Paul and Wendy Johnson, returning from a shopping trip, arrived at their home located approximately seven-tenths of a mile from the Wassman residence. As the Johnsons pulled up to their mailbox across the street from their home, they noticed a gray Chevrolet Chevelle, occupied by two persons, leaving their driveway, some 50 to 75 feet from the mailbox. Dr. Johnson noted the Chevelle's license number, NET 900, and got a brief look at the driver. The Johnsons subsequently discovered that someone had stolen two stereo speakers from their living room after kicking open the front door. Kelso police arrested defendant on March 20, apparently because he previously had been convicted of burglary and owned a vehicle matching the license number and description the Wassmans and Johnsons furnished. On March 23, while defendant was in custody, Mrs. Wassman positively identified him from a 6-picture photographic array, and on March 26 Mr. Wassman did likewise. Shown the same series of six pictures on March 23, Dr. Johnson tentatively identified defendant's picture as "the only one that looked like the individual I had seen driving the car." On March 30 the State formally charged defendant with second degree burglary of the Johnson residence. On June 6 an amended information was filed, adding a second count charging attempted second degree burglary of the Wassman residence.[1] Before and during trial, defendant's timely *464 motions pursuant to CrR 4.4 to sever the attempted burglary count were denied.[2] At trial, defendant presented three alibi witnesses who testified they saw him in Longview at approximately the time the Johnson burglary was committed, but he presented no evidence directed to the Wassman attempted burglary count. Defendant did not testify in his own defense. The jury returned a verdict of guilty on the burglary count and not guilty on the attempted burglary count. Defendant appeals from the burglary conviction, assigning error to the trial court's refusal (1) to sever the attempted burglary count; and (2) to suppress Dr. Johnson's photographic identification of defendant conducted while he was in custody. [1] Addressing first the issue of severance, we are mindful that joinder of counts should never be utilized in such a way as to unduly embarrass or prejudice one charged with a crime, or to deny him a substantial right. State v. Smith, 74 Wn.2d 744, 446 P.2d 571 (1968), vacated on other grounds sub nom. Smith v. Washington, 408 U.S. 934, 33 L.Ed.2d 747, 92 S.Ct. 2852 (1972). The determination of whether prejudice resulting from joinder of counts is sufficient to warrant severance, however, is within the discretion of the trial court. State v. Thompson, 88 Wn.2d 518, 564 P.2d 315 *465 (1977); State v. McDonald, 74 Wn.2d 563, 445 P.2d 635 (1968). The trial court's exercise of this discretion will be overturned on appeal only upon a showing of manifest abuse. State v. Wills, 21 Wn. App. 677, 586 P.2d 543 (1978), review denied, 92 Wn.2d 1006 (1979). Defendant contends he was prejudiced by joinder of the attempted burglary charge in three ways. First, he argues the jury may have inferred that because he did not deny being at the Wassman residence, he must also have been at the Johnson residence; thus, joinder "confounded and embarrassed" him in his alibi defense to the Johnson burglary charge. Second, he argues the jury may have cumulated evidence of the crimes charged to find him guilty of the Johnson burglary when it might not have so found if the charges had been tried separately. Third, he argues joinder of the charges frustrated his desire to testify concerning the burglary charge but not to testify concerning the attempted burglary charge. [2, 3] We believe the first two of these arguments clearly are without merit and essentially complain of the same harm — that in their deliberations on the burglary count the jurors may have considered evidence introduced to prove the attempted burglary. Where the general requirements for joinder are met and evidence of one crime would be admissible to prove an element of a second crime, joinder of the two crimes usually cannot be prejudicial. State v. Pleasant, 21 Wn. App. 177, 583 P.2d 680 (1978), review denied, 91 Wn.2d 1011, cert. denied, Pleasant v. Washington, 441 U.S. 935, 60 L.Ed.2d 664, 99 S.Ct. 2058 (1979); State v. Kinsey, 7 Wn. App. 773, 502 P.2d 470 (1972), review denied, 82 Wn.2d 1002 (1973); State v. Conley, 3 Wn. App. 579, 476 P.2d 544 (1970). The general requirements for joinder of offenses are satisfied in this case because burglary and attempted burglary obviously are offenses "of the same or similar character." CrR 4.3(a). The remaining question, then, is whether evidence of the attempted burglary would have been admissible in a separate trial of the burglary charge. As a general rule, a *466 defendant must be tried for the offenses charged in the information and evidence of other offenses may not be admitted as proof of guilt of the charged offenses if the evidence is relevant only to prove the defendant's criminal disposition. State v. Goebel, 40 Wn.2d 18, 240 P.2d 251 (1952). The general rule excluding evidence of uncharged offenses is subject to certain exceptions, the most common of which involve "other crimes" evidence offered to show (1) motive, (2) intent, (3) absence of accident or mistake, (4) common scheme or plan, or (5) identity. The foregoing list of exceptions is not exclusive, however, and the true test of admissibility is whether the other crimes evidence is relevant and necessary to prove an essential ingredient of the crime charged. See State v. Lew, 26 Wn.2d 394, 174 P.2d 291 (1946); State v. Kinsey, supra; ER 404(b). We believe that evidence of the attempted burglary was admissible to establish defendant's presence in the near vicinity of the burglary a short time before it occurred. See State v. Cartwright, 76 Wn.2d 259, 456 P.2d 340 (1969); State v. Leroy, 61 Wash. 405, 112 P. 635 (1911); State v. Norris, 27 Wash. 453, 67 P. 983 (1902); State v. Hyde, 22 Wash. 551, 61 P. 719 (1900). Defendant's presence in the Johnson neighborhood 1 day before the burglary clearly was relevant to an important issue in the burglary prosecution because defendant lived in the Longview/Kelso area (more than 70 miles south of Lacey) and relied on alibi witnesses placing him in Longview at the time of the burglary as a defense to that charge. Accordingly, because evidence of the attempted burglary would have been admissible in any event in a separate trial of the burglary count, joinder of the two offenses did not unduly prejudice defendant either by undercutting his alibi defense or by permitting the jury to cumulate evidence of separate crimes. We also reject defendant's third argument that joinder effectively denied him the right to testify in his own defense by forcing him to choose between testifying about both crimes or not testifying at all. In support of this argument, he relies principally on Cross v. United States, 335 *467 F.2d 987 (D.C. Cir.1964). In Cross, the court vacated convictions of two defendants and remanded for new trials because it concluded that joinder of counts had been prejudicial within the meaning of rule 14 of the Federal Rules of Criminal Procedure, which is substantially similar to CrR 4.4. The court noted that prejudice may develop when an accused wishes to testify on one but not the other of two joined offenses which are clearly distinct in time, place and evidence. Cross, 335 F.2d at 989. The defendants in Cross did not specify at trial the counts upon which they wished to remain silent and why, but this apparently was because the trial court insisted that the issue of joinder had been determined finally in its denial of a pretrial motion to sever and refused to hear the defendants' arguments. Id. at 990 & n. 6. Examining the record of the defendants' testimony, the Court of Appeals determined that defendant Cross offered convincing evidence on the count upon which he was acquitted but was plainly evasive and unconvincing in his testimony on the count upon which he was convicted. The court held: Thus it would appear that Cross had ample reason not to testify on Count I and would not have done so if that count had been tried separately. In a separate trial of that count the jury would not have heard his admissions of prior convictions and unsavory activities; nor would he have been under duress to offer dubious testimony on that count in order to avoid the damaging implication of testifying on only one of the two joined counts. Since the joinder embarrassed and confounded Cross in making his defense, the joinder was prejudicial within the meaning of Rule 14. (Footnote omitted.) Id. at 990-91.[3] [4] Federal cases decided after Cross, however, have indicated that a defendant's mere desire to testify only to one count is an insufficient reason to require severance. *468 E.g., Alvarez v. Wainwright, 607 F.2d 683 (5th Cir.1979); United States v. Williamson, 482 F.2d 508 (5th Cir.1973). Severance is required only if the defendant makes a convincing showing to the trial court that he has both important testimony to give concerning one count and a strong need to refrain from testifying about the other. United States v. Jardan, 552 F.2d 216 (8th Cir.), cert. denied, 433 U.S. 912, 53 L.Ed.2d 1097, 97 S.Ct. 2982 (1977); Baker v. United States, 401 F.2d 958 (D.C. Cir.1968), cert. denied, 400 U.S. 965, 27 L.Ed.2d 384, 91 S.Ct. 367 (1970). In making such a showing, it is essential that the defendant present enough information — regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other — to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of "economy and expedition in judicial administration" against the defendant's interest in having a free choice with respect to testifying. (Footnote omitted.) Baker, 401 F.2d at 977. Although he had an opportunity to make such a showing, defendant Weddel did so neither before the trial court nor before this court. Furthermore, we doubt that his testimony could have significantly strengthened his alibi defense in the minds of the jurors, particularly since he produced three witnesses to support that defense. In the absence of evidence to the contrary, we conclude that the overriding reason why defendant chose not to testify was not his fear of incriminating himself on the attempted burglary count, but rather his realization that the State would use a prior burglary conviction for impeachment. Therefore, his third and final argument concerning prejudice caused by joinder of counts is without merit. We hold the trial court did not abuse its discretion in refusing to sever the attempted burglary count. As his second assignment of error, defendant argues that the trial court erred in admitting Dr. Johnson's photographic identification, relying on State v. Thorkelson, 25 Wn. App. 615, 611 P.2d 1278, review denied, 94 Wn.2d *469 1001 (1980). Defendant's statement of the issue is rather vague, and we are unable to determine with assurance whether he objects solely to the fact that a photographic identification was conducted after he was in custody and available for a physical lineup or instead contends that the identification procedure was so impermissibly suggestive as to deny him due process of law. Because he presented both theories to the trial court, however, we will address each in turn. On a number of occasions Washington appellate courts have criticized the use of a photographic identification procedure when a physical lineup was feasible. For instance, in State v. Nettles, 81 Wn.2d 205, 209-10, 500 P.2d 752 (1972), the Supreme Court said: We cannot commend the [photographic] identification procedure which was used in this case. Where a defendant is in custody and available for a lineup, a lineup identification procedure would usually be a more effective, less questionable law enforcement technique, and should be used, following the requirements or standards prescribed in United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926 (1967), and Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951 (1967). In Nettles, however, the court upheld the photographic identification used in that case. The court held that a photographic identification denies a defendant due process of law only if the procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Nettles, 81 Wn.2d at 209-10.[4]Accord, Simmons v. United States, 390 U.S. 377, 19 L.Ed.2d 1247, 88 S.Ct. 967 (1968); and see Manson v. Brathwaite, 432 U.S. 98, 53 L.Ed.2d 140, 97 S.Ct. 2243 (1977). Thus, although a physical lineup is preferred over a photographic *470 identification when the suspect is in custody, ideal identification techniques are not constitutionally required. State v. Butts, 16 Wn. App. 828, 560 P.2d 1154 (1977). Despite its holding in Nettles, the Supreme Court in a more recent case cryptically noted that courts in some other jurisdictions limit the use of photographic identification when the suspect is in custody by requiring the existence of extenuating circumstances before such a procedure may be used. State v. Hilliard, 89 Wn.2d 430, 438, 573 P.2d 22 (1977). The court declined to decide that issue in Hilliard, however, because it found an extenuating circumstance justifying in any event the use of a photographic identification — the defendant had attempted to thwart a lineup identification by cutting his hair and shaving his beard. With these cases as background, Division One of this court recently reversed an armed robbery conviction resulting from a photographic identification, holding that "absent extenuating circumstances, photographic identification procedures of an in-custody defendant should not be used." Thorkelson, 25 Wn. App. at 619. The court noted that the four witnesses in Thorkelson had only a fleeting glimpse of the person they later identified as the defendant. Only two of the three witnesses who later positively identified Thorkelson at a lineup and at trial were able to choose Thorkelson's photograph as being that of the robber, and those identifications were only tentative. Referring to the widespread disregard of the Supreme Court's longstanding disapproval of photographic identifications when suspects are in custody, the Thorkelson court concluded that all identification evidence in connection with the robbery should have been suppressed.[5] We read Thorkelson as adopting a per se rule excluding, absent extenuating circumstances, photographic identifications made while a defendant is in *471 custody, without regard to whether the photographic identification procedure contained elements of suggestiveness.[6] Because defendant Weddel argues that Thorkelson dictates reversal of his conviction and urges us to adopt a similar rule, we believe an analysis of later Division One identification cases is appropriate. Several months after Thorkelson was decided, another panel of Division One affirmed an armed robbery conviction in State v. Schultz, 27 Wn. App. 722, 627 P.2d 107 (1980), although the defendant had been identified through a photographic montage procedure while he was in custody. The Schultz court, referring to Hilliard, noted that the Supreme Court has not decided whether the lineup procedure must be used in the absence of extenuating circumstances if the defendant is in custody. Schultz, 27 Wn. App. at 723. The court distinguished Thorkelson on the basis that it was a "fleeting glimpse" case, whereas Schultz was not. Id. at 725. The court seemed to hold, however, that photographic identification of a suspect in custody does not constitute reversible error unless it is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Subsequently, in State v. Burrell, 28 Wn. App. 606, 625 P.2d 726 (1981), a third Division One panel affirmed an assault conviction resting on a photographic identification conducted while the suspect was in custody. In an opinion written by the author of Thorkelson, a majority of the panel reasoned that although the photographs shown to the *472 witnesses were suggestive, there nevertheless were sufficient indications that the identifications were reliable to conclude that the identification procedure did not deny Burrell due process of law. Discussing State v. Thorkelson, 25 Wn. App. 615, 611 P.2d 1278 (1980), upon which defendant Burrell relied, the majority said: The purpose of placing some restriction upon police identification procedures is to prevent misidentification of suspects by witnesses. The lineup is favored because it is generally considered more reliable and as involving less risk of prejudice and misidentification.... The identifications in Thorkelson were patently unreliable because the witnesses, who had little opportunity to observe the robber, were subjected to a photo identification procedure whose effect was almost certain to leave them with a recollection of the suspect based on Thorkelson's photograph rather than their original impressions. The denial of due process stemmed not merely from use of a photo montage, but from use of an identification procedure almost calculated to create a serious risk of misidentification. Identification evidence should be suppressed only where consistent with the purpose of such restrictions, namely, preventing misidentification of suspects by witnesses. Thorkelson creates a rule of exclusion somewhat broader in scope than is consistent with this purpose. But the procedure by which identification evidence is obtained is not so determinative of its reliability that a per se rule of exclusion for photographic identifications is appropriate. Insofar as Thorkelson may suggest a per se rule of exclusion, we modify its holding. (Citations omitted.) Burrell, 28 Wn. App. at 609-10. The majority went on to hold that a photographic procedure violates due process only if, under the totality of circumstances, the procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The third member of the Burrell panel concurred only in the result, interpreting the majority opinion to hold that the violation in Burrell of the per se Thorkelson rule was harmless under the circumstances in light of the strong *473 indicia of reliability surrounding the identifications. The concurring judge stated: The rule in Thorkelson is a salutary one that reduces the risk of misidentification. The majority's purported modification of Thorkelson is dicta unnecessary to the decision. The law in this jurisdiction remains that absent extenuating circumstances, a photographic identification procedure should not be used when the defendant is in custody. A violation of this rule requires balancing the inherently corruptive effect of the photo montage and any other suggestiveness against the countervailing indicia of reliability. Burrell, 28 Wn. App. at 612. [5] After reading the Thorkelson/Schultz/Burrell trilogy of cases, we are somewhat uncertain about the current state of the law in Division One regarding photographic identifications conducted while a suspect is in custody. Apparently, in Burrell, Division One abandoned the per se Thorkelson rule, which would exclude photographic identifications, without regard to the suggestiveness of the photographs or the procedure, unless there exist in the particular case countervailing indicia of reliability. Regardless of whether our reading of those cases is correct, however, until and unless the Supreme Court holds to the contrary, the rule in this division remains that a photographic identification conducted while a defendant is in custody, although not favored, will be suppressed only if it is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. State v. Butts, 16 Wn. App. 828, 829, 560 P.2d 1154 (1977); State v. Nettles, 6 Wn. App. 257, 260, 492 P.2d 567 (1971). Accordingly, the mere fact that, at the time the photographic identification was conducted in this case, defendant Weddel was in custody and available for a lineup does not determine whether the trial court erred in admitting the identification at trial. We must decide, then, whether the photographic identification procedure was so impermissibly suggestive as to deny defendant Weddel due process of law by creating a *474 very substantial likelihood of irreparable misidentification. In Simmons v. United States, 390 U.S. 377, 19 L.Ed.2d 1247, 88 S.Ct. 967 (1968), the court discussed several possible sources of suggestiveness that heighten the danger that witnesses who had only a brief glimpse of a criminal or saw him under poor conditions may err in making an identification from photographs. These include: (1) the police displaying to the witness only the picture of a single individual who generally resembles the person he saw; (2) the police showing the witness the pictures of several persons among which the photograph of a single individual recurs or in some way is emphasized; and (3) the police indicating to the witness that they have other evidence that one of the persons pictured committed the crime. Simmons, 390 U.S. at 383. See P. Wall, Eye-Witness Identifications in Criminal Cases 73-83 (1965). Defendant here does not contend that police conduct during the identifications was suggestive. Before and while showing the photographs, the officer said nothing to the witnesses except that he had a series of photographs and wanted them to identify, if possible, anyone that they recognized. Each witness viewed the photographs outside the presence of other witnesses. After making their identifications, the witnesses were instructed to say nothing to other witnesses about the photograph they had selected. The officer rearranged the order of the photographs after each viewing. Defendant does contend, however, that the photographs themselves are suggestive. Of the six photographs shown to the witnesses, all are Polaroid-type color prints and all depict similar-looking men in their twenties or early thirties with dark hair and moustaches. Defendant's photograph, however, is 4 1/4 inches wide compared to 4 inches for the others. Furthermore, the six photographs contain three different backgrounds. Three photographs were taken against a light beige metal door, two against a dark wood door, and only defendant's against an off-white wall with *475 an electrical panel showing. Defendant argued at the suppression hearing that the differences in width and background made his photograph stand out from the others, suggesting to the witnesses which photograph to choose. [6] Having viewed the photographic array, we conclude that it is not completely free of possible suggestiveness. We believe, however, that the array is not impermissibly suggestive. The difference in width is so slight as to be virtually imperceptible.[7] The difference in background is more troubling, but we are convinced that Dr. Johnson was not influenced in his choice by that feature of the photograph.[8] Any possible suggestiveness was minimized somewhat by the two different backgrounds in the other five photographs.[9] Although the photographic array used in this case was less than ideal, it was not so impermissibly suggestive *476 as to deny defendant due process of law.[10] Defendant having failed to establish a constitutional violation, the validity of the identification procedure and the weight to attach to it were questions for the jury to determine. *477 Judgment affirmed. PETRIE and PETRICH, JJ., concur. Reconsideration denied June 23, 1981. Review denied by Supreme Court October 16, 1981. NOTES [1] CrR 4.3 governs joinder of offenses in a single trial. It provides in pertinent part: "(a) Joinder of Offenses. Two or more offenses may be joined in one charge, with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both: "(1) are of the same or similar character, even if not part of a single scheme or plan; or "(2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan; "(3) improper joinder of offenses or defendants shall not preclude subsequent prosecution on the same charge for the charge or defendant improperly joined." [2] CrR 4.4 provides in pertinent part: "(a) Timeliness of Motion; Waiver. "(1) A defendant's motion for severance of offenses or defendants must be made before trial, except that a motion for severance may be made before or at the close of all the evidence if the interests of justice require. Severance is waived if the motion is not made at the appropriate time. "(2) If a defendant's pretrial motion for severance was overruled he may renew the motion on the same ground before or at the close of all the evidence. Severance is waived by failure to renew the motion. "(b) Severance of Offenses. "(1) The court, on application of the prosecuting attorney, or on application of the defendant other than under section (a), shall grant a severance of offenses whenever before trial or during trial with consent of the defendant, the court determines that severance will promote a fair determination of the defendant's guilt or innocence of each offense." [3] The court also vacated the conviction of Cross' codefendant because it concluded that he, too, was prejudiced by Cross' testimony. [4] The court also held that the Sixth Amendment right to counsel does not extend to an out-of-court photographic identification, regardless of the fact that the defendant may be in custody at the time. Nettles, 81 Wn.2d at 207-09. Accord, United States v. Ash, 413 U.S. 300, 37 L.Ed.2d 619, 93 S.Ct. 2568 (1973). [5] The court held that the subsequent lineup and in-court identification also were inadmissible because they had no independent origin, concluding that the witnesses' recollections probably were tainted by being shown the photographic montage. Thorkelson, 25 Wn. App. at 619-20. [6] The court neglected to indicate what features, if any, of the photographic montage procedure were suggestive. A review of the appellate briefs filed in Thorkelson reveals that the montage consisted of 16 photographs of subjects similar in appearance. The defendant mentioned nothing improper about the photographic identification itself other than that he was in custody at the time. Brief of Appellant, at 16-22, 43-52, State v. Thorkelson, supra. The defendant did argue, however, that the later physical lineup, at which he was positively identified, was suggestive because he was the only person in the lineup who matched the description of the robber given to police and the only one whose picture also appeared in the photographic montage. Brief of Appellant, at 22, 50. [7] In State v. Smith, 9 Wn. App. 279, 511 P.2d 1032, review denied, 82 Wn.2d 1013 (1973), the police showed an 11-photograph array to witnesses to an armed robbery. Eight of the photographs were 2 1/2 by 3 1/2 inches in size, while the other three were 3 by 5 inches. Two of the larger photographs were of the defendant. The court concluded that the photographs were not impermissibly suggestive. [8] At trial Dr. Johnson was questioned about his photographic identification of defendant as follows: Q At the time that you observed the photographs, did you notice the background, or were you looking at the person's face for identification purposes? A I was looking at the faces. Q Now, looking at the photographs now, do you notice dissimilarity in the backgrounds of the photographs? A I do. Q How many differences are there in the backgrounds of the photographs? A Well, I think the basic difference that I see is the coloration. The last one, as well as a couple of the others, were taken in different locations, but the photograph that I selected is of a different coloration. Q Did you notice that at the time you made the identification? A As I was identifying it, I do not think that entered in on my decision whatsoever. [9] The officer who conducted the identifications received defendant's photograph in the mail from the Kelso police, who were holding defendant in custody. When the officer realized that he would not be able to duplicate the background of defendant's photograph in the remaining photographs, it would have been better procedure to take those photographs against five different backgrounds. [10] Courts in other jurisdictions consistently have reached the same conclusion when addressing claims of impermissible suggestiveness in similar factual contexts. See United States v. Merryman, 630 F.2d 780 (10th Cir.1980) (only photograph not bearing numbers, only 1 depicting a Caucasian, and 1 of only 2 in color among those shown); United States v. Lincoln, 494 F.2d 833 (9th Cir.1974) (only color photograph among 9 shown); United States v. Harrison, 460 F.2d 270 (2d Cir.), cert. denied, 409 U.S. 862, 34 L.Ed.2d 110, 93 S.Ct. 152 (1972) (only single front-view photograph and only 1 showing clean-shaven face among 7 shown); United States v. Bell, 457 F.2d 1231 (5th Cir.1972) (only full-length photograph among those shown, where witness had seen criminal standing beside his car); United States v. Magnotti, 454 F.2d 1140 (2d Cir.1972) (only full-view photograph shown along with 7 "mug shots"); United States v. Cunningham, 423 F.2d 1269 (4th Cir.1970) (7 out of 14 photographs shown were of defendants, only color photographs were of defendants); United States ex rel. Johnson v. Hatrak, 417 F. Supp. 316 (D.N.J. 1976), aff'd mem., 564 F.2d 90 (3d Cir.1977), cert. denied, 435 U.S. 906, 55 L.Ed.2d 497, 98 S.Ct. 1454 (1978) (only photograph bearing legend "Rob." among 16 shown, where defendant charged with armed robbery); United States v. Bostic, 360 F. Supp. 1300 (E.D. Pa.), aff'd mem., 491 F.2d 751 (3d Cir.1973) (only photograph depicting person with scar on forehead among 8 shown); State v. Hafner, 168 Conn. 230, 362 A.2d 925, cert. denied, 423 U.S. 851, 46 L.Ed.2d 74, 96 S.Ct. 95 (1975) (defendant's photograph slightly larger than other 6 shown); United States v. Sherry, 318 A.2d 903 (D.C. App. 1974) (only single front-view photograph among 12 shown); People v. Witted, 79 Ill. App.3d 156, 398 N.E.2d 68 (1979) (only single-view photograph and only 1 without writing on it among 25 shown); Gaddis v. State, 267 Ind. 100, 368 N.E.2d 244 (1977) (defendant's photograph smaller than other 6 shown; only 1 with strip of paper pasted over bottom); State v. Robinson, 386 So.2d 1374 (La. 1980) (defendant's photograph more yellowed than other 4 shown); State v. Cass, 356 So.2d 936 (La. 1977) (defendant's photograph 1 of 2 snapshots shown along with 8 "mug shots"); Commonwealth v. Clark, ___ Mass. ___, 393 N.E.2d 296 (1979) (defendant's photograph 1 of 2 snapshots shown along with 11 "mug shots"); State v. Gomillia, 529 S.W.2d 892 (Mo. App. 1975) (defendant's photograph 1 of 2 which were inch longer and wider than other 9 shown); State v. Farrow, 61 N.J. 434, 294 A.2d 873 (1972), cert. denied, 410 U.S. 937, 35 L.Ed.2d 602, 93 S.Ct. 1396 (1973) (defendant's photograph inch longer and wider than other 4 shown); People v. Joyiens, 39 N.Y.2d 197, 347 N.E.2d 621, 383 N.Y.S.2d 259 (1976) (only photograph with blank background among 11 shown); People v. Fox, 65 App. Div.2d 880, 410 N.Y.S.2d 180 (1978) (only non-Polaroid-type photograph among 7 shown; also "several other variations"); State v. Davis, 294 N.C. 397, 241 S.E.2d 656 (1978) (2 photographs of defendant only ones not bearing police department name plate among 14 shown).

Illinois Official Reports Appellate Court In re Marriage of Kiferbaum, 2014 IL App (1st) 130736 Appellate Court In re MARRIAGE OF JUDITH KIFERBAUM, Petitioner-Appellant, Caption and HANAN KIFERBAUM, Respondent-Appellee. District & No. First District, Second Division Docket No. 1-13-0736 Filed September 30, 2013 Held In proceedings that resulted in the trial court granting respondent’s (Note: This syllabus petition for an order of protection under the Illinois Domestic constitutes no part of the Violence Act and then dismissing petitioner’s request for an order of opinion of the court but protection on the ground that the Act prohibits mutual orders of has been prepared by the protection, the appellate court reversed the dismissal of petitioner’s Reporter of Decisions request, since she was seeking a correlative separate order of for the convenience of protection, not a mutual order of protection, and although correlative the reader.) separate orders of protection are not favored, they are allowed if certain requirements are met, and petitioner satisfied those requirements by filing a separate petition, commencing a separate action, filing a written petition, providing notice to all parties, and being prepared to present separate proof supporting her petition. Decision Under Appeal from the Circuit Court of Cook County, No. 09-D-577; the Review Hon. Naomi Schuster, Judge, presiding. Judgment Affirmed in part and reversed in part; cause remanded for further proceedings.  Counsel on Jan R. Kowalski, of Chicago, for appellant. Appeal No brief filed for appellee. Panel PRESIDING JUSTICE SIMON delivered the judgment of the court, with opinion. Justices Neville and Pierce concurred in the judgment and opinion. OPINION ¶1 On January 23, 2009, petitioner Judith Kiferbaum (Judith) filed the underlying petition for dissolution of marriage from her husband, respondent Hanan Kiferbaum (Hanan). Judith also sought, and was granted, a temporary order of protection on January 23, 2009, and a plenary order of protection on February 4, 2009. With respect to the parties’ abusive behavior toward each other, the parties’ agreed disposition order of June 8, 2009, also restricted contact between the parties. On March 17, 2010, judgment for dissolution of marriage was entered with the issue of maintenance remaining open. ¶2 On June 21, 2012, Judith sought an emergency order of protection against Hanan that was granted and set for further hearing on July 12, 2012. However, that petition was dismissed on July 12, 2012. Also on that date, after the petition was dismissed, Hanan filed an emergency petition for an order of protection against Judith. The trial court found that the petition was not an emergency and set the matter for further hearing. On July 20, 2012, Judith filed a petition for an emergency order of protection that was denied for lack of personal knowledge of Hanan’s alleged conduct. On July 31, 2012, Judith filed the underlying petition for an order of protection. ¶3 An agreed order restraining and enjoining Judith and Hanan from certain locations was entered, the petitions were continued to allow discovery, and the court set a November 30, 2012, hearing date on the “cross petitions for order of protection.” The matter was continued to January 30, 2013, when the trial court granted Hanan’s petition for an order of protection and set argument for Hanan’s motion to dismiss Judith’s amended petition for an order of protection on February 5, 2013. On February 5, 2013, the trial court granted Hanan’s motion to dismiss, finding that the Illinois Domestic Violence Act of 1986 (750 ILCS 60/101 et seq. (West 2010)) does not permit mutual orders of protection. ¶4 Judith argues on appeal that the trial court erred in construing section 215 of the Illinois Domestic Violence Act (750 ILCS 60/215 (West 2010)) in dismissing Judith’s petition. Judith also contends that the trial court abused its discretion in granting Hanan’s petition. For the following reasons, we affirm the judgment of the trial court as to the grant of Hanan’s petition for a protective order and reverse the dismissal of Judith’s petition for a protective order. -2- ¶5 I. BACKGROUND ¶6 Judith and Hanan were married on January 17, 1988, and the marriage was registered in Haifa, Israel. The parties resided in Skokie, Illinois, and had one child under the marriage, born on June 25, 1988. On January 23, 2009, citing irreconcilable differences, Judith filed the underlying petition for dissolution of marriage from Hanan. Judith also filed a petition for an order of protection, a third-party complaint against respondent’s business and banking entities, an emergency ex parte petition for a temporary restraining order, preliminary injunction, and other relief, and a petition for interim prospective attorney fees and costs against Hanan. ¶7 Judith presented an affidavit in support of her petition for an order of protection, testifying to Hanan’s behavior toward Judith at various dates in the prior year that exhibited escalating and repeated abuse and harassment such that Judith feared for her personal safety. Judith averred that Hanan repeatedly yelled at her, telling her that she must follow his rules, and that if she did not comply with his rules and demands he would “screw [her] completely,” humiliate her to her friends and employers, and leave her penniless. Judith also detailed occurrences where Hanan demanded that Judith perform oral sex or she would be responsible for “a bad situation.” Judith testified that for fear of what Hanan might do, she complied with his demand each time while crying throughout the ordeal. Judith also detailed times where Hanan insulted her by yelling at her that she was a “whore” and screaming that she was “only good to suck dick! I give you $4,000 a month for that! I’d be better off to f*** any [other] woman or anybody! I’ll pay any money because it is better than you!” ¶8 The court entered an emergency order of protection against Hanan and set the matter for a hearing on February 13, 2009. On January 27, 2009, Hanan filed an emergency motion to vacate the order of protection and an evidentiary hearing was held on February 4, 2009. Following testimony by both parties, the trial court noted the stark differences in the testimony of the two required a credibility determination and, having observed the witnesses and heard their testimony, found Judith credible. The court concluded that Hanan’s behavior rose to a level of harassment requiring an order of protection. ¶9 The order of protection was subsequently dismissed ab initio by a June 8, 2009, agreed disposition order awarding Judith exclusive possession of the marital residence and an automobile, and also forbidding any harassment or contact between the parties. Despite the order, the parties continued to have acrimonious relations, including numerous instances of damage to Judith’s vehicle requiring various repairs and leading to Judith calling the police. Hanan admitted to one instance of damage to Judith’s vehicle while it was parked at Nordstrom’s at Old Orchard Mall parking lot, whereby Hanan placed bodily fluids including vomit, urine and feces on the driver’s seat. The court entered an order requiring Hanan to have the vehicle cleaned. ¶ 10 On March 17, 2010, judgment for dissolution of marriage was entered with the issue of maintenance for Judith remaining open. The parties continued to maintain an acrimonious relationship, including various cross-allegations of property damage and harassing conduct. On June 21, 2012, Judith filed another emergency petition for an order of protection against Hanan. Judith claimed that Hanan vandalized her vehicle numerous times, vandalized Judith’s storage area at her garage, harassed and threatened her via e-mail, and gave an anonymous complaint to her employer that led to her termination. Judith claimed that she suffered from severe anxiety and lived in fear of Hanan. -3- ¶ 11 At the emergency hearing on the petition, Judith testified to these allegations and the court entered an order prohibiting Hanan from all personal contact with Judith, including by telephone, e-mail and third parties. In addition, Hanan was prohibited from entering or remaining at the Nordstrom store where Judith was employed. The temporary order was effective until July 12, 2012, when a further hearing was set. According to several filings in the record, Judith’s June 21, 2012, petition was dismissed on July 12, 2012. ¶ 12 On the afternoon of July 12, 2012, after the order on Judith’s June 21, 2012, petition had expired, Hanan filed his own petition for an emergency order of protection. Hanan alleged therein that Judith had continued to contact him after the June 21, 2012, order had been entered. He alleged that Judith was often drunk, calling him late at night, asking for money, threatening to have Hanan arrested if he did not have sexual relations with her, threatening suicide, and sending him naked pictures of herself. Hanan also alleged that Judith had parked outside his home, followed him in her vehicle, and interrupted his meetings with friends. At the emergency hearing on the petition, Hanan testified to his allegations but the trial court refused to accept that his claims supported a finding that this was an emergency or that he was afraid. The court continued the matter to August 3, 2012, for further hearing. ¶ 13 On July 20, 2012, Judith filed an emergency petition for a protective order against Hanan alleging that he had damaged her vehicle and harassed her. Judith asserted that this scared her and caused her great anxiety such that she was afraid to leave her house and to sleep. At the emergency hearing on the petition, Judith testified to these allegations but admitted that she never witnessed Hanan actually vandalizing her vehicle. The trial court denied the petition, finding that it was based purely on speculation and there was no evidence actually showing that Hanan had damaged Judith’s property. ¶ 14 On July 31, 2012, Judith filed the underlying petition for an order of protection against Hanan, amending that petition on August 3, 2012. In an agreed order of the parties on August 3, 2012, Judith was restrained and enjoined from accessing the Dunkin’ Donuts restaurant that Hanan frequented with friends. Hanan was enjoined and restrained from accessing two other Dunkin’ Donuts restaurants as well as a T-Mobile store in Skokie. ¶ 15 On August 17, 2012, Hanan moved to strike portions of Judith’s petition. On October 9, 2012, the court ordered, inter alia, “hearing on the cross petitions for order of protection shall be held on 11/30, 2012 at 9:00, without further notice. All trial subpoenas are continued to said date.” On November 2, 2012, Judith moved to amend her petition to add new allegations of abuse and that was granted on November 13, 2012. On November 20, 2012, Hanan filed a motion to dismiss Judith’s petition reasserting his motion to strike claims that Judith’s allegations were barred by collateral estoppel as denied in the previous denial of petitions or that they were speculative and unsupported. ¶ 16 On November 30, 2012, Judith filed an amended affidavit in support of her petition and Hanan presented argument and testimony in support of his petition for a protective order. The transcript of this hearing is not of record. Judith asserts that Hanan presented his case first, as his petition was filed first, and that Judith limited her examination to Hanan’s allegations, expecting to present her case-in-chief after Hanan concluded presenting his case. The hearing was continued to December 13, 2012, allegedly after Hanan’s case-in-chief. On December 13, 2012, the court continued the matter for hearing “regarding pending petitions for order of protection” to January 13, 2013. On January 3, 2013, an order was entered continuing all pending motions in the case to January 30, 2013. -4- ¶ 17 On January 30, 2013, the trial court entered several orders, including granting Hanan’s petition for an order of protection to be effective until July 30, 2013. The court also set a hearing for argument on Hanan’s motion to dismiss Judith’s amended petition for an order of protection on February 5, 2013. On February 5, 2013, following argument, the trial court dismissed Judith’s petition for an order of protection stating in a written order that “Hanan’s motion to dismiss is granted because the [Illinois Domestic Violence Act] does not permit mutual orders of protection and only allows for correlative orders which are out of state mutual orders of protection as defined in the article submitted by Judge Gamrath, which are the court’s oral findings made on today’s date.” See Celia Guzaldo Gamrath, Enforcing Orders of Protection Across State Lines, 88 Ill. B.J. 452 (2000) (Gamrath Article). Judith appeals the trial court’s order granting Hanan’s petition for an order of protection and the order granting Hanan’s motion to dismiss Judith’s petition. ¶ 18 II. ANALYSIS ¶ 19 We begin by noting that we are without the benefit of a response brief from Hanan to respond to Judith’s arguments on appeal. As our supreme court has said, “[w]e do not feel that a court of review should be compelled to serve as an advocate for the appellee or that it should be required to search the record for the purpose of sustaining the judgment of the trial court. It may, however, if justice requires, do so. Also, it seems that if the record is simple and the claimed errors are such that the court can easily decide them without the aid of an appellee’s brief, the court of review should decide the merits of the appeal. In other cases if the appellant’s brief demonstrates prima facie reversible error and the contentions of the brief find support in the record the judgment of the trial court may be reversed.” First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976). Accordingly, on April 18, 2014, this court entered an order noting that Hanan had failed to file a brief within the time prescribed by rule and that this case would be taken for consideration on the record and Judith’s appellant’s brief only. ¶ 20 Unfortunately, we are also limited by an incomplete record. “ ‘A reviewing court is entitled to have the issues on appeal clearly defined with pertinent authority cited and a cohesive legal argument presented. The appellate court is not a depository in which the appellant may dump the burden of argument and research.’ ” (Internal quotation marks omitted.) Gandy v. Kimbrough, 406 Ill. App. 3d 867, 875 (2010) (quoting In re Marriage of Auriemma, 271 Ill. App. 3d 68, 72 (1995)). Supreme Court Rule 341(h)(6), (7) requires a statement of the facts, with citation to the record, necessary for an understanding of the case and a clear statement of contentions with supporting citation of authorities and pages of the record relied on. Ill. S. Ct. R. 341(h)(6), (7) (eff. July 1, 2008). These rules are not merely suggestions, but are necessary for the proper and efficient administration of the courts. First National Bank of Marengo v. Loffelmacher, 236 Ill. App. 3d 690, 691-92 (1992). ¶ 21 We will not sift through the record or complete legal research to find support for this issue. Ill-defined and insufficiently presented issues that do not satisfy the rule are considered waived. Express Valet, Inc. v. City of Chicago, 373 Ill. App. 3d 838, 855 (2007). In fact, for these violations, this court may not only strike portions of the brief or consider arguments waived, but strike a brief in its entirety and dismiss the matter. Marengo, 236 Ill. App. 3d at 692. Further, where the record is not complete, “the reviewing court must presume the circuit -5-  court had a sufficient factual basis for its holding and that its order conforms with the law.” Corral v. Mervis Industries, Inc., 217 Ill. 2d 144, 157 (2005). ¶ 22 Judith argues on appeal that the trial court erred in construing section 215 of the Illinois Domestic Violence Act (750 ILCS 60/215 (West 2010)) in dismissing Judith’s petition for an order of protection and that the trial court abused its discretion in granting Hanan’s petition for an order of protection. Because the order of protection at issue in this case expired by its own terms on July 30, 2013, the issues asserted by Judith are either moot or arguably moot. As we have no argument from Hanan, we will not perform the research and argument to determine whether the issues are moot. Even assuming both issues were rendered moot, the issues are reviewable under the public interest exception to the mootness doctrine because of the societal interest in protecting victims of domestic violence. Whitten v. Whitten, 292 Ill. App. 3d 780, 784 (1997). Despite these various issues and because of the important social interest and lack of authority, we render an opinion on Judith’s claims. ¶ 23 First, we may summarily dispose of Judith’s second issue presented as the record does not contain a transcript of the proceedings before the court from the November 30, 2012, hearing on Hanan’s petition for an order of protection. Hanan’s petition included a supporting affidavit alleging that he was fearful of Judith’s continued contact and mental instability. A hearing was held on Hanan’s petition with testimony and argument and the trial court granted the petition on January 30, 2013. A trial court’s entry of an order of protection will not be overturned absent a clear abuse of discretion. Lutz v. Lutz, 313 Ill. App. 3d 286, 289 (2000). Without a record of the hearing before this court, we presume the circuit court had a sufficient factual basis for its holding and that its order conforms with the law and was not an abuse of discretion. ¶ 24 Judith’s next argument is an issue that has not been addressed by this court and merits full consideration. While we do not have a record of the oral findings made by the trial court on February 5, 2013, the court’s written order cites the Illinois Domestic Violence Act and the Gamrath Article as support for the conclusion that mutual orders of protection are improper under the statute and required dismissal of Judith’s petition. We hold that the trial court misinterpreted the statute and erred in dismissing Judith’s petition for a protective order. ¶ 25 A court’s primary objective in construing a statute is to ascertain and give effect to the intent of the legislature. Prazen v. Shoop, 2013 IL 115035, ¶ 21. The first step in determining legislative intent is to examine the language of the statute, and when the language is clear and unambiguous, the statute must be given its plain meaning without resort to further aids of statutory construction. Alvarez v. Pappas, 229 Ill. 2d 217, 228 (2008). For determining the meaning of undefined terms in a statute, a court may turn to the dictionary for assistance. Id. at 225. In addition, by the terms of the Illinois Domestic Violence Act, the statute is to be liberally construed and applied to promote its underlying purposes, namely, to support and protect victims of domestic abuse and to prevent any further abuse from occurring. 750 ILCS 60/102 (West 2010). ¶ 26 Section 215 of the Illinois Domestic Violence Act provides in full: “§ 215 Mutual orders of protection; correlative separate orders. Mutual orders of protection are prohibited. Correlative separate orders of protection undermine the purposes of this Act and are prohibited unless both parties have properly filed written pleadings, proved past abuse by the other party, given prior written notice to the other party unless excused under Section 217, satisfied all prerequisites for the type of order -6-  and each remedy granted, and otherwise complied with this Act. In these cases, the court shall hear relevant evidence, make findings, and issue separate orders in accordance with Sections 214 and 221. The fact that correlative separate orders are issued shall not be a sufficient basis to deny any remedy to petitioner or to prove that the parties are equally at fault or equally endangered.” 750 ILCS 60/215 (West 2010). ¶ 27 Considering the plain language of the section and whether the trial court properly dismissed Judith’s petition, the key determination is the meaning of the terms “mutual order of protection” and “correlative order of protection.” As Judith notes, the terms are not defined by the statute and it is helpful to understand how this issue has arisen and been treated within the arena of domestic violence prevention. The language of this section largely mirrors that of a similar provision within the section concerning domestic violence under the Code of Criminal Procedure of 1963. 725 ILCS 5/112A-15 (West 2010). Section 215 was amended at the same time as section 112A-15 under Public Act 87-1186 (eff. Jan. 1, 1993). While this section also does not define these terms, the legislature’s differing approach aids our consideration of these terms. Section 112A-15 provides, in full: “§ 112A-15 Mutual orders of protection; correlative separate orders. Mutual orders of protection are prohibited. Correlative separate orders of protection undermine the purposes of this Article. If separate orders of protection in a criminal or delinquency case are sought, there must be compliance with Section 112A-2. Nothing in this Section prohibits a party from seeking a civil order of protection. If correlative separate orders of protection result after being sought in separate criminal or delinquency actions in accordance with Section 112A-2, that fact shall not be a sufficient basis to deny any remedy to either petitioner or to prove that the parties are equally at fault or equally endangered.” 725 ILCS 5/112A-15 (West 2010). ¶ 28 The only case where this court has considered section 215 is People v. Stiles, 334 Ill. App. 3d 953 (2002), an appeal of a criminal conviction for violating an order of protection. In Stiles, the defendant’s former girlfriend obtained a temporary emergency order of protection against defendant on January 6, 2000, barring any abuse, harassment, or any contact. On January 11, 2000, the defendant sought his own order of protection against his former girlfriend that was granted the next day and included a provision barring her from Kelly’s Pub. However, the trial court was unaware of the prior order of protection and entered an order of protection on January 12, 2000. On January 20, 2000, the parties got into an altercation at Kelly’s Pub and the defendant called the police. When the police arrived they ultimately arrested the defendant. Id. at 954-55. ¶ 29 The defendant was found guilty following a bench trial. The trial court found that the defendant fraudulently obtained his order of protection by failing to inform the court of the standing order of protection against him and not serving his former girlfriend. This court affirmed, finding the defendant violated the terms of the order of protection against him and that he had secured his order of protection in violation of section 215 of the Illinois Domestic Violence Act. Id. at 957-58. Section 215 was quoted in full, but there was no analysis of why this section was violated, the court only stating that the defendant fraudulently obtained his order and that the presumption that orders are presumed valid had been overcome. Id. ¶ 30 In his dissent, Justice Reid also fully quoted the language of section 215, but also did not examine the language of that section in opining that the defendant lacked the required scienter to be found guilty. Justice Reid noted that “[s]ituations like this, where individuals basically -7-  race to the courthouse to acquire ex parte orders of protection, are not uncommon.” Id. at 960 (Reid, J., dissenting). Justice Reid concluded that if the trial judge had asked if there was a separate order “[t]his simple question from the judge would have prevented this situation from occurring,” opining that only one order of protection would have issued if the judge had been properly advised. Id. ¶ 31 Accordingly, we are without any case law analyzing the language of section 215 to determine if the trial court’s interpretation was improper. The terms “correlative” and “mutual” are defined in Black’s Law Dictionary including similar terms such as “related or corresponding” and “reciprocal.” Black’s Law Dictionary 347, 1039 (7th ed. 1999). However, the plain language of the statute and associated research support our holding that the trial court erred in equating the two and finding Judith’s petition barred as seeking a mutual order of protection. ¶ 32 It is clear that mutual orders of protection are prohibited while correlative orders of protection are disfavored as the language in section 215 as well as that in section 112A-15 makes abundantly clear. Mutual orders of protection typically occur within the same document, arising from a singular pleading and proceeding, despite the fact that one party may not have even desired an order of protection. See Joan Zorza, What Is Wrong With Mutual Orders of Protection?, Domestic Violence Reporter 4(5), 67-68, 78 (June/July 1999). The problems with mutual orders of protection are plentiful and have been well documented to include everything from violating due process, to the court’s treatment of these orders, to implementation by the parties and the police, to actually exacerbating the violence and abuse against the abused party. Zorza, supra; see also Elizabeth Topliffe, Why Civil Protection Orders Are Effective Remedies for Domestic Violence but Mutual Protective Orders Are Not, 67 Ind. L.J. 1039, 1065 (1992) (“The woman feels that she is to blame for the violence or that the justice system is not holding the batterer accountable for his behavior. The court verifies the batterer’s belief that he is not to blame for the violence because it is caused by external factors. A mutual order is also less effective for enforcement purposes and can be used in future proceedings against the victim to the advantage of the batterer.”). Accordingly, given the recognized deficiencies with mutual orders of protection and the plain language of the statute, mutual orders of protection are clearly prohibited so as to further its grander goals. ¶ 33 However, correlative orders of protection are not the same as mutual orders of protection and the plain language of the statute providing separately for each type of order indicates the legislature’s clear understanding of this. Both the Illinois Domestic Violence Act and the Code of Criminal Procedure distinguish the two orders and provide similar language discouraging the entry of correlative orders. Importantly, both sections allow for such orders if a separate action is commenced and completed pursuant to the requirements of each statute. Therefore, unlike mutual orders there is not a straight prohibition on correlative orders of protection. ¶ 34 This conclusion is also supported by our research of secondary sources, including the Gamrath Article cited by the trial court. The main thrust of the Gamrath Article involves the enforcement of orders of protection across state lines, particularly in light of the decision in United States v. Morrison, 529 U.S. 598 (2000), striking down a civil rights remedy for victims of gender-motivated violence provided by section 13981 of the Violence Against Women Act (42 U.S.C. § 13981 (2000)). While much of the discussion in the Gamrath Article is not germane to the issue at hand, there is a general section on orders of protection that, presumptively, is what the trial court referenced. The relevant paragraph reads: -8-  “The [Illinois Domestic Violence Act] provides for three types of orders of protection–emergency, interim, and plenary–which depend on the type of notice and due process given, the duration of the order, and the available remedy. Mutual orders of protection are prohibited under the [Illinois Domestic Violence Act], but out-of-state mutual orders of protection may be given full faith and credit if both parties submitted a written request for the order and it was issued upon a showing of mutual abuse. Such orders are known in Illinois as correlative orders of protection.” Gamrath, supra, at 454. In a footnote, Gamrath defines mutual orders of protection as “orders entered against both parties requiring them to abide by the restraints and other forms of relief in the order.” Gamrath, supra, at 454 n.31. Accordingly, Gamrath’s conclusion is in line with this court’s determination and it is clear the trial court misinterpreted the article. ¶ 35 Unlike the flat prohibition of mutual orders, the statute allows for correlative orders where separate pleadings, notice and proof of abuse are provided by each party seeking an order of protection. The statute further requires that a separate order be issued in accordance with the other provisions of the Illinois Domestic Violence Act. 750 ILCS 5/60-215 (West 2010). As addressed in the aforementioned law journals, this process alleviates many of the important concerns that require prohibition of mutual orders. This also protects the court and the parties from the issue Justice Reid’s dissent highlights of a race to the courthouse to bar an adversary from seeking an order of protection. If correlative orders of protection were also flatly prohibited, it would leave open the possibility that an abuser could foreclose the ability of the abused to receive protection by the court and law enforcement not only physically, but in legal proceedings. This conclusion would run completely against the purposes of the Illinois Domestic Violence Act. ¶ 36 The plain language of section 215 indicates that correlative orders of protection, like that sought by Judith, may be issued and provides a clear roadmap for a party and the court to follow, namely that: “both parties have properly filed written pleadings, proved past abuse by the other party, given prior written notice to the other party unless excused under Section 217, satisfied all prerequisites for the type of order and each remedy granted, and otherwise complied with this Act.” 750 ILCS 60/215 (West 2010). In this case, the record indicates that Judith filed a separate petition for a protective order, commencing a separate action under section 202 of the Illinois Domestic Violence Act. 750 ILCS 60/202 (West 2010). In further compliance with the statute, and section 215 in particular, Judith filed a written petition, provided an affidavit in support of her allegations, provided notice to all parties, and was prepared to present separate proof in support of her petition. Accordingly, the trial court erred by dismissing her petition. ¶ 37 III. CONCLUSION ¶ 38 For the reasons stated, we affirm the judgment of the circuit court in part and reverse in part and remand the matter for further proceedings. ¶ 39 Affirmed in part and reversed in part; cause remanded for further proceedings. -9- 

406 F.Supp. 305 (1976) MOBIL OIL CORPORATION, Plaintiff, v. FEDERAL TRADE COMMISSION et al., Defendants. No. 74 Civ. 311. United States District Court, S. D. New York. January 12, 1976. *306 *307 *308 Donovan, Leisure, Newton & Irvine, New York City, for plaintiff; Andrew J. Kilcarr, Washington, D. C., Charles F. Rice, New York City, Mobil Oil Corp., of counsel. Thomas J. Cahill, U. S. Atty., S. D. N. Y., New York City, for defendants; Gregory J. Potter, Asst. U. S. Atty., Calvin J. Collier, Gen. Counsel, Gerald Harwood, Asst. Gen. Counsel, Robert E. Duncan, Mary L. Azcuenaga, Attys., F. T. C., of counsel. LASKER, District Judge. By letter dated August 22, 1973, Mobil Oil Corporation requested, pursuant to the Freedom of Information Act (FOIA) the opportunity to inspect and copy all communications pertaining to various aspects of petroleum use[1] from January 1, 1970 to August 22, 1973 between the Federal Trade Commission (FTC—Commission) and (1) Congress, (2) any federal agency, and (3) any state government or agency. On December 12, 1973, the FTC granted the request in part and denied it in part. Specifically, the FTC granted access to correspondence between the Commission and Congress, and between the Commission and state governments and agencies, except for the portions of the documents which contained identifying details and names of the persons who communicated with government officials. The FTC also refused to disclose staff opinions or theory, and communications between the Commission and other federal agencies. Mobil then filed this suit under the FOIA to compel disclosure of all withheld information. Subsequently, on March 6, 1974, the FTC informed Mobil that certain of the communications between the FTC and the states are part of active investigatory files or contained privileged or confidential material, and, as such, were exempt from disclosure.[2] I. Deletion of Names and Identifying Details in Communications Between the FTC and Congress and the FTC and State Agencies The first category of materials in dispute are letters and other documents *309 which constitute communications between the FTC and Congress, and the FTC and state agencies. Although the Commission released these documents to Mobil, it did so only after blacking out virtually all identifying details including the names of the correspondents. Charles A. Tobin, Secretary of the FTC, justified these deletions by stating that: "The Commission will not release such identifying information because it believes . . . that Citizens have a right to communicate with their government without fear of unwarranted public disclosure." (Letter of December 12, 1975 to Andrew Kilcarr, Ex. E to complaint) The FTC has adhered to this position, which it defends on the basis of what it terms an "informer's privilege" that it asserts is implicit in Exemptions 3, 4 and 7 of the FOIA, 5 U.S.C. § 552(b)(3), (4) and (7). At the outset we reject the agency's argument that the purposes of these three specific provisions of the FOIA may be fused to create by implication an exemption not explicitly stated in the statutory language. As recently as April of this year, the Supreme Court in NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136, 95 S.Ct. 1504, 1509, 44 L.Ed.2d 29 (1975) reconfirmed the principal objective of the FOIA which is: "`to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.' S.Rep.No. 813, 89th Cong., 1st Sess., 3 (1965); Environmental Protection Agency v. Mink [410 U.S. 73], supra,, at 80, 93 S.Ct. [827], at 832 [35 L.Ed.2d 119] (1973)." According to the language of the FOIA as construed by the Supreme Court, all "identifiable records" must be made available to a member of the public on demand (5 U.S.C. § 552(a)(3)) unless the requested documents fall within one of the Act's nine exemptions. (5 U.S.C. § 552(b)). NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at 136-137, 95 S.Ct. 1504. Although the validity of the theory of an "implicit" exemption advanced by the FTC has not been squarely presented to any court, the general philosophy of the FIOA as stated by the court in NLRB v. Sears, Roebuck & Co., supra, the accepted principle that the specific exemptions are to be construed narrowly,[3] and the language of the Act itself make clear that the FTC's justification for deleting identifying details can be sustained, if at all, only on the independent applicability of any of the Act's exemptions to the deletions in question. Each exemption upon which the FTC relies must therefore be individually analyzed to determine whether, as defendants argue, it warrants the erasures made. A. Exemption 3 The Commission relies first upon the argument that Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. § 46(f) (FTCA), as well as certain of the FTC's rules and regulations, authorize the deletion of confidential matter and that these statutes and rules bring the material within Exemption 3 of the FOIA which protects matters that are "specifically exempted from disclosure by statute." 5 U.S.C. § 552(b)(3) The Commission bases its authority to withhold identifying details in part on the strength of Rules 2.2(d) and 4.10(b) of the FTC's Rules of Practice. 16 C.F.R. §§ 2.2(d), 4.10(b). Section 2.2(d) states that the Commission's "general . . . policy" is not to divulge names of complainants "except as required by law." Section 4.10(a) recites the exemptions to the FOIA with the FTC's analysis of those exemptions, adding, at § 4.10(b), that the Commission may delete identifying details from material it *310 makes public if necessary "to prevent clearly unwarranted invasions of privacy." Rather than creating additional criteria for withholding information, these regulations restate—and in § 4.10(a) actually recite—the exemptions contained in the FOIA itself. Even if this were not so, however, neither regulations nor guidelines promulgated by a federal agency, can override the language and purpose of a statutory enactment. Exemption 3 permits a refusal to disclose material only where another statute authorizes such action. Thus, the only possible basis for the applicability of Exemption 3 in the circumstances is Section 6(f) of the FTCA (15 U.S.C. § 46(f)) which provides in language the Commission argues to be relevant: "§ 46 Additional powers of Commission The Commission shall also have power— (f) Publication of information; reports To make public from time to time such portions of the information obtained by it hereunder, except trade secrets and names of customers, as it shall deem expedient in the public interest; and to make annual and special reports to the Congress and to submit therewith recommendations for additional legislation; and to provide for the publication of its reports and decisions in such form and manner as may be best adapted for public information and use." The Commission argues that this language authorizes it to determine whether the release of information in its possession would further the public interest. If, as here, the FTC concludes that disclosure of particular documents would not achieve that goal, the agency contends that Section 6(f) prohibits the release of that material, and that it consequently falls within the ambit of Exemption 3 of the FOIA. We disagree. Section 6(f) confers upon the FTC the right to disclose and publish, with few limitations, information it possesses. By its terms, the statute authorizes disclosure—not, as the FTC argues, the refusal to disclose. The sole items that the statute does not authorize the FTC to reveal are trade secrets and names of customers. Those limitations in no way make the statute one which explicitly forbids disclosure of all identifying details and all names of correspondence in communications received by the FTC. The legislative history and judicial construction of Section 6(f) support this interpretation. The Senate debate on the bill which became § 6(f) demonstrates that although the statute embodies guidelines to limit release of certain types of information at the FTC's disposal, the major thrust of the bill was to set forth what material the Commission on its own initiative could make public, not what it could refuse to disclose. In fact, some concern was voiced on the Senate floor that the FTC under this statute would release too much information. See 51 Cong.Rec. 12929 (1914).[4] Similarly, the analysis of § 6(f) by the court in FTC v. Cinderella Career and Finishing Schools, 131 U.S.App.D.C. 331, 404 F.2d 1308 (1968) establishes that the section was aimed at allowing publication and *311 that the limitations on public release set forth in the section were intended to: "require adequate consideration and suitable weighing of any damage to private property which widespread publicity of unadjudicated charges may be calculated to produce." Id. at 1320-1321 (Robinson, III, J., concurring) Accord, Bristol-Myers Co. v. FTC, 138 U.S.App.D.C. 22, 424 F.2d 935, 940 cert. denied, 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52 (1970). Section 6(f) of the FTCA is thus distinguishable from other statutes which have been held to fall within the meaning of Exemption 3 of the FOIA. In Evans v. Department of Transportation, 446 F.2d 821 (5th Cir. 1971), cert. denied, 405 U.S. 918, 92 S.Ct. 944, 30 L.Ed.2d 788 (1972), the statute at issue provided in part: "Any person may make written objection to the public disclosure of information . . .. Whenever such objection is made, the Board or Administration shall order such information withheld from public disclosure when, in their judgment, a disclosure of such information would adversely affect the interests of such person and is not required in the interest of the public." 49 U.S.C. § 1504 It is clear, and the government concedes, that 49 U.S.C. § 1504, unlike § 6(f) of the FTCA, contains an affirmative provision for exemption from disclosure. Similarly, the court in California v. Richardson, 351 F.Supp. 733 (N.D.Cal.1972), held that the withholding of records was protected by Exemption 3 of the FOIA on the basis of a statute which prohibits: ". . . disclosure . . . of any record . . . obtained . . by the Secretary . . . or by any officer or employee of the Department of Health, Education and Welfare . . . except as the Secretary . . . may by regulations prescribe . . ." 42 U.S.C. § 1306(a). The unequivocal language of the statute at issue in California v. Richardson, supra, forbids disclosure of documents and is in general the converse of § 6(f) of the FTCA which authorizes release of material. In short, the statutes which have been held to fall within the exemption are the obverse of § 6(f) of the FTCA in language and intent; the cases interpreting them are not authority for the defendants' position. The Supreme Court's recent analysis of Exemption 3 in FAA Administrator v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975) did not specifically address the issue in this case and in no way undermines the result reached here. The Robertson court merely held that the term "specific" in Exemption 3's requirement that material be "specifically exempted . . . by statute" did not mean that: "the exemption applies only to documents specified, i. e., by naming them precisely or by describing the category in which they fall." Id. at 265, 95 S.Ct. at 2147. However, the inapplicability of Section 6(f) of the FTCA to Exemption 3 is not predicated on its lack of specificity, but rather on the fact that it simply is not a statute which purports to prohibit disclosure. As indicated above, the sole area in which § 6(f) of the FTCA limits the authority of the Commission relates to disclosure of facts which consist of "trade secrets and names of customers." Thus, although § 6(f) cannot justify wholesale deletions of all names and identifying details, it does specifically exempt from disclosure those two items. Accordingly, deletions of trade secrets and names of customers, but only such deletions, are protected from disclosure by Exemption 3 of the FOIA. B. Exemption 4 The FTC next asserts that the informant's privilege is inherent in Exemption 4 of the FOIA which protects from disclosure: "trade secrets and commercial or financial information obtained from a *312 person and privileged or confidential." 5 U.S.C. § 552(b)(4) An examination in camera of a sizeable sample of the documents in question confirms that in many instances they pertain to "trade secrets and commercial or financial information." However, it is impossible to determine on the record before us whether they are privileged or confidential. As the court in Bristol-Myers Co. v. FTC, noted, "This provision serves the important function of protecting the privacy and the competitive position of the citizen who offers information to assist government policy makers." 424 F.2d at 938. More recently, the same court has stated: "The established tests for determining whether documents are `confidential' . . . within the meaning of Exemption 4 are that the [material] must be of the sort not customarily disclosed to the public and that disclosure . . must not be likely to either impair the government's ability to obtain necessary information in the future or cause substantial harm to the competitive position of the person from whom the information is obtained." Pacific Architects & Eng. Inc. v. Renegotiation Board, 164 U.S.App.D.C. 276, 505 F.2d 383, 384 (1974) (citations omitted) The agency refusing to disclose requested documents has the burden of demonstrating the applicability of a particular FOIA exemption; the Act "does not permit a bare claim of confidentiality to immunize agency files from scrutiny." Id. The material withheld must be shown to be "independently confidential" based on its contents, and entitled to a "reasonable expectation of privacy." Ditlow v. Volpe, 362 F.Supp. 1321, 1324 (D.D.C.1973), citing Fisher v. Renegotiation Board, 153 U.S.App.D.C. 398, 473 F.2d 109, 113 (1972); Getman v. NLRB, 146 U.S.App.D.C. 209, 450 F.2d 670, 675 (1971); Grumman Aircraft Engineering Corp. v. Renegotiation Board, 138 U.S. App.D.C. 147, 425 F.2d 578, 580 (1970); M. A. Schapiro & Co. v. SEC, 339 F.Supp. 467, 470-471 (D.D.C.1972). Defendants have not remotely sustained their burden. They have failed to present a single affidavit by a member of the FTC or its staff which states the basis for concluding the documents in question are confidential or privileged. Nor has the government made any attempt to scrutinize the documents individually before blocking out identifying details. The FTC excuses its lack of proof with the bold statement that "Because these documents number in the hundreds, it would be wholly impractical to make . . . factual determinations [as to confidentiality] with regard to each." (Defendants' Reply Memorandum, May 21, 1974 at p. 9)[5] Although we recognize that a request for documents of the magnitude here saddles an agency with a substantial, time-consuming task, adherence to the FOIA's scheme requires that the job be done. The Court of Appeals for the District of Columbia analyzed the problems of proof and procedure under the Freedom of Information Act with great detail in Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974) and Cuneo v. Schlesinger, 157 U.S. App.D.C. 368, 484 F.2d 1086 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). As the court in Vaughn and Cuneo noted, the earlier failure of courts to require the government to justify its refusal to disclose documents in any detail encourages it to argue for the widest possible exemption from disclosure for the greatest bulk of material. Moreover, since the government—the *313 party opposing disclosure—is the only side capable of confidently categorizing the type of information at issue, the "traditional adversary nature of our legal system" is seriously distorted, if not altogether hamstrung. To correct these deficiencies, the court required a particularized and specific factual justification from the government for exempting information, and a system of indexing and itemizing the contested documents that would correlate statements made in the government's justification with actual portions of the material. Given the reams of documents produced for in camera inspection in this case it is clear that, without the detailed justification and specificity of indexing required by Vaughn and Cuneo, a trial court, although provided with so little guidance, is nevertheless left with "the burden of actually determining whether the information is as the Government describes it." Cuneo v. Schlesinger, supra, 484 F.2d at 1091. See, in general, Vaughn v. Rosen, supra, 484 at 823-28; Cuneo v. Schlesinger, supra, 484 F.2d at 1091-92. A glance at a few of the FTC's deletions immediately show that many of the documents cannot reasonably be deemed confidential. For example, in a letter to Senator Moss requesting information about legislation requiring the listing of octane content, the author's name and address are blocked out. (Ex. F to Plaintiff's Supplemental Memorandum of June 4, 1974) The author's name and address in a letter to Senator Talmadge requesting a copy of an FTC staff study for use in research for a college debate topic is similarly withheld. (Ex. K to Plaintiff's Supplemental Memorandum) As one court understandably commented, "The only thing more puzzling than why Plaintiffs would want these [facts] is why Defendants refuse to disclose them." Ditlow v. Volpe, supra, 362 F. Supp. at 1321. Nevertheless, Mobil is entitled to these facts and any others not protected by the FOIA's exemptions. Summary judgment is therefore deferred on this issue until such time as the defendants have submitted proper documentation of their claim. The defendants are directed to classify the documents in which identifying details have been deleted to indicate which documents they assert were received in confidentiality and those which are not. The Commission is further directed to submit affidavits by knowledgeable members of the FTC or its staff which provide "particularized and specific justification" for the deletions. Cuneo v. Schlesinger, supra, 484 F.2d at 1092. Because of the vast numbers of documents involved, this data need not refer separately to each document. However, any categorization of documents in groups must be clearly stated and justified. See Pacific Architects & Eng. Inc. v. Renegotiation Board, supra, 505 F.2d at 385 for examples of the information which the defendants are required to produce. C. Exemption 7 The FTC further asserts that the deletions made are justified on the ground that the documents at issue are part of the file compiled and utilized by the FTC for an on-going investigation into the activities of the petroleum industry for possible violations of the Federal Trade Commission Act and that the identifying details in the documents are accordingly protected from disclosure by Exemption 7 of the FOIA. It is undisputed that the FTC in fact conducted an investigation into the practices of the petroleum industry which resulted in the filing of a complaint against Mobil and other oil corporations. In the Matter of Exxon Corporation, et al., FTC Docket No. 8934 (Ex. F to Complaint) The complaint is currently pending before the Commission. However, the pendency of law enforcement proceedings in and of itself does not establish the applicability of Exemption 7 to the contested deletions. At the time the present motions were filed, Exemption 7 protected: "investigatory files compiled for law enforcement purposes . . ." 5 U.S.C. § 552(b)(7) *314 Since then Congress has amended Exemption 7 to provide in pertinent part: "Investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source . . ." Pub.L. 93-502, 88 (Stat.1563) Although the amendment was not enacted until November 20, 1974 to become effective ninety days later, the Supreme Court held in NLRB v. Sears, Roebuck & Co. that any decision on the applicability of Exemption 7, even on a motion filed prior to the enactment of the revised version "would have to be under the Act, as amended." Supra, 421 U.S. at 165, 95 S.Ct. at 1523. Absent any supporting affidavits, it is clear that the FTC cannot sustain its burden of demonstrating that the revelation of the identifying details "would interfere with enforcement proceedings, . . . constitute [an] . . . unwarranted invasion of personal privacy, disclose the identity of an informer, or disclose investigative techniques and procedures." S.Conf.Rep.No.93-1200 at 12, U.S.Code Cong. & Admin.News, pp. 6285, 6291 (1974), quoted in NLRB v. Sears, Roebuck & Co., id. To the extent that the Commission means to argue that Exemption 7(D) as amended, ("disclose the identity of a confidential source") is applicable, it must establish that any claim of confidentiality meets the standard of Exemption 7 as explained in the Conference Report accompanying the bill: "The substitution of the term `confidential source' in section 552(b)(7)(D) is to make clear that the identity of a person other than a paid informer may be protected if the person provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred." Yet it taxes credulity to infer for example, that all or perhaps even most unsolicited letters of constituents to their Congressman are sent with an express or implicit belief that such communications are to remain confidential.[6] For the reasons stated, as in the case of the Exemption 4 and issue 1B discussed above, summary judgment on the validity of the deletions of identifying details is deferred pending submission by defendants of affidavits consistent with the requirements of Vaughn v. Rosen, supra; Cuneo v. Schlesinger, supra, and Pacific Architects & Eng. Inc. v. Renegotiation Board, supra, setting forth facts which establish the applicability of Exemption 7. II. Certain Communications Between the Commission and State Agencies On the ground that they are exempt from disclosure as intra-agency memoranda (Exemption 5) and part of active investigatory files (Exemption 7) the FTC entirely withheld two memoranda which are communications with state agencies. A. Exemption 5 Before the Supreme Court's recent decisions in NLRB v. Sears, Roebuck, supra, and Renegotiation Board v. Grumman Aircraft, 421 U.S. 168, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975), Exemption 5, which protects intra-agency memoranda *315 from disclosure, was consistently interpreted to protect only materials reflecting "deliberative or policy-making process" and to require the release of: "compiled factual material or purely factual material contained in deliberative memoranda and severable from its context . . ." Environmental Protection Agency v. Mink, 410 U.S. 73, 87-88, 93 S.Ct. 827, 836, 35 L.Ed.2d 119 (1973). In NLRB v. Sears, Roebuck & Co., the Supreme Court noting that the purpose of Exemption 5 was to "prevent injury to the quality of agency decisions," stated: "The quality of a particular agency decision will clearly be affected by the communications received by the decision-maker on the subject of the decisions prior to the time the decision is made. However, it is difficult to see how the quality of a decision will be affected by communications with respect to the decision occurring after the decision is finally reached; and therefore equally difficult to see how the quality of the decision will be affected by forced disclosure of such communications, as long as prior communications and the ingredients of the decisionmaking process are not disclosed." Supra, 421 U.S. at 151, 95 S.Ct. at 1517. On the basis of this analysis, the Supreme Court distinguished between intra-agency memoranda written prior to and in connection with formulation of an agency decision—which fall within Exemption 5—and communications made after a decision is reached and designed to explain it—which are not. Id. at 151, n. 19, and 152, 95 S.Ct. 1504. Accord, Renegotiation Board v. Grumman Aircraft, supra. After carefully examining the memoranda in camera, we find that they are the communications which Exemption 5, as interpreted by the Supreme Court, does protect. The first consists of a discussion of the relationship between separate investigations by the FTC and a State Attorney General into pricing policies of major brand oil suppliers and fits the definition of a pre-decisional communication set forth in NLRB v. Sears, Roebuck. The second is a summary of an interview between a staff member of the Commission and officials of a State agency written to instruct the FTC as to the jurisdiction and decision-making process of the state agency. Much of the memorandum presents matters of opinion and policy. Parts of the memorandum merely summarize facts about the state agency, and may well be a matter of public record already. However, as the court in Montrose Chemical Corp. v. Train stated: "Exemption 5 was intended to protect not simply deliberative material, but also the deliberative process of agencies. When a summary of factual material on the public record is prepared by the staff of an agency administrator, for his use in making a complex decision, such a summary is part of the deliberative process and is exempt from disclosure under exemption 5 of FOIA." 160 U.S.App.D.C. 270, 491 F.2d 63, 70-71 (1971) The facts in the memorandum are presented in the context of analyzing considerations of pricing crude oil and meet the Montrose test. That this document summarizes the deliberative processes of a state agency as distinct from the FTC itself, does not render the exemption inapplicable. As the Supreme Court explained: "By including inter-agency memoranda in Exemption 5, Congress plainly intended to permit one agency possessing decisional authority to obtain written recommendations and advice from a separate agency . . ." Renegotiation Board v. Grumman Aircraft, supra, 421 U.S. at 188, 95 S.Ct. at 1502. The rationale applies with equal force to advice received from state as well as federal agencies. Because we have determined that the two documents are protected by Exemption 5, we do not consider the applicability of Exemption 7. *316 III. Communications Between the FTC and Other Federal Agencies From the group of documents which contained communications between the FTC and other federal agencies, defendants withheld in whole or in part three categories of materials. A. Staff Memoranda The first set of documents contains three letters written by FTC officials to staff members of other federal agencies and a FTC staff report on the petroleum industry. Having examined the three letters in camera, we find that they contain matters of policy and opinion and present no facts which are severable from policy statements. Accordingly, they are exempt from disclosure under Exemption 5 of the FOIA. EPA v. Mink, supra. The FTC justifies its refusal to disclose the staff report on the ground that it is protected by Exemptions 5 and 7 of the Act. Although in this instance defendants here again failed to submit affidavits to support their claim as to this report, they assert in their memorandum that the report was prepared "as part of an on-going investigation into the activities of the petroleum industry for possible violations of the Federal Trade Commission Act." (Defendants' Memorandum filed November 11, 1974, pp. 14-15) After examining the report in camera, we find that because it contains a close analysis of a currently pending investigation by the FTC, it is protected from disclosure under Exemption 5 as interpreted by NLRB v. Sears, Roebuck & Co., supra and Renegotiation Board v. Grumman Aircraft, supra. (See discussion at Pt. IIA, supra) Accord, Exxon Corp. v. FTC, No. 1928-73 (D.D.C. August 14, 1974). B. Other Communications The next set of documents consists of 84 items which defendants also contend are protected by Exemptions 5 and 7. The documents have been examined in camera and are accurately described by defendants as containing: "1) Memoranda reflecting the information received in oral communications between staff members of the Commission and other agencies; 2) Communications reflecting the liason between the Department of Justice and the Commission in their investigating efforts including communications requesting permission to review confidential files; and 3) Communications between the commission and other agencies exchanging information or seeking information." (Defendants' Memorandum filed April 1, 1974, p. 27) Most of the communications in this category contain policy discussions and opinions and accordingly fall within Exemption 5 as interpreted by EPA v. Mink, supra. However, as the FTC concedes, not every one of these documents contains legal analysis or policy recommendations. (Defendants' Memorandum filed April 1, 1974, pp. 28-29). Nevertheless, the defendants argue that these communications are exempt because they are "an integral part of the Commission's procedure in evaluating and taking action on matters within its jurisdiction" and, as such "are entwined in the chain of the Commission's deliberative functions which take place prior to any agency action." Id. at p. 29. We disagree. As noted earlier, although in the context of Exemption 4, the applicability of an exemption must be determined on the basis of the contents of the communication itself rather than the chain of events which prompted its transmittal. Ditlow v. Volpe, supra, 362 F.Supp. at 1324 and cases cited therein. It is true that the Supreme Court recognized in NLRB v. Sears, Roebuck that "an understanding of the function of the documents in issue in the context of the administrative process which generated them" was crucial to a determination of the applicability of Exemption *317 5. Supra, 421 U.S. at 138, 95 S.Ct. at 1510. However, that statement was made with regard to whether documents which on their face contained opinion and policy deliberation were nevertheless subject to disclosure. In contrast, the documents requested in the category presently under discussion are devoid of opinion. As such, they do not fall within the parameters of Exemption 5. There remains the question whether the exemption for investigatory files applies. As noted earlier, a recent amendment to the FOIA confines that exemption to limited circumstances. While it appears fairly certain that the documents in question do not pass most of the alternative tests allowed by Exemption 7 as amended, the FTC could conceivably demonstrate that disclosure of the requests for information which has been transmitted between federal agencies would, in and of itself, "interfere with enforcement proceedings" and thereby meet the standard of § 552(b) (7)(A). We therefore defer decision on this issue in order to allow defendants to compile the documents which are requests for information into one indexed category and to submit affidavits in conformance with the standards set forth in Section IC of this memorandum to demonstrate the applicability of Exemption 7 to these documents. C. Referrals of Complaints The FTC has blacked out the names and addresses of complainants from 61 letters which referred citizen complaints to the Department of Justice. It claims the deletions are justified under Exemptions 3, 4 and 5 of the FOIA. The Commission has also withheld names and addresses contained in letters it received from the Department of Justice and, in a limited number of cases, has refused to disclose any of the contents of some such referrals. Defendants contend that the decision to withhold these referrals is warranted by Exemptions 3, 4, 5 and 7 of the Act. Turning first to the documents that have been entirely withheld, an in camera inspection of this material establishes that it is protected from disclosure by Exemption 5 as interpreted by NLRB v. Sears, Roebuck & Co., supra, (see discussion at point IIA of this memorandum) because they relate to opinion and decisions involving pending investigations of oil companies and petroleum issues. As to the deletion of names and identifying details, to the extent that the complainants are customers of oil companies or related business concerns, the deletions are mandated by section 6(f) of the FTCA and consequently fall within the ambit of Exemption 3. However, a number of deletions consist of the names of Congressmen or other federal officials and are not similarly protected. Exemption 3 does not apply to such erasures. (See discussion at point IA of this memorandum) Nor can they be viewed as falling within Exemption 5 of the FOIA, since they are neither policy nor opinion. A determination as to the applicability of Exemption 4 must be deferred pending submission by defendants of affidavits which establish the basis for the FTC's conclusion that the names of people who are not "customers" and other deleted material is confidential or privileged. The motions are disposed of as indicated above. It is so ordered. NOTES [1] Mobil specifically requested: [F]or the period January 1, 1970 to [August 22, 1973], all communications including letters, reports or memoranda, and notes, transcripts or other memorialization of oral communications pertaining to petroleum (in liquid or gaseous form) supplies, shortages, allocations, imbalances, availabilities, competitive or noncompetitive activities, and any reason therefor or causes thereof, between the Federal Trade Commission (including any member or employee thereof) and A. any member of the Congress, including any employee of the Congress or any member thereof; B. any agency of the United States Government; or employee thereof; C. any State government or any agency or employee thereof. [2] By memorandum dated June 27, 1974, the government's original motion to dismiss or for summary judgment was denied and the FTC was directed to (1) search for the existence of any relevant tape recordings and (2) file affidavits sworn on personal knowledge of the several department heads who actually supervised the search for the documents requested by Mobil. On September 9, 1974, the office of the U. S. Attorney advised counsel for plaintiff that the search for the documents was complete and that those documents which were not claimed to be exempt from disclosure were available for inspection. On September 26, 1974, the FTC filed the documents with the court for in camera review and 98 affidavits concerning the thoroughness of the search for relevant documents and tape recordings. On the basis of these documents, we are convinced, and there is no dispute, that the FTC has conducted a comprehensive search for the requested material and that there are no electronic recordings which concern the subject matter of Mobil's request. See National Cable Television Association, Inc. v. FCC, 156 U.S. App.D.C. 91, 479 F.2d 183, 190-193 (1973); Bristol-Myers v. FTC, 138 U.S.App.D.C. 22, 424 F.2d 935 (1970). [3] See, e. g., Rose v. Department of Air Force, 495 F.2d 261 (1974); Fisher v. Renegotiation Board, 153 U.S.App.D.C. 398, 473 F.2d 109, 112 (1972); Bristol-Myers Co. v. FTC, 138 U.S. App.D.C. 22, 424 F.2d 935, 938, cert. denied, 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52 (1970). [4] The Senate debate included the following interchange: Mr. SUTHERLAND. Again let me see if I understand the Senator. One of the powers given to this commission is to make public the facts that they may learn. Does the Senator think the commission may require the production of all books and papers, and so on, in order that what it discovers may be made public? Mr. LEWIS. No; I answer the Senator. He misapprehends the purport of the bill completely if that is his idea. The matters made public in the bill relate only to those things that have been brought before the commission for one of two purposes, or aid to legislation, which would not be a matter which anyone could complain of, or to demonstrate a violation complained of as touching unfair competition. It does not allow, as I apprehend the bill, that matters may be made public without any regard to any object whatever except publicity. 51 Cong. Rec. 12929 (1914). [5] Defendants added: "It would be wholly impracticable for the Commission to determine, with regard to each person, information such as the following: whether the person provided information in confidence . . . whether the person waived any privilege of confidentiality; whether the Congressmen had reason to protect the names of such persons or any other information that might have been relevant." Defendants' Reply Memorandum, p. 15 [6] The Conference Report explained the meaning of the term "confidential source" in the context of exemption 7(D), as amended. However, exemption 4 also limits protection from disclosure to "trade secrets and commercial or financial information" which are "privileged or confidential." 5 U.S.C. § 552(b)(4). In submitting affidavits to the court to support their assertion of protection under exemption 4, in accordance with our instruction in the text above, the FTC should apply the Conference Report definition of confidentiality as to exemption 7 since the same term used twice in one statute should, absent evidence to the contrary, be consistently interpreted. See Davies Warehouse Co. v. Bowles, 321 U.S. 144, 149-59, 64 S.Ct. 474, 88 L.Ed. 635 (1944).

754 So.2d 1178 (2000) Reginald Torlentus JOHNSON v. STATE of Mississippi. No. 96-CT-01136-SCT. Supreme Court of Mississippi. January 13, 2000. Thomas M. Fortner, Jackson, Andre' De Gruy, Robert M. Ryan, Jackson, Attorneys for Appellant. Office of the Attorney General by Glenn Watts, Attorney for Appellee. EN BANC. ON WRIT OF CERTIORARI BANKS, Justice, for the Court: ¶ 1. The question presented in this appeal is whether a trial court, when considering peremptory challenges under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), may decline to make a factual determination, on the record, of the merits of the reasons provided by a party for those challenges. The Court of Appeals found that the trial court's failure to hold such a hearing was not error. We granted certiorari and, pursuant to Hatten v. State, 628 So.2d 294 (Miss.1993), reverse the judgment of the Court of Appeals and remand this case to the Hinds County Circuit Court. I. ¶ 2. The murder conviction which is the subject of this appeal arose out of an altercation over an allegedly stolen bicycle. Reginald Torlentus Johnson, defendant/appellant, shot and killed William Charleston.[1] *1179 ¶ 3. At trial, after the State had exercised all six of its peremptory challenges to remove blacks from consideration for jury service, the defense raised the issue that the State was exercising its strikes in a discriminatory fashion to systematically exclude these black venire members solely on the basis of race. The State countered that the facts did not establish a prima facie case of discriminatory intent in its exercise of the permitted peremptory challenges. Rather than decide that threshold issue, the trial court simply directed the State to offer race-neutral reasons for the six strikes. The State proceeded to do so. In summary, those reasons offered were as follows: (a) Juror One, Panel One refused to look at the prosecutor and was unresponsive. (b) Juror Six, Panel One's husband was incarcerated in the penitentiary on a drug charge. (c) Juror Nine, Panel One was struck because of age, being twenty-three years old. (d) Juror Ten, Panel One made no direct eye contact and had served on a civil jury that returned a verdict against a police officer. (e) Juror Eleven, Panel One was struck because of age, being twenty-three years old. (f) Juror One, Panel Two was struck because of age, being twenty-nine years old, and because that juror had been on a jury that returned a defendant's verdict in a criminal prosecution. ¶ 4. The defense was then given the opportunity to be heard on the challenges. Defense counsel provided rebuttal on two of the State's peremptory strikes, Juror One, Panel One and Juror Ten, Panel One. Defense counsel's response was to the effect that the reasoning offered by the State was so unsubstantiated that it was offered to hide the discriminatory purpose for the strikes. The trial court announced, without elaboration, that all six peremptory challenges would be permitted to stand. It is that ruling that Johnson raised as error on direct appeal.[2] ¶ 5. The Court of Appeals found the following: (1) the trial court skipped the first step in the Batson analysis when it failed to find that the State's actions amounted to a prima facie case of discrimination before requiring it to provide race neutral reasons for its strikes; (2) this was irrelevant because it was clear from the record that such a prima facie case had been made; (3) the trial court's finding that the peremptory challenges were race neutral would be upheld; and (4) the trial court's finding that the peremptory challenges were sufficiently race neutral to be upheld as non-discriminatory under Batson, would be upheld. Finally, the Court of Appeals found that the trial court's failure to make on the record findings concerning its acceptance of the peremptory strikes was not error despite this Court's decision in Hatten v. State: In reviewing the trial court's decision to accept the State's facially race-neutral reasons as being offered in good faith, we do not find the absence of such detailed findings to be reversible error. The trial court's decision on this aspect of a Batson challenge, as we have observed, involves a subjective analysis of the credibility of the prosecuting attorney. It must be based in substantial part on the trial court's observations of the attorney's conduct and demeanor and may also properly involve other largely intangible and even intuitive considerations. Whether those complex considerations could be articulated with any precision is, in itself, doubtful. *1180 Even if they could, it is equally as doubtful that the resulting information would provide any meaningful assistance to this Court in deciding whether the court abused its discretion. We decline to reverse the conviction on this basis. II. ¶ 6. This Court stated the following in Hatten v. State, 628 So.2d 294, 298 (Miss. 1993): This Court has not directly addressed the issue of whether a trial judge is required to make an on-the-record factual determination of race neutral reasons cited by the State for striking veniremen from a panel. The Batson Court declined to provide specific guidelines for handling this issue. This Court has articulated the general law in this state which provides that "it is the duty of the trial court to determine whether purposeful discrimination has been shown," by the use of peremptory challenges. Wheeler v. State, 536 So.2d 1347 (Miss. 1988); Lockett v. State, 517 So.2d at 1349. In considering this issue, we today decide it necessary that trial courts make an on-the-record, factual determination, of the merits of the reasons cited by the State for its use of peremptory challenges against potential jurors. This requirement is to be prospective in nature. Of course, such a requirement is far from revolutionary, as it has always been the wiser approach for trial courts to follow. Such a procedure, we believe, is in line with the "great deference" customarily afforded a trial court's determination of such issues. "Great deference" has been defined in the Batson context as insulating from appellate reversal any trial findings which are not clearly erroneous. Lockett v. State, 517 So.2d at 1349-50. Accord Willie v. State, 585 So.2d 660, 672 (Miss.1991); Benson v. State, 551 So.2d 188, 192 (Miss.1989); Davis v. State, 551 So.2d 165, 171 (Miss.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 797 (1990); Chisolm v. State, 529 So.2d 630, 633 (Miss.1988); Johnson v. State, 529 So.2d 577, 583-84 (Miss.1988). Obviously, where a trial court offers clear factual findings relative to its decision to accept the State's reason[s] for peremptory strikes, the guesswork surrounding the trial court's ruling is eliminated upon appeal of a Batson issue to this Court. This rule was handed down prospectively. In Bounds v. State, 688 So.2d 1362 (Miss. 1997), the Court found reversible error in part because of the trial court's failure to provide on the record factual determinations for its denial of Bounds's peremptory strikes. ¶ 7. Most recently, in Puckett v. State, 737 So.2d 322, 337 (Miss.1999), this Court found no reversible error on other issues, but remanded for a hearing solely on the Batson question because "the trial judge did not make on-the-record factual determinations and inquiry independently as required by Hatten regarding each peremptory challenge." ¶ 8. We say once again that the rule promulgated in Hatten will be enforced. The judgment of the Court of Appeals is reversed. The case is remanded to the Hinds County Circuit Court for a hearing and findings pursuant to Hatten and Batson. ¶ 9. REVERSED AND REMANDED. PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., AND McRAE, J., CONCUR. MILLS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, WALLER AND COBB, JJ. MILLS, Justice, dissenting: ¶ 10. I respectfully dissent from the majority opinion. I would follow the same reasoning stated in my dissent in Berry v. State, 703 So.2d 269, 296-98 (Miss.1997). This Court is fully capable of balancing the Batson factors in many of the cases before us, including this one, and continued remand *1181 of such cases only wastes limited trial court resources and further delays justice. ¶ 11. Therefore, I respectfully dissent. SMITH, WALLER AND COBB, JJ., JOIN THIS OPINION. NOTES [1] For a further description of the events and prior legal proceedings, see the opinion of the Court of Appeals, Johnson v. State, No. 96-KA-01136 COA (Miss.Ct.App.1998). [2] While there was no cross-appeal, we note that the trial court refused to consider the State's Batson challenge to defense strikes. We call the court's attention to Griffin v. State, 610 So.2d 354 (Miss.1992), and Randall v. State, 716 So.2d 584 (Miss.1998).

Filed 6/23/16 P. v. Montano CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D068098 Plaintiff and Respondent, v. (Super. Ct. No. SCN335761-3) EFRAIN MONTANO, Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Diego County, Richard R. Monroy, Judge. Affirmed. Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Scott Taylor, Alana Butler and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.  INTRODUCTION A jury convicted Efrain Montano of two counts of robbery (Pen. Code, § 211). The jury could not reach verdicts on allegations Montano was vicariously armed with a firearm (Pen. Code, § 12022, subd. (a)(1)), and the court subsequently granted the prosecution's motion to dismiss these allegations. However, the court found true an allegation Montano had a prior prison commitment conviction (Pen. Code, § 667.5, subd. (b)). The court sentenced Montano to four years in prison. Montano appeals, contending the court prejudicially erred in instructing the jury with a bracketed paragraph in the CALCRIM No. 400 aiding and abetting instruction intended for use only when the prosecution is relying on the natural and probable consequences doctrine, which the prosecution was not relying on in this case. We conclude the error was harmless and affirm the judgment. BACKGROUND Two women were standing in a parking lot talking when a four-door silver sedan drove in front of them, stopped for a few seconds, and then drove off. A few minutes later, the sedan returned and stopped near them again. Montano got out of the sedan's left rear passenger seat, an accomplice got out of the sedan's front passenger seat, and they approached the two women. The accomplice pointed a gun at the women, told them not to scream, and directed them to hand over their purses.1 Montano took one woman's purse. The accomplice took the other woman's purse. Both women handed over their 1 Police never found the gun. Both women thought it may have been fake. 2 purses because they were afraid for their lives. Montano and the accomplice then got back into the sedan and left. The two women got in a car and tried following the sedan, but they were unable to find it and returned to the parking lot. While they were attempting to follow the sedan, one of the women reported the robbery to police. She described the sedan to a 911 operator, stating there was a football emblem on its gas tank door. The other woman spoke with a police officer at the crime scene. She also described the sedan, indicating it had no license plate, but there was a paper with red, white and black writing in the license plate area. A nearby patrol officer heard a radio call about the robbery, which included the sedan's description. Shortly afterwards, the officer spotted a four-door silver sedan with a football emblem on the gas tank door and paper license plates with red and white lettering. The officer stopped the car and had its three occupants, including Montano and his accomplice, step out of it. At a subsequent curbside lineup, one of the women identified both Montano and his accomplice. The other women identified only Montano's accomplice. A field evidence technician searched the sedan and found one woman's purse and both women's identification and credit cards. The field evidence technician found one woman's wallet and the other woman's purse on the side of the road near the location of the robbery. 3  DISCUSSION I A 1 The prosecution's theories of culpability were that Montano aided and abetted the robbery of one woman and either directly perpetrated or aided and abetted the robbery of the other woman. These theories required the court to instruct on aiding and abetting. (People v. St. Martin (1970) 1 Cal.3d 524, 531 [a court has a sua sponte duty to instruct the jury on the principles of law that are closely and openly connected to the facts of the case and are necessary for the jury's understanding of the case].) The CALCRIM No. 400 instruction on the general principles of aiding and abetting provides: "A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. [¶] A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator. [¶] [Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime.]" (Italics added.) The bench notes for the instruction state, "When the prosecution is relying on aiding and abetting, give this instruction before other instructions on aiding and abetting to introduce this theory of culpability to the jury. [¶] . . . [¶] If the prosecution is also 4 relying on the natural and probable consequences doctrine, the court should also instruct with the last bracketed paragraph."2 (Bench Notes to CALCRIM No. 400 (2010 rev.).) 2 Although defense counsel objected to the court's use of the bracketed portion of the instruction on the ground the prosecution was not relying on the natural and probable consequences doctrine, the court overruled the objection stating it did not think the bracketed portion of the instruction addressed the doctrine. Instead, the court thought the bracketed portion of the instruction was factually applicable because one could argue "if [Montano] was aiding and abetting one robbery, [he] might have actually committed another robbery." Consistent with this view, the court recited the entire CALCRIM No. 400 instruction to the jury, including the bracketed paragraph. 2 "The natural and probable consequences route to a finding of criminal liability operates as follows: ' "A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime. The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. [Citation.]" [Citation.] Liability under the natural and probable consequences doctrine "is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted." ' [Citation.] In short, natural and probable consequences liability for crimes occurs when the accused did not necessarily intend for the ultimate offense to occur but was at least negligent (from the standard expected of a reasonable person in the accused's position) about the possibility that committing the proximate offense would precipitate the ultimate offense that actually occurred." (People v. Rivas (2013) 214 Cal.App.4th 1410, 1431-1432 (Rivas).) 5  B However, the court's aiding and abetting instructions did not end with CALCRIM No. 400. The bench notes to CALCRIM No. 400 further explained, "If the prosecution's theory is that the defendant intended to aid and abet the crime or crimes charged (target crimes), give CALCRIM No. 401, Aiding and Abetting: Intended Crimes." (Bench Notes to CALCRIM No. 400 (2010 rev.).) "If the prosecution's theory is that any of the crimes charged were committed as a natural and probable consequence of the target crime, CALCRIM No. 402 or 403 should also be given." (Bench Notes to CALCRIM No. 400 (2010 rev.).) Following the bench notes' guidance and based on the prosecution's theory Montano intended to aid and abet a robbery, the court did not give the jury either the CALCRIM No. 402 or 403 instructions on the natural and probable consequences doctrine. Rather, using a tailored version of CALCRIM No. 401, the court instructed the jury in relevant part: "To prove the defendant is guilty of a crime based on aiding and abetting, that crime, the People must prove that, one, the perpetrator committed a crime; two, the defendant knew that the perpetrator intended to commit the crime; three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and four, the defendant's words or conduct did, in fact, aid or abet the perpetrator's commission of the crime. "Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to and does, in fact, aid, facilitate, promote, encourage or instigate the perpetrator's commission of that crime. [¶] If all of these 6 requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. If you conclude the defendant was present at the scene of a crime or failed to prevent a crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of the crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor." II A Montano contends we must reverse his conviction because the court's erroneous use of the bracketed portion of the CALCRIM No. 400 instruction deprived him of due process of law. Specifically, he contends the error likely led the jury to convict him of robbery even if the jury did not believe his accomplice intended to commit a robbery or he intended to aid and abet the accomplice in committing a robbery, but instead only believed he intended to assist the accomplice in committing a lesser offense or only intended to commit a lesser offense himself. The People concede the instructional error. (Rivas, supra, 214 Cal.App.4th at p. 1432 [the bracketed portion of the CALCRIM No. 400 instruction is superfluous if the prosecution is not relying upon the natural and probable consequences doctrine].) However, the People contend the error was harmless. We agree. B " 'With regard to criminal trials, "not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is 7 ' "whether the ailing instruction ... so infected the entire trial that the resulting conviction violates due process." ' [Citation.] ' "[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." ' [Citation.] If the charge as a whole is ambiguous, the question is whether there is a ' "reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.' " ' " (People v. Letner and Tobin (2010) 50 Cal.4th 99, 182; Rivas, supra, 214 Cal.App.4th at p. 1429 & fn. 9.) In this case, Montano essentially argues the jury mistakenly and incorrectly applied the natural and probable consequences doctrine even though neither party discussed the doctrine during closing arguments and the only instruction the jury received related to the doctrine was the bracketed paragraph, not the details of the doctrine itself. In substantially similar circumstances, the Supreme Court concluded it is highly unlikely the jury relied upon or misapplied the doctrine in a constitutionally impermissible way. (People v. Prettyman (1996) 14 Cal.4th 248, 273; Rivas, supra, 214 Cal.App.4th at pp. 1432-1433.) Moreover, viewing the instructions as a whole in light of the trial record (Estelle v. McGuire (1991) 502 U.S. 62, 72), we conclude the jury would have understood its task to be determining whether Montano aided and abetted the robbery of one woman and whether he directly perpetrated or aided and abetted the robbery of, or some lesser form of theft against, the other woman. Indeed, this is precisely how both parties framed the issues in their closing arguments. 8  Within this framework, the prosecution argued Montano and his accomplice worked together to rob both women. Defense counsel argued Montano committed the lesser offense of grand theft from the person of one woman and could not be found beyond a reasonable doubt to have aided and abetted in the robbery of the other woman. Neither party addressed Montano's potential culpability for a nontarget crime based on his aiding and abetting a target crime. The jury, therefore, could only have based its verdicts on its agreement with the prosecution's theories of culpability and not on the natural and probable consequences doctrine or some other speculative theory. (Rivas, supra, 214 Cal.App.4th at p. 1433.) Accordingly, we conclude beyond a reasonable doubt the error did not contribute to the jury's verdict. (Id. at p. 1430, fn. 10, citing Chapman v. California (1967) 386 U.S. 18, 24.) DISPOSITION The judgment is affirmed. McCONNELL, P. J. WE CONCUR: HUFFMAN, J. O'ROURKE, J. 9 

10 N.Y.3d 952 (2008) PATRICIA PREDMORE, Respondent, v. EJ CONSTRUCTION GROUP, INC., Appellant. Court of Appeals of the State of New York. Submitted June 9, 2008. Decided July 1, 2008. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Case: 16-10806 Date Filed: 08/05/2020 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 16-10806 Non-Argument Calendar ________________________ D.C. Docket No. 1:15-cr-20404-BB-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MATTHEW LEE PRYOR, Defendant-Appellant. ________________________ Appeals from the United States District Court for the Southern District of Florida ________________________ (August 5, 2020) Before WILSON, MARTIN, and ANDERSON, Circuit Judges. PER CURIAM: Matthew Pryor appeals his total 600-month sentence for assaulting a federal officer with a deadly weapon in violation of 18 U.S.C. § 111(a) and (b); possessing  Case: 16-10806 Date Filed: 08/05/2020 Page: 2 of 9 and discharging a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii); carjacking in violation of 18 U.S.C. § 2119(1); brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and possessing a firearm as a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Pryor raises two arguments on appeal. First, he says he should benefit from Section 403 of the First Step Act of 2018, which changed the sentencing scheme for a defendant’s second § 924(c) conviction. Second, he requests remand to the district court for reconsideration of his career offender status in light of Amendment 798 to the Sentencing Guidelines. After careful review, we affirm Pryor’s convictions and sentence and deny his request for remand to the district court. I. Pryor pled guilty to all charges against him in October 2015. Before sentencing, Pryor’s presentence investigation report (“PSR”) determined he was a “career offender” under the U.S. Sentencing Guidelines. The PSR based Pryor’s career offender status on three prior “violent” felony convictions: two Florida convictions for burglary of a dwelling and one Florida conviction for resisting an officer with violence. The PSR also found Pryor was subject to two mandatory consecutive sentences for his two § 924(c) convictions under 18 U.S.C. § 924(c)(1)(A) and (C). 2  Case: 16-10806 Date Filed: 08/05/2020 Page: 3 of 9 The first § 924(c) conviction prescribed a mandatory consecutive sentence of at least 10 years under § 924(c)(1)(A)(iii), and the second § 924(c) conviction mandated a 25-year consecutive sentence under § 924(c)(1)(C)(i). Pryor objected to his career offender designation. He argued that Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), which invalidated the residual clause of the Armed Career Criminal Act, also applied to the similar residual clause in the Sentencing Guidelines’ career offender provision at U.S.S.G. § 4B1.2(a)(2). Pryor argued his previous burglary convictions no longer qualified as crimes of violence under § 4B1.2(a)(2), and thus he could not be adjudicated a career offender. However, Pryor acknowledged that his claim was foreclosed by United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), which held that Johnson did not invalidate the career offender guideline’s residual clause. See id. at 1195– 96. Citing Matchett, the district court overruled Pryor’s objection to career offender status. Pryor was sentenced in January 2016. He received 180-month terms on both the carjacking and assault charges and a 120-month term for the felon-in- possession charge, all running concurrently. He also received a mandatory consecutive term of 120-months for the first § 924(c) charge of carrying a firearm during a crime of violence, and another mandatory consecutive term of 300- months for the second § 924(c) charge. Pryor’s total sentence was 600-months 3  Case: 16-10806 Date Filed: 08/05/2020 Page: 4 of 9 incarceration. The government timely appealed this judgment, and Pryor cross- appealed. The government dismissed its cross-appeal in December 2018. While Pryor’s appeal was pending, Congress passed the First Step Act of 2018, Pub. L. 115-391. As relevant here, the Act revised the § 924(c) sentencing scheme. It changed the language of § 924(c)(1)(C) to impose a consecutive mandatory 25-year sentence for a second § 924(c) conviction only if a prior § 924(c) conviction was already finalized. Pub. L. 115-391, § 403. In simple terms, the Act did away with the 25-year consecutive sentence requirement for defendants charged with a first and second § 924(c) violation in the same prosecution. See id. II. We review de novo the interpretation of a criminal statute. United States v. Hernandez, 906 F.3d 1367, 1370 (11th Cir. 2018). Likewise, we review de novo the district court’s determination of career offender status under the Sentencing Guidelines. United States v. Whitson, 597 F.3d 1218, 1220 (11th Cir. 2010) (per curiam). III. A. Pryor argues he should benefit from the First Step Act and be resentenced without a 25-year mandatory minimum sentence for his second § 924(c) violation. 4  Case: 16-10806 Date Filed: 08/05/2020 Page: 5 of 9 The government responds that the First Step Act does not apply to Pryor because he was sentenced by the district court almost three years before the Act was passed and the Act is not retroactive. At the time Pryor was sentenced in January 2016, 18 U.S.C. § 924(c)(1)(C) provided for a 25-year mandatory minimum consecutive sentence if a defendant had “a second or subsequent conviction under [§ 924(c)].” § 924(c)(1)(C) (2012). This subsection imposed the mandatory minimum on a defendant who was convicted of two § 924(c) violations in a single prosecution, as Pryor was. See Deal v. United States, 508 U.S. 129, 132, 113 S. Ct. 1993, 1996 (1993). In December 2018, Congress enacted the First Step Act, Pub. L. No. 115- 391. Section 403 of the Act is titled “Clarification of Section 924(c) of Title 18, United States Code.” Section 403 amended 18 U.S.C. § 924(c)(1)(C) to impose the 25-year minimum sentence only if “a violation of this subsection [§ 924(c)] occurs after a prior conviction under this subsection has become final.” See § 403(a) (emphasis added); 18 U.S.C. § 924(c)(1)(C). Under this new language, Pryor’s two simultaneous § 924(c) convictions would not warrant a 25-year mandatory minimum consecutive sentence. Section 403(b) of the First Step Act explains that the Act applies to “Pending Cases” for “any offense that was committed before the date of the Act, if a sentence for the offense has not been imposed as of such date of enactment.” Pub. 5  Case: 16-10806 Date Filed: 08/05/2020 Page: 6 of 9 L. No. 115-391, § 403(b). Pryor’s crime was committed before the Act was passed in 2018. Pryor acknowledges that he was sentenced nearly three years before the Act was passed. Nevertheless, he says the First Step Act applies to his sentence. He primarily reasons that his sentence has not been “finally imposed” within the meaning of Section 403(b), because his direct appeal is still pending and his sentence has not yet been affirmed. Br. of Appellant at 9–10. The government says the First Step Act does not apply to Pryor. The government maintains that a sentence is “imposed” by the district court when it pronounces the defendant’s term of imprisonment and enters his judgment of conviction. Our Court recently resolved this issue in United States v. Smith, ___ F.3d. ___, 2020 WL 4355560 (11th Cir. July 30, 2020). We held that “a sentence is ‘imposed’ for purposes of § 403(b) [of the First Step Act] when it is pronounced in the district court.” Id. at *12. Because Pryor’s sentence was imposed by the district court before the passage of the First Step Act, he cannot receive First Step Act relief. Therefore, we affirm his enhanced sentence under 18 U.S.C. § 924(c)(1)(C). B. Pryor also seeks a remand of his case for reconsideration of his career offender status in light of Amendment 798 to the Sentencing Guidelines’ career 6  Case: 16-10806 Date Filed: 08/05/2020 Page: 7 of 9 offender provisions. See U.S.S.G. App. C, amend. 798 (Aug. 1, 2016). We conclude that Pryor is not eligible for this relief. Amendment 798 changed the career offender provisions of the Sentencing Guidelines by removing burglary of a dwelling from Guidelines § 4B1.2(a)(2)’s enumerated offenses and eliminating § 4B1.2(a)(2)’s residual clause defining a “crime of violence.” See U.S.S.G. App. C, amend. 798. By eliminating the residual clause of § 4B1.2(a)(2), Amendment 798 responded to the Supreme Court’s ruling in Johnson, which held unconstitutional the Armed Career Criminal Act’s identically worded residual clause. See U.S.S.G. App. C, amend. 798 (citing Johnson, 135 S. Ct. at 2563). Under Amendment 798, Pryor would no longer be considered a career offender. His career offender status was based on at least two Florida burglary convictions and one Florida conviction for resisting an officer with violence. Without the burglary convictions as enumerated offenses and without the residual clause, Pryor would have only one felony conviction to support his career offender status. See U.S.S.G. § 4B1.1(a) (requiring “at least two prior felony convictions” for career offender status). However, Pryor cannot benefit from Amendment 798. This Court has held that Amendment 798 does not apply retroactively to defendants sentenced before it took effect. See United States v. Martin, 864 F.3d 1281, 1283 (11th Cir. 2017) 7  Case: 16-10806 Date Filed: 08/05/2020 Page: 8 of 9 (per curiam). We are bound by this precedent unless it is overruled by this Court sitting en banc or by the Supreme Court. Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001). Pryor was sentenced in January 2016, and the Amendment went into effect on August 1, 2016. As a result, Amendment 798 does not change Pryor’s career offender status. Pryor asks us to follow the First Circuit’s decision in United States v. Godin, 522 F.3d 133 (1st Cir. 2008) (per curiam). Godin remanded a case for resentencing so the district court could consider the persuasive effect of a non- retroactive, newly enacted amendment to the Sentencing Guidelines. Id. at 134– 36. The district court in Godin did not consider this amendment at sentencing, because the amendment had not yet been proposed. See id. at 134. Pryor’s case stands in contrast to Godin. The district court in Pryor’s case considered the proposed Amendment 798 and its persuasive effect on Pryor’s career offender status. At sentencing, Pryor’s attorney told the court, “[T]he Sentencing Commission just eliminated the residual clause from Career Offender, and that’s going to go into effect on August 1st.” Counsel explicitly asked the district court for “a variance . . . because [applying career offender status] conflicts with the Sentencing Commission.” The government conceded that “[t]here is a basis for the Court to consider a variance because of the actions of the Sentencing Commission.” After considering these arguments, the district court sentenced 8  Case: 16-10806 Date Filed: 08/05/2020 Page: 9 of 9 Pryor as a career offender under the residual clause of Guidelines § 4B1.1. The district court relied on this Court’s decision in Matchett, which held the residual clause in the career offender guideline was not unconstitutionally vague. See 802 F.3d at 1196; see also Beckles v. United States, 580 U.S. ___, 137 S. Ct. 886, 897 (2017) (affirming Matchett’s holding). The sentencing court already considered Pryor’s Amendment 798 arguments and chose to sentence him as a career offender. Godin does not therefore support remand in his case. Cf. United States v. Alexander, 553 F.3d 591, 593 (7th Cir. 2009) (denying remand under Godin because the defendant had the chance to argue for a reduced sentence using a proposed guideline amendment, but he “failed to draw the sentencing judge’s attention to the proposal”). We must affirm Pryor’s designation as a career offender and therefore decline to remand his case. AFFIRMED. 9 

495 So.2d 481 (1986) Zel THOMAS v. STATE of Mississippi. No. 56394. Supreme Court of Mississippi. September 24, 1986. Lee Calvin Buckley, Holly Springs, for appellant. Edwin Lloyd Pittman, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee. Before HAWKINS, P.J., and DAN M. LEE and SULLIVAN, JJ. DAN M. LEE, Justice, for the Court: STATEMENT OF THE CASE Zel Thomas appeals his conviction for simple assault on a police officer. Miss. Code Ann. § 93-3-7 (Supp. 1985). Thomas was tried October 25 and 26, 1984 and was *482 sentenced to five years in the custody of the Mississippi Department of Corrections, with two years suspended upon good behavior. His conviction followed an initial trial which ended in a mistrial. Thomas appeals assigning two errors: I. THE TRIAL COURT ERRED IN ALLOWING, OVER OBJECTION, THE TESTIMONY OF THE STATE'S WITNESSES ROBERT E. NETHERCOTT, OFFICERS FLOYD JENKINS AND RAY RICHARDSON AS TO OTHER CRIMES (DISTURBING THE PEACE, ASSAULT), IF ANY OCCURRING AT THE RESIDENCE OF ROBERT E. NETHERCOTT, PRIOR TO THE OFFENSE FOR WHICH THE APPELLANT WAS INDICTED. II. THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND THE LAW. STATEMENT OF THE FACTS Zel Thomas had his annual back-to-school party July 1, 1983, on his mother's property in Nesbit, Mississippi. The party was outdoors on a baseball diamond and Thomas had live music with 150 to 200 people present. Robert E. Nethercott was a neighbor. He heard the music early in the evening and it was not objectionable at that time. However, after Nethercott went to bed the music seemed to get louder, preventing him from sleeping. Nethercott called the DeSoto County Sheriff's office to complain at least five times. After one of the calls, Sheriffs' deputies arrived at Nethercott's house with Zel Thomas. Nethercott said the initially cordial meeting rapidly deteriorated and Thomas became abusive, threatened Nethercott and had to be restrained by the deputies, who forced Thomas into the patrol car. Deputy Florida (Floyd) Jenkins stated it looked like Thomas "wanted to jump on [Nethercott]," and Jenkins' partner, Deputy Ray Richardson, grabbed Thomas by the arm and put Thomas in the patrol car to "keep them from fighting there." Richardson and Jenkins returned Thomas to his mother's house. Thomas told the deputies to wait because he wanted to call the sheriff. Richardson and Jenkins waited at least 45 minutes, and when Thomas did not return, they left. Nethercott continued to hear the loud music, however, and went to a nearby grocery to meet Judge Perryman and several deputies where he swore out a complaint against Thomas for disturbing the peace. Judge Perryman issued a warrant for Thomas' arrest and several deputies went to the party to arrest Thomas. The circumstances surrounding Thomas' arrest created the only factual dispute in the case. The facts taken in the light most favorable to the state are these: Deputies arrived and Jenkins and another deputy approached Thomas at the band stage and tried to serve the arrest warrant. Thomas didn't want to accept it but the deputies arrested him and placed him in the back seat of Jenkins' car. Thomas had been drinking. Jenkins had smelled alcohol on Thomas when they spoke with him earlier in the evening. Before Jenkins could drive off, someone asked if he could speak with Thomas about some financial arrangements for the party. Thomas had not been handcuffed because he had peaceably gone with police to the car. When Jenkins opened the door to allow Thomas to speak, Thomas jumped from the back seat, striking Jenkins in the head or face, bursting Jenkins' hat and knocking off Jenkins' glasses. Jenkins was not cut nor badly injured but Thomas stayed on top of Jenkins, hitting him and trying to grab Jenkins' gun. Jenkins tried to fend off Thomas by "tapping" him with his flashlight. Jenkins had trouble landing a blow but finally hit Thomas solidly. Thomas required 56 stitches on his forehead and over his eye as a result of the scuffle. Thomas fell to the ground where Deputy Danny Wilson was able to pin Thomas down and handcuff him. Thomas kicked Deputy Wilson in the back during this exchange. Thomas was taken later to the hospital for treatment. Deputy Donnie White transported *483 Thomas from the party and stated that Thomas threatened to kill the officers that "did him wrong." There was no evidence that Thomas had made good on his threat. All of the state's evidence was corroborated in varying detail by testimony from at least one of the deputies at the party; Richardson, Wilson, Donnie White and former deputy Phillip Austein, although only Austein and Richardson corroborated Jenkins' account of who threw the first punch. In questioning Austein and Richardson about the first blow, defense counsel alluded to their testimony at the first trial being different, but their prior testimony was never presented to the jury. The trial court noted that the situation could have been much worse had Thomas gained control of Jenkins' gun, and sentenced Thomas to the maximum sentence of five years with two years suspended upon good behavior. I. DID THE COURT ERR IN ALLOWING THE STATE TO INTRODUCE EVIDENCE OF OTHER CRIMES? Thomas argues here that testimony concerning the arrest warrant signed against Thomas, and testimony concerning Thomas' confrontation with Nethercott was improperly admitted evidence of other crimes. Our standard for addressing similar contentions is well settled and well known. In the oft-cited case of Gray v. State, 351 So.2d 1342 (Miss. 1977), this Court stated It is well settled in this state that proof of a crime distinct from that alleged in an indictment is not admissible against an accused. There are certain recognized exceptions to the rule. Proof of another crime is admissible where the offense charged and that offered to be proved are so connected as to constitute one transaction, where it is necessary to identify the defendant, where it is material to prove motive and there is an apparent relation or connection between the act proposed to be proved and that charged, where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge. See Smith v. State, 223 So.2d 657 (Miss. 1969), cert. denied, 397 U.S. 1030, 90 S.Ct. 1274, 24 L.Ed.2d 542 (1970); Cummings v. State, 219 So.2d 673 (Miss. 1969), cert. den. 397 U.S. 942, 90 S.Ct. 954, 25 L.Ed.2d 122 (1970). 351 So.2d at 1345. See also, Graves v. State, 492 So.2d 562 (Miss. 1986)); Trunell v. State, 487 So.2d 820 (Miss. 1986); Griffin v. State, 482 So.2d 233 (Miss. 1986); Minor v. State, 482 So.2d 1107 (Miss. 1986). The state correctly points out that it must be allowed to show that the arrest was legal, for this Court recognizes a limited privilege to resist an unlawful arrest. See Watkins v. State, 350 So.2d 1384 (Miss. 1977). This makes evidence of the underlying arrest warrant something akin to evidence of a series of criminal acts which must be proved to make out the offense. Gray, 351 so.2d at 1345. There appears to be no question that evidence of the complaint by Nethercott, the issuance of the arrest warrant and the arrest of Thomas, all fall within the exceptions of Watkins and Gray. Only the evidence of Thomas' aggression towards Nethercott requires discussion. The state cites Gardner v. State, 368 So.2d 245 (Miss. 1979), as controlling on this point. Gardner involved an aggravated assault on a police officer by the defendant who fired at officers as they attempted to serve an arrest warrant. Police obtained the warrant after hearing shots being fired and witnessing the defendant run into his apartment carrying a gun. The warrant was ultimately held invalid and this Court found no error in allowing testimony that the defendant had indeed fired weapons earlier in the evening. The state cites the following language: Gardner next argues the court erred in admitting testimony that he had been drinking and had discharged both a pistol and a shotgun several hours prior to the time he fired through the door. The *484 general rule is that proof of a crime distinct from that charged in the indictment should not be admitted into evidence against an accused. Cummings v. State, 219 So.2d 673 (Miss. 1969). There are, however, exceptions to this rule as noted in Floyd v. State, 166 Miss. 15, 148 So.2d 226 (1933), and which has been elaborated upon in Horton v. State, 288 So.2d 467 (Miss. 1974), as follows: ... [T]hat proof of such other crime is admissible if it sheds light upon the motive for the commission of the crime charged in the indictment. Tanner v. State, 216 Miss. 150, 61 So.2d 781 (1953). Proof that defendant is guilty of another crime is admissible when that fact (1) tends to show that the deceased officer had a right to arrest the appellant without a warrant, or (2) tends to show that the accused knew why he was being arrested, and therefore sheds light on the motive for the commission of the crime for which accused is being tried. White v. State, 70 Miss. 253, 11 So. 632 (1892). (288 So.2d at 468). Presently, it was incumbent upon the state to prove that Lowery was an officer and acting within the scope of his duty in order to make its case of aggravated assault upon a police officer. It was established through the testimony that Lowery was an officer, whereupon the conduct of Gardner became relevant and material to establish whether Lowery reacted reasonably and within the scope of his authority to the reports related to him or that which he observed concerning Garnder's conduct preceding his going to the apartment to make the arrest. We conclude this testimony was properly admitted into evidence. 368 So.2d at 248-49. However, Gardner appears to us to stand for the proposition that the facts underlying probable cause may be introduced where there is a question as to the validity of the arrest or where it is necessary to demonstrate the accused knew why he was being arrested. Here the validity of the arrest was not questioned, and the state could have shown that Thomas knew the reason for the arrest without showing Thomas' threatening act toward Nethercott. The state maintains that evidence of Thomas' animosity toward Nethercott demonstrates Thomas' "intent to `carry on' ... regardless of the circumstances." This conduct thus established Thomas' motive for the unprovoked attack on Jenkins by showing "Thomas' violent disposition toward those who dared to interfere with the evening festivities." The state's interest in "telling a rational and coherent story of what happened ..." Brown v. State, 483 So.2d 328, 330 (Miss. 1986) (citations omitted), also points to the admissibility of the incident at Nethercott's home, the state argues. We agree. In Brown, we stated that "[w]here substantially necessary to present to the jury `the complete story of the crime' evidence or testimony may be given even though it may reveal or suggest other crimes." 483 So.2d at 330. This statement was based on our decision in Neal v. State, 451 So.2d 743 (Miss. 1984). In Neal, this Court reviewed the defendant's felony murder conviction for the death of Amanda Joy Neal, the daughter of Neal's half brother. Neal confessed to this crime as well as to the murders of his half brother Bobby and Amanda Joy's cousin Melanie Sue Polk, and the attempted rape of Melanie Sue Polk. All of these crimes occurred during the same evening after the four went for a drive in Neal's car, though Bobby's death occurred sometime before the other crimes. Neal alleged it was error to allow the jury to hear the parts of his confession involving the other crimes. We stated that the state had a logical argument that the evidence was admissible to show Neal's motive to eliminate witnesses. 451 So.2d at 759. But we also said that "[b]eyond that, evidence of defendant's crimes against Bobby Neal and Melanie Sue Polk were admissible because they were integrally related in time, place and fact with the murder of Amanda Joy." 451 So.2d at 759. *485 Like Neal the state's argument concerning motive and intent might be sufficient to sustain the trial court's decision. But as in Neal, we look beyond this rationale to the integral relation of the evening's events to the ultimate crime of simple assault on a police officer. Here the assault on Deputy Jenkins was related in time to the meeting at Nethercott's house. Both occurred on the same evening during the same precipitating event — the loud lawn party — separated by only a couple of hours. Though both incidents did not occur at the same exact place, both occurred in the general vicinity of the party. Finally, both incidents factually and logically are concerned with the lawn party. We hold there was no error in admitting testimony concerning the incident at Nethercott's house. Eubanks v. State, 419 So.2d 1330 (Miss. 1982), does not require a different result. In Eubanks, this Court held that the trial court erred in allowing testimony concerning the underlying warrant. Eubanks, as here, involved a simple assault on a law enforcement officer. Conservation officers had obtained a warrant for Eubanks' arrest for reckless driving on state property, alcoholic beverages on state property, failing to yield to a blue light and resisting arrest. The incident giving rise to probable cause occurred on June 21, 1980. The same conservation officers present on June 21 stopped Eubanks to effect an arrest on July 4, 1980 but Eubanks resisted and officer Farlow testified that Eubanks kicked him three times. The Court stated this about the underlying facts supporting the warrant: We are of the opinion Farlow's testimony concerning the warrant for reckless driving on state property, possession of alcoholic beverages on state property, failing to yield to a blue light and resisting arrest, was admissible to prove Farlow was acting within his authority to arrest Eubanks. However, it was error for the trial court to allow Farlow and Shoemake to testify as to the details of the incident at Lake Perry on June 21, 1980. There was no connection between the facts surrounding that incident and the charge of simple assault for which Eubanks was tried. Id. at 1332. This Court noted the exceptions to the general rule concerning evidence of other crimes but stated that the crimes of June 21 were not so connected to the assault of July 4 that they could not be separated. We distinguish Eubanks because here we find the incident at Nethercott's was "integrally intertwined" with the assault on Jenkins, thus there was in fact a close connection here not present in Eubanks. Further, the Court in Eubanks made little reference to exceptions to the general rule concerning evidence of other crimes. Specifically, the Court in Eubanks did not discuss the possible alternative grounds for admissibility here of demonstrating motive and intent. For these reasons we hold Eubanks does not control us here. II. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE? We should start here by noting that determining the credibility of witnesses is uniquely a jury function. Anderson v. State, 461 So.2d 716 (Miss. 1984); Grosclose v. State, 440 So.2d 297 (Miss. 1983). As the state notes, this Court said in Billiot v. State, 454 So.2d 445, 463 (Miss. 1984), "the jury's decision based on conflicting evidence will not be set aside where there is substantial and believeable evidence supporting the verdict." There can be no question that the case here presented conflicts in testimony. Thomas' version of the altercation with Jenkins varied substantially from the state's version. Yet, Thomas maintains the state's proof is inherently unbelieveable. He argues, in essence, that the testimony of officer Jenkins could not be believed because it is inherently unbelieveable that Thomas could have struck Jenkins hard enough to bust Jenkins' straw hat without somehow injurying Jenkins. We consider this assignment of error to be without merit as merely rehashing what was properly a *486 jury question on substantial and believeable evidence. The hat identified to be Jenkins' was before the jury who could have assessed the plausibility of Jenkins' story. For the reasons stated, we affirm. AFFIRMED. WALKER, C.J., ROY NOBLE LEE and HAWKINS, P.JJ., and PRATHER, ROBERTSON, SULLIVAN, ANDERSON and GRIFFIN, JJ., concur.

728 N.E.2d 77 (2000) 312 Ill. App.3d 823 245 Ill.Dec. 346 Clarence KASIN and Paul Kasin, Plaintiffs-Appellants, v. OSCO DRUG, INC., Defendant-Appellee. No. 2-99-0356. Appellate Court of Illinois, Second District. April 12, 2000. Charles A. Cohn, Erwin Cohn, Cohn & Cohn, Chicago, for Clarence Kasin and Paul Kasin. Eric J. Parker, Ridge, Ridge & Lindsay, Waukegan, for Osco Drug Inc., Corp. Presiding Justice BOWMAN delivered the opinion of the court: Plaintiffs, Clarence and Paul Kasin, brought a negligence action in the circuit court of Lake County against defendants, Dr. James A. Gross and Osco Drug, Inc. (Osco). Subsequently, Dr. Gross was dismissed with prejudice. As to Osco, plaintiffs alleged that in dispensing the prescription drug Daypro Osco had negligently advised Clarence Kasin of the side effects of the drug when it failed to advise him "of symptoms to be aware of *78 and possible injury to kidneys and possible renal failure." As a result of taking the drug, Clarence Kasin suffered kidney failure, necessitating a kidney transplant from his brother, Paul Kasin. Osco filed a motion for summary judgment, arguing that, pursuant to the "learned intermediary doctrine," it owed no duty to warn of side effects of a prescription drug. Additionally, Osco argued that its voluntary undertaking to warn of some side effects of a drug did not create a duty to warn of all side effects. The trial court granted Osco's motion and entered summary judgment in its favor. Plaintiffs filed a timely notice of appeal. On appeal plaintiffs contend that the trial court erred in granting summary judgment in favor of Osco because (1) Osco's voluntary undertaking to provide an information or warning sheet with the prescription drug Daypro removed it from the protection of the learned intermediary doctrine and (2) by voluntarily undertaking to warn of certain side effects of Daypro, Osco became obligated to warn of all side effects of the drug. On or about May 23, 1995, Clarence Kasin visited Dr. James Gross for treatment of a swollen right ankle. Kasin had never previously seen Dr. Gross. Prior to his visit to Dr. Gross, Kasin had had no health problems and had received no medical treatment for nearly 25 years except for flu in March 1995. As a result, Kasin had no medical history. Dr. Gross prescribed Daypro to reduce the swelling in Kasin's ankle. Kasin had the prescription filled at the Osco pharmacy in Round Lake Beach. When he received his medication, he also received and read an information sheet about the medication. That sheet included the following information: "COMMON USES OF THIS DRUG: For arthritic conditions, pain, inflammation, fever. HOW SHOULD I TAKE IT? Take with food or antacid to reduce stomach upset. Avoid alcohol or aspirin. Follow doctor's instructions. Report other drugs you take/diseases you have. ARE THERE ANY SIDE EFFECTS? Very unlikely, but report: Eye/ear problems, change in urine color, bloody stools, difficulty breathing, mental changes." No discussion occurred between Kasin and the pharmacist regarding the side effects or risks associated with Daypro. At his deposition, Kasin acknowledged that he relied on his doctor rather than on Osco to advise him of any risks associated with taking the drug. Kasin took Daypro for 10 days. During the first nine days, he experienced no side effects and felt normal. On approximately the tenth day, Kasin noticed that he lacked energy and that his stools were black. Later that day, Kasin collapsed. He was taken to Harvard Community Hospital and then transported to Condell Medical Center, where he was diagnosed with three ulcers and renal failure. At Condell, Kasin learned for the first time that he had been born with only one functioning kidney, which had now failed. Kasin was placed on dialysis and, subsequently, underwent a kidney transplant in December 1995. Kasin's brother, Paul, provided the donated kidney. On May 27, 1997, plaintiffs filed their negligence action. Subsequently, Osco filed its motion for summary judgment, which the trial court granted. This appeal ensued. The purpose of summary judgment is not to try an issue of fact but to determine if one exists. Frye v. Medicare-Glaser Corp., 153 Ill.2d 26, 31, 178 Ill.Dec. 763, 605 N.E.2d 557 (1992). Summary judgment should be granted when the pleadings, depositions, and admissions on file, together with the affidavits presented, show that there is no genuine issue of material fact and the moving party is entitled *79 to judgment as a matter of law. Cramer v. Insurance Exchange Agency, 174 Ill.2d 513, 530, 221 Ill.Dec. 473, 675 N.E.2d 897 (1996). The existence of a duty owed by the defendant to a plaintiff is a question of law that may be determined on a motion for summary judgment. Jacob v. Greve, 251 Ill.App.3d 529, 534, 190 Ill.Dec. 671, 622 N.E.2d 81 (1993). This court's review of the trial court's ruling on a summary judgment is de novo. Country Mutual Insurance Co. v. Hagan, 298 Ill. App.3d 495, 500, 232 Ill.Dec. 433, 698 N.E.2d 271 (1998). Plaintiffs first contend that Osco's voluntary undertaking to provide an information or a warning sheet with a prescription drug removed it from the protection of the "learned intermediary doctrine." The learned intermediary doctrine provides that manufacturers of prescription drugs have a duty to warn prescribing physicians of a drug's known dangerous propensities and that physicians, in turn, using their medical judgment, have a duty to convey the warnings to their patients. Kirk v. Michael Reese Hospital & Medical Center, 117 Ill.2d 507, 517, 111 Ill.Dec. 944, 513 N.E.2d 387 (1987). The doctrine precludes the imposition of a duty upon drug manufacturers to warn patients directly. Kirk, 117 Ill.2d at 519, 111 Ill.Dec. 944, 513 N.E.2d 387. The doctrine also has been applied to exempt pharmacies and pharmacists from giving warnings to patients. See Fakhouri v. Taylor, 248 Ill.App.3d 328, 187 Ill.Dec. 927, 618 N.E.2d 518 (1993); Leesley v. West, 165 Ill.App.3d 135, 116 Ill.Dec. 136, 518 N.E.2d 758 (1988). Plaintiffs concede that absent Osco's voluntary undertaking it would have been shielded from liability by the learned intermediary doctrine but argue that because Osco voluntarily undertook to warn of some side effects of Daypro it was removed from the protection of the doctrine. Conversely, Osco maintains that pursuant to our supreme court's decision in Frye v. Medicare-Glaser Corp., 153 Ill.2d 26, 178 Ill.Dec. 763, 605 N.E.2d 557 (1992), it was protected by the doctrine. In Frye a pharmacist voluntarily undertook to affix to a prescription drug a label warning that the medicine might cause drowsiness. The plaintiff sued both the pharmacy and the pharmacist under a voluntary undertaking theory of liability. The plaintiff acknowledged that neither the pharmacy nor the pharmacist had the duty to warn of the dangerous side effects of the medication but argued that once they undertook to warn of dangerous side effects they undertook to warn of all potential dangers involved in taking the drug. The supreme court rejected plaintiff's argument and found that the defendants' liability depended upon the extent of their undertaking. Osco asserts that the court in Frye determined that a pharmacist was still protected by the learned intermediary doctrine even though the pharmacist offered a warning to a consumer of a drug's dangerous propensities. To support this assertion Osco relies on a statement made by the Frye court, in dicta. The statement followed the court's rejection of the plaintiff's argument that the pharmacist's placement of a "drowsy eye" label on the prescription drug container might mislead a consumer into believing that drowsiness was the only side effect of the drug. The court stated: "In our opinion, consumers should principally look to their prescibing physician to convey the appropriate warnings regarding drugs, and it is the prescribing physician's duty to convey these warnings to patients." Frye, 153 Ill.2d at 34, 178 Ill.Dec. 763, 605 N.E.2d 557. In so stating, the court made no reference to the learned intermediary doctrine. Given the context in which the statement was made, we are not persuaded that the statement indicated that the court had concluded that a pharmacist is protected by the learned intermediary doctrine even if the pharmacist voluntarily undertakes to warn a consumer of some side effects. *80 Other portions of the court's opinion actually support an opposite conclusion. In particular, the court's explanation of the voluntary undertaking theory of liability and its citation of section 323 of the Restatement (Second) of Torts (Restatement (Second) of Torts § 323 (1965)), which espouses that theory (see Frye, 153 Ill.2d at 32, 178 Ill.Dec. 763, 605 N.E.2d 557), suggest that the court believed that, once a pharmacist voluntarily undertook to warn a consumer of the dangerous side effects of a prescription drug, the pharmacist removed himself from the protection of the learned intermediary doctrine, thereby becoming liable for any harm to the consumer that resulted from the pharmacist's negligent performance of his voluntary undertaking. We believe the Frye opinion implies that the learned intermediary doctrine does not apply once a pharmacist voluntarily undertakes to warn a consumer of a drug's dangerous propensities. Nonetheless, under Frye, the duty the pharmacist assumes is limited to the extent of the undertaking, which is correlative to the learned intermediary doctrine's premise that the patient is dependent on the physician's rather than the pharmacist's advice and warnings. We believe Frye is determinative in the present case. Plaintiffs contend that, by voluntarily undertaking to warn of certain side effects of Daypro, Osco assumed a duty to warn of all side effects of the drug. In Frye, the pharmacist affixed to the patient's prescription bottle a label warning that the medication Fiorinal could cause drowsiness. This was depicted by a label showing a drowsy eye and the statement "May Cause Drowsiness." No other labels warning of any other potential side effects were affixed to the container. The plaintiff alleged that the defendants, the pharmacist and pharmacy, failed to adequately warn of the dangerous side effects of Fiorinal because the warning label should have warned that anyone taking the drug should avoid the use of alcohol. The consumer allegedly died from the combined use of alcohol and Fiorinal. Plaintiffs argued that, based on the theory of negligent performance of a voluntary undertaking, the defendants had a duty to warn the decedent of all potential side effects of Fiorinal once they chose to warn him of the drug's propensity to cause drowsiness. The supreme court disagreed, finding that the defendants' duty of care was limited to the extent of their undertaking. Frye, 153 Ill.2d at 33, 178 Ill.Dec. 763, 605 N.E.2d 557. As the defendants undertook to warn the decedent that Fiorinal may cause drowsiness, that constituted the extent of their undertaking and it was that undertaking that defendants were obliged to perform with reasonable care. 153 Ill.2d at 34, 178 Ill.Dec. 763, 605 N.E.2d 557. The supreme court determined that its construction of the defendants' voluntary undertaking was supported by public policy. The court explained, stating that "if we were to hold that by choosing to place the `drowsy eye' label on [the decedent's] prescription container defendants were assuming the duty to warn [the decedent] of all of Fiorinal's side effects, we believe that pharmacists would refrain from placing any warning labels on containers." 153 Ill.2d at 33, 178 Ill.Dec. 763, 605 N.E.2d 557. The court concluded that this result would have the effect of depriving consumers of any warnings that might be beneficial. We agree with the supreme court's rationale. Relying primarily on the fact that in Frye the pharmacist undertook only to warn of one possible side effect whereas, here, Osco listed various side effects, plaintiffs argue that the present case is distinguishable from Frye. Plaintiffs assert that the language on Osco's information sheet regarding whether there were any side effects to Daypro indicated an intent to describe all side effects and, therefore, the scope of Osco's undertaking was greater than that of the defendants in Frye. In Frye the court determined that the duty of care to be imposed under the *81 voluntary undertaking theory of liability was limited to the extent of the undertaking. In other words, the duty that the Frye court imposed upon pharmacists was that, when they warned of a possible side effect, the information provided should be accurate. In Frye one of the side effects of Fiorinal was that it caused drowsiness. Therefore, placing the "drowsy eye" label on decedent's container was a proper warning and constituted the extent of the defendants' undertaking that they were obligated to perform with reasonable care. In the present case, plaintiffs did not allege that the warnings provided by Osco were inaccurate but, rather, that Osco failed to warn of other side effects, i.e., possible renal failure or injury to kidneys. Under Frye the side effects listed by Osco constituted the extent of its undertaking. Had those warnings been inaccurate, e.g., had the information sheet stated, "No need to report eye/ear problems, change in urine color, bloody stools, difficulty breathing, mental changes," causing the consumer to ignore any of the warnings and, as a result, to suffer injury, Osco would be liable for performing its voluntary undertaking negligently. However, such is not the situation here. In the interest of the consumer, Kasin, Osco provided several possible side effects of Daypro on its information sheet. By voluntarily undertaking to list some of the drug's side effects, Osco did not assume a duty to list all possible side effects. Concluding otherwise would ignore the public policy considerations pointed out in Frye and would deter pharmacies from providing any information at all. Illinois case law has consistently held that public policy considerations may be taken into account by a court when determining if a duty has been voluntarily undertaken. Brown v. Walker Nursing Home, Inc., 307 Ill. App.3d 721, 726, 240 Ill.Dec. 892, 718 N.E.2d 373 (1999). As we find that Osco did not voluntarily assume a duty to reveal all possible side effects of Daypro when it listed some of the side effects, plaintiffs cannot establish a foundational element of their negligence case and, therefore, summary judgment in Osco's favor was proper. Accordingly, the judgment of the circuit court of Lake County is affirmed. Affirmed. McLAREN and COLWELL, JJ., concur.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-6284 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DARRYL EUGENE WILLIAMSON, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., Senior District Judge. (1:97-cr-00181-NCT-1) Submitted: June 16, 2011 Decided: June 20, 2011 Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Darryl Eugene Williamson, Appellant Pro Se. Robert Michael Hamilton, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Darryl Eugene Williamson appeals the district court’s judgment denying his 18 U.S.C. § 3582(c) (2006) motion for a reduction in sentence. We have reviewed the record and find no reversible error. Accordingly, we deny Williamson’s motion for appointment of counsel and affirm for the reasons stated by the district court. United States v. Williamson, No. 1:97-cr-00181- NCT-1 (M.D.N.C. Feb. 7, 2011). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2 

16-3215-cv Thomas v. N.Y.C. Dep’t of Educ. 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 ASUMMARY ORDER@). A PARTY CITING TO 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 11th day of October, two thousand seventeen. PRESENT: Peter W. Hall, Christopher F. Droney, Circuit Judges, Laura Taylor Swain,* District Judge. _____________________________________ Michael P. Thomas, Plaintiff - Appellant, v. 16-3215-cv New York City Department of Education, Richard J. Condon, Special Commissioner of Investigation for the * Judge Laura Taylor Swain, of the United States District Court for the Southern District of New York, sitting by designation. New York City School District, Gerald P. Conroy, Michael Salek, Charles Kwan, Stephen Koss, David J. Jimenez, Defendants - Appellees. _____________________________________ FOR APPELLANT: MICHAEL P. THOMAS, pro se, New York, New York. FOR DEFENDANTS-APPELLEES: JOHN K. CROSSMAN, Zukerman Gore Brandeis & Crossman, LLP, New York, New York. MEGAN E.K. MONTCALM, Assistant Corporation Counsel (Fay S. Ng, Assistant Corporation Counsel, on the brief), for Zachary Carter, Corporation Counsel of the City of New York, New York, New York. Appeal from a judgment of the United States District Court for the Southern District of New York (Furman, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Appellant Michael Thomas, proceeding pro se, sued the New York City Department of Education (“DOE”), officials from the DOE and the Manhattan Center for Science of Mathematics (“MCSM”) (the school at which Thomas formerly taught), and MCSM’s former PTA president, asserting a First Amendment retaliation claim under 42 U.S.C. § 1983. Thomas appeals from the district court’s dismissal of his complaint as barred by the applicable three-year statute of limitations, and its determination that equitable tolling did not apply to toll the statute of limitations. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We review de novo a district court’s decision to grant a motion to dismiss, including its interpretation and application of a statute of limitations. See City of Pontiac Gen. Emps.’ Ret. Sys. v. MBIA, Inc., 637 F.3d 169, 173 (2d Cir. 2011) (citations omitted). Where, as here, the district court has applied the correct legal standards and based its decision on findings of fact that were supported by the evidence, we review the denial of equitable tolling for abuse of discretion. Belot v. Burge, 490 F.3d 201, 206 (2d Cir. 2007). To survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim will have “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). At oral argument Thomas conceded that his claim against Mr. Michael Salek was untimely. Thomas also agreed with Defendants-Appellees that his claims against David Jimenez and Charles Kwan, with respect to their allegedly false allegations and request for a psychological evaluation, were untimely. Thomas also conceded that his Monell claim against the New York City Department of Education was untimely. We will consider Thomas’s remaining claims on appeal. 3  The district court properly dismissed Thomas’s complaint, and we affirm for substantially the reasons stated by the district court in its August 31, 2016 decision. As the district court reasoned, Thomas’s cause of action accrued, at the latest, in 2010, when he had a “complete and present cause of action” for First Amendment retaliation. See Smith v. Campbell, 782 F.3d 93, 100 (2d Cir. 2015); see also Dorsett v. Cty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013) (per curiam) (outlining the elements for a First Amendment retaliation claim). Equitable tolling did not apply because “accrual of a cause of action based on specific acts of which a plaintiff was aware cannot be postponed, nor can a limitations period be tolled, simply be alleging that the acts were taken pursuant to a conspiracy.” Pearl v. City of Long Beach, 296 F.3d 76, 87 (2d Cir. 2002) (citations omitted). Because the district court properly dismissed Thomas’s complaint as untimely, we need not consider whether his claims were meritorious or barred by the doctrine of res judicata. The judgment of the district court is AFFIRMED. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 4 

878 F.2d 1439 U.S.v.Dunlap (William E.) NO. 88-3196 United States Court of Appeals,Ninth Circuit. JUL 07, 1989 1 Appeal From: W.D.Wash. 2 AFFIRMED.

STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED August 15, 2017 Plaintiff-Appellee, v No. 331343 St. Clair Circuit Court ROBERT ALEXANDER WORLEY, LC No. 15-001711-FC Defendant-Appellant. Before: SHAPIRO, P.J., and GLEICHER and O’BRIEN, JJ. PER CURIAM. Defendant appeals his jury convictions of four counts of first-degree criminal sexual conduct, MCL 750.520b(1)(b). The trial court sentenced defendant to a prison term of 15 to 30 years for each conviction, to be served concurrently. We affirm. The 43-year-old defendant was convicted of sexually abusing JV, the daughter of his former live-in girlfriend, in their family home in St. Clair County. Defendant began dating JV’s mother in 1992, when JV was two years old. Defendant and JV’s mother thereafter had two children of their own. JV, aged 25 at the time of trial, testified that from ages 11 to 19, defendant continuously engaged her in sexual acts. JV testified that defendant penetrated her vagina with his penis and engaged her in oral and anal sex. The sexual assaults began in 2001, when the family lived in Oklahoma. The four charged offenses occurred in October 2005 through June 2006, when then 15-year-old JV and her family lived in St. Clair County. In June 2006, defendant and JV’s mother separated, and JV, and her two younger half-siblings, moved with defendant from St. Clair County. At age 16, JV became pregnant by defendant, and she gave birth to a son in March 2007. By this time, defendant, JV, and other members of defendant’s family had moved to Tennessee. At age 18, JV again became pregnant by defendant, and their second child was born in April 2009. In 2010, JV and her two children returned to Michigan. JV ultimately disclosed the incidents to a counselor and then made a complaint to the St. Clair police in March 2011. Defendant was not arrested until 2015. In the interim, defendant and JV had some communications, and JV allowed defendant to take their children to Tennessee in 2014. The defense theory at trial was that defendant did not do anything inappropriate and that JV’s testimony was not credible. At trial, defendant maintained that he first had sex with JV when she -1- was 16 years old, which was consensual, and did not engage in any other sexual acts with her until they began a consensual relationship when she was 18 years old. I. PREARREST DELAY Defendant first argues that his right to due process was violated because the four-year delay between the reporting of the offenses in 2011, and his arrest in 2015, caused substantial prejudice to his ability to defend himself. He argues that the trial court erred in denying his motion to dismiss based on this issue.1 “A prearrest delay that causes substantial prejudice to a defendant’s right to a fair trial and that was used to gain tactical advantage violates the constitutional right to due process.” People v Woolfolk, 304 Mich App 450, 454; 848 NW2d 169 (2014). “Defendant must present evidence of actual and substantial prejudice, not mere speculation.” Id. To be substantial, the prejudice to the defendant must have meaningfully impaired his ability to defend against the charges such that the outcome of the proceeding was likely affected. People v Patton, 285 Mich App 229, 237; 775 NW2d 610 (2009). Mere speculation that the delay caused lost memories, witnesses, or evidence does not establish actual and substantial prejudice. Woolfolk, 304 Mich App at 454. If a defendant establishes actual and substantial prejudice, the prosecution then bears the burden of establishing that the reason for the delay was sufficient to justify that prejudice. Patton, 285 Mich App at 237. Defendant claims that he was prejudiced by the four-year delay because he lost text messages, cards, and “love letters” from JV that could have undermined her claim that she feared defendant. Initially, defendant contends that those communications were made between 2010 and 2015. The four-year delay would not have affected his efforts to retrieve any of the later communications. More significantly, defendant has not demonstrated substantial prejudice. The unavailability of evidence alone is insufficient to show that defendant suffered actual and substantial prejudice, Woolfolk, 304 Mich App at 454, and defendant has made no showing that evidence that JV communicated favorably with him between 2010 and 2015 would have exonerated him. Indeed, the defense used other means to argue that JV was not fearful of defendant, including the fact that she chose to live with him over her mother, began a relationship with him after she turned 18, allowed him to take physical custody of their children, and gave him and his wife tattoos. The loss of the letters, assuming they existed, is not sufficient to satisfy the actual and substantial prejudice requirement. Defendant also claims that he was prejudiced by the delay because of the death of his sister, Cynthia McElhaney. Defendant indicates that Cynthia, who lived in the same household as defendant and JV at certain periods, would have “testified regarding the complainant’s veracity.” Preliminarily, defendant fails to indicate when Cynthia died. Moreover, Cynthia was 1 Whether a prearrest delay violated a defendant’s right to due process is reviewed de novo. People v Reid (On Remand), 292 Mich App 508, 511; 810 NW2d 391 (2011). We review a trial court’s ruling regarding a motion to dismiss for an abuse of discretion. People v Lewis, 302 Mich App 338, 341; 839 NW2d 37 (2013). An abuse of discretion occurs when the trial court’s decision falls outside the range of reasonable and principled outcomes. Id. (quotations and citation omitted). -2- only one of several relatives who lived in the same household. The defense presented several of the other live-in relatives, including a different sister, an adult nephew, and defendant’s daughter, who testified about their observations and opinions that JV was not truthful. The record fails to disclose that Cynthia’s unavailability impaired defendant’s ability to defend against the charges to an extent that the outcome of the proceeding was likely affected. Defendant lastly argues that he was prejudiced by the delay because of his own inability “to remember the names of potential witnesses who knew [JV] during the relevant times at issue and who could offer testimony regarding the veracity of [JV].” But again, general allegations of prejudice caused by delay, such as the unspecified loss of memory, are insufficient to show that a defense was affected. Woolfolk, 304 Mich App at 454. Defendant has failed to show that his alleged loss of memory resulted in any meaningful impairment of his defense. The trial court did not abuse its discretion in denying defendant’s motion to dismiss based on the prearrest delay. II. OTHER ACTS EVIDENCE Defendant argues that the trial court erred by admitting evidence of other uncharged acts that occurred when JV was between 11 and 15 years old, contrary to MCL 768.27a and MRE 404(b).2 MCL 768.27a provides that “in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant.” In this narrow context, evidence of a defendant’s propensity to commit a crime is permitted, so long as it does not violate MRE 403. People v Watkins, 491 Mich 450, 470, 481-483; 818 NW2d 296 (2012); MRE 401. MRE 403, excludes relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. MRE 403; Watkins, 491 Mich at 481. Unfair prejudice exists where there is “a danger that marginally probative evidence will be given undue or pre-emptive weight by the jury” or “it would be inequitable to allow the proponent of the evidence to use it.” People v Mills, 450 Mich 61, 75-76; 537 NW2d 909 (1995), mod 450 Mich 1212 (1995); People v McGuffey, 251 Mich App 155, 163; 649 NW2d 801 (2002). When applying MRE 403 to evidence in the context of MCL 768.27a, “courts must weigh the propensity inference in favor of the evidence’s probative value rather than its prejudicial effect.” Watkins, 491 Mich at 487. Courts should consider the following factors when deciding whether to exclude other-acts evidence under MRE 403 as being overly prejudicial: 2 The trial court ruled that the other acts evidence was admissible under MRE 404(b) or MCL 768.27a. However, as we observed in People v Smith, 282 Mich App 191, 205; 772 NW2d 428 (2009), where, as here, a listed offense is at issue, analysis of whether the other acts evidence is admissible “begins and ends with MCL 768.27a.” We review a trial court’s decision to admit evidence for an abuse of discretion. People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). -3-  (1) the dissimilarity between the other acts and the charged crime, (2) the temporal proximity of the other acts to the charged crime, (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence supporting the occurrence of the other acts, and (6) the lack of need for evidence beyond the complainant’s and the defendant’s testimony. [Id. at 487- 488.] When weighing probative value of other-acts evidence, courts should also consider the extent to which the other-acts evidence supports the victim’s credibility and rebuts any defense attack on the victim’s credibility. Id. at 491-492. In the present case, the other uncharged acts were relevant to defendant’s propensity to commit the charged offenses, and to assist the jury in weighing JV’s credibility. The evidence gave the jury an intelligible presentation of the interaction between defendant and JV over the years, and the context of their relationship, to provide the “complete story,” especially where defendant claimed that he first engaged in sexual intercourse with JV when she, at age 16, unexpectedly initiated sexual contact with him, which was when he impregnated her, and then did not have sexual contact with her again until she was age 18. Thus, the probative value of the other acts evidence was high. Defendant argues that this evidence was far more prejudicial than probative because the uncharged acts “occurred so long ago.” The trial court properly considered this argument and determined that, while “somewhat dated that in and of itself is not a sufficient reason to overcome the admission of that particular evidence . . . under the statutory provision.” We agree, and further observe that, although the other uncharged acts could be considered “outdated” as they relate to the date of trial, there is no temporal divide between the other acts and the charged offenses, which occurred in 2005 and 2006. Defendant further contends that the evidence is unduly prejudicial because the jury likely focused on and convicted him based on those uncharged acts, which occurred when JV was younger. However, the prosecutor focused on the proper purpose for which the evidence was admissible. In its final instructions, the trial court gave a cautionary instruction to the jury concerning the proper use of the evidence, thereby limiting the potential for unfair prejudice. Given the highly probative value of the other-acts evidence, the probative value was not substantially outweighed by the danger of unfair prejudice. III. MOTION FOR A MISTRIAL Defendant argues that the trial court abused its discretion by denying his motion for a mistrial after a potential juror, who was removed, commented that he had interacted with defendant through his employment at the Intervention Center.3 Defendant’s specific claim is that the potential juror’s comments denied him his right to the presumption of innocence. A 3 A trial court’s ruling on a motion for a mistrial is reviewed for an abuse of discretion. People v Schaw, 288 Mich App 231, 236; 791 NW2d 743 (2010). A mistrial should be granted “only for an irregularity that is prejudicial to the rights of the defendant and impairs his ability to get a fair trial.” Id. (citation omitted). -4- defendant has a right to a fair and impartial jury. People v Stokes, 312 Mich App 181, 187; 877 NW2d 752 (2015). To show the denial of a fair and impartial jury in this context, a defendant must show that the jury was exposed to extraneous influences and that the extraneous influences created a real and substantial possibility that those influences could have had an effect on the jury’s verdict. Id. Due process only demands that jurors act with a “lack of partiality, not an empty mind.” People v Jendrzejewski, 455 Mich 495, 519; 566 NW2d 530 (1997). Defendant has not met his burden for relief. Although the potential juror’s brief comments indicated that defendant was housed at the Intervention Center, they provided no additional information. The trial court instructed the jury on the presumption of innocence in its preliminary instructions and further discussed the presumption of innocence during voir dire (after the juror had been excused) as defense counsel questioned a different juror about his understanding that defendant did not need to prove his innocence, noting that the presumption is a “legal requirement.”4 The jurors who remained explicitly indicated that they could be fair and impartial. The trial court again instructed the jury of the presumption of innocence in its final instructions and reminded the jury that it took an oath to decide the case based only on the properly admitted evidence and the law as instructed by the court. Given the evidence presented in this case, we see no basis to conclude that the revelation that defendant was in custody caused his conviction. For these reasons, the trial court did not abuse its discretion in ruling that the prospective juror’s comments were not grounds for a mistrial. IV. JV’S MOTHER’S FIFTH AMENDMENT PRIVILEGE Defendant also argues that the trial court erred by excusing JV’s mother from testifying without properly determining whether she had a valid Fifth Amendment privilege against self- incrimination. The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself or herself. People v Wyngaard, 462 Mich 659, 671; 614 NW2d 143 (2000). A witness may invoke “the constitutional privilege against self- incrimination” when a reasonable basis exists “for [the] witness to fear incrimination from questions.” People v Dyer, 425 Mich 572, 578; 390 NW2d 645 (1986). Regarding the proper procedure for when a witness intends to assert the privilege against self-incrimination, the prosecutor must inform the court, outside the presence of the witness and the jury, of the possible need for the witness to be informed of her Fifth Amendment rights. Dyer, 425 Mich at 578 n 5. Then, “the judge must hold a hearing outside the jury’s presence to determine if the witness’ privilege is valid, explaining the privilege to the witness.” People v Gearns, 457 Mich 170, 202; 577 NW2d 422 (1998), overruled in part on other grounds in People v Lukity, 460 Mich 484, 492-494; 596 NW2d 607 (1999). “If the court determines the assertion of the privilege to be valid, the inquiry ends and the witness is excused.” People v Paasche, 207 Mich App 698, 709; 525 NW2d 914 (1994). The record reveals that the trial court complied with the applicable procedure and properly concluded that JV’s mother could not be compelled to be called as a witness. During 4 The purpose of voir dire is to expose potential juror bias so that a defendant may be tried by a fair and impartial jury. People v Sawyer, 215 Mich App 183, 186; 545 NW2d 6 (1996). -5- JV’s cross-examination testimony, defense counsel elicited that JV’s mother knew about defendant engaging in sexual acts with her and that her mother had actually participated in some of the sexual acts with defendant and JV when JV was approximately 14 years old. After the completion of JV’s testimony, the prosecutor informed the court that JV’s mother would assert her privilege against self-incrimination if she testified at trial. The trial court held a hearing and offered to appoint counsel for JV’s mother, which she refused. JV’s mother stated that she understood her privilege and was firm on her decision not to testify. Although defendant complains that the trial court did not question JV’s mother concerning the validity of her assertion of the privilege against self-incrimination, the court was well aware that JV had implicated her mother as being complicit in some of the sexual assaults. It was evident from JV’s testimony that her mother had a “reasonable basis . . . to fear incrimination from questions[.]” Dyer, 425 Mich at 578. Under the Fifth Amendment, “testimony having even a possible tendency to incriminate is protected against compelled disclosure.” People v Lawton, 196 Mich App 341, 346; 492 NW2d 810 (1992). Accordingly, the trial court did not err in ruling that JV’s mother had a valid Fifth Amendment privilege against self-incrimination and, accordingly, did not abuse its discretion when it excused her as a witness. V. INEFFECTIVE ASSISTANCE OF COUNSEL Defendant argues that he was denied the effective assistance of counsel at trial because defense counsel failed to adequately impeach JV’s trial testimony with her prior inconsistent testimony at the preliminary examination. 5 “To demonstrate ineffective assistance of counsel, a defendant must show that his or her attorney’s performance fell below an objective standard of reasonableness under prevailing professional norms and that this performance caused him or her prejudice.” People v Nix, 301 Mich App 195, 207; 836 NW2d 224 (2013) (citation omitted). “To demonstrate prejudice, a defendant must show the probability that, but for counsel’s errors, the result of the proceedings would have been different.” Id. Decisions regarding how to impeach witnesses and what questions to ask are matters of trial strategy, People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999), and we “will not second-guess defense counsel’s judgment on matters of trial strategy.” People v Benton, 294 Mich App 191, 203; 817 NW2d 599 (2011). Defendant complains that defense counsel failed to adequately challenge JV’s trial testimony with inconsistencies in her prior testimony regarding her motive for ultimately reporting defendant in 2011. As defendant observes, JV initially testified at trial that she reported defendant because her counselor encouraged her to do so. On cross-examination, using JV’s preliminary examination testimony, the following exchange occurred: Defense counsel: Now, do you recall being asked and maybe I should ask you now in 2011 why did you feel compelled to make this complaint to law enforcement? 5 Because defendant did not raise an ineffective assistance of counsel claim in the trial court, our review of this issue is limited to mistakes apparent on the record. People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). -6-  JV: Because I had got myself a counselor and I talked to her about everything that happened to me and she showed me that basically that it was wrong what he’d done. So, I went ahead and I called up our, I went ahead and I went to the Wayne County Police Department and they told me I had to come up here. Defense counsel: So you’re telling me that the primary reason why you reported this in 2011 was because of your counselor, correct? JV: Correct, but it was my choice to do it cause I wanted to. Defense counsel: Do you remember me asking you in July why you reported this in 2011, and do you recall what your answer was? JV: No, I don’t. Defense counsel: So I’m going to show you page 43. . . . *** JV: Yes, I remember saying that. Defense counsel: So when I asked you in July of 2015 why you felt compelled to report this to the Sheriff’s Department what was your response? JV: My, do I read it? Defense counsel: Well, if it refreshes your memory you can tell me what your response was? JV: Oh, because of the mean and threatening phone calls I was receiving. Defense counsel: So you reported this because [defendant] was calling you and threatening you— JV: Uh-hum. Defense counsel: —in March of 2011? JV: Yes. Defense counsel: And what was he threatening you about, taking the children? JV: He, I don’t exactly remember what he was threatening, but he would get, he would get violent over the phone, threat—there was one time I got threatened to where I, he’d come up here and I’d get hurt or something like that. I can’t remember what the conversation was about. And I just got tired of it. And I -7-  just got tired of that. And that’s why I cut off all contact with him and didn’t let my kids talk to him or anything. Defendant acknowledges this exchange, but contends that defense counsel allowed JV to avoid her exact prior testimony that defendant threatened to take the children and that “she was tired of the drama.” Defendant provides additional questions that he contends defense counsel should have asked JV, such as using her prior testimony that some of the sexual assaults occurred in defendant’s room to challenge her trial testimony that all of the sexual assaults occurred in her bedroom. The record demonstrates that defense counsel used JV’s prior testimony to discredit her at trial, even if he did not ask each question that defendant now suggests. When defendant raised this complaint at sentencing, the trial court observed that defense counsel “pointed out numerous inconsistencies which gave the jury the ability to adequately and fully assess the credibility of [JV]”, an observation that the record bears out. In addition to inconsistencies in her own testimony, defense counsel cross-examined JV about inconsistencies in her testimony and the statements she made to the police, and called the initial interviewing officer as a defense witness. In closing argument, defense counsel highlighted those inconsistences to argue that JV was not credible. In addition to eliciting inconsistencies, defense counsel emphasized that JV chose to continue living with defendant, as opposed to her mother, when they separated in 2006, and argued that JV’s choice undermined any claim that she was afraid of defendant. Defense counsel further cross-examined JV regarding the fact that she claimed that defendant threatened to take their children if she did not marry him in 2010, but he never took the children, and she was actually able to prevent him from seeing them for years. The record does not support a finding that defense counsel’s impeachment efforts and defenses were objectively unreasonable or prejudicial. VI. PROSECUTOR’S CONDUCT Defendant argues that the prosecutor engaged in misconduct when she impermissibly commented in closing argument that defense counsel used distortions, red herrings, and threw “enough stuff at the jury hoping something would stick,” thereby suggesting that defense counsel was attempting to mislead the jury.6 It is generally improper for a prosecutor to argue that defense counsel has attempted to mislead the jury, People v Dalessandro, 165 Mich App 569, 580; 419 NW2d 609 (1988), but a “prosecutor may fairly respond to an issue raised by the defendant.” People v Brown, 279 Mich App 116, 135; 755 NW2d 664 (2008). Further, an otherwise improper remark might not warrant reversal if the prosecutor is responding to the defense counsel’s argument. People v Kennebrew, 220 Mich App 601, 608; 560 NW2d 354 (1996). 6 Because defendant did not so challenge the prosecutor’s comments, these claims are unpreserved, and our review is limited to plain error affecting defendant’s substantial rights. People v Bennett, 290 Mich App 465, 475; 802 NW2d 627 (2010); People v Roscoe, 303 Mich App 633, 648; 846 NW2d 402 (2014). -8-  Viewed in context, the prosecutor’s remarks, made during rebuttal argument, did not suggest that counsel was trying to mislead the jury, but fairly responded to defense counsel’s closing argument by responding, on the basis of the evidence, that the defense’s theory of the case was a pretense and ignored the evidence. In specific, during closing argument, defense counsel argued that the jury should believe defendant and find JV to be “a liar.” Defense counsel argued that the prosecutor “likes to pick and choose what testimony she wants you to see or hear,” and emphasized that JV had the choice to decide with whom she would live, yet, if JV is believed, it would mean she chose to live with a “rapist.” The prosecutor argued that defense counsel ignored the reasons that JV gave for why she stayed with defendant. The prosecutor also addressed defense counsel’s negative assertions regarding the two officers involved in the case. Defense counsel suggested that the officer in charge was hiding something because he testified about defendant’s interview, but did not play the videotape of the interview. Counsel further emphasized that the defense had to call the initial reporting deputy as a defense witness, and characterized the deputy as a “prosecution witness.” The prosecutor discussed the evidence that supported her argument that defendant’s story was not believable. The mere use of the challenged language in this context did not make the argument improper.7 The prosecutor was not required to state her inferences in the blandest possible language. People v Dobek, 274 Mich 58, 66; 732 NW2d 546 (2007). Her remarks were not clearly improper. VII. SCORING OF OV 8 AND OV 13 Lastly, we reject defendant’s argument that the trial court erroneously scored offense variables (OV) 8 and 13, and, therefore, reject his argument that he is entitled to be resentenced.8 A. OV 8 MCL 777.38(1)(a) directs a score of 15 points if “[a] victim was asported to another place of greater danger or to a situation of greater danger[.]” MCL 777.38(1)(a). Although the term “asportation” is not defined within the statutory sentencing guidelines, our Supreme Court has held that the “asportation” element of OV 8 is satisfied “[i]f a victim was carried away or 7 Moreover, a timely objection to the challenged remarks could have cured any perceived prejudice by obtaining an appropriate cautionary instruction. People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001). And even though defendant did not object, the trial court instructed the jury that the lawyers’ statements and arguments are not evidence, that the jury was to decide the case based only on the properly admitted evidence, and that the jury was to follow the court’s instructions. These instructions were sufficient to dispel any possible prejudice and to protect defendant’s substantial rights. People v Long, 246 Mich App 582, 588; 633 NW2d 843 (2001). 8 When reviewing a trial court’s scoring decision, the trial court’s “factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo.” Id. -9- removed to another place of greater danger or to a situation of greater danger[.]” People v Barrera, 500 Mich 14, 21; 892 NW2d 789 (2017). The trial court concluded that defendant’s asportation of JV was sufficient to score OV 8 at 15 points because defendant directed her into the bedroom in order to sexually assault her, and the bedroom was “more secretive.” We agree. JV testified that the sexual assaults occurred in the bedroom. The presentence report (PSIR) also notes that JV described how defendant would call her into the bedroom, away from others, to sexually assault her. 9 Contrary to what defendant argues, there is no requirement that the movement be forcible. Therefore, a preponderance of the evidence supports that defendant asported JV into the bedroom in order to sexually assault her, thus making it less likely that the assault would be discovered, which rendered the location a “place of greater danger” or a “situation of greater danger.” See People v Chelmicki, 305 Mich App 58, 70-71; 850 NW2d 612 (2014). B. OV 13 OV 13 “is continuing pattern of criminal behavior.” The trial court must score 50 points for OV 13 if “[t]he offense was part of a pattern of felonious criminal activity involving 3 or more sexual penetrations against a person . . . less than 13 years of age.” MCL 777.43(1)(a). All crimes within a five-year period, including the sentencing offense, must be counted, MCL 777.43(2)(a), and a pattern of criminal activity may be based on multiple offenses arising from the same event. See People v Harmon, 248 Mich App 522, 532; 640 NW2d 314 (2001). There was ample evidence both at trial and detailed in the PSIR to support that defendant committed numerous and continuous sexual penetrations against JV beginning at age 11. Moreover, as the trial court aptly observed, the evidence used to score OV 13 is not “venue limited.” Affirmed. /s/ Douglas B. Shapiro /s/ Elizabeth L. Gleicher /s/ Colleen A. O'Brien 9 “When calculating the sentencing guidelines, a court may consider all record evidence, including the contents of a PSIR . . . .” People v McChester, 310 Mich App 354, 358; 873 NW2d 646 (2015). It may also properly rely on inferences that arise from the record evidence when making the findings underlying its scoring of offense variables. People v Earl, 297 Mich App 104, 109; 822 NW2d 271 (2012). -10- 

371 F.Supp. 437 (1974) CENTRAL GMC, INC. v. E. T. & T. LEASING, INC. Civ. No. 73-880-K. United States District Court, D. Maryland. January 10, 1974. Charles Cahn, II, Baltimore, Md., for plaintiff. Martin J. Alperstein, Baltimore, Md., for defendant. MEMORANDUM AND ORDER FRANK A. KAUFMAN, District Judge. On May 11, 1973, plaintiff, a Maryland corporation, instituted suit for breach of contract against defendant, also a Maryland corporation, in the United States District Court for the District of Columbia, seeking damages in the amount of $86,245.56. From February 1, 1971 until July 31, 1973, the United States District Court for the District of Columbia had jurisdiction—pursuant to D.C.Code § 11-501 — which provides in relevant part: In addition to its jurisdiction as a United States district court and any other jurisdiction conferred on it by law, the United States District Court for the District of Columbia has jurisdiction of the following: * * * * * * (4) Any civil action (other than a matter over which the Superior Court of the District of Columbia has jurisdiction under paragraph (3) or (4) of section 11-921(a) ) begun in the court during the thirty-month period beginning on such effective date wherein the amount in controversy exceeds $50,000. On July 31, 1973, the District Court for the District of Columbia ordered, inter alia, transfer of this case to the United States District Court for the District of Maryland. Plaintiff does not allege — and there does not exist — jurisdiction in this case under 28 U.S.C. § 1331. Plaintiff does allege jurisdiction under 28 U.S.C. § 1332 but such allegation would appear completely erroneous in view of the agreement between the parties that both of them are Maryland corporations. The fact that the principal offices of the *438 parties may be in different states of course does not provide a basis for diversity jurisdiction under Section 1332 when both have been incorporated in the same jurisdiction. C. Wright, Law of Federal Courts § 27 (2d ed. 1970). Nor does any other federal jurisdiction exist in this case in this Court which the Congress has created pursuant to Article III of the Federal Constitution. The jurisdiction conferred by the Congress upon the United States District Court for the District of Columbia does not in any way establish any additional jurisdiction in this Court, and the parties may not do so by virtue of mere change in venue. Section 1404(a) of 28 U.S.C. permits change of venue only to a court in which the suit "might originally have been brought." Since this case could not have been brought in this Court, the District Court for the District of Columbia had no power to transfer this case to this Court under Section 1404(a). Rice v. Disabled American Veterans, 295 F.Supp. 131, 135 (D.D.C., 1968); Russell v. Cunningham, 191 F.Supp. 82 (D.Guam 1961). In Rice, Judge Robinson concluded that "the District Court for the District of Columbia has only local jurisdiction in this case and not federal jurisdiction. Thus, the only federal district court in which the action might have been brought is in the District of Columbia." 295 F.Supp. supra at 132. * * * The rationale is undoubtedly that since the relevant federal venue statute provides that an action may be transferred only to a district "where it might have been brought," 28 U.S. C. § 1404(a), and since actions brought only under the local jurisdictional statute could not have been brought in any federal district court other than the one in the District of Columbia, there is no federal district court in the country to which this action might be transferred under 28 U.S.C., Section 1404(a). 295 F.Supp. supra at 135. Accordingly, no subject matter jurisdiction exists in this Court. It may be that this Court, lacking subject matter jurisdiction, may well not have the power to transfer this case back to the United States District Court for the District of Columbia.[1] Under the circumstances, in order that plaintiff may have opportunity to find a forum for this suit, this Court will not enter an order of dismissal for lack of jurisdiction for 30 days, so that plaintiff may seek, pursuant to Fed.R. Civ.P. 60(b), an order from the District Court for the District of Columbia rescinding, nunc pro tunc, as of July 31, 1973 — a date when that Court had jurisdiction over this case —[2] its 1404(a) transfer Order of that date. Should that Court so rescind its said Order, such action would mean that this case no longer will be pending in this Court. For that reason, this Court at that time would instruct the Clerk of this Court to close this file in this case in this Court. It is so ordered, this 10th day of January, 1974.[*] NOTES [1] No federal statute would appear specifically to confer authority upon this Court to transfer this case back to that transferor court. Neither 28 U.S.C. § 1406(a) nor 28 U.S.C. § 1406(c) is applicable. 28 U.S.C. § 1447, however, confers remand authority after removal from a state court. While that statute makes no reference to a remand after a transfer under 28 U.S.C. § 1404(a), it is to be noted that the transferor Court itself had only "state-type" jurisdiction in this case. [2] Cf. Drabik v. Murphy, 246 F.2d 408, 410 (2d Cir. 1957) (Hand, J.). [*] On January 21, 1974, the United States District Court for the District of Columbia rescinded, nunc pro tunc, as of July 31, 1973, its earlier transfer Order of that latter date. Accordingly, on January 23, 1974, this Court directed its Clerk to close the file in this case.

446 F.Supp. 733 (1978) QUICK SHOP MARKETS, INC., Plaintiff, v. RETAIL CLERKS INTERNATIONAL ASSOCIATION et al., Defendants. Wanda YOUNG et al., Plaintiffs, v. RETAIL CLERKS INTERNATIONAL ASSOCIATION et al., Defendants. Nos. 75-659C(3) and 75-605C(3). United States District Court, E. D. Missouri, E. D. March 20, 1978. *734 Sidney Fortus, Fortus & Anderson, Clayton, Mo., for plaintiff in No. 75-605C(3). C. A. Kothe, Jerry R. Nichols, Richard L. Barnes, Kothe, Nichols & Wolfe, Inc., Tulsa, Okl., John F. McCartney, Hirsch & McCartney, St. Louis, Mo., for plaintiff in No. 75-659C(3). Clyde E. Craig and Harry H. Craig, St. Louis, Mo., for defendants Dorsey and Joint Counsel of Teamsters # 13. John H. Goffstein, Bartley Goffstein, Bollato & Lange, St. Louis, Mo., for defendants Local 655 and Jack Valenti. Jerome A. Diekemper, Bartley, Goffstein, Bollato & Lange, St. Louis, Mo., for defendants Retail Clerks International Assn., James T. Housewright and Retail Store Employees Union Local # 655. Harry H. Craig, Wiley, Craig, Armbruster, Wilburn & Mills, St. Louis, Mo., and Robert M. Baptiste, Washington, D. C., for defendants Frank E. Fitzsimmons and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. MEMORANDUM NANGLE, District Judge. Plaintiff Quick Shop Markets, Inc. brought this suit pursuant to 29 U.S.C. § 187, seeking damages for an alleged violation of § 8(b)(4) of the Labor Management Relations Act, 29 U.S.C. § 158. Plaintiff Wanda Young and twenty-seven other individuals who are franchisees of plaintiff Quick Shop Markets, Inc. brought similar suit. These causes were consolidated by order of this Court dated March 25, 1976. By agreement of the parties, the trial herein was bifurcated; evidence was adduced only on the issue of liability and the out-of-pocket losses incurred by plaintiff-franchisees. The sole issue before the Court at this time is liability. This case was tried before the Court without a jury. The Court having considered the pleadings, the testimony of the witnesses, the documents in evidence, the stipulations of the parties and being otherwise fully advised in the premises, hereby makes the following findings of fact and conclusions of law as required by Rule 52, Federal Rules of Civil Procedure: FINDINGS OF FACT 1) Plaintiff Quick Shop Markets, Inc. is a corporation organized and existing pursuant to the laws of the state of Missouri. It is engaged in the business of selling food and grocery related products to the public. The remaining plaintiffs are all sole proprietorships with their principal place of business in the state of Missouri, engaging in the retail sale of consumer merchandise. These plaintiffs are all franchisees of plaintiff Quick Shop Markets, Inc. [hereinafter "QSM"]. Defendants Retail Clerks International Association and Retail Store Employees Union, Local 655 are unincorporated associations and labor organizations within the meaning of 29 U.S.C. § 152(5). 2) Since November 12, 1971, defendant Retail Store Employees Union Local 655 [hereinafter "Local 655"] has been the collective bargaining representative of QSM, as certified by the National Labor Relations Board, in a single bargaining unit consisting of: All employees of the Employer [Quick Shop Markets, Inc.] employed at its retail stores located in the Metropolitan St. Louis area of St. Louis City, St. Louis County, Jefferson County, and St. Charles County, Missouri, including warehousemen, but EXCLUDING store managers, assistant store managers, temporary summer employees, office clerical and professional employees, guards and supervisors as defined in the Act. 3) QSM refused Local 655's demand for negotiations following certification and an unfair labor practice charge, alleging an unlawful refusal to bargain, was filed by Local 655 on January 8, 1973 with the National *735 Labor Relations Board. On July 23, 1973, the Board issued a Decision and Order granting summary judgment against QSM, and ordering it to cease its refusal to bargain. Upon QSM's refusal to comply, the Board petitioned the United States Court of Appeals for the Eighth Circuit for an Order of Enforcement. Said order was issued on March 15, 1974 and a petition for a writ of certiorari was denied by the United States Supreme Court on November 25, 1974. 4) Thereafter, representatives of QSM and Local 655 met for the purposes of negotiating the terms of a collective bargaining agreement. Meetings were held on January 27, 1975; February 17, 1975; April 1, 1975; June 12, 1975; June 26, 1975; September 2, 1975; and October 7, 1975. At the first meeting on January 27, 1975, the attorney for QSM announced that some stores in the area had been franchised and that he did not represent the franchised stores. A copy of the franchise agreement and a list of the franchised stores were requested by Local 655. The list of franchised stores was provided at the February 27, 1975 meeting. An unexecuted copy of the Franchise Agreement form was provided at the April 1, 1975 meeting. 5) QSM commenced franchising stores in November, 1972. One store was franchised in 1972. Three were franchised in 1973. Ten stores were franchised in 1974. Thirty stores were franchised in 1975. The evidence failed to establish the franchising commenced as a result of QSM unionization. Although some evidence was presented tending to indicate that QSM commenced franchising as a result of unionization, the Court finds that the credible evidence totally fails to establish the same. 6) The franchise agreements between QSM and plaintiff-franchisees provides that the franchisees are independent contractors of QSM. The franchisees exercise sole control over their employees, including the right to hire, fire, discipline, compensate and schedule work. The franchisees pay the cost of the state unemployment insurance, social security compensation and workmen's compensation insurance. In consideration of the lease, trademark license and services provided by QSM, the franchisees agree to pay QSM 55% of gross profits realized each calendar quarter. QSM charges the franchisees certain fixed costs including cost of plans, specifications, selection of location and supervision of lease arrangement, initial cash register fund and costs of opening inventory. The franchisees paid from $1,000 to $10,000 in cash to QSM for such costs and tendered promissory notes for the remainder. Franchisees were required to obtain all licenses and business permits, and to pay sales and business taxes and all taxes on inventory and personal property. Under the agreement franchisees are not required to purchase from vendors recommended by QSM, to purchase only that merchandise suggested by QSM, or to sell at prices suggested by QSM. In some cases, franchisee stores are in competition with QSM stores. 7) The franchise agreement establishes an "Owners Working Fund", maintained by QSM, for each franchisee. The fund is debited with the unpaid balance of the franchisee's initial costs and expenses subsequently incurred for the purchase of merchandise and operating costs. The fund is credited with cash receipts deposited on a daily basis by the franchisees. A bookkeeping service is furnished by QSM for the franchisees. On a semi-monthly basis, QSM remits to the franchisees a draw on anticipated profits, debiting the "Owners Working Fund." 8) The franchise agreement may be terminated at any time by the franchisee upon 48 hours' notice. QSM may terminate without cause upon 30 days' notice, or upon 48 hours notice if the franchisee's net worth falls below $3,000, the franchisee fails to make required deposits and reports, bankruptcy is filed, or the franchisee abandons the business. 9) At the commencement of each franchise, most of plaintiff-franchisees were requested by QSM not to initially hire more than 50% of the employees formerly employed by QSM. Most of the franchisees were not sure of the reasons for this request: *736 some thought it was because QSM needed these employees elsewhere; some thought it had something to do with a labor dispute or union. Any employees who went to work for the franchisees first terminated their employment with QSM. The franchisees have not hired a majority of the employees in the QSM certified collective bargaining unit, either collectively or cumulatively. 10) After the hiring of the initial complement of employees, each franchisee hired and fired employees without the approval or authorization of QSM. Each received a manual but was free to depart from its terms, provided that such departure did not violate the franchise agreement. QSM supervisors would visit with each franchisee a few times per week, for short periods of time. These supervisors often made suggestions but the franchisees were free to, and did, ignore the suggestions. Most but not all of the franchisees participated in QSM advertisements; they were not, however, required to do so. QSM suggested prices for merchandise but the franchisees were free to, and did, modify these prices. QSM provided a list of suppliers but the franchisees were free to obtain supplies from suppliers not on the list. No franchisee made arrangements with QSM to do additional work if a strike should occur and none agreed to, or served, as a drop-off point for QSM merchandise during the strike. 11) In general, the franchisees possessed only high school educations. Many of the operations were family-run. Some of the franchisees had managed QSM-owned stores prior to obtaining their franchises. 12) QSM allowed franchisees to become indebted far in excess of the $3,000 limit which would authorize termination. A number of franchisees have terminated their franchise agreements. In those cases, the franchisees owed QSM substantial amounts of money. QSM has not attempted to recover the sums owed. 13) On June 30, 1975, picketing by Local 655 commenced at the stores of all plaintiffs herein, except the stores of plaintiffs Karen Tackett and Kenneth Lorton. Pickets at said stores carried signs bearing the legend: "Quick Shop Employees On Strike. Please Do Not Patronize. Retail Store Employees Union Local No. 655, AFL-CIO". Picketing ceased at the stores of plaintiff-franchisees on August 31, 1975. Picketing ceased at the stores of QSM on October 8, 1975. Prior to the commencement of the strike, Local 655 contacted only a few of the franchisees, demanding recognition. There was submitted no evidence that the employees of the franchisees sought union representation by Local 655. 14) Defendant Retail Clerks International Association also participated in the strike. The Association provided monetary and manpower support during the strike. 15) Only a very few of the employees of QSM or the franchisees participated in the strike. 16) On June 26, 1975, prior to the commencement of the strike, a meeting of QSM store managers and franchisees was held at the Ramada Inn at Westport Plaza in St. Louis. Most but not all of the franchisees attended. The franchisees were informed that their stores might be picketed but that it was anticipated that the picketing would not last long since the franchisees were not involved in the labor dispute. 17) During the strike, most suppliers refused to make deliveries. The franchisees and QSM were forced to travel extensively to pick up merchandise and in some instances were unable to obtain certain merchandise. Plaintiffs were required to employ additional help during this period because of the added burden of obtaining their own merchandise. Customer business dropped off during the strike because of the presence of pickets. There were some incidents of damage and harassment. 18) After hearing the testimony of the witnesses and making determinations as to the credibility thereof, the Court finds that the purpose of the picketing at the franchisees' store was not to obtain recognitional or collective bargaining agreements from the franchisees. Instead, the purpose *737 throughout the strike was to obtain a contract from QSM. Since QSM received 55% of the gross profits of the franchisees, any strike of QSM stores would not result in effective economic pressure unless the stores of the franchisees were also adversely affected by the strike. Accordingly, the Court finds that the true purpose of the picketing was to force the picketed plaintiff-franchisees, their employees and employees of their suppliers to cease dealing, and doing business, with QSM. CONCLUSIONS OF LAW This Court has jurisdiction over the subject matter and the parties to this suit in accordance with 29 U.S.C. § 187. Title 29 U.S.C. § 158 provides in relevant part: (b) It shall be an unfair labor practice for a labor organization or its agents — . . . . . (4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal to the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is — . . . . . (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing . . .. In order to find a violation of § 8(b)(4), "the union must have as an object of its picketing (or other activity) the inducement or encouragement of the neutral employees to engage in a concerted refusal to work for their neutral employer, so that the neutral employer will cease doing business with the primary employer . . .". Truck Drivers and Helpers Local Union No. 728, etc. v. Empire State Express, Inc., 293 F.2d 414, 422 (5th Cir. 1961) (emphasis in original); National Woodwork Manufacturers Association v. National Labor Relations Board, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed. 357 (1967); National Labor Relations Board v. Business Machine and Office Appliance Mechanics Conference Board, Local 459, etc., 228 F.2d 553 (2d Cir. 1955). See also National Labor Relations Board v. Enterprise Association of Steam Hot Water, Hydraulic Sprinkler, Pneumatic Tube, Ice Machine and General Pipefitters of New York and Vicinity, Local Union No. 638, 429 U.S. 507, 511, 97 S.Ct. 891, 894, 51 L.Ed.2d 1 (1977) in which the Court stated that . . . this issue turns on whether the boycott was "addressed to the labor relations of the contracting employer vis-a-vis his own employees," [cite omitted] and is therefore primary conduct, or whether the boycott was "tactically calculated to satisfy union objectives elsewhere," [cite omitted] in which event the boycott would be prohibited secondary activity. Defendant unions contend that plaintiff-franchisees were not neutral employers and that therefore, the picketing was not prohibited by § 8(b)(4). Defendant unions argue that the franchisees were non-neutral allies of QSM. In order to determine whether plaintiff-franchisees are in fact neutrals, United Mine Workers of America v. Osborne Mining Company, Inc., 279 F.2d 716 (6th Cir. 1960) (holding that the question of neutrality is basically a question of fact), . . . the courts have considered such factors as the extent to which a corporation *738 is de facto under the control of another corporation, the extent of common ownership of the two employers, the integration of the business operations of the employers, and the dependence of one employer on the other employer for a substantial portion of its business. National Labor Relations Board v. Local 810, Steel, Metals, Alloys & Hardware Fabricators & Warehousemen, etc., 460 F.2d 1, 5 (2d Cir. 1972). See also, Carpet, Linoleum, Soft Tile and Resilient Floor Covering Layers, Local Union No. 419, AFL-CIO v. National Labor Relations Board, 139 U.S.App.D.C. 68, 429 F.2d 747 (1970). The facts established herein totally refute any argument that the franchisees were non-neutral employers. QSM did not retain de facto control over the franchisees. The mere fact that QSM retained termination rights does not warrant any conclusions of such control. The Southland Corp., 170 NLRB 1332 (1968). There was no common ownership. The business operations, while in some ways related, were not integrated and the franchisees did not depend upon QSM for a substantial portion of its business. In fact, in some instances, franchisees' stores were in competition with QSM stores. Defendant unions also contend that QSM and plaintiff-franchisees were allied employers. In order to maintain such a defense, defendant unions must establish that the franchisees did work for QSM which, but for the strike, would have been done by employees of QSM. See Kable Printing Co. v. National Labor Relations Board, 93 LRRM 2977 (7th Cir. 1976); National Labor Relations Board v. Business Machine and Office Appliance Mechanics Conference Board, Local 459, etc., supra; Douds v. Metropolitan Federation of Architects, Engineers, Chemists & Technicians, Local 231, 75 F.Supp. 672 (S.D.N.Y.1948); Warehouse Union Local 6, etc., 153 NLRB 1051 (1965). See also, General Drivers and Dairy Employees Union Local 563, etc., 186 NLRB 219 (1970) holding that the criteria for determining an allied employer status are common ownership, common control and integration of operations and management policies. The evidence herein totally negates the existence of such a defense. Defendant unions also assert that plaintiff-franchisees were successor employers, under a duty to bargain with Local 655; therefore defendants argue that the picketing of the franchisees was primary. In National Labor Relations Board v. Burns International Security Services, Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972), the Court held that where there is a change in ownership, but the bargaining unit remains the same and a majority of the employees hired by the new employer are represented by a union recognized under the prior employer's tenure, the new employer has a duty to recognize and bargain with the union. The Court noted, however, that . . . a majority of these employees had been hired by Burns for work in the identical unit. It is undisputed that Burns knew all the relevant facts in this regard and was aware of the certification and of the existence of a collective-bargaining contract. Id. at 278, 92 S.Ct. at 1577. The certified bargaining unit herein was a geographic one, consisting of all employees of QSM at its retail stores in the St. Louis metropolitan area. The facts adduced herein establish that plaintiff-franchisees did not hire a majority of the employees in the QSM bargaining unit, either collectively or cumulatively. It would therefore appear that Burns, supra, is inapplicable. Where there is "a nondiscriminatory hiring of a different workforce by a new owner", the new owner may not have a duty to bargain with the union. J. R. Sousa & Sons, 210 NLRB 982, 984 (1974). In such context, however, the Court must determine whether the refusal to hire the predecessor's employees was because of the employees' union membership, or because of the resulting obligation to recognize the union. J. R. Sousa & Sons, supra; Howard Johnson Co., Inc. v. Detroit Local Joint Executive Board, etc., 417 U.S. 249, 94 S.Ct. 2236, 41 L.Ed.2d 46 (1974); National Labor *739 Relations Board v. Foodway of El Paso, 496 F.2d 117 (5th Cir. 1974). Cf. Golden State Bottling Co. v. National Labor Relations Board, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973). The evidence herein established that plaintiff-franchisees were instructed not to hire initially more than 50% QSM employees. The franchisees, however, were unaware of the reasons therefor. Some thought that it was because QSM needed experienced employees in QSM stores. Some thought it had some connection with a union or labor dispute. The franchisees did not know, however, that by hiring less than 50% QSM employees, they would not be required to recognize the union. Thus, the hiring and refusal to hire were not "discriminatorily motivated", J. R. Sousa & Sons, supra at 984, and does not mandate a finding of successor-employer status. Plaintiff-franchisees, in general, possessed only high school educations. The purchases of franchises were accomplished without the advice of counsel. They were not sophisticated businessmen, experienced in matters of labor relations. The operations were run, for the most part, by the franchisee and family. To hold these franchisees to be successor-employers under these circumstances, because of vague instructions from QSM concerning initial hiring, would be to stretch the concept of successor-employer far beyond the context in which it developed. Defendant unions assert that QSM and plaintiff-franchisees were single employers, or co-employers, and thus the picketing of franchisees' stores was primary. In order to determine the validity of such a defense, the Court must consider the factors of common ownership, common control of labor policy and integration of operations. Parklane Hosiery Co., Inc., 203 NLRB 597 (1973); Elias Brothers Big Boy, Inc., etc., 137 NLRB 1057 (1962); Carpet, Linoleum, Soft Tile and Resilient Floor Covering Layers, Local Union No. 419, AFL-CIO v. National Labor Relations Board, supra. The facts adduced herein are very similar to those presented in The Southland Corp., supra, wherein it was concluded that the franchisee was not a co-employer with the franchisor, nor could the two be considered as a single employer. The Board noted that the franchisor only recommended pricing and suppliers; the franchisee was free to set his own prices and choose his own suppliers. There was no evidence of control over the labor policy of the franchisee. The Board concluded that the termination provision in the franchise agreement did not negate the independent status of the franchisor. In the instant case, the same facts exist. QSM recommended prices and vendors but plaintiff-franchisees were free to ignore the recommendation. Here too the evidence negates any contention that QSM retains control over franchisees' labor policy. Accordingly, the Court concludes that QSM and plaintiff-franchisees can not be considered as a single employer or co-employer. Defendant unions also contend that the picketing was recognitional; that the unions were picketing plaintiff-franchisees to obtain recognition of the unions' status as bargaining agents for the employees of the franchisees. The Court has found otherwise. The signs carried by the pickets herein did not mention recognition as a goal. Little effort was made to demand recognition of the union. Local 655 possessed no evidence that the employees of the franchisees desired representation by the union. Under these circumstances, the Court must conclude that the claim of recognitional picketing must be denied. Cf., United Brotherhood of Carpenters and Joiners of America, Local No. 1849, AFL-CIO, 208 NLRB 461, 462 (1974) (stating that use of the word "strike" on a picket sign constitutes more than publicity; it is "a `signal' to other employees to respect a picket line."); Local 212, Retail Clerks International Association, 140 NLRB 1258 (1963); Grain Millers Local 16 (Bartlett & Co.), 141 NLRB 974 (1963); Flame Coal Company v. United Mine Workers of America, 303 F.2d 39, 42 (6th Cir. 1962) (the court stating "[t]his union cannot escape the charge of secondary boycott because it chose to attack on all fronts at once, claiming its desire and *740 objective to be the organization of all involved . . ."). The Court has found that the true object of the picketing was to induce plaintiff-franchisees, their employees, and the employees of their suppliers to cease doing business with QSM. Plaintiff-franchisees were not successor-employers, or co-employers, nor can the franchisees and QSM be considered a single employer. The evidence negates any finding that plaintiff-franchisees were allied or non-neutral employers. Accordingly, the Court concludes that defendant unions violated § 8(b)(4) in picketing the stores of plaintiff-franchisees.

774 F.2d 1161 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.Thomas Barwin, Plaintiff-Appellant,v.Leo LaFlamme, Defendant-Appellee. No. 85-1109 United States Court of Appeals, Sixth Circuit. 9/27/85 E.D.Mich. 772 F.2d 905 VACATED AND REMANDED ORDER BEFORE: MERRITT, MARTIN and CONTIE, Circuit Judges. 1 On August 26, 1985, we entered an order dismissing plaintiff's appeal pursuant to Rule 9(d)(1), Rules of the Sixth Circuit, on the ground that the order appealed from was not final. For the reasons that follow, we vacate our order of August 26, 1985, and remand the case to the district court for proceedings consistent with this opinion. 2 The record reveals that on April 12, 1984, the district court dismissed the case without prejudice due to plaintiff's failure to appear for a scheduling conference. On April 23, plaintiff moved for reinstatement. The district court docket sheet indicates that a hearing on the motion to reinstate was held on June 7, and that the motion was granted that same day. On December 7, plaintiff moved the district court to enter an order of reinstatement, claiming that 'his office inadvertently neglected to present orders for entry.' On January 7, 1985, the district court denied plaintiff's motion. 3 Subsequent to our order of August 26, Judge Gilmore indicated, by letter to the court, that, although he had orally ordered the case reinstated, his order of dismissal of April 12 was final in light of plaintiff's failure to present a timely order of reinstatement. 4 This case admittedly has had a 'very checkered career,' and we perceive that the most prudent course is to remand the case to the district court to clarify the docket entries in this case and the effect of its April order of dismissal and its subsequent granting and denial of reinstatement. 5 Accordingly, it is hereby ordered that our order of August 26, 1985 dismissing this appeal be VACATED, and the case REMANDED to the district court for proceedings consistent with this opinion.

13 F.3d 334 UNITED STATES of America, Plaintiff-Appellant,v.John K. BRADY, Defendant-Appellee. No. 93-4085. United States Court of Appeals,Tenth Circuit. Dec. 21, 1993. Joshua Silverman, Atty., Dept. of Justice, Washington, DC (Richard D. Parry, U.S. Atty., and Stanley H. Olsen, Asst. U.S. Atty., Salt Lake City, UT, with him on the brief), for plaintiff-appellant. Rodney G. Snow (Anneli R. Smith and Steven G. Shapiro, with him on the brief) of Clyde, Pratt & Snow, Salt Lake City, UT, for defendant-appellee. Before BALDOCK and McWILLIAMS, Circuit Judges, and SAFFELS, District Judge.* BALDOCK, Circuit Judge. 1 The government appeals the district court's dismissal of a four count indictment against Defendant John K. Brady on the grounds that the indictment was insufficient as a matter of law. We have jurisdiction pursuant to 18 U.S.C. Sec. 3731. I. 2 Expert testimony below, as thoroughly summarized by the district court, see United States v. Brady, 820 F.Supp. 1346 (D.Utah 1993), established the following description of the operation of cellular telephones. Cellular telephone service is based upon a system of individual cellular telephone units, which have wireless radio transmission capabilities, operating among a series of geographic cells. Each geographic cell is served by a radio transmitter, and as the cellular telephone user moves from one cell to another, transmission of telephone calls are shifted from one transmitter to the other. 3 Cellular telephones are typically programmed with two identifying numbers. The mobile identification number ("MIN") is a ten digit number (usually the area code and telephone number) assigned to the customer's cellular telephone by the cellular carrier when the customer subscribes to that carrier's service. The electronic serial number ("ESN") is an eight digit number programmed onto an electronic chip by the telephone manufacturer. When a telephone call is initiated, the cellular telephone unit transmits the MIN and ESN to the cellular system. 4 Another feature provided by cellular carriers allows a cellular telephone customer to "roam," placing calls from a geographic cell belonging to a carrier with whom they do not have an account. This feature allows a Salt Lake City customer, for example, to use his Salt Lake City cellular telephone to make a local or long distance call while in New York City. When a roaming customer places a call, his telephone transmits the MIN and ESN. The roaming carrier, e.g., the New York City carrier, recognizes the MIN as belonging to another carrier, e.g., the Salt Lake City carrier, but cannot instantly validate the call because the validation system does not allow instantaneous inter-carrier validation. Rather than delay service to the roaming customer, the roaming carrier accepts this first call from the roaming customer before it has had an opportunity to validate the MIN and ESN as a legitimate combination.1 While the "first call" is taking place, a computer communicates with a central database of all legitimate MIN/ESN combinations. If the MIN/ESN combination does not match a valid combination in the home carrier's computers, subsequent calls using the same combination will not be allowed. Telephone calls attributed to "unmatched" MIN/ESN combinations are listed individually in the cellular carrier's billing computer, along with the charges associated with each individual call, but the user cannot be identified and the charges cannot be collected from him. 5 Cellular telephones can be altered by either replacing or reprogramming the microchip containing the unit's MIN and ESN. Telephones altered in this manner can be used either as "clones" or "free riders" to circumvent the normal cellular telephone system billing process. Cloning involves the programming of a cellular telephone so that the MIN/ESN combination is identical to a combination assigned to a legitimate customer. By cloning, the user accesses the legitimate customer's account to obtain free telephone service until the legitimate customer recognizes and reports the unauthorized charges. 6 Free riding involves the use of "tumbling" cellular phones. Free riding is achieved when the microchip that holds the MIN and the ESN has been modified to allow the user to change or tumble the MIN/ESN combination in his telephone at will by programming and reprogramming the MIN, the ESN, or both, from the key pad. The user programs a random MIN/ESN combination into the unit and continues using it until the validation system determines that it is invalid and blocks further calls. In this way, the user free rides the cellular telephone system and takes advantage of the roamer service by continually making a series of unmatched first calls, without ever being charged for the calls. II. 7 On October 24, 1992, the grand jury returned an indictment charging Defendant with four counts of violating 18 U.S.C. Sec. 1029(a)(1). Counts I through III alleged that Defendant, in pertinent part: 8 knowingly, and with intent to defraud, trafficked in a counterfeit access device, as defined in 18 U.S.C. Sec. 1029(e)(2); that is, an altered cellular telephone, permitting unauthorized access to telephone services, such conduct having an effect on interstate commerce, all in violation of 18 U.S.C. Sec. 1029(a)(1). 9 Count IV alleged that Defendant, in pertinent part: 10 knowingly, and with intent to defraud, used a counterfeit access device, as defined in 18 U.S.C. Sec. 1029(e)(2); that is, an altered cellular telephone, permitting unauthorized access to telephone services, such conduct having an effect on interstate commerce, all in violation of 18 U.S.C. Sec. 1029(a)(1). 11 Defendant moved to dismiss the indictment as insufficient, claiming that it failed to state an essential element of the offense, i.e., that Defendant used or trafficked in an access device that gained access to a billed account. Defendant also moved to suppress statements he made during the course of the investigation and to dismiss the indictment based on the government's breach of an agreement not to prosecute. Following a three-day evidentiary hearing on Defendant's motions, Defendant filed a third motion to dismiss the indictment, this time based on insufficiency of the evidence. 12 At the hearing, the government presented evidence that Defendant used and trafficked in four tumbling Mitsubishi Series 800 cellular telephones. Testimony established that these telephones had been altered so that the caller could obtain telephone service by free riding the system. Defendant admitted at the hearing that he had used a tumbling cellular telephone to place some 1300 calls over several months; however, the government conceded that it could not prove that Defendant, or any of the four telephones associated with Defendant, actually accessed identifiable subscriber accounts. 13 The government's offer of proof concerning account access came from employees of Cellular One of Salt Lake City--one of two cellular telephone companies in Salt Lake. The employees testified that unmatched calls and the charges created by the calls are reflected in Cellular One's records. The employees further testified that these charges cannot be collected, resulting in Cellular One absorbing whatever costs are associated with such calls. The evidence indicated that Cellular One has an account with McCaw2 and when unmatched calls are made on Cellular One's system, Cellular One must in turn make payment to McCaw for these calls. The evidence also indicated that Cellular One has accounts with various long distance carriers, and when unmatched long distance calls are made on Cellular One's system, Cellular One is obligated to pay the long distance carrier for the calls. Although the government presented testimony from Cellular One employees, the government was unable to link any of the four phones associated with Defendant to any unmatched call in Cellular One's accounting records or in any other carrier's records. 14 The district court dismissed all counts against Defendant finding the indictment insufficient as a matter of law. The court dismissed Count IV with prejudice, reasoning that the government could not show that Defendant gained access to one or more identifiable accounts or establish a factual connection between any cellular telephone company losses and Defendant's alleged conduct. As a result, the court determined that the government was unable to establish an essential element of a violation of 18 U.S.C. Sec. 1029(a)(1)--i.e., use of an access device. The court dismissed Counts I through III, the trafficking counts, without prejudice, allowing the government an opportunity to recharge Defendant if it is prepared to prove that Defendant transferred an altered cellular telephone with the intent that it serve as a clone.3 The court did not rule on Defendant's motion to suppress, or his motion to dismiss based on the government's breach of agreement. 15 On appeal, the government claims that the district court erred in concluding that a tumbling cellular telephone, used or transferred to another for purposes of free riding on the telephone system, is not an "access device" within the meaning of 18 U.S.C. Sec. 1029. We affirm. III. 16 We judge the sufficiency of an indictment by (1) whether the indictment contains the elements of the offense and apprises the defendant of the charges he must meet, and (2) whether the defendant would be protected against double jeopardy by a judgment on the indictment. United States v. Brown, 925 F.2d 1301, 1304 (10th Cir.1991). A sufficient indictment is required to implement the Fifth Amendment guaranty that the defendant's conviction is based on facts presented to a grand jury. United States v. Shelton, 848 F.2d 1485, 1494 (10th Cir.1988). The sufficiency of an indictment is a question of law we review de novo. U.S. v. Shelton, 937 F.2d 140, 142 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 607, 116 L.Ed.2d 630.4 17 Section 1029 makes it unlawful for anyone to "knowingly and with intent to defraud produce[ ], use[ ], or traffic[ ] in one or more counterfeit access devices." 18 U.S.C. Sec. 1029(a)(1). Access device is defined as: 18 any card, plate, code, account number, or other means of account access that can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds other than a transfer originated solely by paper instrument. 19 Id. at Sec. 1029(e)(1) (emphasis added). Section 1029 defines counterfeit access device as "any access device that is counterfeit, fictitious, altered, or forged, or an identifiable component of an access device or a counterfeit access device." Id. at Sec. 1029(e)(2). The legislative history of Sec. 1029 reveals that Congress enacted the statute out of concern over " 'fraudulent use of access devices in connection with credit transactions.' " United States v. McNutt, 908 F.2d 561, 563 (10th Cir.1990) (quoting United States v. Blackmon, 839 F.2d 900, 913-14 (2d Cir.1988)), cert. denied, 498 U.S. 1084, 111 S.Ct. 955, 112 L.Ed.2d 1043 (1991). In this circuit, we have applied Sec. 1029 to the unauthorized use of credit cards, see United States v. Ryan, 894 F.2d 355, 357 (10th Cir.1990), and to long distance telephone access codes, see United States v. Teehee, 893 F.2d 271, 272 (10th Cir.1990). At the same time, we have held that Sec. 1029 does not apply to electronic addresses of satellite television descramblers. See McNutt, 908 F.2d at 563-64. 20 In McNutt, we held that cloned electronic addresses on satellite television descrambler modules were not "access devices" within the meaning of Sec. 1029. Id. The defendant in McNutt used a cloned descrambler to free ride satellite television transmissions. Id. at 563. We determined that Sec. 1029 did not prohibit this activity because, although the operators of satellite television services suffered economic losses from the revenue forgone due to the use of cloned descrambler modules, use of such modules did not "debit legitimate subscribers' accounts[, and] no additional charges accrued as a result of the unauthorized use." Id. at 563-64. For purposes of Sec. 1029, we defined an account as "a formal record of debits and credits." Id. at 563. The government argued in McNutt that the use of cloned descramblers was a means of account access because a legitimate fee-paying viewer provides the free ride. Id. We rejected this argument stating, "the government has mistaken economic losses for actual monetary losses." Id. We held that economic losses were not enough under Sec. 1029; instead, the government must be able to connect actual losses to distinct transactions reflected in the company's accounting records. Id. Finally, we concluded that "nothing in the plain wording, legislative history or judicial interpretation of Sec. 1029 [ ] lead[s] us to believe that Congress intended that statute to apply to anything other than direct accounting losses." Id. at 564. 21 In light of McNutt, we conclude that the cellular telephones at issue in this case--i.e., altered cellular telephones used for purposes of free riding on the cellular telephone system--are not "access devices" within the meaning of Sec. 1029. The government's offer of proof fails to establish that the tumbling cellular telephones were a "means of account access" as required by Sec. 1029(e)(1). Although the government argues that a tumbling cellular telephone is a means of account access because it is capable of accessing one cellular carrier's "account" with another carrier, we do not believe that this is the type of account access contemplated by Sec. 1029. 22 Unlike the unauthorized use of credit cards or long distance telephone access codes, use of a tumbling cellular telephone, like the use of a cloned satellite television descrambler in McNutt, does not debit a legitimate subscriber's account, nor does it trigger the creation and maintenance of a formal record of credits and debits. See id. at 563. In support of its argument that access to a cellular telephone carrier's account with another carrier is a means of account access under Sec. 1029, the government relies on United States v. Taylor, 945 F.2d 1050 (8th Cir.1991), and United States v. Brewer, 835 F.2d 550 (5th Cir.1987). However, these cases do not support, and our research reveals no other cases that support, the proposition that Sec. 1029 applies to anything less than access to an identifiable account for which a record is created and maintained.5 23 In Brewer, the defendant obtained a number of unassigned long distance telephone access codes and used them to obtain free long distance service. 835 F.2d at 551. In Taylor, the defendant obtained an unassigned American Express account code enabling him to obtain over $6,500 in goods and services. 945 F.2d at 1051. In each case, although neither defendant accessed an established customer account, each defendant utilized an identifiable, valid account number, and transactions in which the account numbers were used were actually identified in connection with specific accounts. The accounts accessed by the defendants in Brewer and Taylor were legitimate in that the companies involved had created the account numbers for future assignment, and each transaction entered into by the defendants appeared in the record actually created and maintained for that particular account. In the instant case, on the other hand, Defendant never accessed a valid account; rather he continually used MIN/ESN combinations that were invalid and therefore, he was unable to access either a previously assigned or yet unassigned valid account.6 24 Moreover, the cellular telephone carrier's "account" with other carriers that the government asserts Defendant accessed in violation of Sec. 1029 is no more than a list of unmatched telephone calls, which are not billable because they cannot be attributed to a legitimate subscriber's account. That these lists of unmatched calls result in charges between and among cellular and long distance carriers does not mean that the placement of an unmatched call accesses an account under Sec. 1029. Rather, the lists of unmatched calls represent a method by which the costs of system usage is allocated between and among different cellular and long distance carriers. As the district court concluded below, these lists of unmatched calls merely reflect that users of tumbling cellular telephones have been able to access the cellular carrier's system, not the type of distinct identifiable accounts required by Sec. 1029.7 25 In summary, we conclude that, similar to the situation in McNutt, Sec. 1029 cannot be extended to apply to tumbling cellular telephones used for purposes of free riding on the cellular telephone system when the government is unable to show that the telephone accessed an identifiable account. The plain language of Sec. 1029, together with our interpretation of Sec. 1029 in McNutt, informs us that in order to fall within Sec. 1029's definition of access device, the government must be able to establish access to a valid identifiable account for which a record of debits and credits is created and maintained, and which results in direct accounting losses. We believe that to hold otherwise would turn Sec. 1029 into a general theft statute applicable whenever a company can document a loss through fraud. Such a broad interpretation of Sec. 1029 is neither supported by the language of the statute nor its legislative history. See H.R.Rep. 894, 98th Cong., 2d Sess., reprinted in 1984 U.S.C.C.A.N. 3182, 3689 (Congress seeking to address "the growing problem in ... unauthorized use of account numbers or access codes"). Although Congress, without question, has the power to criminalize the use of or trafficking in cellular telephones altered to allow free riding on the cellular telephone system, even when such telephones do not access valid identifiable accounts, Congress did not do so when it enacted Sec. 1029. 26 The indictment against Defendant does not contain one of the necessary elements of a violation of Sec. 1029--i.e., that Defendant used or trafficked in an access device. As a result, the indictment in this case is insufficient, see Brown, 925 F.2d at 1304 (indictment must contain all elements of offense), and we AFFIRM the district court's dismissal of all counts. * The Honorable Dale E. Saffels, Senior United States District Judge for the District of Kansas, sitting by designation 1 Depending on the length of the telephone call and the speed of the validation process, the caller may be able to place more than one call before validation occurs 2 The relationship between Cellular One and McCaw is unclear from the record. At one point, a Cellular One employee testified that Cellular One is a subsidiary of McCaw. The same witness then testified that Cellular One is a national corporation and that Cellular One and McCaw are the same corporation 3 We make no comment as to whether a cloned cellular telephone--i.e., one with an MIN and ESN identical to another existing legitimate unit--would represent a means of account access within the ambit of Sec. 1029 4 While ordinarily the sufficiency of an indictment is judged solely on the face of the indictment, where both parties present evidence and raise no objection to the judge's consideration of the essential undisputed facts, "[i]t is permissible and may be desirable ... for the district court to examine the factual predicate for an indictment to determine whether the elements of the criminal charge can be shown sufficiently for a submissible case." Brown, 925 F.2d at 1304; see also United States v. Wood, 6 F.3d 692, 695 (10th Cir.1993) (relying on undisputed fact outside of indictment in concluding indictment was insufficient) In the instant case, the district court determined the insufficiency of the indictment from its face as well as from evidence presented at the evidentiary hearing. Because both parties presented evidence and neither has objected to the court's consideration of the undisputed facts, we note that the court's procedural handling of the case was appropriate. 5 The only other court to address the precise issue of tumbling cellular telephones and Sec. 1029 concluded that the microchips installed in the cellular telephones to allow the user to free ride were not access devices under Sec. 1029. See United States v. Bailey, No. CR-91-59 (C.D.Cal. Nov. 10, 1992), appeal docketed, No. 92-50721 (9th Cir. Dec. 4, 1992) 6 While it is conceivable for a tumbling cellular telephone to chance upon a MIN/ESN combination that has been assigned to a legitimate customer, the government's case against Defendant relied solely on Defendant's use of MIN/ESN combinations that resulted in unmatched calls 7 We note that the government's proffer of evidence would also fail under McNutt for failure to attribute any direct accounting losses to Defendant's conduct. See McNutt, 908 F.2d at 564. While the losses to the cellular telephone carriers are somewhat more tangible than the purely economic losses in McNutt, the government is simply unable to establish any factual connection between the four tumbling cellular telephones associated with Defendant and any cellular carrier losses. The government cannot establish any connection between Defendant and Cellular One, much less a connection between Defendant and any of the unmatched calls reflected in Cellular One's records

307 F.Supp. 1212 (1968) Mrs. Alline E. CORDELL v. DETECTIVE PUBLICATIONS, INC. Civ. A. No. 5040. United States District Court E. D. Tennessee, S. D. January 3, 1968. Supplemental Opinion May 15, 1968. *1213 *1214 Chambliss, Hodge, Bahner & Crawford, Mitchell Crawford, Chattanooga, Tenn., for plaintiff. Stophel, Caldwell & Heggie, Charles J. Gearhiser, Chattanooga, Tenn., for defendant. MEMORANDUM FRANK W. WILSON, District Judge. This is an action for alleged wrongful invasion of privacy arising out of the publication by the defendant of a certain article entitled "House of Horror" in the March 1967 issue of the Front Page Detective magazine. The case is before the Court upon the motion of the defendant to dismiss upon the grounds that (1) the complaint fails to state a claim upon which relief can be granted and (2) that the Court lacks in personam jurisdiction of the defendant. In the alternative, the defendant moves for a more definite statement. The basis of the defendant's contention that the complaint fails to state a claim upon which relief can be granted is defendant's argument that in Tennessee there is no cause of action for wrongful invasion of privacy. The defendant contends that the right of action has never been expressly recognized by the Tennessee courts and that such right of action should not now be recognized because it conflicts with the right of publication of matters of public interest and with the constitutional guarantee of freedom of the press. The duty of the Court of course is to apply the law which a state court would apply if it were sitting. Not *1215 only does the Court have a duty to follow precedent established by the state courts, but where there is no precedent the Court has a duty to anticipate the law which would be applied. The cause of action for wrongful invasion of privacy has been discussed in the cases of Langford v. Vanderbilt University (1956), 199 Tenn. 389, 287 S.W.2d 32, and Martin v. Senators, Inc. (1967), 418 S.W.2d 660. In each of these cases it was held that the plaintiff had waived any right of privacy which she or they may have had. It is true that these cases do not expressly and clearly hold that there is such a cause of action in Tennessee, but the Court is of the opinion that such recognition is implicit in their holdings. In the Martin case the Tennessee Supreme Court devotes some discussion to a consideration of the nature of the tort of wrongful invasion of privacy and quotes from the American Law Institute's Restatement of the Law of Torts. Dean Prosser, on the basis of the Langford case cites Tennessee as recognizing the cause of action for wrongful invasion of privacy. See Prosser on Torts, 3rd Ed., Section 112, pp. 831-832. The Court is accordingly of the opinion that Tennessee courts would recognize a cause of action for wrongful invasion of privacy and that the complaint in this case is not subject to dismissal because it is based upon such an alleged cause of action. Defendant further complains that the complaint does not specifically set forth the language which it contends constitutes the invasion of privacy. The defendant cites in support of its contention Tennessee cases requiring that allegedly libelous language be set forth with particularity in a declaration. However, the Court is of the opinion that the libel cases are not necessarily applicable in an action for alleged wrongful invasion of privacy. Bearing in mind the liberal rules associated with federal pleading, the Court is of the opinion that the complaint must fairly be said to be sufficient in its allegations that the publication of the article constituted a wrongful invasion of the plaintiff's privacy. The defendant further contends that the complaint shows that the article complained of was concerned with the death of the plaintiff's daughter and that any right of action would be personal to the daughter and would not be maintainable by this plaintiff. However, not only does the complaint allege that the plaintiff was herself the subject of improper disclosures in the article but also that she was personally injured by the references to her daughter. The Court is of the opinion that the mother of a deceased may maintain an action for alleged wrongful invasion of privacy based upon the article concerning the circumstances of the daughter's death. In our familial society it is certainly possible that certain types of publicity concerning one member of a family may constitute an invasion of the privacy of another member. Accordingly, the Court is of the opinion that the defendant's motion should be overruled insofar as it relies upon the ground of failure to state a claim upon which relief can be granted. The jurisdictional objection raised by the defendant gives rise to a difficult and delicate problem, that is, the extent to which a publisher can be subject to suits based upon personal jurisdiction in various states into which commercial publications of such publisher may be sent. This particular problem has occupied the attention of the Court of Appeals for the Fifth Circuit and the Court of Appeals for the Second Circuit in recent years, and has prompted at least one law review article. A number of the cases have arisen out of articles published by national magazines and newspapers of nationwide reputation concerning various racial conflicts which had arisen in the southern states. In New York Times Co. v. Conner (C.A. 5, 1966), 365 F.2d 567, the Fifth Circuit held that Alabama had no in personam jurisdiction of the New York Times in an action for libel arising out of an article *1216 or articles printed in the Times concerning events that took place in Alabama. The Fifth Circuit based its holding in part upon the particularly protected status which freedom of the press enjoys under the United States Constitution and held that "considerations surrounding the law of libel require a greater showing of contact to satisfy the due process clause than is necessary in asserting jurisdiction over other types of tortious activit[ies]." The Court is of the opinion that a better approach to this problem is set forth in the opinion of the Court of Appeals for the Second Circuit in Buckley v. New York Post (C.A. 2, 1967), 373 F.2d 175. Judge Friendly in that case reasoned that the free press considerations could best be effectuated by divorcing them from problems of due process under the Fourteenth Amendment. Judge Friendly's analysis that free press can best be protected by allowing the institution of suits based upon allegedly libelous publications in states where they are published and then by applying a doctrine of forum non conveniens to reduce hardship upon national publishers. The requirements of the Due Process Clause of the Fourteenth Amendment as applied in cases of substituted service based upon "minimum contact" with the forum state under the qualitative test of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, ultimately boil down to a balancing of interests. It has been suggested that the factors to be considered are these: (1) the relative inconvenience of the defendant in being required to defend in the forum state, (2) the relative inconvenience to which plaintiff would be put if forced to pursue his action in the state where defendant may be found, and (3) whatever interest the forum state may have in providing a means of redress to the plaintiff. One of the problems inherent in actions arising out of national publications is the multiplicity of suits to which a national publisher may be subjected. Some states have taken a step toward solution of this problem by adoption of the so-called single publication rule whereby a publication is deemed to take place only at the situs where the article is first published and nowhere else. Some commentators have suggested that an ultimate solution may only be provided by some sort of congressional legislation. It would appear to the Court that whatever may be the status of suits filed in other states where publication may have taken place, a suit should be maintainable in the state where the plaintiff lives and has her reputation among her friends and business associates. The Court is accordingly of the opinion that publication of the article out of which this action arises in Tennessee, which publication is neither disputed nor minimized in the record in this case, would constitute "minimum contact" purposefully established with this State so that maintenance of this suit would not offend principles of fundamental fairness. The Court is further of the opinion that Tennessee has provided for constructive service in cases of this nature by way of T.C.A. § 20-235, which authorizes constructive service based upon "any tortious act committed in this State." The Court is therefore of the opinion that the defendant's motion to dismiss should be denied and an order should enter to that effect. With respect to the defendant's motion for a more definite statement, the Court is of the opinion that this would be an appropriate case for granting the relief requested. The Court is accordingly of the opinion that the plaintiff should file a more definite statement with respect to the following matters: (1) The specific matters alleged to have been disclosed which it is claimed were private matters as distinguished from matters of public information; (2) The specific matters alleged to be false or highly fictionalized; and (3) The specific matters alleged to be offensive or objectionable to a person of ordinary sensibilities. An order will enter in accordance with this opinion, the order to include provision *1217 that the plaintiff will be allowed ten days within which to file the more definite statement as provided in this memorandum. SUPPLEMENTAL MEMORANDUM This cause of action is before the Court upon the defendant's motion for summary judgment. The plaintiff brings an action for invasion of her privacy by the publication of an article in the March 1967 issue of defendant's magazine, Front Page Detective. The subject of the article was the murder of the plaintiff's daughter and the events leading up to the capture of the suspected assailants. The defendant moves for summary judgment upon the following grounds: (1) the publication was protected by the First Amendment of the Constitution; (2) there is no relational right of privacy so that the plaintiff as the mother of the murder victim has no cause of action for invasion of privacy; and (3) the pleading, affidavits, and exhibits refute any alleged invasion of privacy. In support of its motion the defendant has filed the affidavit of Charles J. Gearhiser, attorney for the defendant, with 51 exhibits attached, and the affidavit of Carmena Freeman with seven exhibits attached. The plaintiff has filed the affidavit of Mitchell Crawford, attorney for the plaintiff, with one exhibit, and the affidavit of the plaintiff, Alline E. Cordell, with one exhibit. The affidavits and exhibits place in the record the article sued upon together with police records and numerous newspaper accounts relating to the murder and the apprehension of the suspected assailants. An action for invasion of privacy is a recent innovation of the common law and is generally attributed to an article written by Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," 4 Harv.L.Rev. 193 (1890). Consequently the nature of the action is not clearly defined. Prosser divides the action into four different classes: (1) intrusion (invading the plaintiff's physical solitude or seclusion), (2) Public Disclosure of Private Facts, (3) False Light in the Public Eye, and (4) Appropriation (Use of name or likeness for advertising or other business purpose). See Prosser, Torts Section 112 at 833-842 (3d ed. 1964). Since there is no allegation of physically entering plaintiff's home or other invasion of the plaintiff's solitude, the instant action is not one of intrusion. The plaintiff's action must be predicated upon "public disclosure," "false light," or "appropriation" or a combination thereof. The elements of an action for public disclosure are: publication of private facts which are offensive and objectionable to a reasonable man of ordinary sensibilities. The action will lie even though the matter disclosed is true. The action for false light is similar, but the matters disclosed must be false. Appropriation lies when the plaintiff's name or likeness is used to advertise the defendant's product or otherwise to the defendant's commercial advantage. A fairly well defined defense of privilege has developed to the invasion of privacy action. The publication is privileged if it gives publicity to an already public figure, and it is privileged when it publicizes news or matters of public interest. Of course, the Court must also consider the defense of freedom of the press upon which these two privileges are founded. In determining whether or not the defendant is entitled to a judgment as a matter of law, the Court will consider each applicable theory of invasion of privacy and whether there is a material issue of fact to be determined by the jury. Under an action for appropriation, the plaintiff has charged that the defendant's magazine article was designed for commercial exploitation, and that a fictionalized account of her daughter's murder was published solely to further the defendant's commercial interests. Appropriation, however, usually involves the use of the plaintiff's *1218 name or photograph to advertize a particular product or service or to add luster to a corporation. See Prosser, Torts Section 122 at 840 (3d ed. 1964). But when an event, even of a public and newsworthy nature, has been fictionalized, some courts have used language of appropriation. For instance, in Hazlitt v. Fawcett Publications, Inc., 116 F. Supp. 538, 545 (D.Conn., 1953), the Court stated: The existence of fictionalization also lays foundation for plaintiff's claim that it was an appropriation of an episode of the plaintiff's life to the defendant's use for commercial purposes. [citations omitted] For, to the extent that the defendant indulged in fictionalization, the inference gathers strength that the dominant characteristic of the story was not genuine information but fictional readability conducive to increased circulation for the magazine. [citations omitted] Thus this count may be deemed to state an actionable claim on the theory that the published story was in essence not a vehicle of information but rather a device to facilitate commercial exploitation. [citations omitted] The Court, however, is of the opinion that the charge that the defendant's publication was primarily to advance the defendant's commercial interests and was for commercial exploitation does not state a cause of action for appropriation or invasion of privacy. See Jenkins v. Dell Publishing Co., 251 F.2d 447, 450-451 (3rd Cir., 1957); Mahaffey v. Official Detective Stories, Inc., 210 F.Supp. 251, 253 (W.D.La., 1962). The Court is further of the opinion that a charge of fictionalization would be more properly considered under the public disclosure and false light categories of invasion of privacy. Turning next to an action for public disclosure, the defendant has supplied the Court with the initial missing persons report with four supplemental reports all from the files of the Chattanooga Police Department (Exhibit 2 to Gearhiser affidavit); 47 newspaper stories from The Chattanooga Times, Chattanooga Post, and Chattanooga News-Free Press concerning the crime, the capture of the suspects, and the trial (Exhibits 4-50 of Gearhiser affidavit, but only Exhibits 4-39 were published before March 1967); and two U.P.I. releases (Exhibits 6 and 7 of Freeman affidavit). Upon reading the magazine article and comparing it to the above mentioned exhibits, it is clear that the events contained in the article were substantially publicized and were a part of the public record. The Court is of the opinion that the plaintiff may not complain of public disclosure of private facts when the material facts in the article are not private but are matters of public record and are in the public domain. See Johnson v. Evening Star Newspaper Co., 120 U.S.App.D.C. 122, 344 F.2d 507 (1965); Shorter v. Retail Credit Co., 251 F.Supp. 329 (D.S.C., 1966). Concerning the theory of false light in the public eye, the plaintiff in her more definite statement sets forth 59 selections from the magazine article, which she alleges are false or highly fictionalized. Of the 59 selections there are 27 statements which she alleges are offensive or objectionable to a person of ordinary sensibilities. Upon reading the statements and the documents and newspaper accounts, the Court is of the opinion that the article on the whole is consistent with the published newspaper accounts, with the additions or embellishments not being of a significant or material nature. It appears that the greater portion of the matters found objectionable unto the plaintiff relate to alleged statements by her daughter of a new romantic interest in her life. Not only are the statements of an innocent and typically adolescent nature, but they make no public disclosure of private matters personal to the plaintiff. In this regard it should be recalled that an action for invading the right to privacy is personal, and the plaintiff cannot bring an action for statements referring only to her daughter. See Maritote v. Desilu Productions, Inc., 345 F.2d 418 (7th *1219 Cir., 1965) (action brought by administratrix of the Estate of Alphonse (Al) Capone, his widow, and son); Mahaffey v. Official Detective Stories, Inc., supra (action brought by parents of deceased). Ten of the selections from the article (29, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 43) refer to a relative, but only from reading other accounts would one know that it referred to the plaintiff. Another selection consisted of the following: (8) "The Cordells did not own a television set and it was almost time to view the morning serial on the Recors' TV." The plaintiff, Mrs. Cordell, alleges that the statement is false because: "We owned a television set but it was broken." (Plaintiff's answers to Interrogatories p. 2). Two of the statements refer to the plaintiff as mother of the victim: (2) "As she assured her mother the next morning and her girlfriends during the day, the evening had been a turning point in her life." (28) "She still was sitting there, waiting, at 11:45 when her mother glanced out of the window before going upstairs to bed." Bearing in mind the personal nature of the action, the Court is of the opinion that neither of these selections nor anything else in the article could reasonably be interpreted as casting the plaintiff, Mrs. Cordell, in public disrepute, nor could they reasonably be offensive or objectionable to a person of ordinary sensibilities as they reflect upon Mrs. Cordell. Finally, concerning the defenses available to a right of privacy action, the defendant contends that its article falls within the protection of the First Amendment of the Constitution. In Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967), the Supreme Court held that the New York "Right of Privacy" Statute was precluded from being applied by the constitutional protection of freedom of speech and press in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth. In that case Life magazine falsely reported that a new play depicting a family's experience when they were held hostage and terrorized by escaped convicts re-enacted the experience of the plaintiffs. It was true that the family had been held hostage, but they had not been terrorized. Applying New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Supreme Court stated: "* * * We create a grave risk of serious impairment of the indispensable service of a free press in a free society if we saddle the press with the impossible burden of verifying to a certainty the facts associated in news articles with a person's name, picture or portrait, particularly as related to nondefamatory matter. Even negligence would be a most elusive standard, especially when the content of the speech itself affords no warning of prospective harm to another through falsity. A negligence test would place on the press the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait. "In this context, sanctions against either innocent or negligent misstatement would present a grave hazard of discouraging the press from exercising the constitutional guarantees. Those guarantees are not for the benefit of the press so much as for the benefit of all of us. A broadly defined freedom of the press assures the maintenance of our political system and an open society. Fear of large verdicts in damage suits for innocent or merely negligent misstatement, even fear of the expense involved in their defense, must inevitably cause publishers to `steer * * * wider of the unlawful zone,' [citations omitted]. "But the constitutional guarantees can tolerate sanctions against calculated falsehood without significant impairment *1220 of their essential function. * * *" Time v. Hill, 385 U.S. at 389, 87 S.Ct. at 542 (emphasis in original). The plaintiff alleges that the defendant willfully and maliciously invaded the plaintiff's right of privacy in that it published the said article with full knowledge of the false and fictionalized nature of the article or it published it with reckless disregard of the plaintiff's rights in failing to make a proper investigation of the truth. In the affidavit of Carmena Freeman, Editor of the defendant publication, she states that the author of the article had contributed over 100 articles since 1961 and that this is the only complaint that the magazine has received. She further states that when a contributor submits an article he is also required to submit newspaper accounts to verify the accuracy of his story. She states that the author of the challenged article in fact submitted six newspaper stories or public records, which she compared with the article, together with two U.P.I. releases. (Exhibits of 1-7 Freeman affidavit) These supporting documents establishing prior public disclosure of the essential facts in the article sued upon are placed in the record. The First Amendment protection extends to publication of newsworthy matter or matters of public concern. Although what is of public concern is not as yet a clearly defined field of the law, it has been held that even in borderline cases the benefit of doubt should be cast in favor of protecting the publication. Cf. Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966) (defamation action brought by supervisor of county ski recreation area precluded by First Amendment); 33 Tenn.L.Rev. 554 (1966). In some circumstances even an innocent victim may lose his right to privacy (See Johnson v. Evening Star Newspaper Co., supra) and even an innocent bystander may be precluded from asserting an action for invasion of privacy. See Jacova v. Southern Radio & Television Co., 83 So.2d 34 (Fla.). It is the opinion of the Court that the affidavit of Carmena Freeman establishes that the article was of matters in the public domain and was not published with knowledge of its falsity or with reckless disregard of its truth or falsity. It is therefore protected by the First Amendment of the Constitution. Under the undisputed evidence in this case, the Court is of the opinion that the murder of the plaintiff's daughter was clearly a matter of public concern and public interest. Accepting as false all those portions of the article asserted by the plaintiff to be false, even when so read, the article does not cast the plaintiff in a false light nor does it reflect upon her in a manner that could be said to be offensive or objectionable to a reasonable person of ordinary sensibilities. The Court is of the opinion that the plaintiff may not recover in an action for invasion of her privacy where that action purports to be based upon a reasonably factual magazine article that only incidentally and briefly refers to the plaintiff in the course of recounting the story of the murder of the plaintiff's daughter, a matter of undisputed public interest, where the article is free of material and calculated falsehood and where in its reference to the plaintiff it could not reasonably be interpreted as being offensive or objectionable to a person of ordinary sensibilities. See Maritote v. Desilu Productions, supra; Mahaffey v. Official Detective Stories, Inc., supra; Jenkins v. Dell Publishing Co., 143 F.Supp. 952 (W.D.Pa., 1956), aff'd 251 F.2d 447 (3rd Cir., 1958), cert. denied 357 U.S. 921, 78 S.Ct. 1362, 2 L.Ed.2d 1365 (1958); Waters v. Fleetwood, 212 Ga. 161, 91 S.E.2d 344; Bremmer v. Journal-Tribune Publishing Co., 247 Iowa 817, 76 N.W.2d 762. The Court is accordingly of the opinion that upon the pleading in this case, the answers to interrogatories, and the affidavits, it appears that there is no genuine issue as to any material fact to be decided by a jury and that the defendant is entitled to a judgment in its favor as a matter of law. An order will enter accordingly.

[Cite as State v. Klinkner, 2014-Ohio-2022.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio, : Plaintiff-Appellee, : No. 13AP-469 v. : (C.P.C. No. 12CR-1089) Kyle L. Klinkner, aka Klinker, : (REGULAR CALENDAR) Defendant-Appellant. : State of Ohio, : Plaintiff-Appellee, : No. 13AP-521 v. : (C.P.C. No. 12CR-1090) Kenneth A. Bryant, : (REGULAR CALENDAR) Defendant-Appellant. : State of Ohio, : Plaintiff-Appellee, : No. 13AP-595 v. : (C.P.C. No. 12CR-1091) William M. Bryant, : (REGULAR CALENDAR) Defendant-Appellant. : D E C I S I O N Rendered on May 13, 2014 Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee. Todd Barstow, for appellant Kyle L. Klinkner, aka Klinker. Nos. 13AP-469, 13AP-521 and 13AP-595 2 Scott & Nolder Co., L.P.A., and Steven S. Nolder, for appellant Kenneth A. Bryant. Yeura R. Venters, Public Defender, and David L. Strait, for appellant William M. Bryant. APPEALS from the Franklin County Court of Common Pleas KLATT, J. {¶ 1} In these consolidated appeals, defendants-appellants William M. Bryant, Kenneth Bryant, and Kyle L. Klinkner each appeal from judgment entries of conviction and sentence entered by the Franklin County Court of Common Pleas. For the following reasons, we affirm those judgments. I. Factual and Procedural Background {¶ 2} A Franklin County Grand Jury indicted all three appellants with one count of felonious assault, in violation of R.C. 2903.11. The charges arose out of a fight involving the three men and Kenneth's former employer, Victor Tantarelli, Sr. Appellants entered not guilty pleas and proceeded to a trial. Appellants waived their rights to a jury trial and all three appellants were tried together to the same judge. {¶ 3} Victor Tantarelli, Sr. ("Vic Sr.") owns a body shop in Columbus, Ohio, and employed Kenneth as an auto technician in 2011. In December 2011, Kenneth stopped working for Vic Sr. and apparently left repair work on a number of cars unfinished. According to Vic Sr.'s policy, however, he does not pay employees for their time until they complete their work on the assigned cars. Because Kenneth left his work unfinished, he had not been paid for some of the time he had worked. {¶ 4} On January 6, 2012, Kenneth returned to the body shop to pick up his tools. He brought with him his dad, William, and Kyle Klinkner. William and Kyle were both auto technicians at Kenneth's new place of employment. Kyle drove the three men to the body shop because he had a big truck that could hold Kenneth's tool box, which weighed almost 1,000 pounds. The men went in the body shop, got the tool box, and brought it out to Kyle's truck. Kenneth also handed his keys to the body shop to Vic Sr.'s son, Vic Jr. The three men went back to the truck and remained there for 10 to 15 minutes. Nos. 13AP-469, 13AP-521 and 13AP-595 3 {¶ 5} At that point, the three men got out of the truck and walked back inside the body shop. Kenneth went inside the office where Vic Sr. was eating lunch and William and Kyle stood outside the office door. Kenneth asked Vic Sr. if he planned to pay him for the work Kenneth did on the unfinished jobs. Vic Sr. told him that he would not pay him because Kenneth quit before the cars were finished. The men began yelling at each other and Vic Sr. came out from behind the desk where he was sitting and approached Kenneth. Here, the respective versions of events begin to diverge. {¶ 6} According to Vic Sr. and another employee of the body shop, when Vic Sr. approached Kenneth, Kenneth punched him twice in the chest. He then pulled Vic Sr. down to the ground and pinned Vic Sr.'s arms close to his body. While Kenneth held Vic Sr. down on the ground, William punched him a few times and Kyle kicked him a number of times. Employees of the body shop soon came out and broke up the fight, after which William, Kenneth, and Kyle left the scene. Vic Sr. sustained serious physical injuries as a result of the fight. {¶ 7} Appellants each presented slightly different versions of events. They each testified that they went over to the body shop to get Kenneth's tools. Kenneth testified, however, that he decided to ask Vic Sr. for some money that day because some repair shops will pay an auto technician for time spent working on a car even if the technician quits before completing the work. When Vic Sr. told Kenneth he would not pay him, Kenneth swore at him and began walking out of the office. According to Kenneth, Vic Sr. was yelling as Vic Sr. approached him. Vic Sr. pushed him and Kenneth grabbed at Vic Sr. so he would not fall down. The two men became entangled and fell to the floor. Kenneth denied punching Vic Sr. or pinning his arms while they were on the ground. He thought they were only on the ground for a few seconds until he was able to release himself from Vic Sr. and leave the scene. He did not observe William or Kyle hit Vic Sr. {¶ 8} Kyle testified that he was standing near the office when he heard Kenneth and Vic Sr. yelling at each other. He then saw Vic Sr. grab at Kenneth's shirt. He did not see Kenneth punch Vic Sr. Kyle thought that Kenneth lost his footing and grabbed at Vic Sr. to stop his fall. The two men stumbled around and fell down. Kyle stated he did see Kenneth holding Vic Sr.'s arms. Kyle and William began to go toward the fight but as they Nos. 13AP-469, 13AP-521 and 13AP-595 4 did, they saw Vic Jr. and another man coming to break up the fight. Kyle denied kicking Vic Sr. but testified that William punched Vic Sr. and may have kicked him once. {¶ 9} William testified that all three of the men went inside the body shop so that Kenneth could get his last paycheck. Kenneth went into the office while William and Kyle stood nearby. Kenneth asked Vic Sr. for his check but Vic Sr. told him that he would not pay him because the work was not finished. The two men began to escalate their voices and then William saw Kenneth start to leave the office. Vic Sr. came at Kenneth and pushed him as if he wanted him out of the office. Vic Sr. also grabbed Kenneth and the two came "flying out" of the office and then fell down. (Tr. 996.) William did not see Kenneth punch Vic Sr. before they fell to the ground. According to William, Kenneth had Vic Sr. on the ground in a bear hug while Vic Sr. yelled for help. William saw Vic Sr. strangling Kenneth and also trying to kick him. William became scared for his son's life, so he approached the two men and kicked and hit Vic Sr. to free Kenneth from the altercation. Shortly thereafter, the other men came to the scene of the fight and broke it up. {¶ 10} The trial judge found all three appellants guilty of felonious assault. The judge found the appellants' version of events not credible and concluded that they went to the body shop to either get money from Victor Sr. or to beat him up. The trial court sentenced them accordingly. II. The Appeals {¶ 11} All three appellants appeal their convictions. {¶ 12} William Bryant assigns the following errors: [1.] Given the nature of the case, the evidence presented by the State, and the defenses asserted by Defendant-Appellant, the failure of the trial court to conduct a hearing to evaluate the nature and extent of plea negotiations was error. [2.] The judgment of the trial court is not supported by sufficient, credible evidence. [3.] The judgment of the trial court is against the manifest weight of the evidence. {¶ 13} Kyle L. Klinkner assigns the following errors: Nos. 13AP-469, 13AP-521 and 13AP-595 5 [1.] WHEN A MOTION FOR NEW TRIAL IS FILED ON THE TRIAL LEVEL AFTER A NOTICE OF APPEAL GRANTS JURISDICTION TO THE COURT OF APPEALS, THE BEST INTERESTS OF ALL PARTIES WOULD BE SERVED IF THIS COURT REMANDS THE APPEAL TO THE TRIAL COURT TO LITIGATE THE NEW TRIAL MOTION. [2.] PREJUDICIAL ERROR OCCURS WHEN THE ACCUSED IS TRIED WITH TWO CO-DEFENDANTS, AND TESTIMONY SHOWS ANTAGONISTIC DEFENSES BETWEEN THE ACCUSED AND THE OTHER TWO CO- DEFENDANTS, MANDATING SEVERANCE, CONSISTENT WITH THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION. [3.] WHEN THE ACCUSED WAIVES A TRIAL BY JURY, BUT DOES SO WITH TWO OTHER CO-DEFENDANTS, THE CASE MUST BE REMANDED TO DETERMINE WHETHER THE WAIVER WAS INVOLUNTARY AND OCCURRED AS A RESULT OF AN AGREEMENT WITH THE OTHER CO- DEFENDANTS, CONTRA THE SIXTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION. [4.] WHEN THERE IS NO INDICATION DURING THE PRE-TRIAL STAGES OF THE STATUS OF PLEA NEGOTIATIONS, UNDER THE UNITED STATES SUPREME COURT CASE OF LAFLER V. COOPER, THE CASE MUST BE REMANDED TO THE TRIAL COURT FOR A HEARING TO DETERMINE WHETHER THE ACCUSED WAS PROPERLY ADVISED BY HIS ATTORNEY CONSISTENT WITH THE SIXTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION. [5.] WHEN TRIAL COUNSEL COMMITS CONSTITU- TIONAL VIOLATIONS REPRESENTING THE ACCUSED DURING THE PRE-TRIAL AND TRIAL STAGES, THE CASE MUST BE REVERSED AND REMANDED FOR A NEW TRIAL BECAUSE OF INEFFECTIVE ASSISTANCE OF COUNSEL, CONTRA THE SIXTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION. {¶ 14} Finally, Kenneth Bryant assigns the following errors: [1.] APPELLANT KENNETH BRYANT WAS DEPRIVED OF DUE PROCESS WHEN THE STATE AMENDED THE INDICTMENT. Nos. 13AP-469, 13AP-521 and 13AP-595 6 [2.] APPELLANT KENNETH BRYANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEYS FAILED TO MOVE FOR JUDGMENT OF ACQUITTAL AFTER THE STATE'S OPENING STATEMENT. [3.] APPELLANT KENNETH BRYANT'S CONVICTION DEPRIVED HIM OF DUE PROCESS BECAUSE IT WAS BASED ON INSUFFICIENT EVIDENCE OR WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. [4.] WHEN THERE IS NO INDICATION OF THE STATUS OF PLEA NEGOTIATIONS, UNDER LAFLER V. COOPER, APPELLANT KENNETH BRYANT'S CASE MUST BE REMANDED FOR A HEARING TO DETERMINE WHETHER HE WAS PROPERLY ADVISED OF THE PLEA OFFER. {¶ 15} We will address the assignments of error out of order and, where appropriate, together. A. Kyle's Individual Assignments of Error 1. Severance {¶ 16} Kyle argues in his second assignment of error that the trial court erred by not severing his trial from his co-defendants. We disagree. {¶ 17} Before addressing the merits of Kyle's claim, we note that he never asked the trial court to sever his trial from his co-defendants. That failure forfeits error on appeal absent plain error. State v. Lott, 51 Ohio St.3d 160, 164 (1990). Under Crim.R. 52(B), plain errors affecting substantial rights may be noticed by an appellate court even though they were not brought to the attention of the trial court. To constitute plain error, there must be: (1) an error, i.e., a deviation from a legal rule, (2) that is plain or obvious, and (3) that affected substantial rights, i.e., affected the outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). Even if an error satisfies these prongs, appellate courts are not required to correct the error. Appellate courts retain discretion to correct plain errors. Id.; State v. Litreal, 170 Ohio App.3d 670, 2006-Ohio-5416, ¶ 12 (10th Dist.). Courts are to notice plain error under Crim.R. 52(B) " 'with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.' " Barnes, quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of syllabus. Nos. 13AP-469, 13AP-521 and 13AP-595 7 {¶ 18} Crim.R. 8(D) provides that co-defendants may be tried together for a non- capital offense as long as they are alleged to have participated in the same act or transaction or in the same course of criminal conduct. State v. Walters, 10th Dist. No. 06AP-693, 2007-Ohio-5554, ¶ 21. As a general rule, the law favors joinder of trials because, among other reasons, it conserves judicial resources and reduces the possibility of incongruous results before different juries. Id.; State v. Miller, 10th Dist. No. 11AP- 899, 2013-Ohio-1242, ¶ 50. Nevertheless, a defendant may move for severance from a co- defendant's trial pursuant to Crim.R. 14 upon a showing of prejudice. Lott at 163. The defendant has the burden to affirmatively demonstrate prejudice. State v. Payne, 10th Dist. No. 02AP-723, 2003-Ohio-4891, ¶ 23. {¶ 19} Appellants' indictment alleged that they participated in the same act. Therefore, under Crim.R. (8), it was appropriate for them to be tried together. Kyle argues, however, that his trial should have been severed because of the antagonistic defenses which arose between himself and his co-defendants. Antagonistic defenses can prejudice co-defendants to warrant severance. Walters at ¶ 23-24. Defenses are mutually antagonistic where each defendant attempts to exculpate himself and inculpate his co- defendants. Walters. To merit severance, the defenses must be antagonistic to the point of being irreconcilable and mutually exclusive. Miller at ¶ 52, citing Walters. {¶ 20} We reject Kyle's claim that his defense was mutually antagonistic with that of the Bryants' defenses. Kyle's defense at trial was that he did not kick or hit Vic Sr. Alternatively, William's defense at trial was that he acted in defense of his son and Kenneth argued that the state failed to meet its burden of proof to prove that he assaulted Vic Sr. These defenses did not attempt to exculpate one person while inculpating another. In fact, neither William nor Kenneth testified that Kyle ever hit Vic Sr. or otherwise placed blame on Kyle. Simply put, there is nothing antagonistic about the defenses these appellants presented at trial. Accordingly, the trial court did not err, let alone commit plain error, by not severing Kyle's trial from that of his co-defendants. We overrule Kyle's second assignment of error. Nos. 13AP-469, 13AP-521 and 13AP-595 8 2. Jury Waiver {¶ 21} Kyle argues in his third assignment of error that we should remand this case for the trial court to determine whether he knowingly and voluntarily waived his right to a jury trial. We disagree. {¶ 22} At the start of his trial, Kyle signed a document in which he "voluntarily waive[d] and relinquish[ed] my right to a trial by jury and elect[ed] to be tried by a judge." Upon receiving the document, the trial court asked Kyle whether he could read and write English, whether his trial counsel explained the document to him and if he understood the document, and whether he understood the right to a jury trial that he sought to waive. Lastly, the trial court asked him if this was his "free and voluntary act." (Tr. 4-6.) Kyle replied affirmatively to each question and the trial court accepted his waiver and had it filed in the record. {¶ 23} The Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, guarantees an accused the right to trial by jury. State v. Lomax, 114 Ohio St.3d 350, 2007-Ohio-4277, ¶ 6, citing Duncan v. Louisiana, 391 U.S. 145 (1968). Likewise, Ohio Constitution, Article I, Section 5, states that the "right of trial by jury shall be inviolate." However, Crim.R. 23(A) allows a defendant to waive his right to a trial by jury in serious offense cases provided that the waiver is made knowingly, intelligently, and voluntarily, and in writing. Additionally, pursuant to R.C. 2945.05, for a waiver of jury trial to be valid, it must be in writing, signed by the defendant, filed, made part of the record, and made in open court. Lomax at ¶ 9; State v. Sanders, 188 Ohio App.3d 452, 2010-Ohio-3433, ¶ 11 (10th Dist.). A written waiver is presumptively voluntary, knowing, and intelligent. Lomax at ¶ 10. {¶ 24} Kyle concedes that the trial court complied with Crim.R. 23(A) and R.C. 2945.05. Further, he does not argue that his waiver was not voluntary. Instead, he argues that in light of the antagonistic defenses that developed between him and his co- defendants, this court should remand the matter for the trial court to further question him about the voluntary and intelligent nature of his waiver. We disagree. Kyle has not alleged or demonstrated any error below and, in fact, concedes that the trial court satisfied its obligations before accepting his waiver. Accordingly, we overrule Kyle's third assignment of error. Nos. 13AP-469, 13AP-521 and 13AP-595 9 3. Motion for New Trial {¶ 25} Kyle also seeks this court to stay these proceedings and to remand his case for the trial court to rule on a pending motion for new trial. We already denied Kyle's first request for the same relief and he presents nothing new to justify a different decision. State v. Klinkner, 10th Dist. No. 13AP-469, Sept. 24, 2013 (journal entry). Therefore, we deny this relief. 4. Conclusion {¶ 26} We overrule Kyle's first, second, and third assignments of error. B. Kenneth's Individual Assignment of Error 1. The State's "amendment" of his Indictment {¶ 27} The grand jury indicted Kenneth with a single count of felonious assault in violation of R.C. 2903.11(A). Kenneth argues in his first assignment of error that the state "constructively amended" that indictment during his trial. Specifically, Kenneth points out that he was originally charged as a principal offender but then identified as an aider and abettor during trial. We reject this argument. {¶ 28} The state did not need to amend the indictment to proceed under an aiding and abetting theory against Kenneth. Pursuant to R.C. 2923.03(F), "[a] charge of complicity may be stated in terms of this section, or in terms of the principal offense." Thus, a defendant charged with an offense may be convicted of that offense upon proof that he was complicit in its commission, even though the indictment is "stated * * * in terms of the principal offense" and does not mention complicity. State v. Herring, 94 Ohio St.3d 246, 251 (2002). R.C. 2923.03(F) adequately notifies defendants that the jury may be instructed on complicity, even when the charge is drawn in terms of the principal offense. See State v. Keenan, 81 Ohio St.3d 133, 151 (1998). {¶ 29} Kenneth's reliance on State v. Killings, 1st Dist. No. C-970167 (May 29, 1998), in support of this assignment of error is misplaced, as it is factually distinguishable from the present matter. In that case, the defendant was charged as a principal offender for one count of rape. However, the trial court instructed the jury on complicity for a separate rape (of the same victim) committed by another individual for which Killings was not charged with nor provided an opportunity to defend. The jury found Killings guilty of one count of rape, but the appellate court concluded that because of the complicity Nos. 13AP-469, 13AP-521 and 13AP-595 10 instruction, they could not determine what act the jury actually found him guilty of: rape, or that of aiding and abetting a separate rape. Thus, the court concluded that the complicity instruction was error. {¶ 30} Here, there are no uncharged acts that Kenneth faced at trial such as in Killings. All three appellants faced the same charges that arose from the same conduct. Accordingly, Kenneth's reliance on Killings is unpersuasive. {¶ 31} The state did not amend Kenneth's indictment. The indictment charged him with a count of felonious assault and, pursuant to R.C. 2923.03(F), that indictment put Kenneth on notice that he also could be found complicit in the commission of that offense. Accordingly, we overrule Kenneth's first assignment of error. C. The Sufficiency and Manifest Weight of the Evidence {¶ 32} Kenneth's third assignment of error and William's second and third assignments of error each contend that their convictions were not supported by sufficient evidence and were against the manifest weight of the evidence. We disagree. {¶ 33} Sufficiency of the evidence is a legal standard that tests whether the evidence introduced at trial is legally adequate to support a verdict. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Whether the evidence is legally sufficient to support a verdict is a question of law. Id. {¶ 34} In determining whether the evidence is legally sufficient to support a conviction, " '[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.' " State v. Robinson, 124 Ohio St.3d 76, 2009-Ohio-5937, ¶ 34, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. A verdict will not be disturbed unless, after viewing the evidence in the light most favorable to the prosecution, it is apparent that reasonable minds could not reach the conclusion reached by the trier of fact. State v. Treesh, 90 Ohio St.3d 460, 484 (2001). {¶ 35} In this inquiry, appellate courts do not assess whether the state's evidence is to be believed, but whether, if believed, the evidence admitted at trial supports the conviction. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79-80 (evaluation of witness credibility not proper on review for sufficiency of evidence); State v. Bankston, Nos. 13AP-469, 13AP-521 and 13AP-595 11 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4 (noting that "in a sufficiency of the evidence review, an appellate court does not engage in a determination of witness credibility; rather, it essentially assumes the state's witnesses testified truthfully and determines if that testimony satisfies each element of the crime."). {¶ 36} The weight of the evidence concerns the inclination of the greater amount of credible evidence offered to support one side of the issue rather than the other. Thompkins at 387. (Although there may be sufficient evidence to support a judgment, a court may nevertheless conclude that a judgment is against the manifest weight of the evidence. Id.) {¶ 37} When presented with a challenge to the manifest weight of the evidence, an appellate court may not merely substitute its view for that of the trier of fact, but must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Id. at 387. An appellate court should reserve reversal of a conviction as being against the manifest weight of the evidence for only the most " 'exceptional case in which the evidence weighs heavily against the conviction.' " Id., quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983); State v. Strider-Williams, 10th Dist. No. 10AP-334, 2010-Ohio-6179, ¶ 12. {¶ 38} In addressing a manifest weight of the evidence argument, we are able to consider the credibility of the witnesses. State v. Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953, ¶ 6. However, in conducting our review, we are guided by the presumption that the jury, or the trial court in a bench trial, " 'is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.' " Id., quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). Accordingly, we afford great deference to the trier of fact's determination of witness credibility. State v. Redman, 10th Dist. No. 10AP-654, 2011-Ohio-1894, ¶ 26, citing State v. Jennings, 10th Dist. No. 09AP- 70, 2009-Ohio-6840, ¶ 55. See also State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus (credibility determinations are primarily for the trier of fact). Nos. 13AP-469, 13AP-521 and 13AP-595 12 1. The Elements of the Convictions {¶ 39} In order to find appellants guilty of felonious assault, the state had to prove that they knowingly caused serious physical harm to another. R.C. 2903.11(A). 2. Appellants' Sufficiency Arguments {¶ 40} Kenneth argues that the evidence was insufficient to prove that he was complicit or aided and abetted the others in the attack on Victor Sr. We disagree. {¶ 41} It is not clear whether the trial court found Kenneth guilty as a principal offender or as an aider and abetter. Even if the trial court found him guilty of aiding and abetting, rather than as a principal offender, that conviction would be supported by sufficient evidence. {¶ 42} R.C. 2923.03(A)(2) prohibits someone from aiding or abetting another in committing an offense. To support a conviction for complicity by aiding and abetting pursuant to R.C. 2923.03(A)(2), the evidence must show that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal. State v. Johnson, 93 Ohio St.3d 240 (2001), syllabus. Such criminal intent can be inferred from the presence, companionship, and conduct of the defendant before and after the offense is committed. Id. at 245. It may also be inferred from the circumstances surrounding the crime. Columbus v. Bishop, 10th Dist. No. 08AP-300, 2008-Ohio-6964, ¶ 41. {¶ 43} Here, testimony from Vic Sr. and the other employee who saw the entire fight indicated that Kenneth punched Vic Sr. twice, pulled him to the ground, held him down, and pinned his arms, allowing William and Kyle to hit Vic Sr. when Vic. Sr. could not defend himself. Bishop at ¶ 45 (act of holding down was sufficient, by itself, to convict as an aider and abetter). Viewing this evidence in the most favorable light to the state, as we must, the evidence is sufficient evidence for a reasonable trier of fact to conclude that Kenneth, at a minimum, assisted, supported, or cooperated in the assault of Vic Sr. {¶ 44} William argues that the evidence was insufficient to prove that he knowingly caused Vic Sr. serious physical harm. We disagree. {¶ 45} R.C. 2901.22(B) provides that "[a] person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is Nos. 13AP-469, 13AP-521 and 13AP-595 13 aware that such circumstances probably exist." State v. Ranson, 10th Dist. No. 01AP- 1049, 2002-Ohio-2398, ¶ 17. " 'Knowingly' does not require the offender to have the specific intent to cause a certain result. That is the definition of 'purposely.' Instead, whether a person acts knowingly can only be determined, absent a defendant's admission, from all the surrounding facts and circumstances, including the doing of the act itself." (Footnote omitted.) State v. Huff, 145 Ohio App.3d 555, 563 (1st Dist.2001). " 'The test for whether a defendant acted knowingly is a subjective one, but it is decided on objective criteria. * * * However, if a given result is probable, a person will be held to have acted knowingly to achieve it because one is charged by the law with knowledge of the reasonable and probable consequences of his own acts.' " State v. Thomas, 10th Dist. No. 02AP-778, 2003-Ohio-2199, ¶ 75, quoting State v. McDaniel, 2d Dist. No. 16221 (May 1, 1998). {¶ 46} William admitted that he kicked Vic Sr. and hit him with his hand at least twice. While he claims that he did so in defense of his son, such a defense presumes an intentional and purposeful use of force. See State v. Hubbard, 10th Dist. No. 11AP-945, 2013-Ohio-2735, ¶ 54. William's testimony alone is sufficient for a reasonable fact finder to conclude that William acted knowingly. 3. Appellants' Manifest Weight of the Evidence Arguments {¶ 47} In arguing that their convictions were against the manifest weight of the evidence, Kenneth claims that Vic Sr.'s testimony was not credible. He notes several purported inconsistencies in Vic Sr.'s testimony. {¶ 48} A defendant is not entitled to a reversal on manifest weight grounds merely because inconsistent evidence was offered at trial. State v. Campbell, 10th Dist. No. 07AP- 1001, 2008-Ohio-4831, ¶ 23. The trier of fact is in the best position to take into account the inconsistencies in the evidence, as well as the demeanor and manner of the witnesses, and to determine which witnesses are more credible. State v. DeJoy, 10th Dist. No. 10AP- 919, 2011-Ohio-2745, ¶ 27. While appellant points to certain portions of Vic Sr.'s testimony that were inconsistent with his prior descriptions of the events, these inconsistencies do not render the conviction against the manifest weight of the evidence. The judge was aware of these inconsistencies and chose to believe Vic Sr.'s testimony describing the fight. This is within the province of the trier of fact. State v. Conkel, 10th Nos. 13AP-469, 13AP-521 and 13AP-595 14 Dist. No. 08AP-845, 2009-Ohio-2852, ¶ 17-18; State v. Thompson, 10th Dist. No. 08AP- 22, 2008-Ohio-4551, ¶ 20-21. Additionally, we note that another employee who saw the fight provided testimony that was largely consistent with Vic Sr.'s testimony. {¶ 49} Next, William argues that his conviction is against the manifest weight of the evidence because he established that he acted in defense of his son. We disagree. {¶ 50} Defense of family, being a variation of self-defense, is an affirmative defense that the defendant has the burden of proving by a preponderance of the evidence. R.C. 2901.05(A); State v. Seals, 2d Dist. No. 04CA0063, 2005-Ohio-4837, ¶ 34, citing State v. Martin, 21 Ohio St.3d 91 (1986). Ohio has long recognized a privilege to defend the members of one's family. Sharp v. State, 19 Ohio 379 (1850). If a person in good faith and upon reasonable grounds believes that his wife and family are in imminent danger of death or serious bodily harm, that person is entitled to use such reasonably necessary force, even to the taking of life, to defend his wife and family as he would be entitled to use in defense of himself. State v. Williford, 49 Ohio St.3d 247 (1990). However, a person who intervenes to help another stands in the shoes of the person whom he is aiding. If that person is at fault, and therefore not entitled to use force in self-defense, the intervenor is not justified in using force in that person's defense. See State v. Wenger, 58 Ohio St.2d 336, 338-39 (1979). {¶ 51} The state's version of events refutes Williams' claim that he acted in defense of his son. The state's witnesses described a scene where Kenneth began the confrontation by punching Vic Sr. twice in the chest. Moreover, Kenneth was holding Vic Sr. down with his arms pinned against him while William and Kyle assaulted him. A conviction is not against the manifest weight of the evidence because the trier of fact believed the state's version of events over the appellant's version. State v. Webb, 10th Dist. No. 10AP-189, 2010-Ohio-5208, ¶ 16; Strider-Williams at ¶ 13. The judge, as the trier of fact, was free to disbelieve William's version of events and believe the state's version of events. That decision was within the province of the trial judge. State v. Williams, 10th Dist. No. 08AP-719, 2009-Ohio-3237, ¶ 18-19 (jury's decision to reject claim of self-defense and believe prosecution's version of events not against manifest weight of the evidence); Webb at ¶ 17. Given the conflicting testimony regarding how this fight started and what occurred during the fight, this is not the exceptional case in which Nos. 13AP-469, 13AP-521 and 13AP-595 15 the evidence weighs heavily against the conviction. Seals at ¶ 47-48 (trial court did not lose its way in rejecting claim of self-defense). {¶ 52} Given the conflicting testimony presented, we cannot say that the trial court clearly lost its way and created a manifest miscarriage of justice. The judge simply believed the version of events presented by the state's witnesses and disbelieved appellants' version of events. This was within the province of the judge as the trier of fact. Accordingly, appellants' convictions are not against the manifest weight of the evidence. {¶ 53} Appellants' convictions for felonious assault are supported by sufficient evidence and are not against the manifest weight of the evidence. Accordingly, we overrule Kenneth's third assignment of error and William's second and third assignments of error. D. Ineffective Assistance of Counsel {¶ 54} Each appellant raises certain claims of ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel, appellant must show that counsel's performance was deficient and that counsel's deficient performance prejudiced him. State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 133, citing Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure to make either showing defeats a claim of ineffective assistance of counsel. State v. Bradley, 42 Ohio St.3d 136, 143 (1989), quoting Strickland at 697. ("[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one."). {¶ 55} In order to show counsel's performance was deficient, the appellant must prove that counsel's performance fell below an objective standard of reasonable representation. Jackson at ¶ 133. The appellant must overcome the strong presumption that defense counsel's conduct falls within a wide range of reasonable professional assistance. Strickland at 689. To show prejudice, the appellant must establish that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio- 3426, ¶ 204. Nos. 13AP-469, 13AP-521 and 13AP-595 16 1. Plea Negotiations and Lafler v. Cooper {¶ 56} In William's first assignment of error and in Kyle and Kenneth's fourth assignments of error, all three appellants attempt to raise ineffective assistance of counsel claims under Lafler v. Cooper, __ U.S. __, 132 S.Ct. 1376 (2012). In that case, and the related case of Missouri v. Frye, __ U.S. __, 132 S.Ct. 1399 (2012), the United States Supreme Court held that the Sixth Amendment's right to effective assistance of counsel extends to the plea bargaining process. Lafler at 1384. {¶ 57} In their assignments of error, however, appellants do not allege that their trial counsel acted deficiently in the plea bargaining process. Instead, they seek a remand of this matter for the trial court to hold a hearing to determine whether the state offered a plea bargain that trial counsel did not communicate to them. Because appellants fail to allege, let alone demonstrate, error, we have no reason to remand the matter. 2. Appellants' Claims of Ineffective Assistance of Counsel {¶ 58} Kenneth and Kyle, in their second and fifth assignments of error, respectively, assert other claims of ineffective assistance of counsel. {¶ 59} Kenneth specifically argues that his trial counsel was ineffective for not moving for a judgment of acquittal after the state's opening argument. Kenneth is mistaken. Trial counsel did move for a judgment of acquittal after the state's opening argument, which the trial court denied. (Tr. 27.) {¶ 60} Kyle asserts a number of instances of alleged ineffective conduct by his counsel. First, he argues that trial counsel deficiently failed to file a motion to sever his trial from his co-defendants. We have already concluded that appellants did not have antagonistic defenses. Therefore, a motion to sever would have been meritless. Therefore, trial counsel was not ineffective for failing to file a motion to sever. State v. Kelley, 179 Ohio App.3d 666, 2008-Ohio-6598, ¶ 76 (7th Dist.); State v. Simms, 10th Dist. No. 10AP-1063, 2012-Ohio-2321, ¶ 49. {¶ 61} Second, Kyle appears to argue that counsel was ineffective for allowing him to waive his right to a jury trial. The record demonstrates, as noted above, that Kyle's choice to waive his right to a jury trial was voluntary and that the trial court fulfilled its obligation to ensure that his choice was voluntary. This defeats any claim of alleged Nos. 13AP-469, 13AP-521 and 13AP-595 17 ineffective assistance of counsel with respect to the jury waiver. State v. Webb, 10th Dist. No. 10AP-289, 2010-Ohio-6122, ¶ 70-72. {¶ 62} Third, Kyle argues that trial counsel acted deficiently by not interviewing a witness and not securing his presence at trial. Even assuming this was deficient conduct, Kyle cannot demonstrate that he was prejudiced. He speculates without any evidentiary support that this witness's testimony would have been important. It is pure speculation to conclude that the result of his trial would have been different had the additional witness testified. Williams at ¶ 35, citing State v. Thorne, 5th Dist. No. 2003CA00388, 2004- Ohio-7055, ¶ 70 (failure to show prejudice without affidavit describing testimony of witnesses not called); State v. Stalnaker, 5th Dist. No. 21731, 2004-Ohio-1236, ¶ 9. This type of vague speculation is insufficient to establish ineffective assistance of counsel. State v. Wiley, 10th Dist. No. 03AP-340, 2004-Ohio-1008, ¶ 30. {¶ 63} Lastly, Kyle argues that trial counsel deficiently questioned Vic. Sr. during his cross-examination by not asking him about allegedly inconsistent statements he made in a pre-trial deposition. We disagree. The scope of cross-examination clearly falls within the ambit of trial strategy, and debatable trial tactics do not establish ineffective assistance of counsel. State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, ¶ 45, citing State v. Campbell, 90 Ohio St.3d 320, 339 (2000). {¶ 64} Each of the appellants has failed to demonstrate ineffective assistance of counsel. Accordingly, we overrule William's first assignment of error, Kyle's fourth and fifth assignments of error, and Kenneth's second and fourth assignments of error. III. Conclusion {¶ 65} Having overruled all of the assignments of error presented by these appellants, we affirm the judgments of the Franklin County Court of Common Pleas in each of these cases. Judgments affirmed. CONNOR and T. BRYANT, JJ., concur. T. BRYANT, J., retired, of the Third Appellate District, assigned to active duty under authority of Ohio Constitution, Article IV, Section 6(C). 

577 F.2d 175 In re EASTERN FREIGHT WAYS, INC., Bankrupt.Sidney B. GLUCK, Trustee in Bankruptcy of Eastern FreightWays, Inc., Plaintiff-Appellee,v.SEABOARD SURETY COMPANY, Defendant-Appellant,Manufacturers Hanover Trust Company, individually and asagent for other institutional lenders, InternationalHarvester Credit Corporation, Fruehauf Corporation and theChase Manhattan Bank, National Association, and Thomas J.Cahill, Trustee in Bankruptcy of Associated Transport, Inc.,Defendants-Appellees. No. 738, Docket 77-5036. United States Court of Appeals,Second Circuit. Argued March 27, 1978.Decided May 25, 1978. Solomon M. Cheser, New York City (Tell, Cheser, Breitbart & Lefkowitz, and Wickes, Riddell, Bloomer, Jacobi & McGuire, New York City, James W. Harbison, Jr., Thomas R. Stritter, New York City, of counsel), for defendant-appellant Seaboard Surety Company. Michael R. Kleinerman, New York City (Booth, Lipton & Lipton, Edgar H. Booth, New York City, of counsel), for plaintiff-appellee Sidney B. Gluck, Trustee in Bankruptcy of Eastern Freight Ways, Inc. Theodore Gewertz, New York City (Wachtell, Lipton, Rosen & Katz, Ronald M. Neumann, New York City, of counsel), for defendant-appellee Manufacturers Hanover Trust Co. Lewis Kruger, New York City (Krause, Hirsch & Gross, Christina Burks Lee, Barbara G. Kaplan, New York City, of counsel), for defendant-appellee International Harvester Credit Corp. Toni C. Lichstein, New York City (Milbank, Tweed, Hadley & McCloy, Russell E. Brooks, New York City, of counsel), for defendant-appellee The Chase Manhattan Bank, National Association. Anderson Russell Kill & Olick, New York City (Arthur S. Olick, Poppy B. Quattlebaum, New York City, of counsel), for defendant-appellee Thomas J. Cahill, Trustee in Bankruptcy of Associated Transport, Inc. Before FEINBERG, MANSFIELD and OAKES, Circuit Judges. FEINBERG, Circuit Judge: 1 The conflicting claims of two trustees in bankruptcy, a surety to the bankrupts, an obligor on a two million dollar letter of credit in favor of the surety, and three secured creditors with perfected interested in the accounts receivable of one of the bankrupts form the background for this appeal. The surety, Seaboard Surety Company ("Seaboard"), appeals from an order of Judge Edmund L. Palmieri in the United States District Court for the Southern District of New York, which affirmed an order of Bankruptcy Judge Roy Babitt denying Seaboard the right to benefit from certain setoffs in bankruptcy at least until such time as it has exhausted the proceeds of the letter of credit in the satisfaction of outstanding claims. With certain minor modifications, we affirm. 2 * It is necessary to state the factual and legal history of this case in some detail. Eastern Freight Ways, Inc. ("Eastern") and Associated Transport, Inc. ("Associated"), both of which are now in bankruptcy proceedings, were licensed common carriers of freight regulated by the Interstate Commerce Commission. Under ICC regulations, such trucking firms are allowed to self-insure against various risks subject, in some cases, to the filing of appropriate surety bonds. See 49 C.F.R. Part 1043. For many years, appellant Seaboard had written assorted surety bonds for Associated. When Associated began to run into financial troubles in 1974, these suretyships were collateralized by $600,000 worth of negotiable instruments and other security. Shortly thereafter, subsequent to Eastern's acquisition of control over Associated,1 appellant agreed to act as surety for both Eastern and Associated. The two trucking companies in turn agreed to collateralize Seaboard's obligations under surety bonds issued on behalf of either or both bankrupts, and to indemnify appellant for any and all liabilities incurred under such bonds. Following these agreements, Seaboard released the $600,000 collateral and accepted a $2,000,000 letter of credit from Chase Manhattan Bank2 which, however, purported to cover only Seaboard's liabilities incurred on behalf of Eastern. Still later, Manufacturers Hanover Trust Company, International Harvester Credit Corporation and Fruehauf Corporation, also parties to this litigation, obtained apparently perfected security interests in Eastern's accounts receivable and other assets, which ultimately secured some $4,750,000 in debt. 3 In April 1976, Eastern and Associated each filed a petition for arrangement under Chapter XI of the Bankruptcy Act, 11 U.S.C. §§ 701 et seq., but each was thereafter adjudicated a bankrupt;3 Sidney B. Gluck became the bankruptcy trustee for Eastern. Since at this time approximately 20,000 cargo claims against the bankrupts were outstanding upon which Seaboard was potentially liable, it "drew down" the full $2,000,000 proceeds of the letter of credit.4 Many of those who had such cargo claims against the bankrupts also owed them unpaid freight charges. After drawing down the $2,000,000, Seaboard began notifying the cargo claimants that they should deduct any unpaid freight charges owed to a particular bankrupt from the amount of the cargo claim against that bankrupt. Seaboard's notice stated that, in any event, it would not be liable for more than the difference between these amounts. 4 In September 1976, Eastern's trustee petitioned the bankruptcy judge for an order which would, among other things, require Seaboard to account for all cargo claims pending or paid and the use of the proceeds of the letter of credit, and would enjoin Seaboard from further interfering with the administration of the bankrupt's estate. Seaboard in turn asked the bankruptcy court to declare that it was entitled to use unpaid freight charges as setoffs against the cargo claims. In November 1976, Bankruptcy Judge Babitt issued a temporary restraining order against Seaboard pending further litigation and ordered Seaboard to render the requested accounting. In various colloquies in open court leading up to this order, all parties agreed that the setoff issue should be settled in one litigation before the bankruptcy judge. Pursuant to these discussions, Eastern's trustee commenced an adversary proceeding5 in the bankruptcy court against Seaboard, the three secured creditors referred to above, Chase Manhattan Bank and the Associated trustee, Thomas J. Cahill. 5 The Eastern trustee's complaint sought, in part, (1) a declaration that Seaboard was not entitled (a) to any setoffs whatsoever because of the prior perfected assignment of the accounts receivable; (b) to any setoffs that a cargo claimant had waived by paying in full to Eastern's trustee the freight charges owed the bankrupt; or (c) to any setoff based on a freight charge not arising out of the same transaction giving rise to the cargo claim; and (2) a declaration (a) that Seaboard could apply the proceeds of the letter of credit only against Eastern cargo claims and (b) that Seaboard would have no right to setoffs until such proceeds were properly exhausted.6 After the other defendants had answered,7 Seaboard moved to dismiss the first cause of action described above (and related cross-claims) for failure to state a claim upon which relief could be granted, and to dismiss the second for lack of summary jurisdiction in the bankruptcy court. Seaboard also sought a declaration that it was entitled to the contested setoffs. 6 In a lengthy opinion filed in April 1977, Bankruptcy Judge Babitt granted substantial relief to the trustee. Although the bankruptcy judge did not reach the merits of the issues raised by the first cause of action, he held "that until the proceeds of the letter of credit are exhausted, no right of set off can be claimed by Seaboard, and the trustee is entitled to a declaratory judgment to that effect." Judge Babitt also rejected Seaboard's contentions that the bankruptcy court had no jurisdiction over the allocation of the proceeds, since Seaboard had submitted itself to that jurisdiction by seeking affirmative relief on its claimed right to setoff, "an issue inextricably intertwined with the existence of the proceeds of the letter of credit . . . ." The bankruptcy judge also enjoined8 Seaboard from soliciting setoffs until further order of the court and directed it to render an accounting of the cargo claims. Finally, Judge Babitt ordered an evidentiary hearing, to be stayed pending determination of an appeal, on the issue of allocating the proceeds of the letter of credit. 7 Seaboard appealed to the district court; in October 1977, Judge Palmieri affirmed the bankruptcy judge in a thorough opinion. The district judge agreed that Seaboard had no right to any equitable setoffs until the proceeds of the letter of credit were exhausted, and that the bankruptcy court had jurisdiction to decide how the proceeds were to be applied. The district court based the latter holding, however, not on the bankruptcy judge's rationale of seaboard's implied consent to jurisdiction, but rather on the theory that determination of the proper allocation of the proceeds of the letter of credit "is a necessary prerequisite to the final resolution of the rights of the parties with respect to the setoffs, over which the court clearly has jurisdiction." Lastly, Judge Palmieri concluded that in light of the complex factual and legal issues posed by the conflicting claims of the secured creditors regarding the setoffs, Seaboard's motion to dismiss the trustee's first cause of action for failure to state a claim should be denied. II 8 The parties reiterate these contentions in this court, and focus particularly on whether Seaboard's right to benefit from the setoffs is properly conditioned on exhaustion of the proceeds of the letter of credit and whether the bankruptcy court has jurisdiction to determine allocation of those proceeds. We turn to the setoff issue first, since its resolution affects our analysis of the jurisdictional point. 9 As all parties and both judges recognized, our starting point is Judge Friendly's opinion, captioned In re Yale Express Systems, Inc., 362 F.2d 111 (2d Cir. 1966). In that case, a surety for a trucking company in reorganization under Chapter X, 11 U.S.C. §§ 501 et seq., was found to be entitled to setoffs similar to those sought here, provided that on remand the surety could demonstrate that the setoffs "would be compatible with the requirements of the reorganization . . . ." Id. at 117. Seaboard, which is concededly a surety to the bankrupt trucking firms,9 contends that Yale Express controls in this straight bankruptcy proceeding, where there are no rehabilitative concerns as were present in Yale Express. While Judge Friendly did opine that "had this been an ordinary bankruptcy, it would have been error to deny the applications for setoff," id. at 116, a closer scrutiny of the Yale Express analysis demonstrates that Seaboard is not entitled to such setoffs, at least until the proceeds of the letter of credit are exhausted. 10 Seaboard argues that Yale Express stands for the proposition that "the surety of an insolvent debtor is entitled to have a creditor apply a debt owing to the debtor to satisfaction of his claim . . . ." Id. But the principle just stated is an equitable one, id.; see Restatement of Security § 133, Comment c (1941), especially when applied by the bankruptcy court, which is a court of equity. See Bank of Marin v. England, 385 U.S. 99, 103, 87 S.Ct. 274, 17 L.Ed.2d 197 (1966) (equitable application of seemingly mandatory statutory rule); Pepper v. Litton, 308 U.S. 295, 304-05, 60 S.Ct. 238, 84 L.Ed. 281 (1939). Thus, the crucial question is whether a surety who has dollar for dollar recourse against its principal, albeit an insolvent one, is equitably entitled to setoffs existing between the principal and the principal's debtors. Cf. Tucson House Constr. Co. v. Fulford, 378 F.2d 734, 737 (9th Cir. 1967). We think that this question was properly answered in the negative here. 11 Normally, a surety to an insolvent principal is without recourse against the principal except insofar as the surety may ultimately receive some dividend from the bankruptcy proceedings. If such a surety is forced to pay in full a claim against a bankrupt principal without being permitted to deduct from the amount to be paid the freight charge due from the claimant to the principal, and the claimant then pays the freight charge to the bankrupt's estate, the bankrupt benefits at the surety's expense. Such an inequitable result "is contrary to the fundamental relation between the (principal and surety)." United States ex rel. Johnson v. Morley Constr. Co., 98 F.2d 781, 790 (2d Cir.), cert. denied, 305 U.S. 651, 59 S.Ct. 244, 83 L.Ed.2d 421 (1938), quoted with approval in Yale Express, supra, 362 F.2d at 115. It therefore follows that the surety to a bankrupt should ordinarily be allowed to take the type of setoff sought here. In effect, this creates an equitable lien in favor of the surety over the claimant's natural security against the bankrupt, that is, the right to setoff. Such a rule prevents the bankrupt's unjust enrichment at the expense of the surety. 12 Here, however, the surety has dollar for dollar recourse against the bankrupt principal in the form of the proceeds of the Chase Manhattan letter of credit. Until Seaboard has properly paid out two million dollars worth of cargo claims, the principal cannot benefit at Seaboard's expense, because the latter will retain one dollar of proceeds for every dollar of claim paid. Since it appears that here the principal is "able (up to $2,000,000) to respond to the surety's claim over against him for indemnity," United States ex rel. Johnson v. Morley Constr. Co., supra, 98 F.2d at 790, the rationale for allowing a surety to compel use of an existing setoff does not arise until the proceeds are exhausted. See Clark Car Co. v. Clark, 48 F.2d 169, 170 (3d Cir. 1931). If and when Seaboard exhausts those proceeds, it may well be entitled to the benefit of the setoffs, subject to such priority, if any, as might be accorded to the adverse claims of the secured creditors.10 But since Seaboard is currently protected and since it is not clear that the proceeds of the letter of credit will ever be exhausted,11 both the bankruptcy judge and the district judge correctly held that Seaboard had not established a present right to the setoffs.12 13 Seaboard argues that this view inequitably deprives it of the security of the setoffs to which it was otherwise entitled, simply because it obtained a letter of credit in addition to that security. While this claim has superficial appeal, the right to setoff is inadequate security at best whenever the setoff (the freight charge) is less than the claim against the principal (the cargo claim). Thus, a surety will usually benefit by obtaining collateral to cover its potential liabilities. Indeed, if Seaboard had been fully collateralized, the setoff issue would never have arisen. Seaboard was better off with the letter of credit than with the limited security of the setoffs, which the letter of credit, until exhausted, was designed to replace. Under this view, it is not unfair to require Seaboard to utilize the greater security it obtained. 14 Seaboard also argues that if it is compelled to wait to use the setoffs, it will be unfairly harmed by the order of the bankruptcy court. This could result from the following scenario: The letter of credit is construed to cover claims against both Eastern and Associated, which are estimated substantially to exceed $2,000,000. As Seaboard pays these claims, various claimants fail to utilize their own outstanding liability for freight charges to the bankrupt trucking companies as a setoff against the trustees of those companies, and pay the freight charges in full to the trustees. Thereafter, when Seaboard's payment of cargo claims exceeds $2,000,000, it will lose money on all setoffs not theretofore utilized by the claimants, if appellees are correct in their assertion that such payments in full by cargo claimants waive the surety's setoff rights.13 Without passing on any of these contentions, we note that this possibility exists. Moreover, we were informed at oral argument that the trustee has been paying over the accounts receivable as they are collected to the secured creditors, thereby enhancing the potential for harm to appellant. We therefore modify Bankruptcy Judge Babitt's order to direct the trustee to collect the accounts receivable, but to hold in a special account pending final resolution of this litigation such sums as are collected from shippers who have asserted claims against Seaboard. Such a procedure will help protect appellant by allowing an adjustment of monies and claims between the surety, the bankrupt, and the secured creditors, should Seaboard eventually demonstrate its entitlement to use the setoffs in one form or another. III 15 We turn now to the jurisdictional issue raised by the litigants: Does the bankruptcy court have the power to decide in a summary proceeding whether the letter of credit covers claims against Eastern only or claims against Associated as well?14 As indicated above, the district court held that there was jurisdiction over this issue of allocation of the proceeds of the letter of credit because that question was necessarily intertwined with the setoff issue, over which the bankruptcy court clearly had jurisdiction. Appellant disputes this conclusion and also rejects the various other theories proffered by appellees to justify summary jurisdiction. We now turn to these contentions. 16 Jurisdiction of the bankruptcy courts is generally defined by sections 2 and 23 of the Bankruptcy Act, 11 U.S.C. §§ 11 and 46. These sections taken as a whole limit summary jurisdiction to matters relating to the administration of the bankrupt's estate, property in the court's constructive or actual possession, and other bankruptcy issues to to which the parties expressly or impliedly consent. See, e. g., Katchen v. Landy, 382 U.S. 323, 327, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966); Thompson v. Magnolia Petroleum Co.,309 U.S. 478, 481, 60 S.Ct. 628, 84 L.Ed. 876 (1940); Harris v. Avery Brundage Co., 305 U.S. 160, 164, 59 S.Ct. 131, 83 L.Ed. 100 (1938); see generally 2 Collier on Bankruptcy PP 23.02-.08 (14th ed. 1976). In determining whether a particular controversy falls within the bankruptcy court's summary powers, the courts have recognized that Congress has not rigidly delineated the boundaries of jurisdiction. See Katchen v. Landy, supra, 382 U.S. at 328, 86 S.Ct. 467; see also 1 Collier on Bankruptcy P 2.04, at 147 (14th ed. 1974). Rather, "bankruptcy court jurisdiction has been expanded to meet the exigencies of particular fact situations," Law Research Service, Inc. v. Crook, 524 F.2d 301, 314 (2d Cir. 1975), and "the exact scope of summary proceedings in bankruptcy . . . is a matter to be determined by (reference to case law) after due consideration of the structure and purpose of the Bankruptcy Act as a whole . . . ." Katchen v. Landy, supra, 382 U.S. at 328, 86 S.Ct. at 472. 17 Appellant urges that the trustee must invoke plenary proceedings here because Seaboard holds "possession of the proceeds of the letter of credit as an adverse claimant with a substantial and good faith claim . . . ." If the trustee sought to litigate the surety's right to retain collateral in it possession, then appellant's contention would be persuasive. See Jaquith v. Rowley, 188 U.S. 620, 23 S.Ct. 369, 47 L.Ed. 620 (1903). However, the trustee has expressly denied making a claim to the proceeds of the letter of credit. Moreover, the allocation issue was raised only because of its pivotal importance to the setoff issue. As our analysis in Part II above demonstrates, the right to setoff depends on whether the surety has properly exhausted the $2,000,000 collateral, which in turn may depend upon whether the letter of credit protects Seaboard on claims against both bankrupts or on claims against Eastern only. The setoff issue was clearly within the summary jurisdiction of the bankruptcy court, because the trustee had constructive possession of, and title to, the accounts receivable for freight charges, see section 70(a)(5) of the Bankruptcy Act, 11 U.S.C. § 110(a)(5). This justified the trustee's invocation of summary jurisdiction over any attempt to reduce the amount of the collectible accounts receivable by means of setoffs, whether asserted by a creditor or by the surety. See Cumberland Glass Mfg. Co. v. DeWitt & Co., 237 U.S. 447, 455, 35 S.Ct. 636, 59 L.Ed. 1042 (1915); 2 Collier on Bankruptcy P 23.05(4), at 489 (14th ed. 1976). 18 It follows that the bankruptcy judge had jurisdiction to adjudicate the allocation issue insofar as it was determinative of the setoff issue. Accordingly, we hold that the allocation issue was a "controvers(y) relating to property over which (the bankruptcy court had) actual or constructive possession." Katchen v. Landy, supra, 382 U.S. at 327, 86 S.Ct. at 471, quoting Thompson v. Magnolia Petroleum Co., supra, 309 U.S. at 481, 60 S.Ct. 628. Moreover, the overriding policy of the Bankruptcy Act to administer a bankrupt's estate with expedition15 is best served here by resolving the thoroughly interrelated and interdependent allocation and setoff issues in a single summary proceeding before the bankruptcy judge. See O'Dell v. United States, 326 F.2d 451, 455-56 (10th Cir. 1964); cf. James Talcott, Inc. v. Glavin, 104 F.2d 851, 853 (3d Cir.), cert. denied, 308 U.S. 598, 60 S.Ct. 130, 84 L.Ed. 501 (1939). 19 We also note that Seaboard's filing of a proof of claim against the Eastern estate seemingly justified the bankruptcy court's assertion of jurisdiction here. Cf. Chase Nat. Bank v. Lyford, 147 F.2d 273, 277 (2d Cir. 1945). At least where the claim against the estate exceeds the amount of the contested setoff, it appears that the filing of a proof of claim constitutes implied consent to summary jurisdiction over the setoff issue. See 4 Collier on Bankruptcy P 68.20(4), at 946 (14th ed. 1978). Furthermore, since the size of Seaboard's unsecured claim against Eastern will ultimately depend upon the allocation of the proceeds of the letter of credit, see note 11 supra, the bankruptcy court has jurisdiction to hear the allocation issue which is determinative of the value of the security held by Seaboard as regards Eastern. See Rule of Bankruptcy Procedure 306(d); section 57(h) of the Bankruptcy Act, 11 U.S.C. § 93(h).16 20 Finally, appellant contends that we should direct the bankruptcy judge to decline jurisdiction in order to avoid the appearance of institutional bias in favor of a trustee administering the estate. Whatever strength the argument might have in other contexts, it is unsound here. The Eastern and Associated trustees have taken contrary positions on the allocation issue. Moreover, Seaboard's reliance on In re Lehigh and Hudson River Ry. Co., 468 F.2d 430 (2d Cir. 1972) is misplaced. That case dealt with the question whether the bankruptcy court should exercise summary jurisdiction to order "an obligor to pay something which he has substantial grounds for contending he no longer owed when the (bankruptcy) petition was approved." Id. at 434. This case does not involve a trustee's attempt to recover assets held by the surety, and the considerations involved in Lehigh and Hudson River Ry. Co. are inapplicable. 21 Subject to the modification discussed in Part II concerning the collection of the accounts receivable, the order of the district court is affirmed. The bankruptcy judge should commence hearings on the allocation of proceeds issue as soon as practicable so that all of the setoff issues including the priority claims of the secured creditors, see note 10 supra may be rapidly decided and the collection and distribution of the estate may proceed with expedition. 1 By 1974, Eastern owned over 45 percent of Associated's outstanding stock and was granted temporary authority by the ICC to assume control of Associated's operations 2 We are informed that Manufacturers Hanover Trust Company has a 25 percent interest in this letter of credit 3 Eastern apparently reentered Chapter XI in June 1976, but was again adjudicated a bankrupt in August of that year 4 In addition to the outstanding cargo claims, Seaboard is potentially liable for other claims as well, including workmen's compensation claims. See note 9 infra. For convenience, we will ordinarily refer to the claims against Seaboard as cargo claims 5 See Rules of Bankruptcy Procedure 701-82. Rule 701 provides: The rules of this Part VII govern any proceeding instituted by a party before a bankruptcy judge to (1) recover money or property, other than a proceeding under Rule 220 or Rule 604, (2) determine the validity, priority, or extent of a lien or other interest in property, (3) sell property free of a lien or other interest for which the holder can be compelled to take a money satisfaction, (4) object to or revoke a discharge, (5) obtain an injunction, (6) obtain relief from a stay as provided in Rule 401 or 601, or (7) determine the dischargeability of a debt. Such a proceeding shall be known as an adversary proceeding. 6 The complaint also sought damages for Seaboard's alleged conversion of the bankrupt's accounts receivable in the form of setoffs already taken. This cause of action was dismissed, and that decision is not appealed here 7 Many of the answers contained cross-claims against Seaboard which raised the same issues as the main complaint 8 See Rule of Bankruptcy Procedure 765, which provides: Rule 65 of the Federal Rules of Civil Procedure applies in adversary proceedings except that a temporary restraining order or preliminary injunction may be issued on application of a trustee, receiver, or bankrupt without compliance with subdivision (c) of that rule. When security is required under subdivision (c) of that rule and is given in the form of a bond or other undertaking, Rule 925 governs its enforcement against the surety thereon. 9 Seaboard issued bonds for personal injury, cargo and workmen's compensation claims against Eastern and Associated. Since Seaboard has undertaken these obligations, upon which the two trucking firms were primarily liable, Seaboard was clearly acting as a surety. See Restatement of Security § 82 (1941) 10 The secured creditors claim that the rights of the perfected assignees of the accounts receivable are prior to and superior to the surety's equitable lien over the setoffs. We do not address this point nor do we reach the other questions raised in the trustee's first cause of action. We agree with Judge Palmieri, however, that there are apparently material issues of fact in dispute which may well be determinative of the legal questions involved, and that Seaboard's motion to dismiss this first cause of action was therefore properly denied 11 If the letter of credit is held to protect Seaboard as to Eastern claimants only, the proceeds of the letter of credit will apparently be more than ample to cover Seaboard's approximately $700,000 in liabilities on behalf of Eastern 12 The result here is arguably consistent with the equitable dictates of the marshaling of assets doctrine recognized in bankruptcy. Thus, where one creditor (Seaboard) can reach two funds of the debtor (the proceeds of the letter of credit and the accounts receivable for freight charges in the form of setoffs) and another creditor (e. g., Manufacturers Hanover) can only reach one of those two funds (the accounts receivable), a bankruptcy court will require the first creditor initially to attempt to satisfy his claim out of the asset unavailable to the second creditor. See In re Beacon Distributors, Inc., 441 F.2d 547, 548 (1st Cir. 1971) 13 Appellees contend that the cargo claimant waives his right to setoff, see section 68(a) of the Bankruptcy Act, 11 U.S.C. § 108(a), by choosing to pay the freight charge in full and pursue the surety for the full amount of the cargo claim. See 4 Collier on Bankruptcy P 68.07 (14th ed. 1978). If such payments in full here waive the cargo claimants' rights (a point upon which we express no opinion), it perhaps follows that the surety's right to setoff is also waived because the surety's rights are arguably derivative of the cargo claimants' rights. See United States ex rel. Johnson v. Morley Constr. Co., supra, 98 F.2d at 790: However, it is only after the surety pays the creditor that he is subrogated to all the creditor's securities, and that would be a condition here, except that the surety cannot pay the debt without losing the security, for it consists only of the creditor's power to defeat the counterclaim by using his claim to cancel it. Therefore to exact of the surety the normal condition of paying the debt, would be to destroy the security, and it follows that he must be allowed to set it up himself. See also section 57(i) of the Bankruptcy Act, 11 U.S.C. § 93(i). 14 Basically, summary proceedings are expedited and simplified judicial proceedings before the bankruptcy judge over matters relating to the administration of the bankrupt's estate and property in the court's possession. If such jurisdiction does not exist and an adverse party is unwilling to consent to summary jurisdiction, then the trustee must initiate more formalized plenary proceedings in the appropriate state or federal court. Significantly, there are no rights to a jury in summary proceedings, except as provided by section 19 of the Bankruptcy Act, 11 U.S.C. § 42. See generally 2 Collier on Bankruptcy P 23.02 (14th ed. 1976) 15 See Katchen v. Landy, supra, 382 U.S. at 328-29, 86 S.Ct. 467 16 Our result here is strongly supported by appellant's express consent to litigate the setoff issue before the bankruptcy court. There is much force to appellees' arguments that such consent should be dispositive of appellant's jurisdictional objection, because, as already stated, the setoff issue depends upon the proper exhaustion of the proceeds of the letter of credit. Furthermore, as Eastern's trustee points out, it is somewhat anomalous for appellant to concede that the bankruptcy court could decide one side of the question but not the other. Indeed, "(o)nce consent to the summary jurisdiction of the bankruptcy court appears, that jurisdiction generally will be retained for the determination of all the claims of the parties and for the enforcement of all their rights against each other." 2 Collier on Bankruptcy P 23.08(1), at 536 (14th ed. 1976). Nor is this a case in which the issues are "entirely disconnected" so that consent as to one matter might not be considered consent as to another matter. See Daniel v. Guaranty Trust Co., 285 U.S. 154, 161, 76 L.Ed. 675 (1932)

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-79,045-01 EX PARTE PAUL DOUGLAS GATES, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. F-1045830-L IN CRIMINAL DISTRICT COURT NO. 5 FROM DALLAS COUNTY Per curiam. O R D E R Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated robbery and sentenced to forty-five years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Gates v. State, No. 05-11-00404-CR (Tex. App.--Dallas 2011, no pet.). Applicant contends that appellate counsel failed to timely inform him that his conviction had been affirmed and that he could file a pro se petition for discretionary review (PDR). Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). The trial court concluded that appellate counsel was not ineffective and recommended that we dismiss this application under Article 11.07, § 4 of the Code of Criminal Procedure. (1) We believe that the record should be further developed. The trial court shall order appellate counsel to respond to Applicant's claim and state whether he filed a compliance letter, Tex. R. App. P. 48.4, and he timely informed Applicant that his conviction had been affirmed and that he could file a pro se PDR. The trial court shall also order an authorized person at the Correctional Institutions Division of the Texas Department of Criminal Justice to respond and state whether Applicant received correspondence from appellate counsel between March 9 and April 15, 2012. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04. The trial court shall make further findings of fact and conclusions of law as to whether appellate counsel timely informed Applicant that his conviction had been affirmed and that he had a right to file a pro se PDR. If the trial court finds that appellate counsel did so, the trial court shall also make findings and conclusions as to when, if at all, Applicant received appellate counsel's letter. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief. This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court. Filed: February 27, 2013 Do not publish 1. This is not a subsequent application under Article 11.07, § 4. It is an initial application and does not challenge the conviction or sentence. Ex parte Torres, 943 S.W.2d 469, 474 (Tex. Crim. App. 1997).

194 U.S. 458 (1904) MATTER OF CHRISTENSEN ENGINEERING COMPANY. No. 15, Original. Supreme Court of United States. Submitted April 25, 1904. Decided May 31, 1904. IN THE SUPREME COURT OF THE UNITED STATES. *459 Mr. W.A. Jenner for petitioner. Mr. Frederic H. Betts for respondent. MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court. The examination in Bessette v. W.B. Conkey Company, 194 U.S. 324, just decided, of the right of review in contempt cases precludes the necessity of extended discussion. In that case Bessette was not a party to the suit, and the controversy had been settled by a final decree, from which, so far as appeared, no appeal had been taken. He was found guilty of contempt of court, and a fine of $250 imposed, payable to the United States, with costs. In this case the Christensen Engineering Company was a party. The contempt was disobedience of a preliminary injunction and the judgment in contempt was intermediate the preliminary injunction and the decree making it permanent. The fine was payable, one-half to the United States, and the other half to the complainant. The distinction between a proceeding in which a fine is imposed by way of compensation to the party injured by the disobedience, and where it is by way of punishment for an act done in contempt of the power and authority of the court, is pointed out in Bessette's case, and disclosed by some of the cases referred to in the opinion. In New Orleans v. Steamship Company, 20 Wall. 387, the act in contempt was by one not then a party to the suit. No order was entered against him until the final decree in the case, *460 and then he was punished for the act of disobedience, purely as an act of a criminal nature, and without compensation to the plaintiff in whose favor the injunction was originally ordered. No review under the then existing law was allowable. In Hayes v. Fischer, 102 U.S. 121, the contempt proceeding was remedial and compensatory, and the entire amount of the fine was ordered paid to the plaintiff in reimbursement. It was held that, if the remedial feature was alone to be considered, and the proceeding regarded as a part of the suit, it could not be brought to this court by writ of error, but could only be corrected on appeal from the final decree; if to be regarded as a criminal action, then it was one of which this court had no jurisdiction, either by writ of error or appeal. In Ex parte Debs et al., 159 U.S. 251, there was nothing of a remedial or compensatory nature. No fine was imposed, but only a sentence of imprisonment. This court had no jurisdiction of a writ of error in such a case. And see O'Neal v. United States, 190 U.S. 36. In Worden v. Searls, 121 U.S. 14, the proceeding was remedial and compensatory, in that for violations of a preliminary injunction the defendants were ordered to pay the plaintiff $250 "as a fine for said violation," by one order, and, by another order, to pay a fine of $1,182 to the clerk, to be paid over by him to the plaintiff for "damages and costs," the $1,182 being made up of $682 profits made by the infringement, and $500 expenses of plaintiff in the contempt proceedings. These interlocutory orders were reviewed by this court on appeal from the final decree, and as that decree was reversed, the orders were also set aside, this being done "without prejudice to the power and right of the Circuit Court to punish the contempt referred to in those orders, by a proper proceeding." It was also said "that, though the proceedings were nominally those of contempt, they were really proceedings to award damages to the plaintiff, and to reimburse to him his expenses." These authorities show that when an order imposing a fine for violation of an injunction is substantially one to reimburse *461 the party injured by the disobedience, although called one in a contempt proceeding, it is to be regarded as merely an interlocutory order, and to be reviewed only on appeal from the final decree. In the present case, the fine payable to the United States was clearly punitive and in vindication of the authority of the court, and, we think, as such it dominates the proceeding and fixes its character. Considered in that aspect, the writ of error was justified, and the Circuit Court of Appeals should have taken jurisdiction. Petitioner entitled to mandamus.

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 10/11/2019 01:06 AM CDT - 933 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 State of Nebraska on behalf of K aaden S., a minor child, appellee, v. Jeffery T., appellant, and M andy S., appellee. ___ N.W.2d ___ Filed August 30, 2019. No. S-17-1210. 1. Paternity: Appeal and Error. In a filiation proceeding, questions con- cerning child custody determinations are reviewed on appeal de novo on the record to determine whether there has been an abuse of discretion by the trial court, whose judgment will be upheld in the absence of an abuse of discretion. 2. Judges: Words and Phrases. A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriv- ing a litigant of a substantial right and denying just results in matters submitted for disposition. 3. Evidence: Appeal and Error. In a de novo review, when the evidence is in conflict, the appellate court considers, and may give weight to, the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another. 4. Child Custody: Visitation. The Parenting Act does not require any particular parenting time schedule to accompany an award of either sole or joint physical custody, and there exists a broad continuum of possible parenting time schedules that can be in a child’s best interests. 5. Child Custody: Visitation: Words and Phrases. An alternating week- on-week-off parenting time schedule requires the child to spend roughly the same amount of time at each parent’s residence and allows both parents to exert continuous blocks of parenting time for significant periods of time, and thus meets the statutory definition of joint physi- cal custody. 6. Child Custody: Visitation. Where a parenting plan effectively estab- lishes a joint physical custody arrangement, courts will so construe it, regardless of how prior decrees or court orders have characterized the arrangement.  - 934 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 7. Divorce: Child Custody. The Parenting Act authorizes a trial court to award joint custody in dissolution actions if the court specifically finds, after a hearing in open court, that joint physical custody or joint legal custody, or both, is in the best interests of the minor child regardless of any parental agreement or consent. 8. Courts: Appeal and Error. The doctrine of stare decisis requires that appellate courts adhere to their previous decisions unless the reasons therefor have ceased to exist, are clearly erroneous, or are manifestly wrong and mischievous or unless more harm than good will result from doing so. The doctrine is entitled to great weight, but it does not require courts to blindly perpetuate a prior interpretation of the law if it was clearly incorrect. 9. Child Custody: Judges. A blanket rule disfavoring joint physical cus- tody is inconsistent with the Parenting Act and unnecessarily constrains the discretion of trial judges in some of the most important and difficult decisions they are called upon to make. 10. Child Custody. Joint physical custody is neither favored nor disfavored under Nebraska law. In fact, no custody or parenting time arrangement is either favored or disfavored as a matter of law. 11. ____. When determining the best interests of the child in deciding cus- tody, a court must consider, at a minimum, (1) the relationship of the minor child to each parent prior to the commencement of the action; (2) the desires and wishes of a sufficiently mature child, if based on sound reasoning; (3) the general health, welfare, and social behavior of the child; (4) credible evidence of abuse inflicted on any family or household member; and (5) credible evidence of child abuse or neglect or domestic intimate partner abuse. 12. Visitation. The Parenting Act provides that the best interests of a child require a parenting plan that provides for a child’s safety, emo- tional growth, health, stability, physical care, and regular school attend­ ance, and which promotes a child’s continued contact with his or her families and parents who have shown the ability to act in the child’s best interests. 13. ____. When determining the allocation of parenting time that is in a child’s best interests, a trial court should consider the parties’ ability to communicate on issues such as transportation, homework, discipline, medical and dental appointments, and extracurricular activities. Other relevant considerations include stability in the child’s routine, mini- malization of contact and conflict between the parents, and the general nature and health of the individual child. The fact that one parent might interfere with the other’s relationship with the child is also a factor to consider, but is not a determinative factor.  - 935 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 14. Child Support: Rules of the Supreme Court. The Nebraska Child Support Guidelines require child support orders to address how the par- ents will provide for the child’s health insurance. 15. ____: ____. Neb. Ct. R. § 4-215(B) of the Nebraska Child Support Guidelines estimates $480 as an ordinary amount of nonreimbursed medical expenses, and that figure is then subsumed within the amount of child support that is ordered. Any nonreimbursed expenses exceeding $480 are prorated between the parties. 16. ____: ____. Child support payments should generally be set according to the child support guidelines. Petition for further review from the Court of Appeals, Pirtle, R iedmann, and Welch, Judges, on appeal thereto from the District Court for Jefferson County, R icky A. Schreiner, Judge. Judgment of Court of Appeals affirmed in part as modi- fied, and in part reversed and remanded with directions. Ronald R. Brackle for appellant. Angelica W. McClure, of Kotik & McClure Law, for appel- lee Mandy S. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Stacy, J. In this paternity action, the district court awarded primary legal and physical custody of a minor child to the father and awarded the mother nearly equal parenting time. Child support was calculated using a joint custody worksheet, and the father was ordered to pay monthly support. The father appealed, assigning multiple errors, including that the award of nearly equal parenting time was, in effect, an award of joint physical custody and was an abuse of discretion. The Nebraska Court of Appeals agreed, and it reversed and remanded with directions to modify the mother’s parenting time so it was “consistent with an award of primary physical custody” to the father.1 In 1 State on behalf of Kaaden S. v. Jeffery T., 26 Neb. App. 421, 430, 920 N.W.2d 39, 48 (2018).  - 936 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 doing so, the Court of Appeals relied on Nebraska precedent holding that joint physical custody is disfavored and should be reserved for rare cases.2 We granted the mother’s petition for further review to reexamine that precedent.3 We now hold that a blanket rule disfavoring joint physical custody is inconsistent with the Parenting Act,4 which requires that all determinations of custody and parenting time be based on factors affecting the best interests of the child. We thus disapprove of our prior rule disfavoring joint physical custody, and we clarify that Nebraska law neither favors nor disfa- vors any particular custody arrangement and instead requires all such determinations to be based on the best interests of the child. When the custody and parenting time in the instant case are reviewed under this standard, we find no abuse of discretion. We thus reverse the Court of Appeals’ determination to the contrary and remand the matter with directions to affirm the judgment of the district court as it regards custody, parenting time, and child support. I. FACTS Kaaden S. was born to Mandy S. and Jeffery T. in June 2014. The parents did not have a dating relationship either before or after conception. Mandy notified Jeffery of her pregnancy, and Jeffery was at the hospital on the day Kaaden was born. In February 2015, the State filed a paternity action against Jeffery in the district court for Jefferson County, including Mandy as a third-party defendant. Jeffery’s answer admitted paternity, and he filed a cross-claim against Mandy seeking 2 State on behalf of Kaaden S., supra note 1, citing Erin W. v. Charissa W., 297 Neb. 143, 897 N.W.2d 858 (2017). 3 See, e.g., Erin W., supra note 2; Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007); Trimble v. Trimble, 218 Neb. 118, 352 N.W.2d 599 (1984); Aguilar v. Schulte, 22 Neb. App. 80, 848 N.W.2d 644 (2014). 4 Neb. Rev. Stat. §§ 43-2920 to 43-2943 (Reissue 2016 & Cum. Supp. 2018).  - 937 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 joint legal and physical custody of Kaaden and asking that Kaaden’s surname be changed. Mandy’s responsive pleading admitted Jeffery was Kaaden’s father and requested sole legal and physical custody of Kaaden. Genetic testing later con- firmed Jeffery was Kaaden’s biological father. In July 2015, the district court entered an order finding Jeffery was Kaaden’s father, but reserved the issues of custody, parenting time, and child support pending further hearing. Approximately 1 year later, when Kaaden was nearly 2 years old, the district court entered an order establishing temporary child support and parenting time. The temporary order allowed Jeffery supervised, nonovernight visits for 60 days and then progressed to give Jeffery parenting time every other weekend and on Wednesday evenings. Mandy did not comply with the temporary order and con- sistently refused to allow Jeffery overnight parenting time with Kaaden. Jeffery sought to have Mandy held in contempt of court for failing to comply with the temporary order, and the contempt matter was set to be taken up at the time of trial. Generally, as Jeffery’s parenting time with Kaaden increased, the quality of the interaction between Mandy and Jeffery decreased. In November 2016, Jeffery made an audio recording of a particularly contentious interaction with Mandy that occurred during an exchange of Kaaden. In the record- ing, Mandy can be heard yelling at Jeffery and belittling his attempts to build a relationship with Kaaden. During this interaction, Mandy pepper-sprayed Jeffery in the face and then called police to report she had been assaulted. Jeffery played the recording for the officers, and no arrest was made. After this incident, it became even more difficult for Mandy and Jeffery to communicate. Exchanges for parenting time occurred at the sheriff’s office, but remained contentious. The parties twice attempted to mediate the issues of custody, parenting time, and child support, but both times, Mandy refused to sit in the same room with Jeffery and no agreement was reached.  - 938 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 1. Trial In May 2017, trial was held on the issues of custody and parenting time, child support, and contempt of the temporary order. Jeffery, whose pleadings originally had requested joint custody, sought primary physical custody of Kaaden at trial. He testified that if awarded primary custody, he would support Mandy and Kaaden’s relationship and adhere to any parenting time order imposed. He also asked that Kaaden’s surname be changed to his surname. Mandy testified that she did not think joint custody would work because she and Jeffery did not communicate well, though she thought that would improve once the litigation was concluded. She asked to be awarded sole legal and physical custody of Kaaden and proposed that Jeffery have parenting time every other weekend. She requested continued child sup- port and opposed changing Kaaden’s surname. Mandy admitted she had not adhered to the parenting plan under the temporary order, but she testified that Kaaden was scared and did not want to have visits with Jeffery. She said that around the time that Jeffery’s parenting time was to increase under the tempo- rary order, Kaaden began exhibiting behavioral problems, so she took him to see a counselor. Kaaden’s counselor testified at trial. She initially diagnosed Kaaden with “separation trauma and extreme anxiety,” but testified he showed significant growth over the 5 months she worked with him. The counselor had no concerns about Mandy as a custodial parent, but offered the opinion that it was best for Kaaden that contact between Mandy and Jeffery be limited. According to the counselor, Mandy had “significant unresolved issues” toward Jeffery, and she recommended Mandy partici- pate in treatment to address it. The counselor had no opinion on the feasibility of joint custody, but did have a recommenda- tion regarding future parenting time. She recommended that after a transition period, Jeffery’s parenting time should be “week on, week off . . . until [Kaaden] reaches middle school grade age.”  - 939 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 Before trial, the court appointed an attorney to serve as the guardian ad litem (GAL) for Kaaden. The GAL attended trial but did not testify. Instead, she was ordered by the court to sub- mit a recommendation and written report, which was received into evidence after trial. No party objected to this procedure before the trial court. The GAL’s report detailed that she had met with both par- ties and their counsel, visited Kaaden at both parties’ homes, observed exchanges of Kaaden during parenting time, and interviewed more than a dozen people including a nationally recognized expert in the area of parental alienation, members of Mandy’s family, and friends and acquaintances of Jeffery. The GAL described the case as “one of the most difficult cases [she had] worked on in 20 years of being appointed as a [GAL].” Her report stated she was “completely confident in making the recommendation that Kaaden’s primary physical custody be awarded to . . . Jeffery.” The GAL believed that Mandy’s “loathing” of Jeffery was harmful to Kaaden and that Mandy’s pattern of “parental alienation” was unlikely to change. The GAL expressed the opinion that “it would be in Kaaden’s best interests to be in a parent’s custody [who] is going to make a good faith effort to work with the other parent and not sabotage Kaaden’s relationship with that parent.” (a) Custody and Parenting Time The trial court’s order summarized the evidence adduced at trial and generally found that both parents were fit and had formed a good relationship with Kaaden. But the court noted: The complicating factor in this matter is the lack of a relationship between the parents, both prior to Kaaden’s conception and continuing, and the obvious resentment Mandy has towards Jeff[er]y and the situation in which she now finds herself. Mandy testified that she believes Kaaden needs his father in his life and does not believe that Jeffery abuses Kaaden in any fashion, although she . . . appears to do everything she can to limit or monitor Jeff[er]y and Kaaden’s relationship. The record reflects  - 940 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 that she has done everything in her power to prevent Jeff[er]y from being a father to Kaaden by contesting and litigating every attempt he has made to do so. Mandy’s testimony at trial indicated that while she wanted to be a mother at some point in her life she did not envi- sion it happening in this fashion nor was this part of her plan. That said, it’s obvious she loves Kaaden. Her anger towards Jeff[er]y, unfortunately, clouds her judg- ment regarding what is in Kaaden’s best interests at times, especially when it comes to allowing Jeffery to be involved in his life. Mandy and Jeff[er]y both provide safe and appropriate homes for Kaaden where he enjoys a healthy diet, has a bed to sleep in, and toys and activities to keep him occu- pied and engaged. .... The court has addressed the parties, on the record, dur- ing the pendency of this matter. Each time I addressed them I tried to remind them that Kaaden’s interests are best served by having both of his parents involved in his life, and tried to encourage Mandy to see past her hurt, fear, and anger and allow Kaaden to have his father in his life. Unfortunately, the report from [the GAL] indicates those words went in one ear and out the other because nothing has changed with her behavior. It appears she is still putting more value on her hate and anger than she is on Kaaden’s ability to have a father actively engaged in his life and the benefits of that relationship. For the reasons stated above, as well as the firm belief that doing so best ensures compliance with the order of custody so that Kaaden can enjoy the full benefits of having both parents involved in his life to the greatest degree possible, the court finds that it is in Kaaden’s best interests that primary legal and primary physical custody be awarded to . . . Jeff[er]y . . . subject to liberal parenting time with . . . Mandy . . . .  - 941 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 The decree awarded Jeffery “primary legal and primary physical care, custody and control” of Kaaden, pursuant to a court-created parenting plan. The parenting plan described the custody award as follows: The father shall have sole legal and physical custody of the minor child and, as such, shall have the legal respon- sibility and authority to make final decisions concerning the parenting functions necessary to raising the child. . . . The principal place of residence (physical custody) of the child shall be with the father, (custodial parent) subject to the terms of this Plan. The court-created parenting plan provided that after a brief transition period, Mandy and Jeffery would have parenting time in alternating 1-week blocks. Exchanges were to occur each Friday at 6 p.m. at the sheriff’s office. The plan addressed holidays and gave each parent 2 uninterrupted weeks of sum- mer parenting time. (b) Child Support and Nonreimbursed Health Care Costs The court used worksheet 3 of the Nebraska Child Support Guidelines, the joint custody worksheet, to calculate child sup- port, and the completed worksheet was attached to the decree. In allocating the number of overnights for each parent (line 5 on the worksheet), the court attributed 182 days to Mandy and 183 days to Jeffery. Jeffery was ordered to pay child sup- port of $93 per month and to provide health insurance for Kaaden. He was also ordered to pay the first $480 of Kaaden’s nonreimbursed reasonable and necessary health care expenses each year, and Mandy was ordered to pay 50 percent of such expenses in excess of $480. (c) Name Change, Contempt, and Attorney Fees Jeffery’s request to change Kaaden’s surname was denied. The court found Mandy in willful contempt for failing to comply with the terms of the temporary order and imposed a  - 942 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 sanction of $50, but did not impose a purge plan. Finally, the court declined to award attorney fees and ordered the parties to pay their own fees and costs. 2. Court of A ppeals Jeffery appealed, assigning that the district court erred in (1) ordering equal parenting time, (2) calculating child sup- port using the joint custody worksheet, (3) ordering him to pay the first $480 in nonreimbursed health care expenses, (4) refusing to change Kaaden’s surname, (5) imposing a nominal fine for Mandy’s contempt, and (6) denying his request for attorney fees. The Court of Appeals found no merit to the arguments regarding the name change or attorney fees. But it agreed with Jeffery that the district court erred in its determinations regard- ing parenting time, child support, nonreimbursed health care expenses, and contempt. We summarize the court’s reason- ing below. (a) Custody and Parenting Time Before the Court of Appeals, Jeffery claimed the district court’s parenting plan was “essentially a Joint Physical Custody Plan,”5 which he argued was an abuse of discretion. The Court of Appeals agreed. It acknowledged that the district court had awarded primary physical custody to Jeffery, but it concluded that by giving Mandy nearly equal parenting time, the district court effectively imposed “the standard joint physical custody arrangement.”6 In considering whether such an arrangement was an abuse of discretion, the Court of Appeals relied on this court’s precedent which holds: Joint physical custody should be reserved for those cases where, in the judgment of the trial court, the parents are of such maturity that the arrangement will not operate to 5 Brief for appellant at 22. 6 State on behalf of Kaaden S., supra note 1, 26 Neb. App. at 431, 920 N.W.2d at 49.  - 943 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 allow the child to manipulate the parents or confuse the child’s sense of direction, and will provide a stable atmos­ phere for the child to adjust, rather than perpetuating tur- moil or custodial wars.7 The Court of Appeals found that Mandy and Jeffery had “vir- tually no ability to communicate with each other regarding Kaaden”8 and concluded it was an abuse of discretion to estab- lish a parenting time schedule that amounted to joint physi- cal custody. It thus affirmed the award of primary legal and physical custody to Jeffery, but reversed the parenting plan and remanded the matter to the district court to implement a parent- ing time schedule “consistent with an award of primary physi- cal custody to Jeffery.”9 It did not indicate what the parameters of such a plan must be. (b) Child Support and Medical Expenses Because the matter was being remanded to reduce Mandy’s parenting time, the Court of Appeals also found the trial court’s use of the joint custody worksheet to calculate child support was in error. It therefore reversed the child support award and remanded the matter for recalculation “using the appropriate worksheet.”10 The Court of Appeals also reversed the provision in the decree requiring Jeffery to pay the first $480 of Kaaden’s nonreimbursed health care expenses. It rea- soned that children’s health care expenses are specifically included in the child support guidelines amount of up to $480 per child per year11 and that consequently, any nonreimbursed health care costs up to $480 were subsumed within the amount of child support ordered.12 It directed the trial court, upon 7 Id., citing Erin W., supra note 2. 8 Id. at 433, 920 N.W.2d at 50. 9 Id. at 430, 920 N.W.2d at 48. 10 Id. at 433, 920 N.W.2d at 50. 11 See Neb. Ct. R. § 4-215(B) (rev. 2011). 12 See, id.; State on behalf of Martinez v. Martinez-Ibarra, 281 Neb. 547, 797 N.W.2d 222 (2011).  - 944 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 recalculating child support to reflect Mandy’s reduced parent- ing time, to then allocate nonreimbursed health care costs in excess of $480 accordingly. (c) Name Change, Contempt, and Attorney Fees Although not directly relevant to this petition for further review, we note that the Court of Appeals affirmed the dis- trict court’s refusal to change Kaaden’s surname, affirmed the district court’s denial of Jeffery’s request for attorney fees, and found that the district court committed plain error with respect to the unconditional sanction imposed for Mandy’s contempt. Our opinion on further review does not affect those findings. We granted Mandy’s petition for further review. II. ASSIGNMENTS OF ERROR On further review, Mandy assigns, restated, that the Court of Appeals erred in (1) reversing the parenting plan and remand- ing the matter with instructions to reduce Mandy’s parenting time, (2) finding the record did not support joint physical custody when the district court created a parenting plan that gave Mandy “de facto”13 joint physical custody, and (3) revers- ing the child support calculation and the requirement that Jeffery pay the first $480 of Kaaden’s nonreimbursed health care expenses. III. STANDARD OF REVIEW [1,2] In a filiation proceeding, questions concerning child custody determinations are reviewed on appeal de novo on the record to determine whether there has been an abuse of discretion by the trial court, whose judgment will be upheld in the absence of an abuse of discretion.14 A judicial abuse of discretion exists if the reasons or rulings of a trial judge 13 Brief for appellee Mandy S. in support of petition for further review at 2. 14 Cesar C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (2011).  - 945 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 are clearly untenable, unfairly depriving a litigant of a sub- stantial right and denying just results in matters submitted for disposition.15 [3] In such de novo review, when the evidence is in con- flict, the appellate court considers, and may give weight to, the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another.16 IV. ANALYSIS In her first two assignments of error, Mandy argues the Court of Appeals erred in reversing the parenting time schedule and remanding the matter with directions to reduce her parent- ing time. After reexamining our jurisprudence, we agree. As noted, the district court awarded Jeffery “primary” legal and physical custody of Kaaden and imposed a parenting plan that gave Mandy nearly equal parenting time. The Court of Appeals relied on its own precedent17 and precedent from this court18 to conclude that an award of nearly equal parenting time amounted to an award of de facto joint physical custody. It found such a custody arrangement was an abuse of discre- tion, relying on the legal proposition that joint physical cus- tody is disfavored and should be reserved for rare cases.19 We granted further review to reexamine that proposition. Before doing so, we set out the legal framework that governs child custody determinations in Nebraska. 1. Legal Custody Under the Parenting Act adopted by the Nebraska Legislature, the concept of child custody encompasses both “legal custody and physical custody.”20 “Legal custody” focuses entirely on 15 Leners v. Leners, 302 Neb. 904, 925 N.W.2d 704 (2019). 16 Cesar C., supra note 14. 17 Hill v. Hill, 20 Neb. App. 528, 827 N.W.2d 304 (2013). 18 Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999). 19 See, Erin W., supra note 2; Aguilar, supra note 3. 20 § 43-2922(7).  - 946 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 decisionmaking authority and is defined as “the authority and responsibility for making fundamental decisions regard- ing the child’s welfare, including choices regarding education and health.”21 Here, Jeffery was awarded Kaaden’s legal custody, and no party disputes that award. As such, Jeffery has the final say on fundamental decisions regarding Kaaden’s welfare, such as where he attends school, his religious upbringing, and how his health and medical needs are met.22 Because Kaaden’s legal custody is not at issue in this appeal, we focus our analysis on the issues of physical custody and parenting time. 2. Physical Custody and Parenting Time “Physical custody” is defined by the Parenting Act as “authority and responsibility regarding the child’s place of residence and the exertion of continuous parenting time for significant periods of time.”23 As such, although the Parenting Act does not speak in terms of “sole” or “primary” physical custody, it contemplates that an award of physical custody will determine the child’s primary residence and identify the parent who will exert “significant” and “continuous” parenting time over the child.24 “Joint physical custody” as defined by the Parenting Act means “mutual authority and responsibility of the parents regarding the child’s place of residence and the exertion of continuous blocks of parenting time by both parents over the child for significant periods of time.”25 The Parenting Act does not further define either “significant periods of time” or “con- tinuous blocks,” but it does define “parenting time.”26 21 § 43-2922(13). 22 See id. 23 § 43-2922(20). 24 See id. 25 § 43-2922(12). 26 See id.  - 947 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 “Parenting time” is defined under the Parenting Act as “communication or time spent between the child and parent.”27 And the Parenting Act makes clear that regardless of the physi- cal custody arrangement, when parents are exercising parenting time, they are performing “[p]arenting functions.”28 Parenting functions are defined to include maintaining a safe, stable, consistent, and nurturing relationship with the child; attending to the child’s ongoing developmental needs, including feed- ing, clothing, grooming, emotional stability, and appropriate conflict resolution skills; attending to adequate education for the child; assisting the child in maintaining a safe, positive, and appropriate relationship with each parent and other family members; minimizing the child’s exposure to harmful parental conflict; assisting the child in developing skills to maintain safe, positive, and appropriate interpersonal relationships; and exercising support for social, academic, athletic, or other spe- cial interests.29 [4] The Parenting Act does not require any particular par- enting time schedule to accompany an award of either sole or joint physical custody, and there exists a broad continuum of possible parenting time schedules that can be in a child’s best interests. Nebraska has a number of appellate cases in which the parties disagreed over whether a particular custody and parenting time arrangement was properly characterized as sole physical custody with liberal parenting time or as joint physi- cal custody.30 But in this case, that analysis is not difficult, and both parties concede the court effectively imposed a joint physical custody arrangement. We agree. [5] The district court awarded the parents nearly equal par- enting time in the form of an alternating week-on-week-off 27 § 43-2922(19). 28 § 43-2922(17). 29 Id. 30 See, e.g., Dooling v. Dooling, ante p. 494, ___ N.W.2d ___ (2019); Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (2017); McDonald v. McDonald, 21 Neb. App. 535, 840 N.W.2d 573 (2013); Hill, supra note 17.  - 948 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 schedule. Such a schedule requires Kaaden to spend roughly the same amount of time at each parent’s residence and allows both parents to exert continuous blocks of parenting time for significant periods of time, and thus meets the statutory defini- tion of joint physical custody.31 [6] Where a parenting plan effectively establishes a joint physical custody arrangement, courts will so construe it, regardless of how prior decrees or court orders have charac- terized the arrangement.32 In several cases, we have looked past the labels used by the trial court when describing the physical custody arrangement and have focused instead on the actual terms of the parenting plan adopted by the court.33 Such cases illustrate that it is the trial court’s allocation of parent- ing time that drives the physical custody label, not the other way around. We therefore agree with the parties and the Court of Appeals that regardless of the label used in the decree and parenting plan to describe physical custody, the trial court here effec- tively imposed a joint physical custody arrangement by creat- ing a week-on-week-off parenting time schedule.34 For the sake of clarity, we modify the language of the decree and parenting plan to reflect this holding. We turn next to the question whether, by effectively impos- ing a joint physical custody arrangement, the trial court abused its discretion. The Court of Appeals concluded it did, citing our 31 Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018) (parenting plan establishing every-other-week parenting time schedule with equal time over summer break meets statutory definition of joint physical custody regardless of label used by trial court). 32 See, id.; Elsome, supra note 18. 33 See, e.g., Dooling, supra note 30, ante at 517, ___ N.W.2d at ___ (“the label that a court uses is not controlling and . . . the classification of a custody arrangement is ultimately dictated by parenting time”); Becher, supra note 31, 299 Neb. at 225, 908 N.W.2d at 29 (“the labels make little difference” when parenting plan sets forth parent’s rights and responsibilities). 34 See id.  - 949 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 cases that generally disfavor joint physical custody arrange- ments, especially when there is evidence the parents have diffi- culty communicating.35 The time has come to reexamine those cases, and we turn to that discussion now. 3. Trimble v. Trimble One of the first times this court addressed the concept of joint physical custody was in Trimble v. Trimble,36 decided in 1984. In that case, the trial court awarded physical custody of two young children to the mother, finding she had “spent a great deal more of her time with the children, has the more pre- dictable work and leisure schedule, and was more concerned with the children’s education.”37 On appeal, the father argued it was error not to award joint physical custody. Trimble noted that “in a given case joint custody might very well act to preserve the parent-child bond for both parents and thus avoid the severance of either of the attachments.”38 But without citation or further explanation, Trimble opined: We believe, however, that such arrangements must be reserved for the most rare of cases, i.e., where in the judg- ment of the trial court the parents are of such maturity that the arrangement will not operate to allow the child to manipulate the parents or confuse the child’s sense of direction. A collateral question exists as to why those most ideal of parents, who would satisfactorily cope with the conflicts inherent in a joint child custody arrange- ment, came to be divorced in the first instance. . . . We are not prepared to reject the concept of joint custody, but are not prepared to state that it should be a regular tool in the remedies of the district courts.39 35 See, e.g., Erin W., supra note 2; Zahl, supra note 3; Trimble, supra note 3; Aguilar, supra note 3. 36 Trimble, supra note 3. 37 Id. at 119, 352 N.W.2d at 600. 38 Id. at 119, 352 N.W.2d at 600-01. 39 Id. at 120, 352 N.W.2d at 601.  - 950 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 Trimble was decided at a time when Nebraska law did not distinguish between legal and physical custody, so many of our opinions applying Trimble described a blanket rule that “joint custody” is disfavored and must be reserved for the rar- est of cases.40 More recently, articulation of the Trimble rule has focused on joint physical custody; in Zahl v. Zahl,41 we described the rule this way: [J]oint physical custody must be reserved for those cases where, in the judgment of the trial court, the parents are of such maturity that the arrangement will not operate to allow the child to manipulate the parents or confuse the child’s sense of direction, and will provide a stable atmos­ phere for the child to adjust, rather than perpetuating tur- moil or custodial wars. Trimble and Zahl use different phrasing but stand for the same blanket proposition—that joint custody arrangements are generally disfavored and should be reserved for rare or spe- cial cases. 4. R evisiting Trimble [7] Recently, in Leners v. Leners,42 we cited the rule dis- favoring joint custody but cautioned that it should not be viewed as a “hard-and-fast rule.” We emphasized that the Parenting Act authorizes a trial court to award joint custody 40 See, e.g., Ensrud v. Ensrud, 230 Neb. 720, 727, 433 N.W.2d 192, 197 (1988) (“[t]his court has frequently and consistently expressed disapproval of joint custody as a purported solution for the difficulty confronted by a court in determining a question concerning child custody”); Wilson v. Wilson, 224 Neb. 589, 590, 399 N.W.2d 802, 803 (1987) (“[w]e have . . . stated explicitly that joint custody is not favored and must be reserved for only the rarest of cases”); Korf v. Korf, 221 Neb. 484, 486, 378 N.W.2d 173, 174 (1985) (“[a]n award of joint custody of minor children is not favored. Such an award must be reserved for the most rare of cases”). 41 Zahl, supra note 3, 273 Neb. at 1053, 736 N.W.2d at 373. Accord, Erin W., supra note 2; Schmeidler v. Schmeidler, 25 Neb. App. 802, 912 N.W.2d 278 (2018); Hill, supra note 17. 42 Leners, supra note 15, 302 Neb. at 913, 925 N.W.2d at 712.  - 951 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 in dissolution actions “‘if the court specifically finds, after a hearing in open court, that joint physical custody or joint legal custody, or both, is in the best interests of the minor child regardless of any parental agreement or consent.’”43 In Leners, we affirmed an award of joint legal and physi- cal custody, finding it was in the child’s best interests, despite evidence the parents had a contentious relationship. In doing so, we analyzed the parents’ relationship as one of many fac- tors bearing on the child’s best interests. We noted that both parents were fit and that the child had a good relationship with each. We ultimately concluded that by establishing a parent- ing plan that afforded roughly equal parenting time, the trial court had fashioned a schedule that maximized the child’s time with both parents, accommodated the father’s unusual work schedule, and minimized the number of transitions and the need for communication and coordination between the parents. We found this plan served the child’s best interests. Leners did not expressly disapprove of the Trimble rule,44 but our analysis highlighted tension between the best interests analysis required under the Parenting Act and a blanket rule that disfavors joint custody and reserves it only for rare cases. We are persuaded the time has come to expressly reexam- ine the proposition that joint custody arrangements are disfa- vored and “reserved” for rare or special cases.45 The Wyoming Supreme Court recently engaged in a similar reevaluation of its judicial rule disfavoring joint custody. In Bruegman v. Bruegman,46 Wyoming acknowledged that its longstanding rule had been to disfavor joint custody “‘“absent good reason”’” based on the rationale that “‘“stability in a child’s environment is of utmost importance to the child’s 43 Id. at 913-14, 925 N.W.2d at 712, quoting Neb. Rev. Stat. § 42-364(3)(b) (Cum. Supp. 2018). 44 See Trimble, supra note 3. 45 See id. at 120, 352 N.W.2d at 601. 46 Bruegman v. Bruegman, 417 P.3d 157 (Wyo. 2018).  - 952 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 well-being”’”47 and out of concern that joint custody could be successful only when “‘“the parents are able to communicate and agree on the matters relevant to the children’s welfare.”’”48 In evaluating whether it should change its rule disfavoring joint custody, the Wyoming court did not analyze the evolv- ing social science on parenting and child development, nor did it discuss arguments advanced for or against joint custody. Instead, it found that its blanket rule disfavoring joint custody was inconsistent with Wyoming statutes that require child cus- tody to be determined based on the best interests of the child. It noted that courts in Iowa49 and Maryland50 had previously criticized application of a blanket rule disfavoring joint physi- cal custody, reasoning that the question whether joint physical custody is appropriate should be based on the individual cir- cumstances of each case and not on general presumptions that may or may not be applicable.51 Wyoming ultimately rejected its precedent disfavoring joint custody and held instead that the fundamental consideration governing all child custody deter- minations is the best interests of the child. Citing the proposi- tion that “‘“joint custody, in any of its multiple forms, is but another option available to the trial judge,”’”52 the Wyoming court concluded that “shared custody should be considered on an equal footing with other forms of custody.”53 47 Id. at 162. 48 Id. 49 In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007) (concluding “the joint physical care issue must be examined in each case on the unique facts and not subject to cursory rejection based on a nearly irrebuttable presumption found in our prior cases”). 50 Taylor v. Taylor, 306 Md. 290, 302, 508 A.2d 964, 970 (1986) (reexamining rule that joint physical custody is “an arrangement ‘to be avoided, whenever possible, as an evil fruitful in the destruction of discipline, in the creation of distrust, and in the production of mental distress in the child’”). 51 Bruegman, supra note 46. 52 Id. at 163. Accord Taylor, supra note 50. 53 Id. at 164.  - 953 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 5. Joint Custody No Longer Disfavored [8] The doctrine of stare decisis requires that we adhere to our previous decisions unless the reasons therefor have ceased to exist, are clearly erroneous, or are manifestly wrong and mischievous or unless more harm than good will result from doing so.54 The doctrine is entitled to great weight, but it does not require us to blindly perpetuate a prior interpretation of the law if we conclude it was clearly incorrect.55 We can conceive of no principled justification for continu- ing to apply a blanket rule that disfavors joint legal or physi- cal custody, especially when the rule is based on generalized concerns regarding parental maturity and possible behavioral consequences to a child from spending substantial amounts of time with each parent. Such concerns may well be valid in any given case and in that event should be considered in light of all the other factors and circumstances in arriving at a custody and parenting time arrangement that serves the best interests of the child at issue. But a blanket rule disfavoring joint legal or physical custody is difficult to reconcile with the Parenting Act, under which the best interests of the child are the polestar of all child custody and parenting time determinations.56 We see nothing in the Parenting Act that either favors or disfavors any particular custody or parenting time arrange- ment. The Parenting Act simply requires that all custody and parenting time arrangements be determined based on the best interests of the child.57 The Parenting Act “presumes the criti- cal importance of the parent-child relationship in the welfare and development of the child and that the relationship between the child and each parent should be equally considered unless it is contrary to the best interests of the child.”58 The Parenting 54 Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017). 55 See id. 56 See §§ 43-2921 to 43-2923. See, also, § 42-364(2) (Reissue 2016). 57 § 43-2923(6). 58 § 43-2921 (emphasis supplied).  - 954 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 Act also states that the best interests of the child require, among other things, “appropriate, continuing quality contact” between the child and parents who have shown the ability to act in the child’s best interests.59 The Parenting Act neither expresses nor suggests a default position favoring or disfavor- ing any particular custody arrangement, even one agreed to by the parents,60 and instead requires that all such determinations be based on the best interests of the child.61 We note that, in dissolution actions where the parents have not agreed to joint custody, § 42-364(3) requires that before joint custody may be ordered, there must be a hearing in open court and an express finding that joint custody is in the child’s best interests.62 But we do not understand the provisions of § 42-364(3) to indicate the Legislature either favors or disfa- vors joint custody. All cases governed by the Parenting Act 63 require a judicial determination, whether expressly stated or not, that the custody and parenting time arrangement ordered by the court is in the child’s best interests.64 And a hearing on the record is routinely held to facilitate that judicial determina- tion, whether the parents are submitting an agreed-upon parent- ing plan for approval65 or have contested the issues of custody and parenting time such that a trial is necessary. [9] We conclude that a blanket rule disfavoring joint cus- tody is inconsistent with the Parenting Act and unnecessarily 59 See § 43-2923(3). 60 See § 43-2923(4). 61 §§ 43-2923(6) and 43-2935(1). 62 See, also, State ex rel. Amanda M. v. Justin T., 279 Neb. 273, 280, 777 N.W.2d 565, 571 (2010) (in paternity case, it is preferable to make express finding that order of joint custody is in best interests of child, but it is “not error under the Parenting Act in a paternity case to fail to make a specific finding of best interests”). 63 See § 43-2924. 64 See §§ 43-2921, 43-2923(4) and (6), and 43-2935. See, also, Dooling, supra note 30. 65 See §§ 43-2923(4) and 43-2935.  - 955 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 constrains the discretion of trial judges in some of the most important and difficult decisions they are called upon to make. To ensure that custody and parenting time determina- tions are focused on the best interests of the child, trial judges must be able to base their determinations on actual, not pre- sumed, facts. [10] Because a blanket rule disfavoring joint custody limits judicial discretion and may constrain the best interests of the child analysis required by the Parenting Act, we now disap- prove of the Trimble rule and hold that joint custody is nei- ther favored nor disfavored under Nebraska law.66 In fact, we emphasize that no custody or parenting time arrangement is either favored or disfavored as a matter of law, and we disap- prove of prior cases suggesting otherwise. Our holding today necessarily calls into question some of our reasoning in other cases, to the extent such reasoning was premised on the rule disfavoring joint custody.67 But today’s holding does not alter the fact that whether parents come to court having agreed to a joint custody arrangement, or dis- puting the issues of custody and parenting time, the court is required to independently determine that any parenting plan being ordered is in the child’s best interests and must reject or modify parenting plans that are not in the child’s best inter- ests or which do not meet the requirements of the Parenting Act.68 And today’s holding does not change in any respect the various factors courts should consider when deciding what sort of custody and parenting time arrangement is in a child’s best interests;69 it merely eliminates the need to also consider a blanket rule premised on generalized concerns of parental 66 See Trimble, supra note 3. 67 See, e.g., State ex rel. Amanda M., supra note 62 (noting that factual inquiry for awarding joint physical custody is substantially different from that required for making sole custody determination); Zahl, supra note 3. See, also, Aguilar, supra note 3; Hill, supra note 17. 68 See §§ 43-2921, 43-2923(4) and (6), and 43-2935. 69 See §§ 42-364(2), 43-2921, and 43-2923.  - 956 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 maturity, manipulative behavior by the child, and perpetuat- ing turmoil and instability. Of course when such concerns are supported by the evidence, they will still be factors for the court to consider, along with all the other factors bearing on the child’s best interests. We discuss those factors next. 6. Equal Parenting Time Was Not A buse of Discretion We turn now to the primary question on further review: whether the district court abused its discretion in creating a parenting plan that gave Mandy and Jeffery nearly equal parenting time, effectively imposing a joint physical custody arrangement. We address that question in light of the evidence adduced regarding Kaaden’s best interests and disregarding our prior case law to the extent it disfavored joint physi- cal custody. (a) Best Interests [11] When determining the best interests of the child in deciding custody, a court must consider, at a minimum, (1) the relationship of the minor child to each parent prior to the commencement of the action; (2) the desires and wishes of a sufficiently mature child, if based on sound reasoning; (3) the general health, welfare, and social behavior of the child; (4) credible evidence of abuse inflicted on any fam- ily or household member; and (5) credible evidence of child abuse or neglect or domestic intimate partner abuse.70 In this case, the trial court analyzed the evidence in light of each of these factors. [12] The Parenting Act also provides that the best inter- ests of a child require a parenting plan that provides for a child’s safety, emotional growth, health, stability, physical care, and regular school attendance71 and which promotes a child’s 70 § 43-2923(6). See, also, Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006) (reciting rule before amendments to § 43-2923(6)). 71 § 43-2923(1).  - 957 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 c­ontinued contact with his or her families and parents who have shown the ability to act in the child’s best interests.72 [13] In addition to considering these statutory factors, our case law instructs that when making determinations as to the allocation of parenting time that is in a child’s best interests, a trial court should also consider the parties’ ability to commu- nicate on issues such as transportation, homework, discipline, medical and dental appointments, and extracurricular activi- ties.73 Other relevant considerations include stability in the child’s routine, minimalization of contact and conflict between the parents, and the general nature and health of the individual child.74 The fact that one parent might interfere with the other’s relationship with the child is also a factor to consider, but is not a determinative factor.75 By reciting these factors, we do not suggest that each will be relevant in every case; nor do we imply that a court is prohib- ited from considering other factors not mentioned. No single factor is determinative, and different factors may weigh more heavily in the court’s analysis depending on the evidence pre- sented in each case. The one constant is that “[i]n any proceed- ing involving a child, the best interests of the child shall be the standard by which the court adjudicates and establishes . . . any custody, parenting time, visitation, or other access determina- tions as well as resolution of conflicts affecting each child.”76 (b) Kaaden’s Best Interests Here, the district court, after observing the parties and considering the evidence in light of the factors set out above, 72 § 43-2923(3). 73 See, generally, Coffey v. Coffey, 11 Neb. App. 788, 661 N.W.2d 327 (2003). 74 See State on behalf of Maddox S. v. Matthew E., 23 Neb. App. 500, 873 N.W.2d 208 (2016). 75 Kamal v. Imroz, 277 Neb. 116, 759 N.W.2d 914 (2009); Maska v. Maska, 274 Neb. 629, 742 N.W.2d 492 (2007). 76 § 43-2921.  - 958 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 expressly found that an alternating week-on-week-off parent- ing time schedule was in Kaaden’s best interests. This was the parenting time schedule recommended by Kaaden’s counselor, and it is consistent with the court’s express factual findings that both parents are fit and provide a safe and appropriate home environment for Kaaden. Moreover, nearly equal parenting time furthered the court’s stated goal of allowing Kaaden to “enjoy the full benefits of having both parents involved in his life to the greatest degree possible.” In arguing that the award of nearly equal parenting time was an abuse of discretion, Jeffery focuses almost exclusively on evidence of Mandy’s animosity toward him and their dif- ficulty communicating. In our de novo review, we neither ignore nor minimize evidence that the parties have difficulty communicating effectively regarding Kaaden’s welfare, or that Mandy has significant unresolved anger toward Jeffery and actively interfered with his parenting time while the case was pending before the district court. But when all of the evidence is considered in light of Kaaden’s best interests, we cannot find the parenting time awarded here was an abuse of discretion. The trial court was appropriately concerned about Mandy’s interference with Jeffery’s parenting time and her unresolved anger toward him, and it addressed those concerns by award- ing Jeffery sole legal custody. This minimized the need for the parties to confer regularly because Jeffery has the sole author- ity and responsibility to make fundamental decisions regarding Kaaden’s welfare, including choices regarding his education and health. The trial court also explained that placing primary legal custody with Jeffery was the best way to ensure compli- ance with the parenting plan. And despite the tense relationship between Mandy and Jeffery, the record fully supports the trial court’s findings that both Mandy and Jeffery are fit and proper parents who love Kaaden and that both provide him safe and stable homes. The evidence shows both parents have developed a nurturing,  - 959 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 positive bond with Kaaden, and it fully supports the trial court’s conclusion that it is in Kaaden’s best interests to have both parents involved in his life to the greatest degree possible. The trial court’s alternating week-on-week-off parenting schedule served to maximize Kaaden’s time with both parents and was directly supported by the testimony of his treating counselor. At the same time, the parenting schedule minimized the need for direct interaction between the parents by limiting exchanges of Kaaden to one time per week at a neutral site. An abuse of discretion occurs when a trial court bases its decision on reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evi- dence.77 Here, the trial court made detailed and specific factual findings which were fully supported by the record, and it pro- vided a carefully reasoned explanation for why it considered the custody and parenting time arrangement to be in Kaaden’s best interests. The trial court’s goal was not to find a custody and parent- ing time schedule the parents thought was fair, but to find one that was actually in Kaaden’s best interests. That required the court to create a parenting plan for a child who has a positive and nurturing relationship with both his parents, but whose parents do not have a good relationship with each other. On this record, we find no abuse of discretion in developing a par- enting plan that gave Jeffery sole legal custody and effectively imposed a joint physical custody arrangement with a week-on- week-off parenting time schedule. 7. Nonreimbursed Medical Expenses [14] The Nebraska Child Support Guidelines require child support orders to address how the parents will provide for the child’s health insurance.78 Here, Jeffery was ordered to pro- vide health insurance for Kaaden, and no party challenges that on appeal. 77 Randy S. v. Nicolette G., 302 Neb. 465, 924 N.W.2d 48 (2019). 78 § 4-215.  - 960 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 The district court also ordered Jeffery to pay the first $480 of Kaaden’s nonreimbursed reasonable and necessary health care expenses per year, and it ordered Mandy to pay 50 per- cent of such expenses in excess of $480. We understand this language to have effectively allocated responsibility for non- reimbursed health care expenses equally between Mandy and Jeffery. No party contends otherwise, and no party challenges the court’s allocation of expenses in excess of $480. Instead, the parties focus on whether the trial court erred in ordering Jeffery to pay the first $480 of Kaaden’s nonreimbursed health care expenses. We limit our analysis accordingly. Before the Court of Appeals, Jeffery argued it was error to order him to pay the first $480 of nonreimbursed health care expenses. The Court of Appeals agreed, reasoning that the first $480 of nonreimbursed health care expenses was “subsumed within the amount of child support that is ordered.”79 The Court of Appeals thus reversed that portion of the decree. On further review, Mandy argues the Court of Appeals improperly reversed on this issue. We conclude the Court of Appeals cor- rectly interpreted the child support guidelines. [15] Nonreimbursed health care expenses are governed by § 4-215(B) of the child support guidelines, which states, in part, “Children’s health care expenses are specifically included in the guidelines amount of up to $480 per child per year.” As we have explained, “the guidelines estimate $480 as an ordi- nary amount of such nonreimbursed medical expenses, and that figure is then subsumed within the amount of child support that is ordered. Any nonreimbursed expenses exceeding $480 are [then] prorated between the parties.”80 The guidelines do not require the trial court to expressly identify any party as being responsible for the first $480 of nonreimbursed health care expenses, but they do require a 79 State on behalf of Kaaden S., supra note 1, 26 Neb. App. at 434, 920 N.W.2d at 50. 80 State on behalf of Martinez, supra note 12, 281 Neb. at 552, 797 N.W.2d at 222.  - 961 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 court to allocate nonreimbursed health care expenses in excess of $480 per year “to the obligor parent as determined by the court.”81 Such allocation “shall not exceed the proportion of the obligor’s parental contribution (worksheet 1, line 6).”82 The guidelines’ reference to an “obligor” refers to the party ordered to pay child support. We therefore agree with the Court of Appeals that under the child support guidelines, the trial court erred in making Jeffery, who is the obligor under its child support calculation, responsi- ble for paying the first $480 of Kaaden’s nonreimbursed health care expenses, when such amounts are already subsumed in the monthly child support payment. The trial court may have had a sound reason for wanting Jeffery to pay such costs, but no explanation was provided in the decree, so we have no basis upon which to review a deviation from the guidelines.83 We affirm the Court of Appeals’ reversal of that portion of the decree requiring Jeffery to pay the first $480 of Kaaden’s non- reimbursed health care costs. 8. Child Support Because the Court of Appeals found the parenting time schedule was an abuse of discretion and remanded the matter to reduce Mandy’s parenting time, it also concluded the trial court erred in using worksheet 3, the joint custody worksheet, to calculate child support. It thus reversed the child support award and remanded the matter for recalculation “using the appropriate worksheet.”84 Mandy assigns this as error. She argues the trial court’s use of worksheet 3 to calculate support was appropriate given the 81 § 4-215(B). 82 Id. 83 See, generally, Neb. Ct. R. § 4-203 (rev. 2011) (child support guidelines shall be applied as rebuttable presumption, and deviations should be supported by specific findings). 84 State on behalf of Kaaden S., supra note 1, 26 Neb. App. at 433, 920 N.W.2d at 50.  - 962 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 amount of parenting time she was awarded,85 and she seeks affirmance of the child support as ordered by the district court. No party challenges any other aspect of the child support award, so we confine our analysis to whether it was error to use worksheet 3. [16] Child support payments should generally be set accord- ing to the child support guidelines.86 Section 4-212 of the guidelines explains when, and how, worksheet 3 is to be utilized: When a specific provision for joint physical custody is ordered and each party’s parenting time exceeds 142 days per year, it is a rebuttable presumption that support shall be calculated using worksheet 3. When a specific provi- sion for joint physical custody is ordered and one party’s parenting time is 109 to 142 days per year, the use of worksheet 3 to calculate support is at the discretion of the court. . . . For purposes of these guidelines, a “day” shall be generally defined as including an overnight period. Here, the award of nearly equal parenting time effectively created a joint physical custody arrangement, and we have modified the decree and parenting plan to so describe it. Moreover, under the parenting plan, Mandy’s parenting time far exceeds the rebuttable presumption of 142 overnights per year referenced in § 4-212, and Jeffery has presented no evi- dence or argument that would rebut the presumptive use of worksheet 3. As such, we find no abuse of discretion in the trial court’s decision to use worksheet 3 to calculate child sup- port. We reverse the Court of Appeals’ holding to the contrary, and remand the matter with directions to affirm the district court’s child support award. V. CONCLUSION For the foregoing reasons, we modify the language of the decree and the parenting plan to reflect an award of joint 85 See Neb. Ct. R. § 4-212 (rev. 2011). 86 See Hotz v. Hotz, 301 Neb. 102, 917 N.W.2d 467 (2018).  - 963 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE ON BEHALF OF KAADEN S. v. JEFFERY T. Cite as 303 Neb. 933 physical custody. We find no abuse of discretion in the custody and parenting time arrangement ordered by the district court, and we reverse the Court of Appeals’ decision to the contrary and remand the matter with directions to affirm that award as modified. We find no abuse of discretion in using worksheet 3 to calculate child support, and we reverse that aspect of the Court of Appeals’ decision as well and remand the matter with directions to affirm the child support award. In all other respects, we affirm the decision of the Court of Appeals. A ffirmed in part as modified, and in part reversed and remanded with directions. 

126 N.J. 320 (1991) 598 A.2d 878 WHITE CASTLE SYSTEMS v. PLANNING BOARD OF CITY OF CLIFTON The Supreme Court of New Jersey. February 19, 1991. Petitions for Certification Denied. 244 N.J. Super. 688 583 A.2d 406

729 F.2d 1455 U.S.v.Bryson (James Douglas) NO. 83-6352 United States Court of Appeals,fourth Circuit. FEB 22, 1984 1 Appeal From: D.Md. 2 AFFIRMED.

75 Cal.App.3d 281 (1977) 142 Cal. Rptr. 78 MARVIN F., a Minor, Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. 41397. Court of Appeals of California, First District, Division Three. November 22, 1977. *284 COUNSEL James C. Hooley, Public Defender, Michael G. Gordon, Robert J. Beles and Jay Gaskill, Assistant Public Defenders, for Petitioner. No appearance for Respondent. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, Derald E. Granberg, Gloria F. DeHart and Jamie Jacobs-May, Deputy Attorneys General, for Real Party in Interest. OPINION SCOTT, Acting P.J. The issue raised by Marvin F., a minor, is whether an agreement entered into between the Alameda County Probation Department and the Alameda County District Attorney, establishing a procedure for the filing of petitions under Welfare and Institutions Code section 602,[1] is in conflict with the statutory scheme. The portion of the agreement relevant here, and challenged by petitioner, provides that when a police officer requests that the district attorney review the report of an alleged misdemeanor offense, which if found to be true would bring the minor within the provisions of section 602,[2] the juvenile probation department is obliged to refer the case to the *285 prosecuting attorney for his review. The Alameda County Police Officers Association participated in the negotiations leading to the agreement. The agreement was apparently prompted by the 1976 changes in the juvenile law vesting the prosecuting attorney rather than the probation department with responsibility for commencing wardship proceedings. (§ 650, subd. (b).)[3] (1a) Marvin F. contends that the agreement conflicts with the provisions of sections 653, 654 and 655, which set forth the procedure to commence proceedings to declare a minor a ward of the court under the provisions of section 602. In particular, he contends that he is denied the independent judgment and discretion of the probation officer in the proceedings leading to the filing of the section 602 petition. The resolution of this issue turns on whether the prosecuting attorney has the same discretion to file a petition to declare a minor a ward as he exercises in the filing of criminal complaints. (2a) Put another way, respondent contends that the prosecuting attorney has the sole and exclusive discretion to file a petition in any case, even if it were not forwarded by the probation officer or appealed by the applicant. If he has such discretion, the statute is merely to organize the intake process for the prosecuting attorney, in which event the deviation from that procedure in the instant case loses its significance. We conclude that he does not have such discretion. Juvenile matters are only properly before the prosecuting attorney for the exercise of his discretion of whether to file a wardship petition if the probation officer causes an affidavit requesting the commencement of such proceedings to be taken to the prosecuting attorney, or an applicant for the commencement of such proceedings presents a timely request to the prosecuting attorney for a review of a probation officer's decision not to take such affidavit to the prosecuting attorney. Marvin F. was arrested by a police officer for loitering about a junior high school in violation of Penal Code section 653g. The intake juvenile probation officer, upon receipt of the arresting officer's report which noted a request for a "D.A. review," felt obliged to present the matter to the prosecuting attorney. The intake officer stated that had she been left to her own discretion she would not have requested that a wardship *286 petition be filed, but instead would have handled the case informally pursuant to section 654. She believed, however, that she lacked discretion under the agreement to do other than forward the matter to the prosecuting attorney for mandatory review. A petition was filed by the prosecuting attorney, alleging that Marvin F. violated Penal Code section 602, subdivision (j) (trespass). The court denied the minor's motion to dismiss. By his petition here for a writ of mandamus, petitioner requests that we direct a dismissal of the juvenile court proceedings. Section 653 sets forth the procedure for commencing section 602 wardships. The section provides: "Whenever any person applies to the probation officer to commence proceedings in the juvenile court, such application shall be in the form of an affidavit alleging that there was or is within the county, or residing therein, a minor within the provisions of Section 600, 601, or 602, or that a minor committed an offense described in Section 602 within the county, and setting forth facts in support thereof. The probation officer shall immediately make such investigation as he deems necessary to determine whether proceedings in the juvenile court should be commenced. If the probation officer determines that proceedings pursuant to Section 650 should be commenced to declare a person described in Section 602 to be a ward of the juvenile court, the probation officer shall cause the affidavit to be taken to the prosecuting attorney. The prosecuting attorney shall within his discretionary power institute proceedings in accordance with his role as public prosecutor pursuant to subdivision (b) of Section 650 of this code and Section 26500 of the Government Code. "If the probation officer does not take action under Section 654 and does not file a petition in juvenile court within 21 court days after such application, or in the case of an affidavit alleging that a minor committed an offense described in Section 602 or alleging that a minor is within Section 602, does not cause the affidavit to be taken to the prosecuting attorney within 21 court days after such application, he shall endorse upon the affidavit of applicant his decision not to proceed further and his reasons therefor and shall immediately notify the applicant of the action taken or the decision rendered by him under this section. The probation officer shall retain the affidavit and his indorsement thereon for a period of 30 days after such notice to applicant." *287 I. (3) Respondent contends that section 653 should be construed as not applicable to peace officers but limited to people in the private sector. They urge that probation officers who initiate section 602 proceedings pursuant to section 652,[4] are not required to follow the provisions of section 653, and since police officers are an intrinsic part of the juvenile law system (90 percent of all delinquency referrals come from the police), they too are exempt from the provisions of section 653. We find no authority for or logic in this suggested interpretation of the statute. We also note that section 655[5] provides that "when any person has applied" (italics added) to request commencement of juvenile court proceedings and the probation officer does not take the application to the prosecuting attorney, then a certain procedure is established for making the application directly to the prosecuting attorney. If a peace officer were not "any person" within the meaning of section 653, he would have no right to a prosecuting attorney review under section 655. Yet, the evidence here was that in negotiating the agreement, the peace officers association waived their right to a section 655 "appeal" in exchange for being able to request a prosecuting attorney review on the initial police report. The "any person" referred to in section 655 is the same "any person" referred to in section 653. We conclude, therefore, that "any person" includes a peace officer. Since police officers clearly must comply with section 653, we need not address ourselves to respondent's contention that that section is not applicable to probation officers. II. (1b) The application must be in the form of an affidavit. The police report here was not in affidavit form, nor did any other affidavit accompany the police report. (4) The issue, then, is whether the absence of compliance with the affidavit requirement removes the jurisdiction of the court to hear a section 602 petition. *288 Under the previous statute (§ 722), the failure of a probation officer in instituting a section 700 petition (which encompassed offenses now found in § 602) to swear to the veracity of the petition where the affidavit accompanying the petition was signed, constituted a mere defect in pleading which did not deprive the court of jurisdiction. (In re Staser (1948) 84 Cal. App.2d 746, 751-752 [191 P.2d 791].) This was true even in the face of then section 722, which explicitly required a verified petition. Staser appears to be a square holding that the omission to swear (which is the essential requirement of the affidavit) in the initial charging paper does not deprive the court of jurisdiction. This remains good law. (In re Linda D. (1970) 3 Cal. App.3d 567, 571 [83 Cal. Rptr. 544].) The court "may" dismiss the petition without prejudice if it is not verified. (§ 656.5.) If that is true, there seems to be even less reason to destroy the court's jurisdiction by way of failure to swear to the truth of matters stated in the complaint which may or may not lead to the ultimate filing of a section 602 petition. Certainly, the affidavit requirement of section 653 cannot be ignored as apparently is the practice in Alameda County. However, failure to have the application in affidavit form does not deprive the court of jurisdiction. III. Upon receipt of the affidavit making the allegations that the minor has committed a public offense, the probation officer is required by section 653 to make an immediate investigation to determine whether juvenile court proceedings should be commenced. After investigation the probation officer has three courses of disposition available: (1) if he determines that proceedings should be commenced, he then refers the matter to the prosecuting attorney (§ 653), or (2) he may take no action (§ 653), or (3) if he concludes that the minor is, or soon will be, within the jurisdiction of the juvenile court (§ 654),[6] he may institute alternative programs in lieu of requesting the filing of a petition for wardship. (1c) Under the agreement, however, if the police officer requests a "D.A. review," the first alternative is the only one available to the probation officer. *289 (2b) The statute is unambiguous legislation which sets forth the steps to be taken before the matter is placed in the hands of the prosecuting attorney for action. Upon receipt of the application, the probation officer must make whatever investigation he thinks is reasonable for the exercise of his discretion, that is, to (1) "cause the affidavit to be taken to the prosecuting attorney" (§ 653), or (2) "with consent of the minor and the minor's parent or guardian, delineate specific programs of supervision for the minor, for not to exceed six months" (§ 654), or (3) refuse to take any action on the application. The procedure to invoke a prosecuting attorney review of the case if the probation officer declines to request such a review is set forth in section 655. If the probation officer fails to request prosecuting attorney action within 21 days, the applicant may, within 30 days after making the application, apply to the prosecuting attorney. The statute clearly contemplates an intermediate evaluation by the probation officer, granting him discretion to take alternative action. The initial determination to file cannot be delegated to the prosecuting attorney because it is a judgment expressly vested in the probation department (§ 7). The prosecuting attorney's discretion under section 653 is called for only by an appeal filed by a complaining person or when the probation officer forwards the affidavit to the prosecuting attorney (§ 653). Respondent contends that the prosecuting attorney has the same discretion as that which he has in filing criminal charges (except in certain specified cases, not relevant here, where the filing of a petition is made mandatory). We do not, however, find within this statutory scheme such a broad grant of authority to the prosecuting attorney. The statute limits action by the prosecuting attorney to cases where the complaining person is dissatisfied with the probation officer's disposition, or where the complaining person and the probation officer are in agreement that section 602 proceedings are necessary, thus screening out one category of the case from prosecuting attorney review, i.e., where a complaining person is satisfied by alternate disposition. (5) Further support for petitioner's contention is found in the portion of section 654 which provides: "However, when in the judgment of the probation officer the interest of the minor and the community can be protected, the probation officer shall make a diligent effort to proceed under this section." This is an expression of the legislative intent that minors be diverted from the court process when in the judgment of the probation officer such can be done in the interest of both the minor and society. *290 (2c) Respondent further contends that the statute violates the doctrine of separation of powers in that the discretion of the prosecuting attorney (an executive officer) is limited by the necessity that the probation officer (a judicial official) "concurs" by the forwarding of the affidavit. The cases cited (People v. Tenorio (1970) 3 Cal.3d 89, 94-95 [89 Cal. Rptr. 249, 473 P.2d 993]; People v. Adams (1974) 43 Cal. App.3d 697, 707-708 [117 Cal. Rptr. 905]) hold respectively that sentencing is judicial and need not have concurrence by the prosecuting attorney, and that the prosecuting attorney cannot be limited in determining what charges to bring and/or how to draft accusatory pleadings. The procedure by which discretion becomes vested in the prosecuting attorney so that it may be exercised would not seem constitutionally compelled. In any event, the right to appeal to the prosecuting attorney means that the "accord" of the probation officer is not required. (1d) We conclude, therefore, that the agreement conflicts with the statutory scheme for the processing of applications to cause a petition for wardship to be filed in juvenile court. Upon the granting of the minor's petition herein, the district attorney may refile a wardship petition so long as such proceedings are recommenced consistent with the views herein expressed. The petition for writ of mandamus is granted, and the cause is remanded to the juvenile court with directions to dismiss the petition to declare Marvin F. a ward of the court. Feinberg, J., and Draper, J.,[*] concurred. A petition for a rehearing was denied December 22, 1977, and the opinion was modified to read as printed above. The petition of the real party in interest for a hearing by the Supreme Court was denied January 19, 1978. NOTES [1] Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code. [2] Section 602 provides: "Any person who is under the age of 18 years when he violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime other than an ordinance establishing a curfew based solely on age, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court." [3] Section 650, subdivision (b) provides: "A proceeding in the juvenile court to declare a minor a ward under Section 602 of the court is commenced by the filing with the court, by the prosecuting attorney as petitioner, of a petition, in conformity with the requirements of this article." [4] Section 652 provides: "Whenever the probation officer has cause to believe that there was or is within the county, or residing therein, a person within the provisions of Section 601 or 602, the probation officer shall immediately make such investigation as he deems necessary to determine whether proceedings in the juvenile court should be commenced." [5] Section 655 provides: "(a) When any person has applied to the probation officer, pursuant to Section 653, to request commencement of juvenile court proceedings to declare a minor a ward of the court under Section 602 and the probation officer does not cause the affidavit to be taken to the prosecuting attorney pursuant to Section 653 within 21 court days after such application, such person may, within 30 court days after making such application, apply to the prosecuting attorney to review the decision of the probation officer, and the prosecuting attorney may either affirm the decision of the probation officer or commence juvenile court proceedings." [6] Section 654 provides, in relevant part: "In any case in which a probation officer, after investigation of an application for petition or other investigation he is authorized to make, concludes that a minor is within the jurisdiction of the juvenile court or will probably soon be within such jurisdiction, he may, in lieu of ... requesting that a petition be filed by the prosecuting attorney to declare a minor a ward of the court under Section 602 or subsequent to dismissal of a petition already filed, and with consent of the minor and the minor's parent or guardian, delineate specific programs of supervision for the minor, for not to exceed six months, and attempt thereby to adjust the situation which brings the minor within the jurisdiction of the court or creates the probability that he will soon be within such jurisdiction. Nothing in this section shall be construed to prevent the probation officer from ... requesting the prosecuting attorney to file a petition at any time within said six-month period." [*] Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-0511V (not to be published) VICTORIA DITSCHE, Chief Special Master Corcoran Petitioner, v. Filed: March 10, 2020 SECRETARY OF HEALTH AND Special Processing Unit (SPU); HUMAN SERVICES, Attorney’s Fees and Costs Respondent. Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner. Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS1 On April 6, 2018, Victoria Ditsche filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine Administration as a result of an influenza vaccine administered on November 23, 2016. (Petition at 1). On October 18, 2019, a decision was issued awarding compensation to Petitioner based on the Respondent’s proffer. (ECF No. 41). 1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).  Petitioner has now filed a motion for attorney’s fees and costs, dated January 29, 2020 (ECF No. 46), requesting a total award of $12,679.59 (representing $12,078.90 in fees and $600.69 in costs). In accordance with General Order #9 counsel for Petitioner represents that Petitioner incurred no out-of-pocket expenses. (Id. at 2). Respondent reacted to the motion on January 30, 2020 indicating that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case and defers to the Court’s discretion to determine the amount to be awarded. (ECF No. 47). Petitioner did not file a reply. I have reviewed the billing records submitted with Petitioner’s request. In my experience, the request appears reasonable, and I find no cause to reduce the requested hours or rates. ANALYSIS The Vaccine Act permits an award of reasonable attorney’s fees and costs. § 15(e). Counsel must submit fee requests that include contemporaneous and specific billing records indicating the service performed, the number of hours expended on the service, and the name of the person performing the service. See Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request sua sponte, apart from objections raised by respondent and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011). The petitioner “bears the burden of establishing the hours expended, the rates charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. at 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees and costs sought] at the time of the submission.” Id. at 484 n.1. Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S., at 434. 2  ATTORNEY FEES A. Hourly Rates Petitioner requests the following rates of compensation for the work of his attorneys Max Muller; $300.00 per hour for 2017, $317 per hour for 2018 and Amy Senerth; $225.00 per hour for work performed in 2017, $233.00 per hour for work performed in 2018, and $250.00 for work performed in 2019. (ECF No. 46 at 1). Petitioner also requests rates ranging from $125.00 per hour to $165.00 per hour for paralegal work, depending on the individual paralegal and the year of the work. (Id). The rates requested are consistent with what Muller Brazil attorneys and paralegals have been awarded for their work in the Vaccine Program. Accordingly, no adjustment to the requested rates is necessary. For time billed in 2020, Ms. Senerth is requesting the increased rate of $275.00 per hour. Based on my experience I find the requested increase for time billed in 2020 to be reasonable and award it herein. ATTORNEY COSTS Petitioner requests $600.69 in overall costs. (ECF No. 46 at 1). This amount is comprised of obtaining medical records and the Court’s filing fee. I have reviewed all of the requested costs and find the overall amount to be reasonable and shall award it in full. CONCLUSION The Vaccine Act permits an award of reasonable attorney’s fees and costs. § 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I award a total of $12,679.59 (representing $12,078.90 in fees and $600.69 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk shall enter judgment in accordance with this decision.3 3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 4 

Fourth Court of Appeals San Antonio, Texas August 15, 2017 No. 04-17-00493-CV Bruce Lee BECKER, Appellant v. Pedro BECKER and Manuela Becker, Appellees From the County Court at Law No. 10, Bexar County, Texas Trial Court No. 2016-CV-04644 Honorable Jason Wolff, Judge Presiding ORDER This is a new, non-accelerated appeal. The appellant, Bruce Becker, filed a notice of appeal on August 1, 2017. The appellate record has not been filed and briefing has not commenced. On August 9, 2017, the appellant filed a pro se motion asking this court to “vacate” the trial court’s ruling on the defendants’ motion for summary judgment. Appellant’s motion, which is premature, appears to present issues that must be raised in an appellant’s brief. Appellant’s motion to vacate is therefore DENIED without prejudice. _________________________________ Karen Angelini, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 15th day of August, 2017. ___________________________________ Luz Estrada Chief Deputy Clerk 

Paul Glen McDonald, Jr. v. The State of Texas IN THE TENTH COURT OF APPEALS No. 10-97-158-CR      PAUL GLEN MCDONALD, JR.,                                                                               Appellant      v.      THE STATE OF TEXAS,                                                                               Appellee   From the County Court at Law Coryell County, Texas Trial Court # 96-42629                                                                                                                   MEMORANDUM OPINION                                                                                                                         Paul Glen McDonald, Jr. was convicted of driving while intoxicated and sentenced to 45 days in jail plus a $2,500 fine. He appeals pro-se. Although we have requested the statement of facts, he has neglected to see that we receive it. Because we have determined that the statement of facts is not dispositive of any appealed error, we assume the facts of the trial to be as he states them in his brief, and we address his argument accordingly. The crux of McDonald’s complaint is that the trial court erred in admitting the results from his toxicology report because he requested counsel before submitting a breath sample. We will affirm.       At the time that Officer David Roberts requested a breath sample from McDonald, he had no right to counsel. See Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Forte v. State, 707 S.W.2d 89, 91 (Tex. Crim. App. 1986). The right to counsel under the Sixth Amendment attaches only upon or after formal initiation of judicial proceedings. Forte, 707 S.W.2d at 91. His Sixth Amendment right to counsel did not attach until the complaint and information were filed. Id. at 92.       A defendant, when faced with a decision whether to provide a breath or blood sample for chemical analysis of alcohol concentration, may not avoid making a decision by invoking the protection of the Fifth Amendment privilege against self-incrimination or the prophylactic safeguards of Miranda. See South Dakota v. Neville, 459 U.S. 553, 564, n. 15, 103 S.Ct. 916, 923, n. 15, 74 L.Ed.2d 748 (1983).         In Schmerber v. California, a blood sample was extracted from a defendant by a physician without the defendant's consent. The defendant claimed that his Fifth Amendment privilege against self-incrimination was violated. The Court held that neither the extraction of blood nor the subsequent chemical analysis of the blood for alcohol concentration required appellant to testimonially incriminate himself in violation of the Fifth Amendment. Schmerber v. California, 384 U.S. 757, 765, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908 (1966).       The Court of Criminal Appeals has followed Schmerber with regard to the collection of a breath sample, holding that providing a breath sample for chemical analysis of alcohol concentration is not a testimonial communication protected by the privilege against self-incrimination under the Fifth Amendment. Rodriguez v. State, 631 S.W.2d 515, 517 (Tex. Crim. App. 1982). The Court further held that police officers are not required to give a suspect Miranda warnings prior to asking him to provide a breath sample. Id.       We find no denial of appellant's Fifth or Sixth Amendment right to counsel. The judgment is affirmed.                                                                                    BILL VANCE                                                                                Justice     Before Chief Justice Davis,       Justice Cummings, and       Justice Vance Affirmed Opinion delivered and filed January 21, 1998 Do not publish                     

816 F.2d 669 Gabrelianv.Gabrelian 86-7908 United States Court of Appeals,Second Circuit. 3/11/87 1 E.D.N.Y. AFFIRMED

184 Mich. App. 766 (1990) 459 N.W.2d 100 MOORE v. ST JOSEPH NURSING HOME, INC Docket No. 112769. Michigan Court of Appeals. Decided August 6, 1990. Zeff, Zeff & Materna (by Donald M. Fulkerson and Howard J. Radner), for plaintiffs. Lacey & Jones (by Stephen Jay Schwartz and Laurel A. Stuart), for defendant. Before: HOLBROOK, JR., P.J., and MURPHY and JANSEN, JJ. *767 HOLBROOK, JR., P.J. Plaintiffs appeal as of right an order of the Wayne Circuit Court granting defendant's motion for summary disposition in a negligence action arising from defendant's failure to disclose information concerning the dangerous propensities of a former employee. On appeal, plaintiffs argue that an employer has a duty to disclose the records of violence of past employees. We affirm. Plaintiffs' decedent, a security guard at a facility serviced by Maintenance Management Corporation, was savagely beaten and murdered by Jeffrey Allen St. Clair, a Maintenance Management employee. Prior to his employment with Maintenance Management, St. Clair was employed by defendant. During the course of his employment with defendant, St. Clair received twenty-four disciplinary warnings for acts ranging from outright violence to alcohol and drug use. Defendant terminated St. Clair's employment in September, 1984. In 1985, St. Clair applied for employment with Maintenance Management and listed defendant on his application as a former employer. Although defendant asserts it was never contacted by Maintenance Management, defendant freely concedes that it would have provided no further information other than St. Clair's dates of employment had it been contacted. Plaintiffs alleged in their suit that this failure to disclose St. Clair's record of extremely violent behavior and character constituted negligence by the defendant. Plaintiffs assert in their appeal that, as a matter of law, a former employer should have a duty to disclose a former employee's dangerous proclivities to an inquiring prospective employer. This is an issue of first impression in Michigan. In attempting to determine whether a defendant owes an actionable duty to a plaintiff as a matter *768 of law, it is necessary to assess competing policy considerations for and against recognizing the asserted duty. Friedman v Dozorc, 412 Mich 1, 22; 312 NW2d 585 (1981). A defendant is subject to liability for negligent conduct if the law recognizes a duty to act with due care arising from the parties' relationship. Roberts v Pinkins, 171 Mich App 648, 651-652; 430 NW2d 808 (1988). A party cannot be said to owe a duty to protect another party who is endangered by a third person unless there exists some special relationship between the first party and either the dangerous person or the potential victim. Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 499; 418 NW2d 381 (1988). In determining whether there exists a relationship sufficient to impose a duty to act, the societal interests involved, the severity of the risks, the burden upon the defendant and the likelihood of occurrence must be balanced. Pinkins, supra, pp 652-653. Plaintiffs at bar assert that defendant and Maintenance Management Corporation had a special relationship arising from a moral and social duty which Michigan law recognizes as existing between an individual's former and prospective employers. Plaintiffs would have us find that this moral and social duty gives rise to a qualified privilege which would require employers to divulge deleterious information regarding former employees without fear of a defamation suit. This we are unwilling to do. We agree that Michigan law recognizes an employer's qualified privilege to divulge information about a former employee to a prospective employer. See Dalton v Herbruck Egg Sales Corp, 164 Mich App 543; 417 NW2d 496 (1987). There is, however, nothing about the conditional privilege which magically transposes it into a legal obligation *769 requiring employers to disclose adverse information concerning a former employee. Rather, it is quite clear that in Michigan a former employer's duty to release information about a past employee is an imperfect obligation of a moral or social character. Wynn v Cole, 68 Mich App 706, 713; 243 NW2d 923 (1976); aff'd on remand, 91 Mich App 517; 284 NW2d 144 (1979). There is a great societal interest in insuring that employment records are kept confidential. It is all too easy to envision a career destroyed by malefic information released by a disgruntled former employer. To expand the qualified privilege presently enjoyed by employers to require the release of deleterious information without fear of a defamation suit represents a major change in the law. We note that, at present, Michigan has no less than nine statutory provisions addressing libel and slander. In light of this clearly demonstrated legislative intent to regulate defamation law, we feel the position urged upon this Court by plaintiffs is the type of substantive change in the law which is best left to the Legislature. Downie v Kent Products, Inc, 420 Mich 197, 222; 362 NW2d 605 (1984). However, even if the law were such that employers could disclose adverse information about previous employees without fear of defamation suits, it would still be necessary to demonstrate a special relationship between the parties to impose an actionable duty. Duvall v Goldin, 139 Mich App 342, 347; 362 NW2d 275 (1984), lv den 422 Mich 976 (1985). We note that this Court has refused to impose a legal duty to disclose in instances where the relationships were much closer than that presented by the facts before us. See, e.g., Petersen v Heflin, 163 Mich App 402; 413 NW2d 810 (1987) (defendant, the wife of the assailant, co-owner of *770 the premises where the attack occurred and mother-in-law of the victim, had no duty to control the assailant or protect the victim). Nor do we find that the facts presented in the case before us indicate an event so foreseeable as to warrant the imposition of a duty. In Jackson v New Center Community Mental Health Services, 158 Mich App 25; 404 NW2d 688 (1987), lv den 431 Mich 869 (1988), a panel of this Court refused to impose liability upon a psychiatrist and treating hospital although they may have had knowledge of a patient's violent behavior since the patient, who shot and killed two random victims, had not specifically targeted a readily identifiable victim. The case at bar presents neither a foreseeable event nor a foreseeable victim. Plaintiffs' decedent was the unfortunate and tragic victim of St. Clair's random violent behavior. In balancing these factors, we conclude that a former employer has no duty to disclose malefic information about a former employee to the former employee's prospective employer. Although we agree with the trial court that in today's society, with increased instances of child abuse and other types of violence directed towards readily identifiable classes of people, we may have reached a point where people should make this type of information known, we restate our belief that this is a substantive change in our law, the type of change best left to our Legislature. As to plaintiffs' assertion that defendant is clearly liable to them since defendant provided inadequate information to Maintenance Management Corporation, we note that since defendant owed no duty as a matter of law to plaintiffs, defendant can hardly be liable to them. Affirmed. MURPHY, J., concurs in the result only.

306 S.W.3d 561 (2009) The HIGHLANDS HOMES ASSOCIATION, et al., Appellants, v. The BOARD OF ADJUSTMENT, et al., Respondents. No. WD 70862. Missouri Court of Appeals, Western District. December 22, 2009. Motion for Rehearing and/or Transfer to Supreme Court Denied February 2, 2010. Application for Transfer Denied April 20, 2010. *563 Thomas M. Schneider, Columbia, MO, for Appellant. Kathleen D. Pitzer, Columbia, MO, for Respondents, Sprint Spectrum, L.P., E. Stanley Kroenke, William James, Jr., Dennis Harper and Sterling Kelly d/b/a Highland Properties Co. Susan G. Crigler, Columbia, MO, for Respondent, Board of Adjustment of the City of Columbia, Missouri. Before Division III: KAREN KING MITCHELL, Presiding Judge, and JAMES E. WELSH and MARK D. PFEIFFER, Judges. KAREN KING MITCHELL, Presiding Judge. This is an appeal from an administrative decision of the Columbia Board of Adjustment ("Board") granting two zoning variances in favor of Highland Properties Co. ("Landowner") and Sprint Spectrum, L.P. ("Sprint") for development of a disguised cellular support structure and accompanying equipment storage facility. We affirm the Board's decision. Factual and Procedural Background Landowner entered into a lease agreement with Sprint, allowing Sprint to construct a ninety-five-foot mono-pole cellular tower on a now-vacant lot. The tower, more accurately called a "disguised support structure," would be designed to look like a flagpole, but without the flag. It would not be lighted and would be painted a matte grey color. The lease also allowed for an equipment shelter for aboveground storage ancillary to the tower. The structure would be landscaped and hidden behind *564 a masonry wall. Verizon Wireless would also use the tower once constructed. The property at issue is zoned C-1, which is a commercial zoning designation for an "intermediate business district." Pursuant to Section 29-21.3(c)(4) of the City of Columbia Ordinances, the construction of a disguised support structure is a permitted use in a C-1 zoning district, "provided that all related equipment shall be placed underground or concealed within the structure." A variance would, therefore, be needed to place the equipment shelter aboveground. Landowner and Sprint requested such a variance from the Board. Columbia's ordinances also limit the height of any building or tower located in a C-1 zoning district to a maximum of thirty-five feet, while allowing another six feet for an antenna, for a maximum total height of forty-one feet. §§ 29-14(d)(3) & 29-26. Initially, Landowner and Sprint took the position before the Board that because disguised support structures were not buildings or towers, they were not subject to the height requirements and did not need a variance for the construction of the ninety-five-foot pole. The Board decided that, because the disguised support structure served basically the same purpose as a tower, it was subject to the height restriction. Accordingly, Landowner and Sprint sought a second variance for the height of the pole. The Board held a hearing on the variance issue. Evidence was presented to the effect that Sprint had a significant area where the cellular phone service it was able to provide to its customers was less than what was acceptable. Some areas had very poor coverage and some areas had no coverage. Sprint also presented evidence that an increasing number of customers were forgoing land lines in favor of cellular telephone service and that over half of the 911 calls made in Columbia in recent years had been made from cellular phones. A Sprint project manager testified that Sprint had looked for several years for a location for a cellular tower. No existing towers were acceptable to Sprint because they were either too far from the low-coverage area or were otherwise not acceptable for joint use with Verizon Wireless. Sprint had also approached several other landowners about constructing a tower in other locations but could not find an acceptable site where the landowner would agree to lease its land for the construction of a cellular tower. The only acceptable site willing to lease to Sprint was the site at issue. The proposed site is located across the street from the Highlands subdivision. The Highlands is an area of fairly upscale homes. Several of the homeowners testified at the hearing that they did not want the cellular tower in the proposed location because it would be visible from many of their homes, and they were afraid it would cause their property values to fall. Landowner presented a local real estate appraiser who testified that he had researched the issue and that several other upscale neighborhoods were located near and within sight of cellular towers and that the towers seemed to have no effect on property values. On the contrary, he believed that many other of the approved C-1 uses for the property, including apartments, daycare centers, restaurants, and retail centers, would create more traffic, noise, and visual pollution than would the cellular tower and would "have a greater potential to impact on the value of the property in that neighborhood than the proposed tower." In discussing the variance needed to place the equipment shelter aboveground, one Board member noted that "time and again, we have been shown that it just *565 doesn't work to put everything underground." Another Board member stated that he had had several meetings on the matter with other City officials and that they had found that it was not technically feasible to put all of the equipment needed for a cellular tower underground as the ordinance required. There was discussion about the need to update the ordinances, and the Board agreed to grant the two requested variances. The Highlands Homes Association and individual homeowners (collectively "Association") appeal the Board's decision. Standard of Review We review the decision of the Board, not the decision of the trial court. State ex rel. Teefey v. Bd. of Zoning Adjustment, 24 S.W.3d 681, 684 (Mo. banc 2000). We review many zoning board decisions to determine whether they are supported by competent and substantial evidence on the record as a whole, or whether they are arbitrary and capricious, unreasonable, unlawful, or in excess of the Board's jurisdiction. Id. This is the standard of review the Association urges us to use. A zoning board's grant of non-use variances such as the ones at issue in this case, however, are reviewed for abuse of discretion. State ex rel. Branum v. Bd. of Zoning Adjustment, 85 S.W.3d 35, 39 (Mo. App. W.D.2002). There are two main types of variances a board may be asked to grant. Use variances allow a landowner to use a particular property in a manner that is not permitted under applicable zoning ordinances. See Matthew v. Smith, 707 S.W.2d 411, 413 (Mo. banc 1986). Non-use variances allow the landowner to use the property in a manner approved by the ordinance but allow the landowner to deviate from a restriction related to the permitted use. Id. Non-use variances usually concern restrictions as to height of a structure, bulk of a structure, or setback from a property line. Id. In this case, a disguised cellular support structure is a permitted use for property zoned C-1, so the requested variance is a non-use variance. An applicant for a use variance must prove that it faces an "unnecessary hardship," whereas an applicant for a non-use variance must show that it faces "practical difficulties." Baumer v. City of Jennings, 247 S.W.3d 105, 113 (Mo.App. E.D.2008). The non-use variance applicant's burden is, therefore, "slightly less rigorous" than that of the use-variance applicant. Id. (emphasis in original). "The determination of whether practical difficulties exist is a factual matter," which is why the abuse of discretion standard is used. Id. Legal Analysis The Association's first two points on appeal are that there is a lack of substantial evidence in the record supporting the Board's grant of the non-use variances for the construction of the cellular tower and the equipment structure. Because the Association does not apply the correct standard of review, we will interpret their points as asserting that the Board abused its discretion in granting the variances. See Branum, 85 S.W.3d at 39. A. Height Variance We will first review the grant of the variance as to the height of the disguised support structure. The Board granted the variance, apparently finding Sprint and Landowner proved practical difficulties that warranted the variance. The Association argues that Landowner "failed to offer any evidence to establish the elements of a variance," citing Branum. Branum, however, does not set forth "elements of a variance," a fact that the Association's counsel acknowledged of his own accord at argument. Rather, Branum *566 notes that there is no precise definition for "practical difficulties" when it comes to a board's determination of whether a variance should be granted. Id. at 40. It goes on to quote Slate v. Boone County Board of Adjustment, 810 S.W.2d 361, 364 (Mo.App. W.D.1991), "`[a]t the very least, a non-use variance applicant must show that as a practical matter the property cannot be used for a permitted use without coming into conflict with certain of the ordinance's restrictions.'" Id. (emphasis added). The Association seems to interpret this to mean that before a variance could be granted, Landowner must show that the land cannot be used for any permitted use without coming into conflict with the ordinance's restrictions. This is not our reading of the law. Clearly, a disguised cellular support structure is a permitted use in property zoned C-1. Sprint and Landowner also presented evidence at the hearing that a forty-one-foot tower would not be sufficient to provide adequate service to Sprint's customers and that a minimum height of ninety-five feet would be required. Sprint and Landowner also provided several maps showing optimal cellular coverage as it is currently, what it would be with a thirty-five-foot tower, with a forty-one-foot tower, and with a ninety-five-foot tower. Thus, Landowner and Sprint sufficiently proved that they could not use the land for a disguised cellular support structure, a permitted C-1 use, without coming into conflict with the height restrictions found in the ordinance. Branum lists several additional factors for a board to consider when determining whether "practical difficulties" exist, and these are what the Association calls "elements of a variance." These factors include: (1) how substantial the requested variance is; (2) whether the variance will result in a substantial change to the character of the neighborhood or create a substantial detriment to adjoining properties; (3) whether the difficulty can be obviated by some method, feasible for the applicant to pursue, other than a variance; and (4) whether, in light of the manner in which the difficulty arose and considering all relevant factors, the interests of justice will be served by granting the variance. Id. at 41. We will briefly address each of these factors. Association points out that the requested height variance is more than twice the current height restriction set forth in the ordinance. While this is true, and certainly a ninety-five-foot-tall building would be difficult to justify in a C-1 area under any circumstance, the cellular tower is quite narrow, being designed to resemble a flagpole, and so it is far less obtrusive than its height alone would indicate. The Association argues that the second factor also weighs in its favor. Several neighbors testified at the hearing that they were afraid their property values would decrease if the variance were granted. However, there was ample evidence presented at the hearing that several other comparable subdivisions in Columbia were within sight of cellular towers, some much higher than the one proposed by Sprint and Landowner. Also, a local real estate appraiser testified that not only did he not believe that cellular towers reduced neighboring property values but that other approved uses for the C-1-zoned property would have a much greater negative impact on the enjoyment and value of the neighboring homes than would the tower. Association argues that the third factor favors it, because Landowner could have requested a change in the zoning of the property rather than request a variance. This is true. However, a landowner could always request a change in the zoning of a particular property; so if this were the *567 criterion, a variance would never be justified. Moreover, the Landowner and Sprint presented evidence that Sprint could not construct a workable cellular tower at the approved forty-one-foot height and that it had searched for several years without success to find a suitable substitute location. We find that a variance is the best cure for the would-be violation in this case. We find that the fourth factor also favors the Board's grant of the variance. The Board considered that cellular phone usage in Columbia was ever-increasing; that the area near the proposed tower had a gap in reliable service; that not only Sprint, but also Verizon was planning to use the proposed tower to provide cellular service to Columbia customers; that the requested variance was the least amount needed to provide adequate service to nearby properties; that the tower was not predicted to impact the value of neighboring homes negatively; and that the proposed tower would not present a health risk to nearby residents. While the Board did consider the testimony of the neighbors who attended the hearing, it unanimously voted to approve the variance, finding practical difficulties existed warranting the variance. The Board did not abuse its discretion with its determination. Finally, in addition to the four factors set forth in Branum, Association contends that variances may only be granted for reasons related to the property and not due to personal hardship of the owners. Specifically, Association claims that variances should be limited to situations where the topography of the land makes compliance with ordinance requirements impractical. Association clearly gets this "element of a variance" from Branum as well. Id. at 40-41. However, a careful reading of Branum and the cases it cites does not lead us to conclude that a topographical challenge is required for the proper granting of a variance in every instance. In several of the cases cited by Branum, the city ordinance at issue setting forth when a variance may be granted required such a topographical limitation.[1] Association cites no such limitation in the applicable Columbia ordinances. Another instance where Branum and the authority it cites require a land-specific challenge is when "economic hardship" is a primary consideration. Id. at 41. See also State ex rel. Holly Inv. Co. v. Bd. of Zoning Adjustment, 771 S.W.2d 949, 951-52 (Mo. App. W.D.1989). This occurs when an ordinance is violated and an applicant later seeks a variance to prevent great economic hardship in bringing its property into compliance with the ordinance. Branum, 85 S.W.3d at 41. Imposing the additional requirement of establishing a topographical limitation is justified when the Landowner created the "economic hardship" upon which he then seeks to rely to support a variance. Because Landowner and Sprint do not seek to rely on "economic hardship" as a primary consideration, we do not find that they were required to *568 show a topographical limitation to the particular piece of land in question to justify their request for a variance in this instance. In sum, the Board considered all of the relevant factors set forth in Branum and determined that the height variance Landowner and Sprint requested was appropriate. We do not find that it abused its discretion in so doing. B. Equipment Structure Variance Property zoned C-1 may have a disguised cellular support structure such as the one proposed, so long as any accompanying equipment is housed underground or concealed within the structure. Sprint and Landowner requested a variance to house the equipment in a separate aboveground support structure, which the Board also approved. The Association also argues that the Board erred in granting this variance. The Association's main argument as to this point is that Landowner presented no evidence other than its attorney's opening statement that the equipment could not be stored underground.[2] While this is true, the Board's proceedings are not bound by the strict rules of evidence that apply in courts. The Board may consider counsel's remarks. Also, the Board had before it a letter dated May 29, 2007, from counsel on behalf of Landowner's and Sprint's application for variance, which was requested to be considered part of the application, stated that the support equipment needed for the tower was "too large to be housed in the tower and [would] need to be accessible for maintenance, repair, replacement and other care such that being underground [was] not practical." Furthermore, the Board's discussion at the end of the hearing makes evident that it had considered this issue multiple times in the past: MS. JOHN: As to the underground equipment shed, time and again, we have been shown that it just doesn't work to put everything underground. MR. PANECK: John Sudduth, Building Regulations Supervisor, Henry Stoltz, City Counselor, and myself have had meetings over this issue. And I think it was Mr. Stoltz's position that it is nearly technically infeasible to place this equipment either underground or inside the structure. MS. JOHN: Right. MR. PANECK: And it has become the interpretation, though it is not necessarily in the ordinance, but it has become our interpretation that a disguised structure as a pole or a tree or whatever it may be, would include a disguised equipment shelter, so long as it was compatible with the adjoining architecture. MS. JOHN: Okay. Okay. Is that something that we should request a revision? MR. PANECK: Yes. "A board may consider the hearsay testimony of city staff members received without objection." Baumer v. City of Jennings, 247 S.W.3d 105, 113 (Mo.App. E.D. 2008); State ex rel. Sander v. Bd. of Adjustment, 60 S.W.3d 14, 16 (Mo.App. E.D. 2001). We see no need to require variance applicants to re-invent the wheel if the Board and other City officials have already heard evidence on this issue in other cases. The Association also argues that the Board has improperly effectively rewritten the ordinance by interpretation. While Mr. Paneck, in the above-cited transcript, used the word "interpretation," the Board did not merely interpret the existing ordinance to allow for an aboveground support *569 structure. The Landowner still applied for a variance on the matter, and the Board still granted the variance. The Board also noted that it should pursue revision of the ordinance in accordance with its findings for future development. We would remind the Board that so amending the ordinance might prevent similar litigation in the future, in case it is inclined to abandon such amendment. Repeated grants of variances on this issue could possibly constitute an abuse of the Board's discretion.[3]See Wehrle v. Cassor, 708 S.W.2d 788, 791 (Mo.App. E.D.1986) (holding that unlimited discretion to grant variances would constitute an unconstitutional delegation of legislative authority). Association has not alleged that the Board has repeatedly and improperly granted such variances, however, so as to constitute a de facto amendment of the ordinance. We do not find, therefore, that the Board abused its discretion in granting the variance for the aboveground support structure in this instance. C. Federal Telecommunications Act For the Association's final point on appeal, it claims that the Board erred in approving the requested variances to the extent that it relied on the Federal Telecommunications Act, because it does not apply to the case at issue. The Federal Telecommunications Act, 47 U.S.C. § 332(c)(7) (1996), provides that when a local governing authority denies permission to construct a wireless facility, the denial must be supported by substantial evidence. The purpose of this law is to "promote competition and higher quality in telecommunications services and to encourage the rapid deployment of new telecommunications technologies." Verizon Wireless (VAW), LLC v. Douglas County, Kansas, Bd. of County Comm'rs, 544 F.Supp.2d 1218, 1241 (D.Kan.2008). One of the Board members mentioned this provision during the discussion at the end of the hearing. As the Association notes in its own brief, however, "there is no reason to believe that the Board of Adjustment based its decision upon it." Indeed, the Telecommunications Act would have been applicable only if the Board had denied the applications for variance at issue in this case. It did not, and so we need not address this point further. Conclusion For all of the above reasons, we find that the Board of Adjustment of the City of Columbia did not abuse its discretion in granting the requested variances to Highland Properties Co. and Sprint Spectrum, L.P., for the construction of the disguised cellular support structure and the accompanying equipment facility. We, therefore, affirm the decision of the Board. JAMES E. WELSH, Judge, and MARK D. PFEIFFER, Judge, concur. NOTES [1] See, e.g., Hutchens v. St. Louis County, 848 S.W.2d 616, 618 (Mo.App. E.D.1993) (ordinance allowing variance "where there are practical difficulties or unnecessary hardships in the carrying out of these provisions due to an irregular shape of the lot, topographical or other conditions"); State ex rel. Klawuhn v. Bd. of Zoning Adjustment, 952 S.W.2d 725, 728 (Mo.App. W.D.1997) (ordinance allowing consideration of a variance when "[t]he particular physical surroundings, shape or topographical condition of the specific property involved would result in an unnecessary hardship upon the owner as distinguished from a mere inconvenience"); Wehrle v. Cassor, 708 S.W.2d 788, 790 (Mo.App. E.D.1986) (ordinance allowing granting of a variance "when an irregular shape of the lot, topographic or other similar condition causes practical difficulties or unnecessary hardships"). [2] That the equipment cannot be concealed within the flagpole-like structure is not challenged. [3] We say "could" because the court's own review of the zoning ordinances alerts us to Section 29-31(g)(6)c, which states: In passing upon appeals where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of this chapter, [the Board shall have the power] to vary or modify the application of any of the regulations or provisions of such chapter relating to the construction or alteration of buildings, so that the spirit of such chapter shall be observed, public safety and welfare secured, and substantial justice done. Neither party addresses whether this provision could be used to allow the Board to routinely "interpret" the ordinances to allow support equipment structures aboveground without pursuing modification of the existing ordinances, and we need not decide the matter here.

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE RANDA DRIVER, Plaintiff/Appellant, v. ARIZONA DEPARTMENT OF REVENUE, Defendant/Appellee. No. 1 CA-TX 18-0006 FILED 6-11-2019 Appeal from the Arizona Tax Court No. TX2017-000183 Maricopa County Superior Court No. LC2016-000509-001 The Honorable Christopher T. Whitten, Judge AFFIRMED COUNSEL Randa Driver, Scottsdale Plaintiff/Appellant Arizona Attorney General’s Office, Phoenix By Benjamin H. Updike Counsel for Defendant/Appellee  DRIVER v. ADOR Decision of the Court MEMORANDUM DECISION Judge Maria Elena Cruz delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined. C R U Z, Judge: ¶1 Randa Driver appeals from the grant of summary judgment in favor of the Arizona Department of Revenue (the “Department”) finding Driver liable for luxury and use tax on the cigarettes she purchased over a three-year period. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Between January 1, 2007 and November 30, 2009 (the “Assessment Period”), Driver purchased cigarettes from Chavez, Inc. (“Chavez”), a company that sold cigarettes by phone and over the Internet. In 2010, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) investigated Chavez for the unlawful diversion of tobacco products. Chavez pled guilty to wire fraud and admitted to running “an illegal retail cigarette trafficking business” and selling unstamped cigarettes on which no tax was paid. ¶3 During the investigation, ATF identified the Arizona customers to whom Chavez had sold and shipped cigarettes and provided their names and purchase information to the Department. Using that information, the Department issued Driver a Notice of Proposed Assessment (“Notice”) reflecting that she owed $4,473.89 in luxury and use tax, plus interest. ¶4 Driver protested the assessment. At a hearing before the Office of Administrative Hearings, the Administrative Law Judge (“ALJ”) deducted five invoices from the assessment, concluding that Driver’s sister had made those purchases, but upheld the remaining assessment. Driver appealed the ALJ’s decision to the Department Director, who affirmed. She then appealed to the Board of Tax Appeals (“BOTA”), who also affirmed. ¶5 After exhausting her administrative remedies, Driver appealed to tax court. The parties filed cross-motions for summary judgment. The court granted the Department’s motion and denied Driver’s. After entry of final judgment, Driver appealed. We have 2  DRIVER v. ADOR Decision of the Court jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section 12- 2101(A)(1) (2019). DISCUSSION ¶6 We review the tax court’s grant of summary judgment de novo. See Wilderness World, Inc. v. Dep’t of Revenue State of Ariz., 182 Ariz. 196, 198 (1995). In doing so, we view the facts in the light most favorable to Driver, the party against whom judgment was entered. See Valencia Energy Co. v. Ariz. Dep’t of Revenue, 191 Ariz. 565, 568, ¶ 2 (1998). I. Luxury and Use Tax ¶7 Driver first argues the tax court erred in granting summary judgment because Chavez “legally owed all taxes on cigarettes sold into this state” and, therefore, Driver is not liable for the tax. ¶8 Arizona imposes a luxury privilege tax on all cigarette purchases. See A.R.S. § 42-3051 (2019). Under Arizona law, cigarettes cannot be sold unless the luxury tax has been paid and an official tax stamp is affixed. See A.R.S. § 42-3452 (2019), formerly A.R.S. § 42-3202 (2006). A tax stamp is evidence that luxury tax was paid, and the law presumes that unstamped cigarettes “are intended for first sale by the person and are subject to the taxes imposed by this chapter.” A.R.S. § 42-3453 (2019), formerly A.R.S. § 42-3202.01 (2006); see also A.R.S. § 42-3452 (2019), formerly A.R.S. § 42-3202 (2006). “First sale” means either “the initial sale or distribution in intrastate commerce” or “the initial use or consumption of cigarettes.” A.R.S. § 42-3001(10) (2019), formerly A.R.S. § 42-3001(12) (2006). ¶9 Current Arizona law prohibits the purchase of cigarettes by telephone, Internet, or mail. See A.R.S. § 36-798.06 (2019); 2012 Ariz. Sess. Laws, ch. 311, § 2 (2nd Reg. Sess.). Under current law, an individual cannot possess unstamped cigarettes unless that person is a licensed cigarette manufacturer, importer or distributor, or has a proper bill of lading. See A.R.S. § 42-3457(A) (2019). During the Assessment Period, however, phone and Internet cigarette sales were permitted and were governed by the “Delivery Sales” statutes. See A.R.S. §§ 42-3221 to -3230 (2006), repealed by 2012 Ariz. Sess. Laws, ch. 3, § 20 (2nd Reg. Sess.). ¶10 At the time Driver was purchasing cigarettes from Chavez, an individual could possess unstamped cigarettes for his or her own use and consumption if the person complied with certain requirements. See A.R.S. § 42-3205(A) (2006). To legally possess unstamped cigarettes, the individual had to register with the Department “on a form and in a manner 3  DRIVER v. ADOR Decision of the Court prescribed” by the Department and remit luxury tax within ten days after receipt of the unstamped cigarettes. See A.R.S. § 42-3201(C) (2006). The prescribed registration form was Arizona Form 800DS, entitled the “Cigarette Tax Return” required for “unstamped cigarettes imported into Arizona.” ¶11 Driver purchased cigarettes from Chavez for her own use or consumption in Arizona. No tax was paid on those cigarettes. Although required under law to file a Form 800DS and remit taxes to the Department, Driver did neither. Therefore, she is liable for the unpaid luxury tax. ¶12 In addition to luxury tax, Arizona also imposes a tax on the use or consumption of tangible personal property purchased from an out- of-state retailer. See A.R.S. § 42-5155(A) (2019). A purchaser is personally liable for use tax. See A.R.S. § 42-5155(F) (2019), formerly A.R.S. § 42-5155(E) (2006). This court has previously explained the distinction between the transaction privilege tax and the use tax: “In contrast to the transaction privilege tax, which is imposed on transactions consummated within Arizona, a use tax is designed to reach out-of-state sales of tangible personal property to Arizona purchasers.” See Ariz. Elec. Power Coop., Inc. v. Ariz. Dep’t of Revenue, 242 Ariz. 85, 87, ¶ 7 (App. 2017). ¶13 The record reflects that, over the course of three years, Driver purchased cigarettes from Chavez, an out-of-state retailer, and used or consumed the cigarettes in Arizona. Thus, Driver is liable for use tax. ¶14 Driver’s complaint alleged that “[t]he remote tobacco seller [Chavez], NOT the buyer, was legally required to collect and remit all Arizona taxes owed at the time of taking the internet order.” Driver is correct that under the Delivery Sales statutes, “[e]ach person accepting a purchase order for a delivery sale” was required to “collect and remit to the [D]epartment all taxes imposed on tobacco products by this state.” A.R.S. § 42-3227 (2006). Chavez failed to comply with the Delivery Sales statutes. Its failure, however, does not relieve Driver of tax liability. As a purchaser of unstamped cigarettes, Driver was still liable for payment of luxury and use tax. See A.R.S. §§ 42-3201(C) (2006); -5155 (2006). ¶15 Because the tax court properly determined that Driver was liable for luxury and use tax on her cigarette purchases, we affirm the entry of summary judgment. 4  DRIVER v. ADOR Decision of the Court II. Statute of Limitations ¶16 Driver next argues the assessment is barred by the four-year statute of limitations set forth in § 42-1104. This statute authorizes the Department to make a deficiency assessment within four years after a return is either filed or required to be filed, whichever date comes later. See A.R.S. § 42-1104(A) (2019). The assessment here reached back more than four years. ¶17 Section 42-1104(B), however, provides exceptions to the four- year limitation period and authorizes the Department to assess a tax deficiency “at any time” if the taxpayer fails to file a return. See A.R.S. § 42- 1104(B)(1)(b) (2019). We review the application of § 42-1104 de novo. See Ader v. Estate of Felger, 240 Ariz. 32, 36, ¶ 9 (App. 2016) (applying de novo review to the interpretation of statutory time limitations). ¶18 Driver does not contend that she filed a Form 800DS, the cigarette tax return. Therefore, the Department’s assessment falls within the exception to the four-year statute of limitations applying when a taxpayer fails to file a return. See A.R.S. § 42-1104(B)(1)(b) (2019). Because the Department’s assessment is not time barred, we affirm the entry of summary judgment. III. Due Process of Law ¶19 Finally, Driver argues that the tax court deprived her of due process of law in violation of the Fourteenth Amendment of the United States Constitution. This court reviews Driver’s constitutional claim de novo. See In re Estate of Snure, 234 Ariz. 203, 204, ¶ 5 (App. 2014). ¶20 “Due process requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner.” Huck v. Haralambie, 122 Ariz. 63, 65 (1979). The Department provided Driver with the Notice, as required by law, and she had an opportunity to be heard in the administrative proceedings. Driver protested the Notice in a hearing before the Office of Administrative Hearings, where the ALJ reduced the amount of the assessment. Driver then appealed the ALJ’s decision to the Department Director. After the Director affirmed the ALJ’s decision, Driver appealed to the BOTA where she was given a second hearing. From there, she appealed to tax court. Driver was provided notice and ample opportunity to be heard. ¶21 Driver also argues that “the opportunity to defend on statute of limitations grounds is a vested right protected by due process.” As the 5  DRIVER v. ADOR Decision of the Court United States Supreme Court has explained, however, the right to shelter from a statute of limitations is not a “fundamental” or “natural right.” See Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314 (1945). Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost. . . . Their shelter has never been regarded as what now is called a ‘fundamental’ right or what used to be called a ‘natural’ right of the individual. He may, of course, have the protection of the policy while it exists, but the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control. Id. (citation omitted); see also Lucia v. United States, 474 F.2d 565, 569-70 (5th Cir. 1973) (“[T]here is no substantive or fundamental right to the shelter of a period of limitations.”). ¶22 The Arizona legislature has provided a four-year statute of limitations to taxpayers but has declined to extend that protection to taxpayers who fail to file their returns. See A.R.S. § 42-1104 (2019). Other states have established similar limitations. See, e.g., Zignego Co., Inc. v. Wisconsin Dep’t of Revenue, 565 N.W.2d 590, 593 (Wis. Ct. App. 1997) (holding that “if a sales and use tax return is never filed,” the statute of limitations “never begins to run”); Dye Constr. Co. v. Dolan, 589 P.2d 497, 498 (Colo. Ct. App. 1978) (holding that if a taxpayer fails to file a return, the taxing authority is not bound by the statute of limitations). ¶23 Driver had no fundamental right to the statutory four-year statute of limitations, and there was no violation of her due process rights. 6  DRIVER v. ADOR Decision of the Court CONCLUSION ¶24 For the foregoing reasons, we affirm the tax court’s decision. We award costs to the Department upon compliance with Arizona Rule of Civil Appellate Procedure 21. AMY M. WOOD • Clerk of the Court FILED: JT 7 

Filed 6/28/16 P. v. Johnson CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX THE PEOPLE, 2d Crim. No. B264679 (Super. Ct. Nos. F334169, Plaintiff and Respondent, F352789, F379456, F416886) (San Luis Obispo County) v. RYAN JAMES JOHNSON, Defendant and Appellant. The issue here concerns the proper construction of the word "prior" in Penal Code section 1170.18, subdivision (i) (hereafter "subdivision (i)").1 Section 1170.18 was enacted in November 2014 by the passage of Proposition 47, also known as the Safe Neighborhoods and Schools Act. Section 1170.18, subdivisions (f) and (g) permit certain convicted felons who have completed their sentences to apply to have their felony convictions designated as misdemeanors. Subdivision (i) states that section 1170.18 "shall not apply to persons who have one or more prior convictions" for specified serious or violent felonies, including murder. (Italics added.)2 The question is 1 All statutory references are to the Penal Code unless otherwise stated. 2 The full text of subdivision (i) is as follows: "The provisions of this section [section 1170.18] shall not apply to persons who have one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290." whether "prior" means prior to the felony conviction that the applicant is seeking to have designated as a misdemeanor, or prior to the court's ruling on the application. We conclude that "prior" means prior to the court's ruling on the application. We affirm the trial court's order denying appellant's application to have his felony convictions designated as misdemeanors because he was convicted of murder prior to the trial court's ruling on the application. It is of no consequence that the murder conviction occurred after the felony convictions that he sought to have designated as misdemeanors. Procedural Background In January 2015, appellant filed an application requesting that four felony convictions be designated as misdemeanors pursuant to section 1170.18, subdivisions (f) and (g). The felony convictions occurred in 2003 (case no. F334169), 2005 (case nos. F352789 and F379456), and 2008 (case no. F416886). The District Attorney responded that appellant is ineligible for the requested relief because he was convicted of murder in case no. F435613. The murder conviction occurred after the felony convictions that appellant sought to have designated as misdemeanors. In 2013 we affirmed the murder conviction. (People v. Johnson (2013) 221 Cal.App.4th 623.) The trial court denied the application. Discussion Appellant claims that the trial court erroneously denied his application for designation as misdemeanors. He argues that he was eligible for the requested relief because his murder conviction occurred after the subject convictions. Where, as here, a matter of statutory construction is involved, "our task is to discern the lawmakers' intent. [Citation.] Because section [1170.18] was enacted by the electorate, it is the voters' intent that controls. [Citation.] Nonetheless, our interpretation of a ballot initiative is governed by the same rules that apply in construing a statute enacted by the Legislature. [Citations.] We therefore first look to 'the language of the statute, affording the words their ordinary and usual meaning and viewing them in their statutory context.' [Citations.]" (People v. Park (2013) 56 Cal.4th 782, 796.) "'When the 2 language is ambiguous, "we refer to other indicia of the voters' intent, particularly the analyses and arguments contained in the official ballot pamphlet." [Citation.]' [Citation.]" (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901.) The term "prior" in subdivision (i) is ambiguous. The ambiguity is "cured" by the Legislative Analyst's comments on Proposition 47 in the Official Voter Information Guide for the November 4, 2014 general election. The Legislative Analyst made clear that "prior" means prior to the court's ruling on an application to have a felony conviction designated as a misdemeanor: "This measure [Proposition 47] allows offenders currently serving felony sentences for the above crimes to apply to have their felony sentences reduced to misdemeanor sentences. In addition, certain offenders who have already completed a sentence for a felony that the measure changes could apply to the court to have their felony conviction changed to a misdemeanor. However, no offender who has committed a specified severe crime [e.g., murder] could be resentenced or have their conviction changed." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), Prop. 47, Analysis by Legislative Analyst, p. 36, italics added.) Thus, it makes no difference whether appellant was convicted of murder before or after the felony convictions that he sought to have designated as misdemeanors. Appellant was ineligible for relief because, when the trial court ruled on his application, he had a prior conviction for murder. "The Legislative Analyst's comments, like other materials presented to the voters, 'may be helpful but are not conclusive in determining the probable meaning of initiative language.' [Citation.] Thus, when other statements in the election materials contradict the Legislative Analyst's comments we do not automatically assume that the latter accurately reflects the voters' understanding. [Citation.]" (San Francisco Taxpayers Assn. v. Bd. of Supervisors (1992) 2 Cal.4th 571, 580.) Nothing in the election materials for Proposition 47 contradicts the Legislative Analyst's conclusion that "no offender who has committed a specified severe crime could be resentenced or have their conviction changed." (See People v. Superior Court (Henkel) (2002) 98 Cal.App.4th 78, 3 82 [Legislative Analyst's comment "eliminates doubt" as to correct interpretation of ballot proposition].) Moreover, the rebuttal to the argument against Proposition 47 made clear that a person who has been convicted of murder cannot seek relief under section 1170.18 regardless of when the conviction occurred: "Proposition 47 does not require automatic release of anyone. There is no automatic release. It includes strict protections to protect public safety and make sure rapists, murderers, molesters and the most dangerous criminals cannot benefit." (Voter Information Guide, supra, Rebuttal to Argument Against Prop. 47, p. 39.) Finally, section 2 of Proposition 47 provides, "This act ensures that sentences for people convicted of dangerous crimes like rape, murder, and child molestation are not changed." (Voter Information Guide, supra, Text of Proposed Law: The Safe Neighborhoods and Schools Act, § 2, p. 70.) Section 3, subdivision (1) of Proposition 47 includes a similar provision: "In enacting this act, it is the purpose and intent of the people of the State of California to: [¶] (1) Ensure that people convicted of murder, rape, and child molestation will not benefit from this act." (Id., § 3, subd. (1), p. 70.) Were we to adopt appellant's interpretation of "prior conviction" in subdivision (i), people like appellant who had been convicted of murder would benefit from Proposition 47. This would be contrary to the intent of the electorate. "'[W]e may not properly interpret the measure in a way that the electorate did not contemplate: the voters should get what they enacted, not more and not less.' [Citation.]" (People v. Park, supra, 56 Cal.4th at p. 796.) Our interpretation of "prior conviction" in subdivision (i) is consistent with People v. Zamarripa (2016) 247 Cal.App.4th 1179, 1184 ["the 'prior conviction' ineligibility for relief means a disqualifying conviction that occurred any time before the filing of the application for Proposition 47 relief"]. It is also consistent with People v. Montgomery (2016) 247 Cal.App.4th 1385, 1392 ["section 1170.18 precludes redesignation for anyone who has a conviction for the enumerated excluded crimes prior to the time of the application for such relief"]. 4  Disposition The order denying appellant's application to designate felony convictions as misdemeanors pursuant to section 1170.18 is affirmed. NOT TO BE PUBLISHED. YEGAN, J. We concur: GILBERT, P. J. PERREN, J. 5  Michael L. Duffy, Judge Superior Court County of San Luis Obispo ______________________________ Laini Millar Melnick, under appointed by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent. 

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT LEONARDO GUTIERREZ, Appellant, v. DEPARTMENT OF FINANCIAL SERVICES, Appellee. No. 4D16-4042 [October 5, 2017] Appeal from the State of Florida, Department of Financial Services; L.T. Case No. 187898-16-AG. Howard J. Hochman, Miami, for appellant. Matthew R. Daley, Assistant General Counsel, and Gregory D. Venz, Deputy General Counsel, Tallahassee, for appellee. PER CURIAM. Affirmed. TAYLOR, MAY and KUNTZ, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing. 

 and had a land use planning expert testify that the request conformed to the County's codes and the Enterprise master plan. The Enterprise Town Advisory Board, other neighboring property owners, and the Southwest Action Network, a community organization, opposed El Dorado's request, arguing that the project was too intense for the surrounding Rural Neighborhood Preservation area. After the public hearing, the Board denied El Dorado's zone change request and design review. El Dorado filed a petition for judicial review, which the district court denied, and this appeal followed. This court reviews the Board's grant or denial of a rezoning request for an abuse of discretion and will affirm the Board's factual determinations if they are supported by substantial evidence. City of Reno v. Citizens for Cold Springs, 126 Nev. , 236 P.3d 10, 15-16 (2010). The Enterprise master plan sets forth competing goals for growth and development that guide rezoning decisions, including protecting low- density rural living as a lifestyle choice and providing opportunities for research and business park development. Thus, the master plan does not guarantee that a particular zoning district, density, or intensity of land use will be approved by the Board. Although the zone change request conformed to the master plan and El Dorado presented evidence that supported its request, the Board also heard and considered evidence in opposition to the request. Because a zoning decision is discretionary, there is a "general reluctance to judicially intervene in zoning determination absent clear necessity." Nova Horizon, Inc. v. City Council of Reno, 105 Nev. 92, 96-97, 769 P.2d 721, 724 (1989). While the record may contain evidence contrary to the finding of the Board, this court will not reweigh the evidence or replace SUPREME COURT OF NEVADA 2 (0) 1947A  the Board's judgment as between two reasonably conflicting views. See NRS 233B.135(2); Nellis Motors v. State, Dep't of Motor Vehicles, 124 Nev. 1263, 1269-70, 197 P.3d 1061, 1066 (2008). The Enterprise Town Advisory Board's concerns in opposition to the project, as well as the issues raised by neighboring property owners and the Southwest Action Network, constitute substantial evidence that supports the Board's decision to deny El Dorado's zone change request and design review. See Stratosphere Gaming Corp. v. City of Las Vegas, 120 Nev. 523, 529-30, 96 P.3d 756, 760-61 (2004) (explaining that substantial and specific public opposition may constitute substantial evidence . to support a zoning decision); see also City of Reno, 126 Nev. at , 236 P.3d at 15 (defining substantial evidence as "that which a reasonable mind could accept as sufficient to support a conclusion"). And despite appellant's assertion otherwise, the Board's decision does not conflict with the master plan, which sets forth the goals and policies for zoning decision-making and allows for a range of possible zoning districts on appellant's property. Accordingly, because the Board did not abuse its discretion in denying the zone change request and design review, we affirm the district court's order denying judicial review. It is so ORDERED. J. Saitta ' J. Gibbons SUPREME COURT OF NEVADA 3 (0) 1947A effe544  cc: Hon. Rob Bare, District Judge Nathaniel J. Reed, Settlement Judge Kaempfer Crowell/Las Vegas Clark County District Attorney/Civil Division Eighth District Court Clerk SUPREME COURT OF NEVADA 4 (0) 1947A e 

February 16, 1979 79-15 MEMORANDUM OPINION FOR ASSISTANT ATTORNEY GENERAL, LANDS AND NATURAL RESOURCES DIVISION Federal Aviation Administration—Federal Airport Act of 1946 (60 Stat. 170)—Airport and Airway Development Act of 1970 (49 U.S.C. §§ 1716, 1723)—Conveyance of Federal Lands for Airport Development Mr. Harmon has asked me to respond to your memorandum requesting this Office to initiate action to reinstate the authority initially conferred by Executive Order No. 10536, but subsequently revoked by § 2 o f Executive Order No. 12079. For the reasons expressed herein, we do not believe it necessary to reinstate that authority. Rather, we conclude that the author­ ity conferred by § 1 o f Executive Order No. 12079 is sufficient to meet your concerns. I. Background You raise issues concerning the interrelationship of two separate but related pieces o f legislation and the orders issued thereunder. The perti­ nent portions o f the separate enactments relate both to the development of public airports and to Federal assistance to such projects. The first enact­ ment, the Federal Airport Act o f 1946, 60 Stat. 170 (hereinafter referred to as the 1946 Act), required that, as a condition o f receiving Federal grants, State and local public agencies submit airport development project appli­ cations to the A dm inistrator o f the Federal Aviation Adm inistration. § 9(a), 60 Stat. 174. The Adm inistrator, before entering into any grant agreement, was required to approve the project application. Numerous conditions were to be met before approval could be given; one condition was that No project shall be approved by the Adm inistrator with respect to any airport unless a public agency holds good title, satisfactory to the Adm inistrator, to the landing area o f such airport or the 95  site therefor, or gives assurance satisfactory to the Adm inistrator that such title will be acquired. [Section 9(d), 60 Stat. 175.] Another provision o f the same Act provided for the conveyance o f Federal lands when the Adm inistrator determined that this was “ reasonably neces­ sary for carrying out a project” under the Act. § 16(a), 60 Stat. 179. The procedure for carrying out such a conveyance was as follows: Upon receipt o f a request from the Adm inistrator under this sec­ tion, the head o f the departm ent or agency having control o f the lands in question shall determine whether the requested convey­ ance is inconsistent with the needs o f the departm ent or agency, and shall notify the A dm inistrator o f his determ ination within a period o f four m onths after receipt o f the Adm inistrator’s re­ quest. If such departm ent or agency head determines that the re­ quested conveyance is not inconsistent with the needs o f that departm ent or agency, such departm ent or agency head is hereby authorized and directed, with the approval o f the President and the A ttorney General o f the United States, and without any ex­ pense to the United States, to perform any acts and to execute any instruments necessary to make the conveyance requested; but each such conveyance shall be made on the condition that the property interest conveyed shall automatically revert to the United States in the event that the lands in question are not developed, or cease to be used, for airport purposes. [Section 16(b), 60 Stat. 179.] In Executive Order No. 10536 o f June 9, 1954, the President authorized the heads o f departm ents and agencies to execute conveyances under this provision without the approval o f the President. The second pertinent piece o f legislation, the Airport and Airway Devel­ opm ent Act o f 1970, Pub. L. No. 91-258, 84 Stat. 219 (hereinafter re­ ferred to as the 1970 Act), repealed the 1946 Act, but it also enacted provi­ sions which, to a great extent, adhered to that A ct’s approach. As a condi­ tion o f receiving Federal grants, public agencies once again had to obtain approval o f project applications for airport development. 49 U.S.C. §§ 1716(a), 1719. The conditions o f approval were largely the same as in the 1946 Act, including that o f good title, 49 U .S.C . § 1716(c), but stricter environmental standards were to be applied. See 49 U .S.C . § 1716(c)(4), (d) and (e). A provision similar to that o f the 1946 Act was made for con­ veyances o f Federal lands, except that certain parklands were exempted. 49 U.S.C. § 1723. In Executive O rder No. 12079, 3 CFR 224 (1979), the President authorized the conveyances to be executed without his approval. The repeal o f the 1946 Act soon gave rise to the question whether, where grant agreements had been finalized under the 1946 Act, conveyances of Federal land pursuant to those agreements might still be made and ap­ proved under the authority o f the 1946 Act. In our opinion o f January 19, 1971, this Office answered the question affirmatively. The opinion relied on § 52(c) o f the 1970 Act, 84 Stat. 219, 236, which explicitly continued in 96 effect “ all orders, determ inations, rules, regulations, permits, contracts, certificates, licenses, grants, rights and privileges” which had taken effect under the 1946 Act. The opinion also reasoned that, since a conveyance of land was “ inextricably bound up with the grant agreem ent,” Congress must have intended that the savings clause permitted conveyancing in ac­ cordance with the 1946 Act. Under this interpretation, conveyances continued to be made under the 1946 Act by reason o f Executive Order No. 10536, and were made without the approval o f the President. Despite the significant lapse o f time since the repeal o f the 1946 Act, it is our understanding that a num ber o f con­ veyances, which could be approved without Presidential approval under Executive Order No. 10536 and our previous opinion, have yet to be made. However, since Executive Order No. 10536 has been revoked by Ex­ ecutive Order No. 12079, the question is whether a new authorization must be obtained in order to execute these conveyances without the approval o f the President. As noted above, we do not believe this to be the case. II. Discussion Section 23 o f the 1970 Act, 49 U.S.C. § 1723, provides as follows: (a) Requests for use. Subject to the provisions o f subsection (c) o f this section, whenever the Secretary determines that use o f any lands owned or controlled by the United States is reasonably necessary for carrying out a project for airport development under this part, [part II], or for the operation o f any public airport, including lands reasonably necessary to meet future development o f an air­ port in accordance with the national airport system plan, he shall file with the head o f the departm ent or agency having control of the lands a request that the necessary property interests therein be conveyed to the public agency sponsoring the project in ques­ tion or owning or controlling the airport. The property interest may consist o f the title to, or any other interest in, land or any easement through or other interest in airspace. (b) Execution o f conveyances. Upon receipt o f a request from the Secretary under this sec­ tion, the head o f the departm ent or agency having control o f the lands in question shall determine whether the requested convey­ ance is inconsistent with the needs o f the departm ent or agency, and shall notify the Secretary o f his determ ination within a period o f four m onths after receipt o f the Secretary’s request. If the departm ent or agency head determines that the requested conveyance is not inconsistent with the needs o f that departm ent or agency, the departm ent or agency head is hereby authorized and directed, with the approval o f the President and the Attorney General o f the United States, and without any expense to the United States, to perform any acts and to execute any 97  instruments necessary to make the conveyance requested. A con­ veyance may be made only on the condition that, at the option of the Secretary, the property interest conveyed shall revert to the United States in the event that the lands in question are not developed for airport purposes or used in a m anner consistent with the terms o f the conveyance. If only a part o f the property interest conveyed is not developed for airport purposes, or used in a m anner consistent with the terms o f the conveyance, only that particular part shall at the option o f the Secretary, revert to the United States. (c) Exemptions o f certain lands. Unless otherwise specifically provided by law, the provisions o f subsections (a) and (b) o f this section shall not apply with respect to lands owned or controlled by the United States within any national park, national m onum ent, national recreation area, or similar area under the adm inistration o f the National Park Service; within any unit o f the National Wildlife Refuge System or similar area under the jurisdiction o f the Bureau o f Sport Fisheries and Wildlife; or within any national forest or Indian reservation. Except for the language “ under this p art” in subsection (a), there is noth­ ing in the section precluding its use in situations involving projects for air­ port development conducted under the authority o f the 1946 Act. Rather, the language o f the section is generally broad enough to encompass con­ veyances contem plated in grants under the 1946 Act. O f course, the phrase “ under this part” could be read to restrict the ap­ plication o f § 23 to those airport development projects conducted under the authority o f part II o f the 1970 Act. We do not believe, however, that the phrase was meant to preclude the use o f § 23 in situations involving grants under the 1946 Act. Since § 23 largely restates the analogous provi­ sion o f the 1946 Act, Congress obviously wished to continue that A ct’s purpose o f allowing Federal lands to be conveyed for carrying out airport projects. This purpose would hardly be served by reading the language “ under this part” to preclude the use o f § 23 in projects conducted under the authority o f the 1946 Act. Rather, in light o f Congress’ purpose in en­ acting § 23, and because part II o f the 1970 Act is largely a reenactment of the 1946 Act, see H. Rept. 601, 91st Cong., 1st sess. 12-13 (1969), a more reasonable assessment o f Congress’ intent would be to interpret the term “ under this part” as including projects undertaken under the 1946 A c t.1 1 Indeed, the language “ under this p a rt” essentially tracks the language “ under this A ct” in the analogous provision o f the 1946 A ct. This would suggest that it was not intended to restrict § 23 with respect to the 1946 Act, but rather was simply a continuation o f the policy o f the 1946 Act to allow Federal conveyances only for purposes o f aiding airport develop­ ment projects. 98  Another aspect o f the statute supports our conclusion. As noted above, § 52 o f the 1970 Act provides that grants in effect at the time of the effec­ tive date of the Act were to continue in effect. See 49 U .S.C . § 1701 note. Moreover, as we explained in our January 19, 1971 opinion, grant agree­ ments were inextricably bound up with conveyances o f Federal land. We cannot believe that Congress would, on the one hand; act to preserve grants under the 1946 Act that were dependent on such conveyances and, on the other hand, restrict § 23 to preclude conveyances with respect to these grants. Rather, since Congress wished to preserve existing grants, a more likely interpretation o f § 23 would be that its authority is available to effectuate those grants.2 The legislative history o f the 1970 Act supports this view. One com ­ mittee report states that land may be conveyed under § 23 “ for the pur­ pose of carrying out projects for airport developm ent.” H. Rept. 601, 91st Cong., 1st sess. 15 (1969). See also H. Rept. 1074, 91st Cong., 2d sess. 43 (1970). This general statement o f intent would appear to encompass p ro j­ ects conducted not only under the 1970 Act, but also under the 1946 Act. In addition, the Conference Report states that § 23 “ continues, with minor modifications, the policy contained in existing law.” H. Rept. 1074, 91st Cong., 2d sess. 44 (1970). Since the existing law had allowed for conveyances to aid projects under the 1946 Act, this statement would in­ dicate Congress’ intent to allow for the same result to occur under § 23. We thus conclude that, where grant agreements had been finalized under the 1946 Act, conveyances o f land may be made pursuant to those agreements under the authority conferred by § 23 o f the 1970 Act. By reason o f Executive Order No. 12079, such conveyances may be made without Presidential approval: There is thus no need to initiate action for- reinstatement o f the authority, contained in the revoked Executive Order No. 10536, in order to convey Federal lands without Presidential approval under the 1946 Act. The fear has been expressed that, if conveyances are made under § 23 o f the 1970 Act, other requirements o f that Act would also have to be met. As we have already noted, however, Congress in the 1970 Act continued in force those grants under the 1946 Act that existed on the effective date o f the 1970 Act. Even though the provisions o f the 1970 Act may impose ad­ ditional or different requirements on grants, it seems clear to us that those provisions do not apply to grants finalized before the 1970 Act became ef­ fective. Moreover, we see no reason for § 23 to be deemed inapplicable to 1946 Act grants by requirements which, as Congress expressly provided, 2 We recognize that, in our January 19, 1971 opinion, we concluded that such conveyances could go forward under the authority o f the 1946 Act. T hat opinion, however, did not deal with the availability o f § 23 o f the 1970 Act; rather, it dealt only with the question whether conveyances could be made under the revoked 1946 Act. While we have no occasion to ques­ tion our prevous opinion's conclusion, we believe it more appropriate to proceed under the authority o f § 23—which we believe to be applicable to projects under the 1946 A ct— rather than under a provision in a repealed statute. 99 were not to apply to such grants. We have found nothing in § 23 or its legislative history to suggest a contrary conclusion; rather, on the basis of o ur previous discussion, we think that the language and the legislative history o f § 23 indicate that Congress intended § 23 to permit conveyances pursuant to those grant agreements entered into under the 1946 Act. L eon U lman D eputy Assistant A ttorney General Office o f Legal Counsel 100 

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0206p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT NANCY ROELL, as executrix of the estate of Gary L. ┐ Roell, Sr., │ Plaintiff-Appellant, │ │ > No. 16-4045 v. │ │ │ HAMILTON COUNTY, OHIO/HAMILTON COUNTY BOARD │ OF COUNTY COMMISSIONERS; JIM NEIL, in his official │ capacity as the Hamilton County Sheriff; JOSEPH │ HUDDLESTON, MATTHEW ALEXANDER, and WILLY │ DALID, individually and in their official capacities as │ employees of Hamilton County, │ Defendants-Appellees. │ ┘ Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 1:14-cv-00637—Sandra S. Beckwith, District Judge. Argued: June 13, 2017 Decided and Filed: September 5, 2017 Before: MOORE, GILMAN, and COOK, Circuit Judges. _________________ COUNSEL ARGUED: Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH, CO LPA, Cincinnati, Ohio, for Appellant. Pamela Sears, HAMILTON COUNTY PROSECUTOR’S OFFICE, Cincinnati, Ohio, for Appellees. ON BRIEF: Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH, CO LPA, Cincinnati, Ohio, for Appellant. Pamela Sears, Jerome A. Kunkel, HAMILTON COUNTY PROSECUTOR’S OFFICE, Cincinnati, Ohio, George D. Jonson, Linda L. Woeber, MONTGOMERY, RENNIE & JONSON, Cincinnati, Ohio, for Appellees. GILMAN, J., delivered the opinion of the court in which COOK, J., joined. MOORE, J. (pp. 23–29), delivered a separate dissenting opinion.  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 2 _________________ OPINION _________________ RONALD LEE GILMAN, Circuit Judge. Gary Roell, who suffered from chronic mental illness, caused a disturbance at his neighbor’s condominium while experiencing a condition known as excited delirium. Hamilton County sheriff’s deputies arrived to find Roell half-naked, muttering unintelligibly, and standing next to a broken window holding a hose and the remnants of a hanging plant. While attempting to subdue Roell, the deputies physically struggled with him and unsuccessfully tased him multiple times. Roell stopped breathing during the encounter with the deputies and was pronounced dead shortly thereafter. His death was documented by the coroner as natural, resulting from his excited delirium. Roell’s wife, Nancy Roell, appeals the district court’s grant of summary judgment in favor of the individual deputies on her claim under 42 U.S.C. § 1983. She also appeals the grant of summary judgment in favor of Hamilton County on her claims under both § 1983 and the Americans with Disabilities Act (the ADA). For the following reasons, we AFFIRM the judgment of the district court. I. BACKGROUND A. Factual background Roell suffered from mental illness, including schizoaffective disorder and paranoid delusions, for many years. Although Roell’s symptoms could be successfully controlled by medication, he had a history of noncompliance with his drug regimen. When he did not take his medication, Roell’s mental health deteriorated and his unpredictable behavior rendered him a danger to both himself and to others. Roell stopped taking his medication in June 2013 and began exhibiting signs of mental decompensation by early August. Sometime in the late evening hours of August 12 or the early morning hours of August 13, Roell entered a state of excited delirium. Nancy Roell was out of town during this time, participating in a church mission in New Jersey. In the midst of his  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 3 excited delirium, Roell damaged his and Nancy’s condominium by scattering debris, clothes, and other household items inside and around the building. Roell then went to the condominium of his neighbor, Rachana Agarwal, and threw a flower pot through her window. Agarwal was awakened by the noise of shattering glass and went downstairs to find Roell standing outside of her condominium by the broken window. She attempted to talk to Roell, who was screaming something about “water.” Roell then pulled the screen from Agarwal’s window and threw it at her. At that point, Agarwal became scared and ran back inside the condominium, where she told her son, Soham, to call 911. Soham dialed 911 and handed the phone to Agarwal, who told the operator that her neighbor was “acting crazy.” Agarwal testified that, during this time, Roell appeared to be angry, his face red and his eyes bulging, and he kept muttering unintelligible things about water. Roell was also pacing back and forth in front of Agarwal’s broken window, periodically peering into her condominium. Deputies Matthew Alexander, Willy Dalid, and Joseph Huddleston responded to the dispatch of a “neighbor trouble” call. First to arrive at Agarwal’s condominium were Deputies Alexander and Huddleston, who were told by Agarwal that Roell was “in the back breaking things.” They entered the gated patio area and saw Roell standing by Agarwal’s broken window holding a garden hose with a metal nozzle in one hand and a garden basket in the other. The garden basket was a hanging plant surrounded by peat moss and held together with plastic wire. Roell was wearing a t-shirt but was otherwise naked. According to Deputy Alexander, Roell was screaming “no” and something about water when he and Deputy Huddleston arrived. Deputy Huddleston proceeded to ask Roell what he was doing. Although Deputy Huddleston could not recall Roell’s response, he testified that Roell immediately turned and approached him and Deputy Alexander in an aggressive manner. Roell still had the hose and the garden basket in his hands. Deputy Alexander similarly recalled that he and Deputy Huddleston told Roell to “show us your hands” and that Roell, “immediately, within seconds,” charged at them at a “pretty brisk walk.” Deputy Alexander also said that Roell approached them still holding the hose and the garden basket.  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 4 Soham Agarwal was watching the events unfold from inside the condominium and heard Roell screaming about how “he didn’t have water and we had water.” In addition, Soham observed the deputies telling Roell to calm down, to stop resisting, to come over to them, and to drop whatever he had in his hands. Soham recalled that Roell repeatedly shouted that he did not have a weapon. But Soham also testified that, despite Roell’s assertions that he was unarmed, Roell was facing the deputies swinging the hose “as if he was trying to hit somebody.” Rachana Agarwal, also watching from the inside of her condominium, confirmed that the deputies told Roell to calm down and that Roell was swinging the hose nozzle at the deputies. Agarwal observed the deputies and Roell approach each other, with Roell proceeding at a pace between a walk and a sprint, still holding the hose. As Roell approached the deputies, Deputy Huddleston told Roell to stop and to get on the ground or he would be tased. Deputy Huddleston then unholstered his X2 Taser and arced it as a warning. Arcing a taser does not deploy the device; it simply creates a sound. Roell flinched when Deputy Huddleston arced his taser but kept approaching. Deputy Huddleston once more arced his taser and commanded Roell to get on the ground. Roell again flinched but continued to approach the deputies. Deputy Huddleston then holstered his taser and reached out to grab one of Roell’s arms. At the same time, Deputy Alexander grabbed Roell’s other arm. Roell swung the garden basket at Deputy Huddleston as they met. Deputy Huddleston, Deputy Alexander, and Roell all fell to the ground outside of the gated patio area during their struggle. Roell was wet and slippery, either from sweat or water, and managed to break free from the deputies’ grasp. As Roell tried to enter back through the patio gate, Deputy Huddleston tased him. Deputy Huddleston testified that taser appeared to have some effect because Roell buckled over a little bit. Roell nonetheless continued into the patio and closed the gate. The deputies followed him through the gate while Deputy Huddleston’s taser was still on its five- second deployment cycle. By that time, Deputy Dalid had arrived at the scene. All three deputies tried to restrain Roell’s arms, but were unsuccessful because he was combative and thrashing around on the ground. Deputy Alexander testified that he was punched in the face by Roell at some point during the struggle.  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 5 While Deputies Alexander and Dalid attempted to hold Roell’s arms, Deputy Huddleston tried to deploy his taser in drive-stun mode to the back of Roell’s leg. This court has previously explained the use of a taser in drive-stun mode as follows: In drive-stun mode, ‘the operator removes the dart cartridge and pushes two electrode contacts located on the front of the taser directly against the victim. In this mode, the taser delivers an electric shock . . . [,] but does not cause an override of the victim’s central nervous system as it does in dart-mode.’ Cockrell v. City of Cincinnati, 468 F. App’x 491, 492 (6th Cir. 2012) (quoting Mattos v. Agarano, 661 F.3d 433, 443 (9th Cir. 2011) (en banc)). In deploying his taser in drive-stun mode, Deputy Huddleston hoped to complete the cycle necessary to achieve Roell’s neuromuscular incapacitation, believing that one of the barbs from his previous attempt to tase Roell had not connected. The taser failed to incapacitate Roell, however, and he continued to struggle with the deputies on the ground. Deputy Huddleston again holstered his taser and tried to control Roell’s legs, while Deputies Alexander and Dalid attempted to control Roell’s arms. Roell managed to escape the grasp of all three deputies and stood up in a face-to-face position with Deputy Alexander, whose back was against a tree. Deputy Huddleston once more tased Roell using the device’s dart-mode, this time deploying two barbs into his back. Although the taser still did not take effect, the deputies were able to get Roell on the ground and handcuff him. Because of Roell’s continued resistance, the deputies had to restrain Roell’s hands in front of his body by using two sets of handcuffs. Roell appeared “somewhat under control” once he was handcuffed, but he continued to thrash his legs and kicked Deputy Huddleston in the groin. Deputy Huddleston then sent Deputy Alexander to get leg shackles from the one of the patrol cars so that Roell’s feet could also be restrained. Once the deputies shackled Roell’s legs, they positioned him on his left side. Deputy Dalid was trying to control Roell’s upper body by holding on to his right shoulder. Both Deputy Huddleston and Deputy Dalid testified that, once restrained, Roell went limp and began to snore. Roell would wake up, thrash around, and then go limp and lapse back into snoring. Deputy Dalid observed Roell doing this twice before he noticed that Roell had no pulse and had stopped breathing. By that time, Corporal (now Sergeant) Mikal Steers arrived on the scene and began administering CPR to Roell until the life squad arrived. Although Corporal Steers detected a  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 6 faint pulse on several occasions, he was unable to revive Roell. The emergency medical technicians were also unable to revive Roell, and he was pronounced dead at the hospital emergency room. Dr. Jennifer Schott, the deputy coroner, determined that the cause of Roell’s death was “excited delirium due to schizoaffective disorder” and that the manner of his death was natural. Included with the Death Record was a report drafted by Dr. Schott, stating that Roell had a history of “physical altercation with police officers” and that the “use of a conducted energy device against decedent” had occurred. Also noted were Roell’s various abrasions and contusions, injuries from the taser barbs, and four broken ribs. The report, however, did not find that any of these injuries contributed to Roell’s death. In her affidavit, Dr. Schott stated that she performed a microscopic examination of Roell’s barb wounds and found no evidence that the conducted energy device used on Roell caused any electrical burns. Nor did Dr. Schott find any evidence that Roell had been asphyxiated, which is consistent with the absence of any evidence that the deputies applied compressive force in attempting to restrain Roell. B. Procedural background In August 2014, Nancy Roell, as the executrix of Roell’s estate, filed suit in the United States District Court for the Southern District of Ohio against both Hamilton County and the Hamilton County Board of County Commissioners (collectively, Hamilton County), as well as against Sheriff Jim Neil and Deputies Alexander, Dalid, and Huddleston. She first asserted claims pursuant to 42 U.S.C § 1983, alleging that (1) Deputies Alexander, Dalid, and Huddleston violated Roell’s Fourth Amendment right to be free from excessive force, and (2) Hamilton County and Sheriff Neil are subject to municipal liability for the deputies’ alleged use of excessive force. Nancy Roell also brought intentional-discrimination and failure-to- accommodate claims against all of the defendants under Title II of the ADA. Finally, she asserted a state-law claim for the wrongful death of Roell against all of the defendants and a state-law claim for assault and battery against Deputies Alexander, Dalid, and Huddleston. In February 2016, the defendants filed a “Motion to Dismiss and Motion for Summary Judgment” pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, which the district  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 7 court granted in part and denied the remainder as moot. First, the court held that Deputies Alexander, Dalid, and Huddleston were entitled to qualified immunity on Nancy Roell’s § 1983 claim, with the result that Sheriff Neil and Hamilton County were also not liable under § 1983. Roell v. Hamilton Cty. Bd. of Cty. Comm’rs, No. 1:14-CV-637, 2016 WL 4363112, at *14 (S.D. Ohio Aug. 16, 2016). The court next ruled that Nancy Roell had failed to establish a viable claim under the ADA because she did not produce any evidence that the defendants intentionally discriminated against Roell because of his disability. Id. Finally, the court held that Nancy Roell had abandoned her state-law claims against Hamilton County and Sheriff Neil. The court then declined to exercise supplemental jurisdiction over the remaining state-law claims asserted against the individual deputies and therefore denied as moot the defendants’ motion to dismiss and/or for summary judgment as to those claims. Id. In rendering its decision, however, the district court did not specify whether it resolved the defendants’ motion using the summary-judgment standard or the motion-to-dismiss standard. Id. But the content of the defendants’ motion, the extensive discovery period, and the court’s consideration of materials outside of the pleadings indicate that the case was decided on summary-judgment grounds. In any event, Nancy Roell appeals only the district court’s grants of summary judgment in favor of (1) Deputies Alexander, Dalid, and Huddleston on her § 1983 claim, and (2) Hamilton County on her § 1983 and her ADA claims. II. ANALYSIS A. Standard of review We review de novo a district court’s grant of summary judgment. Watson v. Cartee, 817 F.3d 299, 302 (6th Cir. 2016). Summary judgment is appropriate when no genuine dispute of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the burden to “demonstrate the absence of a genuine [dispute] of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Finally, “[i]n  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 8 making this assessment, we must view all evidence in the light most favorable to the nonmoving party.” Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 301 (6th Cir. 2016). B. Nancy Roell’s § 1983 claim against Deputies Alexander, Dalid, and Huddleston Nancy Roell claims that Deputies Alexander, Dalid, and Huddleston violated Roell’s Fourth Amendment rights when they used excessive force to subdue him. The deputies pled the affirmative defense of qualified immunity, which “protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Nancy Roell bears the “ultimate burden of proof” to show that the deputies are not entitled to qualified immunity. See Sheets v. Mullins, 287 F.3d 581, 586 (6th Cir. 2002). “We ask two questions in evaluating whether a law-enforcement officer is entitled to qualified immunity on an excessive-force claim: ‘(1) whether the officer violated the plaintiff’s constitutional rights under the Fourth Amendment; and (2) whether that constitutional right was clearly established at the time of the incident.’” Estate of Hill v. Miracle, 853 F.3d 306, 312 (6th Cir. 2017) (quoting Kent v. Oakland County, 810 F.3d 384, 390 (6th Cir. 2016)). These questions can be answered in any order. Pearson, 555 U.S. at 236. In holding that the deputies were entitled to qualified immunity, the district court answered both questions in the negative. The court concluded that the deputies did not violate Roell’s Fourth Amendment rights and that, even if they did, no caselaw clearly established that the degree of force used by the deputies violated such rights. We will address each of these conclusions in turn. 1. The deputies likely did not violate Roell’s Fourth Amendment rights. The Fourth Amendment “guarantees citizens the right ‘to be secure in their persons . . . against unreasonable . . . seizures’ of the person.” Graham v. Connor, 490 U.S. 386, 394 (1989). In determining whether an officer has used excessive force in violation of the Fourth Amendment, “we employ an objective-reasonableness test, asking ‘whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.’” Hill, 853 F.3d at 312 (quoting  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 9 Graham, 490 U.S. at 397). This test “requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 7 (1985)). The Supreme Court has articulated three factors for us to consider in determining the objective reasonableness of a particular use of force. These factors are (1) “the severity of the crime at issue,” (2) “whether the suspect poses an immediate threat to the safety of the officers or others,” and (3) “whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. In evaluating these factors, we must keep in mind that “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. Finally, although the Graham factors are instructive, they “are not an exhaustive list, as the ultimate inquiry is ‘whether the totality of the circumstances justifies a particular sort of seizure.’” Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 404 (6th Cir. 2007) (quoting St. John v. Hickey, 411 F.3d 762, 771 (6th Cir. 2005)). The first Graham factor—“the severity of the crime at issue”—supports a finding that some degree of force was justified in order to restrain and arrest Roell. Deputies Alexander, Dalid, and Huddleston responded to a “neighbor trouble” call and were quickly informed by a frightened Agarwal that Roell was “breaking things” in her backyard. They found Roell half- naked, muttering unintelligibly, and standing next to a broken window, which they reasonably inferred was shattered as a result of Roell’s actions. In other words, Roell had committed a series of property crimes that a reasonable officer could infer might escalate. The fact that Roell had not yet committed a more serious felony did not preclude the deputies from using force to restrain him. See Cockrell v. City of Cincinnati, 468 F. App’x 491, 495 (6th Cir. 2012) (recognizing numerous cases holding that an officer’s use of a taser against a plaintiff who is “actively resisting arrest by physically struggling with, threatening, or disobeying officers” is not a violation of the plaintiff’s clearly established Fourth Amendment rights, even if the plaintiff is suspected of committing only a misdemeanor).  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 10 Application of the second Graham factor—whether Roell posed an immediate threat to the deputies or to others—also indicates that the deputies’ use of force was warranted. When the deputies first encountered Roell, he was holding objects that could have been used as weapons amid a scene of property destruction. See In re Fortney, 832 N.E.2d 1257, 1268–69 (Ohio Ct. App. 2005) (noting that Ohio law “defines a deadly weapon as ‘any instrument, device, or thing capable of inflicting death, and designed or specially adaptable for use as a weapon, or possessed, carried, or used as a weapon” and recognizing that a stick, when used as a club, can constitute a deadly weapon). The deputies therefore had a reasonable basis to believe that Roell presented an immediate threat to the Agarwals and to the deputies themselves “in light of the facts and circumstances confronting” them. See Graham, 490 U.S. at 397. First, Roell posed a potential threat to the Agarwals, who were still inside the condominium. Because Roell had already thrown a potted plant through the Agarwal’s condominium window, the deputies were reasonably concerned that he might break into their residence and cause further destruction. Roell also posed an immediate threat to the deputies themselves. Rahana Agarwal, Soham Agarwal, Deputy Alexander, and Deputy Huddleston all testified that Roell quickly approached the deputies while waving the metal nozzle of a hose in a threatening manner. Deputy Huddleston testified that the hose and the metal nozzle could have been used as a weapon to hit or to choke him. Although Soham Agarwal heard Roell say that he had no weapon and heard the deputies tell Roell to come over to them, these observations do not create a genuine dispute of material fact as to whether Roell approached the deputies in a manner that posed an immediate threat to their safety. Even if Roell asserted that he was unarmed and moved towards the deputies in response to their commands, the undisputed evidence regarding the aggressive nature of his approach remains unchanged. Finally, we turn to the third Graham factor and analyze whether Roell was actively resisting arrest. Undisputed record evidence shows that Roell resisted the deputies’ attempts to restrain and handcuff him by kicking, flailing, and wriggling away from their grasp. Nancy Roell responds that the deputies “foreseeably caused any resistance or escalated the encounter by failing to use verbal and tactical de-escalation.” But even if we assume that the deputies  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 11 escalated the encounter with Roell—an assertion that we find dubious—law-enforcement officers cannot be held liable solely because they created the circumstances requiring the application of force. See Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 406 (6th Cir. 2007) (rejecting the notion that a “Fourth Amendment claim against police officers who used deadly force may survive summary judgment, even where the particular seizure is reasonable, if the defendant police officers acted recklessly in creating the circumstances which required the use of deadly force”). Analysis of the third Graham factor therefore supports our conclusion that the deputies were justified in using some degree of force in attempting to restrain Roell. Our analysis of the Graham factors, however, is not the end of the excessive-force inquiry. We must also assess whether the “totality of the circumstances justified” the “particular sort of . . . seizure” imposed upon Roell. See Tennessee v. Garner, 471 U.S. 1, 8–9 (1985). The totality of the circumstances includes “the fact that at the time of the . . . struggle, the defendant officers had reason to believe that [Roell] was either on drugs or mentally unstable.” See Landis v. Baker, 297 F. App’x 453, 465 (6th Cir. 2008). Although the officers were unaware that Roell was experiencing an episode of excited delirium, Deputy Huddleston testified that Roell’s behavior indicated that he was suffering from some sort of mental illness. The deputies were therefore required to take into account Roell’s diminished capacity before using force to restrain him. See Champion v. Outlook Nashville, Inc., 380 F.3d 893, 904 (6th Cir. 2004) (“The diminished capacity of an unarmed detainee must be taken into account when assessing the amount of force exerted.”). But no caselaw supports Nancy Roell’s assertion the deputies were prohibited from using any physical force against Roell before first attempting alternative de-escalation techniques. See Cook v. Bastin, 590 F. App’x 523, 530 (6th Cir. 2014) (holding that no excessive force was used in handcuffing and physically restraining a man suffering from excited delirium who posed a threat to the law-enforcement officers and who was resisting arrest). In sum, we agree with the district court’s observation that “the fact that Roell’s resistance was probably caused by his excited delirium did not preclude the deputies from using a reasonable amount of force to bring him under control.” Roell, 2016 WL 4363112, at *8. Despite Roell’s apparent diminished capacity, he had committed a series of property crimes, was a threat to the Agarwals and to the deputies, and was actively resisting arrest.  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 12 “[A] reasonable officer on the scene” could have concluded the use of force was necessary based on the totality of these circumstances. See Graham, 490 U.S. at 396. “[T]he question is not whether any force was justified” but, instead, whether the deputies “could reasonably use the degree of force employed against” Roell. See Martin v. City of Broadview Heights, 712 F.3d 951, 958 (6th Cir. 2013) (emphasis in original). The type of force employed by the deputies against Roell—physically restraining his limbs, wrestling with him, attempting to tase him, and shackling his arms and legs—was likely not excessive. But we need not definitively answer this question because, at the time of the alleged violation, no caselaw clearly established that the degree of force used by the deputies violated Roell’s Fourth Amendment rights. 2. The constitutional right alleged by Roell was not clearly established. “In order for a right to be clearly established for the purposes of qualified immunity, ‘[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’” Estate of Hill v. Miracle, 853 F.3d 306, 316 (6th Cir. 2017) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “The relevant, dispositive inquiry . . . is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001), abrogated on other grounds by Pearson v. Callahan, 555 U.S. 223, 236 (2009). We must therefore determine whether a right was clearly established “in light of the specific context of the case, not as a broad general proposition.” Id. at 201. Requiring this “particularized” showing “is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Anderson, 483 U.S. at 640 (internal citations omitted). The content of this pre-existing law is determined by looking “first to decisions of the Supreme Court, then to decisions of this court and other courts within our circuit, and finally to decisions of other circuits.” Champion, 380 F.3d at 902 (quoting Higgason v. Stephens, 288 F.3d 868, 876 (6th Cir. 2002)). “An action’s unlawfulness may be plain ‘from direct holdings, from specific examples described as prohibited, or from the general reasoning that a court employs’” in these cases. Martin, 712 F.3d at 961 (quoting Champion, 380 F.3d at 902).  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 13 With these general principles in mind, we turn to the question at hand: whether Nancy Roell has demonstrated “the prior articulation of a prohibition against the type of excess force exerted” against Roell, sufficient to defeat the deputies’ affirmative defense of qualified immunity. See Champion, 380 F.3d at 902. We must determine, in other words, whether a reasonable officer would have known that the forcible physical restraint employed in this case against an individual who appeared mentally impaired, yet posed a potential threat to the officers and to others, violated that person’s Fourth Amendment rights. Nancy Roell argues that Martin v. City of Broadview Heights, 712 F.3d 951 (6th Cir. 2013), demonstrates that the deputies violated Roell’s clearly established rights. The decedent in Martin broke into an apartment while naked and high on LSD. Id. at 954–55. Four police officers arrived on the scene to find Martin speaking quickly and nonsensically. Id. Martin calmed down momentarily to ask for help and to be arrested, but then “jogged away” when the officers tried to handcuff him. Id. The officers caught up with Martin and fell on top of him. In addition, they delivered “compliance body shots” to Martin’s side, struck him in the face with two “hammer punches,” kneeled on his calves, struck his face, back, and ribs at least five times, and held Martin in a face-down position. Id. at 954–55. Two of the officers heard Martin emit a “gurgling sound” during this struggle and, when they rolled him over, he was unresponsive. Id. at 955. Although the coroner determined that Martin died from an acute psychotic episode with excited delirium due to intoxication, a forensic pathologist who conducted Martin’s autopsy concluded that asphyxia was the likely cause of his death. The Martin court held that “[a] reasonable officer should have known that subduing an unarmed, minimally dangerous, and mentally unstable individual with compressive body weight, head and body strikes, neck or chin restraints, and torso locks would violate that person’s clearly established right to be free from excessive force.” Id. at 693. In doing so, the court observed that the officers were obligated to “de-escalate the situation and adjust the application of force downward” when confronted with an unarmed individual who “exhibited conspicuous signs that he was mentally unstable.” Id. at 962. We agree with the district court, however, that this statement must be viewed in the context of the officers’ applied use of force, which was characterized by the Martin court as “severe.” Id. at 958; see also Roell, 2016 WL 4363112 at  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 14 *9 (“More reasonably, Martin stands for the proposition that officers should try to de-escalate the situation with a mentally disturbed suspect before resorting immediately to severe force to subdue him.”). Unlike the officers in Martin, Deputies Alexander, Dalid, and Huddleston did not repeatedly beat Roell or apply compressive body pressure to his back. They instead “grappled with Roell’s arms and legs to try to control him, which they eventually did.” Roell, 2016 WL 4363112 at *9. Deputy Huddleston did attempt to tase Roell, but no electricity was conducted into his body. And although this court has observed that use of a taser entails a higher level of force “than simply knocking someone back to the ground,” Wells v. City of Dearborn Heights, 538 F. App’x 631, 639 (6th Cir. 2013), a “growing national judicial consensus” exists that the use of a taser in dart mode constitutes only an intermediate use of force. Bryan v. MacPherson, 630 F.3d 805, 810 (9th Cir. 2010) (Wardlaw, J., concurring). Martin, moreover, was “unarmed and minimally dangerous,” whereas Roell was threateningly waving a hose with a metal nozzle that could be used as a weapon. Because of these factual differences, Martin did not put the deputies on notice that their actions violated Roell’s clearly established right to be free from excessive force. Nor do the other cases cited by Nancy Roell, which hold that police use excessive force when they deploy gratuitous force or a taser against an individual who is already restrained or is doing nothing to resist arrest, provide such notice. See, e.g., Eldridge v. City of Warren, 533 F. App’x 529, 535 (6th Cir. 2013) (holding that the police used excessive force when they tased an individual who was suffering from a hypoglycemic episode and whose “noncompliance was not paired with any signs of verbal hostility or physical resistance”); Landis v. Baker, 297 F. App’x 453, 461, 464 (6th Cir. 2008) (holding that the police used excessive force against an individual suffering from a mental health crisis who “was not actively resisting arrest or posing a threat to anyone” when they struck him ten times with a baton, held him face down into two feet of mud and water and repeatedly tased him); Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901 (6th Cir. 2004) (holding that the police used excessive force against a severely autistic man who “stopped resisting arrest and posed no flight risk” when they “sprayed him with pepper spray even after he was immobilized by handcuffs and a hobbling device”). But see Rudlaff v. Gillispie, 791 F.3d  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 15 638, 641 (6th Cir. 2015) (collecting cases and concluding that [o]ur cases firmly establish that it is not excessive force for the police to tase someone (even multiple times) when the person is actively resisting arrest.” (emphasis in original)). We believe that this case is instead more analogous to Cook v. Bastin, 590 F. App’x 523 (6th Cir. 2014). In that case, a severely autistic man became agitated, stripped naked, caused extensive property damage to his room in an adult daycare center, and ripped the shirt of the daycare center’s Crisis Manager. Id. at 525. The police arrived to find the man, Roland Campbell, digging his lacerated fingers into an electrical socket. They observed the Crisis Manager’s torn and bloody shirt, which they interpreted as an indication that physical violence had occurred. The officers were told that Campbell was out-of-control, suffered from mental disabilities, and needed to be taken to a mental facility. Campbell was handcuffed without incident and placed in a sitting position. While the police waited for the medical transport unit, however, Campbell “began thrashing and kicking, making grunting sounds as he tried to free himself from the handcuffs,” rolled onto a prone position, and began scooting on his stomach towards the doorway. Id. at 526. The officers attempted to gain control of Campbell by restraining his arms and legs, while the Crisis Manager held his torso. During the struggle, Campbell pulled the men into the hallway, freed one of his hands from the cuffs, and “pick[ed] himself and everybody up off the ground with the one hand about three or four inches.” Id. Campbell then collapsed, fell unconscious, and died as a result of acute cardiorespiratory failure. The Cook court held that the degree of force used by the officers was reasonable because Campbell had committed significant property destruction and a physical assault, posed an immediate threat to himself, the officers, and to others, and attempted to free himself from the officers’ restraint. Id. at 530–31. Like Campbell, Roell caused significant property damage, was a threat to the officers and to others, and resisted arrest during an episode of excited delirium. Although Deputies Alexander, Dalid and Huddleston did not observe any “signs of physical violence,” they did observe that Roell was holding objects that could be used as weapons. True enough, the deputies’ wrestled with and attempted to tase Roell, arguably deploying a higher level of force than the officers in Campbell. But this court has previously held that an officer’s “single use of  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 16 the taser in drive-stun mode” against a mentally unstable plaintiff who was a threat to officer safety and his own safety, and who was resisting police attempts to transport him to the hospital, did not constitute excessive force. See Caie v. West Bloomfield Township, 485 F. App’x 92, 94– 96 (6th Cir. 2012). And there is no question that the degree of force employed by Deputies Alexander, Dalid, and Huddleston was far less than the unconstitutionally severe force used by the officers in Martin. In sum, the relevant caselaw does not clearly establish that the deputies violated Roell’s Fourth Amendment rights because their actions fell in the “hazy border between excessive and acceptable force.” See Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (quoting Saucier, 533 U.S. at 206). Finally, Nancy Roell relies on the procedures articulated in the training materials of the Ohio Peace Officer Training Commission (OPTC) and in proffered expert testimony in an effort to prove that Roell’s right to be free from excessive force was clearly established. She first argues that the deputies did not follow the OPTC procedures when they neglected to recognize that Roell was exhibiting the common symptoms of excited delirium, proceeded to engage Roell before staging the scene with multiple officers and medical personnel, and failed to use verbal de-escalation techniques before attempting to physically restrain him. Nancy Roell also points to the expert testimony of Dr. Michael Lyman, who stated that de-escalation was the “standard technique” recommended for crime-related encounters with excited-delirium subjects and who opined that, had the deputies used verbal de-escalation, Roell would have likely been talked into surrendering without an altercation. Based on this evidence, Nancy Roell argues that the deputies had a “clearly established duty” to use de-escalation techniques prior to using force against Roell. In considering her argument, we must “evaluate the officers’ use of certain tactics ‘in light of testimony regarding the training that [the officers] received.’” Martin, 712 F.3d at 960 (quoting Griffith v. Coburn, 473 F.3d 650, 657 (6th Cir. 2007)). But we also must judge the reasonableness of a particular use of force “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. A finding of qualified immunity is therefore not precluded simply because the deputies acted contrary to their training. City of San Francisco v. Sheehan, 135 S. Ct. 1765, 1777 (2015) (“Even if an officer  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 17 acts contrary to her training, however, . . . that does not itself negate qualified immunity where it would otherwise be warranted.”). In addition, although the deputies did not follow every OPTC protocol, we note that the training materials acknowledge that the use of a taser might be effective in controlling an individual suffering from excited delirium, that a physical struggle might ensue, and that force might be appropriate or necessary in order to restrain the individual. Dr. Lyman’s expert testimony, which essentially opines on the best approach that the deputies could have taken in ideal circumstances, similarly does not establish that the deputies violated Roell’s clearly established rights. As an initial matter,“[t]he Fourth Amendment . . . does not require police officers to take the better approach[,] . . . only that they take a reasonable approach.” Cook v. Bastin, 590 F. App’x 523, 528 (6th Cir. 2014). And “so long as ‘a reasonable officer could have believed that his conduct was justified,’ a plaintiff cannot ‘avoi[d] summary judgment by simply producing an expert’s report that an officer’s conduct leading up to a deadly confrontation was imprudent, inappropriate, or even reckless.’” Sheehan, 135 S. Ct. at 1777 (quoting Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir. 2002)). In sum, Nancy Roell points to no caselaw clearly establishing that the deputies violated Roell’s Fourth Amendment rights in effectuating his arrest. Even assuming that law- enforcement officers must “adjust the application of force downward” when confronted with a conspicuously mentally unstable arrestee, Martin, 712 F.3d at 962, no precedent establishes that the level of force used by the deputies in this case was excessive or that the deputies were required to use only verbal de-escalation techniques. The content of the OPTC training material and Nancy Roell’s proffered expert testimony do not change our conclusion. Deputies Alexander, Dalid, and Huddleston are therefore entitled to qualified immunity, meaning that the district court did not err in granting summary judgment to the them on Nancy Roell’s § 1983 claim. C. Nancy Roell’s § 1983 claim against Hamilton County Nancy Roell also challenges the district court’s grant of summary judgment in favor of Hamilton County on her claim for municipal liability under § 1983. She put forth three theories as to why Hamilton County is subject to municipal liability: (1) Hamilton County’s policy and  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 18 custom for handling mentally-ill individuals was the driving force behind the deputies’ use of excessive force, (2) Hamilton County failed to adequately train the deputies, and (3) Hamilton County ratified the deputies’ use of excessive force. We recognize that “[a] municipality or county cannot be liable under § 1983 absent an underlying constitutional violation by its officers.” Blackmore v. Kalamazoo County, 390 F.3d 890, 900 (6th Cir. 2004). The district court held that Deputies Alexander, Dalid, and Huddleston did not violate Roell’s Fourth Amendment rights under the first prong of the qualified-immunity analysis. It therefore granted summary judgment in favor of Hamilton County based on that ground and did not address any of Nancy Roell’s theories for municipal liability. We, on the other hand, have utilized the second prong of the qualified-immunity analysis to conclude that the deputies are entitled to summary judgment because no caselaw clearly established that the degree of force used by the deputies violated Roell’s Fourth Amendment rights. In doing so, we have reached no conclusion with respect to whether Roell’s rights were actually violated. We must therefore address Nancy Roell’s three theories for Hamilton County’s liability by assuming, without deciding, that Roell’s Fourth Amendment rights were violated by the deputies’ excessive use of force. Hamilton County is subject to liability under § 1983 for its policy on handling mentally ill individuals only if Nancy Roell can “demonstrate ‘a direct causal link between the policy and the alleged constitutional violation.’” See Brown v. Chapman, 814 F.3d 447, 463 (6th Cir. 2016) (quoting Graham ex rel. Estate of Graham v. County of Washtenaw, 358 F.3d 377, 383 (6th Cir. 2004)). But Nancy Roell does not point to any policy that is the “moving force” behind the deputies’ actions. See id. She instead argues that Hamilton County’s lack of adequate policies and training caused the deputies’ use of excessive force. Inadequate training can serve as the basis for municipal liability under § 1983 where it “amounts to deliberate indifference to the rights of persons with whom the police come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989). To succeed on this claim, Nancy Roell “must show ‘(1) that a training program is inadequate to the tasks that the officers must perform; (2) that the inadequacy is the result of the [County’s] deliberate indifference; and  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 19 (3) that the inadequacy is closely related to or actually caused the plaintiff’s injury.’” Brown, 814 F.3d at 463 (quoting Plinton v. County of Summit, 540 F.3d 459, 464 (6th Cir. 2008)). Nancy Roell cannot meet the first prong of this test, however, because Hamilton County had a satisfactory training program in place regarding officer interactions with individuals suffering from mental illness and excited delirium. The record shows that the deputies received training on topics that included the use of force and tasers, crisis intervention techniques, interacting with the special-needs population and mentally ill suspects, and recognizing the symptoms of excited delirium. Finally, we note that Nancy Roell’s argument that Hamilton County failed to train its deputies is completely inconsistent with her § 1983 claim that the deputies’ use of excessive force was evidenced by the fact that they failed to follow Hamilton County’s procedures regarding officer interactions with individuals suffering from excited delirium. This leaves Nancy Roell with her argument that Hamilton County ratified the use of excessive force by Deputies Alexander, Dalid, and Huddleston when it conducted an inadequate investigation of the events. Specifically, she asserts that the investigation merely rubber-stamped the deputies’ unconstitutional conduct, neglected to discover what actually took place, and failed to review whether the deputies’ actions violated Hamilton County’s policies and procedures. Once again, however, the record demonstrates otherwise. The internal investigation included interviews of multiple witnesses, detailed fact- finding, and incorporates additional investigations by the Criminal Investigations Unit of the Sheriff’s Office and the Hamilton County Coroner. In addition, Nancy Roell’s own expert, Dr. Lyman, testified that he could not think of any additional interviews that should have been conducted during the investigation, could not point to any physical evidence that was not preserved or test results that were not considered, and could not identify any specific inadequacies in the collection of testimonial or tangible evidence. We therefore disagree with Nancy Roell’s argument that “no serious investigation” occurred regarding the deputies’ use of force. See Marchese v. Lucas, 758 F.2d 181, 188 (6th Cir. 1985). Because Hamilton County is not subject to municipal liability under any of her theories, the district court did not err in granting summary judgment to the county on her § 1983 claim.  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 20 D. Nancy Roell’s ADA claim against Hamilton County Finally, Nancy Roell appeals the district court’s grant of summary judgment in favor of Hamilton County based on her claim under Title II of the ADA. Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Two types of claims are cognizable under Title II: claims for intentional discrimination and claims for a reasonable accommodation. Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901, 907 (6th Cir. 2004). The district court dismissed Nancy Roell’s ADA claim because it found no evidence that the defendants intentionally discriminated against Roell based on his disability. In so holding, however, the court failed to consider Nancy Roell’s failure-to-accommodate theory. Under this theory, Nancy Roell asserted that Hamilton County had a duty to accommodate Roell’s disability by “having its officers take steps to calm the situation, converse with Mr. Roell in a non- threatening manner, pause to gather information from Rachana Agarwal, refrain from the application of force, and summon EMS to the scene at the earliest moment possible.” Neither the Supreme Court nor this circuit has squarely addressed whether Title II of the ADA applies in the context of an arrest. Nancy Roell urges us, however, to adopt the reasoning of several of our sister circuits that have found Title II applicable to law-enforcement activities, including arrests. A few opinions have indeed indicated that arrestees might be able to bring cognizable claims under Title II. But, in doing so, they have also noted that the exigent circumstances inherent in an arrest inform the reasonable-accommodation analysis. See, e.g., Sheehan v. City of San Francisco, 743 F.3d 1211, 1232 (9th Cir. 2014), rev’d in part, cert. dismissed in part, 135 S. Ct. 1765 (2015) (holding that “the ADA . . . applies to arrests, though we agree with the Eleventh and Fourth Circuits that exigent circumstances inform the reasonableness analysis under the ADA, just as they inform the distinct reasonableness analysis under the Fourth Amendment”); Bahl v. County of Ramsey, 695 F.3d 778, 784 (8th Cir. 2012) (noting that “[e]ven if the ADA  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 21 applied to [a] traffic stop,” the defendant police officer was not required to accommodate the plaintiff’s disability “under the exigencies of the traffic stop”). But see Hainze v. Richards, 207 F.3d 795, 801 (5th Cir. 2000) (“Title II does not apply to an officer’s on-the-street responses to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer’s securing the scene and ensuring that there is no threat to human life.”). We need not decide whether Title II applies in the context of arrests because, even if Nancy Roell’s failure-to-accommodate claim is cognizable, Hamilton County is entitled to summary judgment based on the facts of this case. This circuit has previously held that “the ‘determination of what constitutes reasonable modification is highly fact-specific, requiring case- by-case inquiry.’” Anderson v. City of Blue Ash, 798 F.3d 338, 356 (6th Cir. 2015) (quoting Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 844 (9th Cir. 2004)). Deputies Alexander, Dalid, and Huddleston unquestionably faced exigent circumstances while attempting to restrain and arrest Roell. As detailed above, they responded to an unsecured scene to find an individual who had committed, at the very least, a series of property crimes and who posed a continuing threat to the deputies and to others. In fact, almost immediately after the deputies arrived, Roell swiftly approached them brandishing a hose with a metal nozzle and a garden basket. The deputies, in other words, were required to make a series of quick, on-the-spot judgments in a continuously evolving environment. Nancy Roell’s proposed accommodations—that the deputies use verbal de-escalation techniques, gather information from the witnesses, and call EMS services before engaging with Roell—were therefore “unreasonable . . . in light of the overriding public safety concerns.” See Tucker v. Tennessee, 539 F.3d 526, 536 (6th Cir. 2008), abrogated on other grounds by Anderson v. City of Blue Ash, 798 F.3d 338 (6th Cir. 2015); cf. Hainze, 207 F.3d at 802 (recognizing that “[o]nce the area was secure and there was no threat to human safety, the . . . Sheriff’s deputies would have been under a duty to reasonably accommodate [plaintiff’s] disability in handling and transporting him to a mental health facility”). In the context of the exigent circumstances surrounding Roell’s arrest, Nancy Roell cannot make out a viable ADA claim under her failure-to-accommodate theory. Nor has she  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 22 presented any evidence that Hamilton County intentionally discriminated against Roell based on his disability. The district court therefore did not err in granting summary judgment in favor of Hamilton County on Nancy Roell’s ADA claim. III. CONCLUSION For all of the reasons set forth above, we AFFIRM the judgment of the district court.  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 23 _________________ DISSENT _________________ KAREN NELSON MOORE, Circuit Judge, dissenting. Our circuit law clearly states that when an individual “exhibit[s] conspicuous signs that he [is] mentally unstable” and is “unarmed,” “Champion require[s] the officers to de-escalate the situation and adjust the application of force downward.” Martin v. City of Broadview Heights, 712 F.3d 951, 962 (6th Cir. 2013) (quoting Champion v. Outlook Nashville, Inc., 380 F.3d 893, 904 (6th Cir. 2004)). There are disputed facts as to whether Roell was unarmed and as to how aggressively Roell was acting, which determine how much force was appropriate. Although the law governing this case is clear, the facts surrounding Roell’s death are not. The district court erred by granting summary judgment on Nancy Roell’s § 1983 claim against Deputies Alexander, Dalid, and Huddleston. I would reverse summary judgment on this claim, and I respectfully dissent. I. GOVERNING LAW Because the law governing this case is clearly established and straightforward, I begin by setting out the basic legal principles that govern this case. First, I agree with the majority’s recitation of the familiar summary-judgment standard, although not with its application of the standard to this case. See Maj. Op. at 7–8. Second, I agree with its summary of the Graham factors. See Maj. Op. at 8–9 (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). As for the law at the heart of this matter, I cannot agree with the majority’s characterization. Sixth Circuit cases clearly establish that officers must “take into account ‘the diminished capacity of an unarmed detainee . . . when assessing the amount of force exerted.’” Martin, 712 F.3d 962 (quoting Champion, 380 F.3d at 904). Martin states the rule very simply: When an individual “exhibit[s] conspicuous signs that he [is] mentally unstable” and is “unarmed,” “Champion require[s] the officers to de-escalate the situation and adjust the application of force downward.” Id.; see also Landis v. Baker, 297 F. App’x 453, 465 (6th Cir. 2008) (“A determination of the reasonableness of the defendant officers’ conduct must take into account the fact that at the time of the fatal struggle, the defendant officers had reason to believe  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 24 that [the arrestee] was either on drugs or mentally unstable and they knew that he was unarmed.”). If it is apparent to officers that an individual is unarmed and mentally unstable, then the officers must de-escalate and may not use as much force as would be permissible when confronted with an individual who was either mentally stable or armed. While the majority acknowledges that Champion mandates that “[t]he deputies were . . . required to take into account Roell’s diminished capacity before using force to restrain him,” it essentially brushes this requirement aside by asserting that “no caselaw supports Nancy Roell’s assertion the deputies were prohibited from using any physical force against Roell before first attempting alternative de-escalation techniques.” Maj. Op. at 11. I agree that the deputies were not necessarily prohibited from using any physical force on Gary Roell, but that point is irrelevant to this case. The question in this case is whether the officers complied with their obligation, under Champion and Martin, to adjust their use of force downward. Even if the officers were permitted to use some physical force, they could have violated Champion and Martin by failing to adjust the level of force downward. II. APPLICATION OF THE CLEARLY ESTABLISHED LAW TO THE FACTS OF THIS CASE There are several unresolved questions of fact relevant to whether the officers had, and, if so, whether they complied with, an obligation to adjust the level of force downward. There are some basic facts that I agree are not in dispute. No one disputes that Roell had long lived with chronic, severe mental illness, including schizoaffective disorder and delusional disorder, nor does anyone dispute that when he went off his medication he could become unpredictable, dangerous, and violent. R. 98 (N. Roell Dep. at 72, 97, 167) (Page ID #4513, 4538, 4608). No one disputes that at 2:30 a.m. on August 13, the Roells’ neighbor, Rachana Agarwal, woke up to a loud noise and found Roell standing at Agarwal’s window wearing only a t-shirt, nude from the waist down. R. 90 (Agarwal Dep. at 10) (Page ID #3765); R. 77 (Huddleston Dep. at 66) (Page ID #493). Scared, Agarwal called 911 and said that her neighbor was “acting crazy.” R. 90 (Agarwal Dep. at 27) (Page ID #3782). There is no dispute that when the officers arrived on the scene, they wrestled with Roell and tased him multiple times before eventually subduing him and handcuffing him with two sets of handcuffs and shackles. R. 77 (Huddleston Dep. at 98–100,  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 25 117–19) (Page ID #525–27, 544–46). There is also no dispute that Roell stopped breathing while he was shackled, that he never regained consciousness, and that he was pronounced dead at the hospital. See R. 96-1 (Death Record) (Page ID #4286). Beyond these basic facts, there are many disputes over important details of the events leading to Roell’s death. First, there is a fact question as to whether Roell was armed, given that he was holding a hose and a hanging planter but may not have been using these items as weapons. Second, there is a fact question as to how aggressively Roell acted when he approached the officers. Without resolving these factual disputes, it is impossible to know whether the amount of force was appropriate under the circumstances. A. We do not know whether Gary Roell was unarmed There is a fact question as to whether Roell was unarmed under Ohio law. Determining whether Roell was unarmed is crucial, because if Roell was unarmed, the Champion/Martin rule would apply and require the officers to adjust the level of force downward. If Roell was armed, the Champion/Martin rule would not apply. The majority correctly notes that Ohio law “defines a deadly weapon as ‘any instrument, device, or thing capable of inflicting death, and designed or specially adaptable for use as a weapon, or possessed, carried, or used as a weapon.’” Maj. Op. at 10 (quoting In re Fortney, 832 N.E.2d 1257, 1268 (Ohio Ct. App. 2005)). The hose and peat-moss hanging planter are not instruments “designed or specially adaptable for use as a weapon” but at least the hose, which had a metal tip, is an instrument that could be “used as a weapon.” In re Fortney, 832 N.E.2d at 1268. The evidence is not clear as to whether Roell was using the peat-moss planter or hose as weapons. Soham Agarwal testified that he definitely remembered Roell saying that he did not have a weapon. Soham Agarwal testified that Roell “kept saying he didn’t have a weapon. I remember him saying that.” R. 91 (S. Agarwal Dep. at 20) (Page ID #3858). “He kept shouting -- he just kept shouting, I don’t have a weapon. That’s all I could hear him saying.” Id. at 37–38 (Page ID #3875–76). Rachana Agarwal testified that she thinks she heard Roell tell the officers that he did not have a weapon. R. 90 (Agarwal Dep. at 75) (Page ID #3830). Huddleston did not  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 26 recall Roell saying that he did not have a weapon. R. 77 (Huddleston Dep. at 68–69) (Page ID #495–96). If Roell repeatedly shouted that he did not have a weapon, that indicates that he was not using the hose and peat-moss planter as weapons. Roell’s incoherent mumbling about water also indicates that he was holding the hose because he was fixated on the Agarwals’ water, not because he planned to use the hose as a weapon. R. 90 (Agarwal Dep. at 60) (Page ID #3815). Of course, neither Roell’s repeatedly shouting that he did not have a weapon, nor his mumbling about water conclusively prove that he was unarmed. But the innocuous nature of a soft, peat- moss planter, the fact that Roell was mumbling about water while holding the hose, and witness testimony that Roell repeatedly shouted that he was unarmed at least create a question of material fact as to whether Roell was using the planter and hose as weapons. B. We do not know how aggressively Gary Roell was acting The majority attempts to justify the level of force the officers used by arguing that the situation may have been on the brink of escalating and arguing that Roell was acting aggressively. In fact, it is not clear how aggressively Roell was acting, meaning that it is not clear how much force might have been appropriate under the circumstances. Moreover, neither of these arguments takes into account the obligation to adjust the level of force downward when confronted with an apparently mentally unstable and unarmed individual. The majority states that there is undisputed evidence of the aggressive nature of the way Roell approached the officers. Maj. Op. at 10. In fact, the testimony does not make clear how aggressively Roell was acting when he approached the officers. At least three different witnesses testified in three different ways about why and how Gary Roell approached the officers when he arrived at the Agarwals’ house. Huddleston’s testimony largely mirrored the testimony of the other officers. He testified that Roell, unprompted, “turned around and started coming toward myself and Deputy Alexander in an aggressive manner.” R. 77 (Huddleston Dep. at 67) (Page ID #494). Huddleston also testified that he did not tell Roell to walk toward him, but rather “told [Roell] to drop what he had in his hands and get on the ground.” Id. at 68 (Page ID #495).  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 27 Agarwal was more equivocal. At one point she testified that “I saw the hose and him, you know, running with it towards the officers.” R. 90 (Agarwal Dep. at 38) (Page ID #3793). Later, she testified that she “cannot say that for sure now” whether Roell was running or walking, id. at 44 (Page ID #3799), and “I don’t want to say running, but I saw him going towards the officer with that thing [the hose] in his hand,” id. at 50 (Page ID #3805); see also id. at 56 (Page ID #3811). Agarwal also testified that it was not as if Roell was approaching the officers and they were standing still, but rather that Roell and the officers “were both moving towards each other.” Id. at 42 (Page ID #3796). In starker contrast to Huddleston’s testimony, Agarwal’s son, Soham Agarwal, recalled that Gary Roell approached the officers because they instructed him to do so. R. 91 (S. Agarwal Dep. at 20) (Page ID #3858). He said: Q. So after the police officers arrived, what was the first thing you heard either Gary or the officers say to each other? A. I think the first thing I heard was the officers telling him to like cooperate or to come over there, to stop doing what he was doing when they came into the backyard. Q. So they said come over to them? Is that what you heard? A. Something like that, yes. Id. at 37–38 (Page ID #3875–76). In support of its contention that there is undisputed evidence of the aggressive nature of the way Roell approached the officers, the majority states that Soham Agarwal testified that “Roell was facing the deputies swinging the hose ‘as if he was trying to hit somebody.’” Maj. Op. at 4 (quoting R. 91 (S. Agarwal Dep. at 32) (Page ID #3870)). This statement slightly mischaracterizes Soham Agarwal’s testimony, and, although slight, the difference between Soham Agarwal’s testimony and the majority’s characterization of Soham Agarwal’s testimony is important. Soham Agarwal actually testified that Roell had something in his hand, and that while “it was a little dark still, so it was hard to tell what it was. . . . it seemed like it was the hose that he had held previously -- and that he was kind of like swinging it around, as if he was trying to hit somebody.” R. 91 (S. Agarwal Dep. at 32) (Page ID #3870). Obviously, Soham Agarwal’s testimony does not unequivocally state that Roell was acting in a calm, unaggressive  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 28 manner, but it also does not unequivocally state that Roell was swinging the hose as if he was trying to hit someone. Instead, Soham Agarwal stated that it was dark enough that it was hard to tell what was happening, that Roell was holding something that “seemed like it was the hose,” and that Roell was “kind of like swinging” whatever he was holding “as if he was trying to hit somebody.” Id. This distinction is important because, along with Rachana Agarwal’s testimony, it underscores that it was not at all clear to the disinterested witnesses how aggressively (or unaggressively) Roell was acting. It was Huddleston, rather than Soham or Rachana Agarwal, who characterized Roell as aggressive. The majority also states that although Roell committed only property crimes, it was reasonable for the officers to infer that his crimes might escalate and therefore reasonable for them to tase him. Maj. Op. at 9. First of all, this point is debatable. The only support the majority offers is an unpublished case that is distinguishable because it held that tasing the suspect did not clearly constitute excessive force because the suspect was fleeing. See Cockrell v. City of Cincinnati, 468 F. App’x 491, 498 (6th Cir. 2012) (“[I]t is not clear whether tasing a suspect who fled from the scene of a nonviolent misdemeanor constituted excessive force, as of July 2008.”); see also id. (Cole, C.J., concurring) (“I am persuaded that Cockrell, as of July 3, 2008, did not have a clearly established right not to be tased for fleeing from a non-violent misdemeanor. I write separately because, given the totality of the circumstances, I believe that Officer Hall’s use of force was excessive.”). Second, even if tasing an unarmed individual is not generally a constitutional violation, that does not change the fact that officers have an obligation to adjust the level of force downward if the individual is apparently mentally unstable and unarmed. Even if an officer generally is permitted to tase an individual who is suspected of committing only misdemeanors, that does not mean that that the officers in this case were permitted to tase Roell, given that he was apparently mentally unstable and may have been unarmed. The majority also attempts to analogize this case to Cook v. Bastin, 590 F. App’x 523 (6th Cir. 2014), but in doing so notes that in Cook the officers observed Campbell “digging his lacerated fingers into an electrical socket” and “observed the Crisis Manager’s torn and bloody shirt, which they interpreted as an indication that physical violence had occurred.” Maj. Op. at  No. 16-4045 Roell v. Hamilton Cty Bd. of Comm’rs, et al. Page 29 15. This case is dissimilar to Cook because the officers observed no signs that violence had occurred, only signs that property damage occurred. In addition, as the majority acknowledges, the officers in Cook used less force than the officers in this case used against Roell. Id. C. There are disputed facts, making summary judgment inappropriate Because we do not know whether Gary Roell was unarmed according to Ohio law, we do not know whether the Champion/Martin rule applies to the officers’ confrontation with Roell. See Martin, 712 F.3d at 962 (quoting Champion, 380 F.3d at 904) (officers must “take into account ‘the diminished capacity of an unarmed detainee . . . when assessing the amount of force exerted’”). Because we do not know how aggressively Roell was acting, we do not know whether the level of force the officers used was appropriate under the circumstances. As a result, summary judgment is not an appropriate resolution of this case. A jury should resolve the disputed, material facts and ultimately determine whether the officers complied with their obligation to adjust the level of force downward. Therefore, as to the majority’s resolution of Nancy Roell’s § 1983 claim against Deputies Alexander, Dalid, and Huddleston, I respectfully dissent. 



423 F.Supp.2d 61 (2005) Douglas CAMPBELL, d/b/a Campbell Environmental Systems, Plaintiff, v. AUSTIN AIR SYSTEMS, LTD., Defendant. No. 02-CV-651S. United States District Court, W.D. New York. September 29, 2005. *62 *63 Mark E. Saltarelli, Saltarelli & Associates, P.C., Tonawanda, NY, for Plaintiff. Gerald T. Walsh, Zdarsky, Sawicki & Agostinelli, Buffalo, NY, for Defendant. DECISION AND ORDER SKRETNY, District Judge. I. INTRODUCTION In this case, Plaintiff Douglas Campbell d/b/a Campbell Environmental Systems ("Campbell"), a distributor of air cleaners, alleges that Defendant Austin Air Systems, Ltd. ("Austin"), a manufacturer of air cleaners, engaged in price fixing, terminated his distributorship, discriminated between distributors with respect to pricing, tortiously interfered with his customer contracts, and breached the terms of its own distributorship agreement. Plaintiff seeks relief under federal anti-trust law as well as New York law. Currently before this Court is Defendant's Motion for Summary Judgment on Plaintiff's claims and on its own counterclaim for unpaid invoices. II. BACKGROUND A. Factual Summary The following facts are undisputed for purposes of the instant motion, except *64 where indicated. Defendant Austin manufactures portable air cleaners and filters, and sells these products principally through non-exclusive dealers. (Defendant's Rule 56 Statement of Undisputed Material Facts ("Def's State."),[1] ¶¶ 4, 5). Plaintiff Campbell acted for several years without a contract as a distributor of Austin Air Cleaners until 2002. (Def's State., ¶¶ 21, 22). On March 25, 2002, Plaintiff signed a written Authorized Dealership Agreement ("Agreement") with Austin. (Def's State., ¶¶ 22, 23). The Agreement explicitly states that dealers could sell Austin Air Cleaners for any price. (Def's State., ¶ 26; Domon Aff, Exh. A, ¶ 3(f)).[2] Moreover, the Agreement provides that either Austin or the dealer may terminate the Agreement at any time, with or without cause, upon seven days prior notice to the other party. (Def's State., ¶ 28; Domon Aff., Exh. A, ¶ 6(e)). With respect to promotion or advertisement of Austin products on the Internet, the Agreement requires that the dealer submit its proposed Internet page or any modification to its existing page to Austin for approval. (Def's State., ¶ 27; Domon Aff., Exh. A, ¶ 4(a), (c)). Most significantly, the Agreement states that "any Internet advertising of Products must show the price [the] Dealer is selling for[, and this] pricing must be the same or higher than Austin's Advertising Price Schedule as it may be amended from time to time." (Def's State., ¶ 27; Domon Aff, Exh. A, ¶ 4(f)). Austin initiated this Advertising Price Schedule for the Internet, a species of minimum advertising pricing ("MAP"), after Campbell suggested it in a September 13, 2001 e-mail to Austin's President Richard Taylor ("Taylor"). (Def's State., ¶¶ 10-14; Appendix to Def's State. ("App."). Ex. A). The e-mail, sent under the subject line "Austin Air Lowball Internet Advertisers," apprised Taylor that marketers were advertising prices on the Internet that were lower than the retail price. (Def's State., ¶¶ 10-11; Campbell Dep., p. 22-23 (attached as Ex. B to App.); App., Ex. A). Campbell attached to his email examples of web pages from other marketers and complained that replacement filters were being advertised for "far less than what they should be sold for." (Def's State., ¶¶ 11-13, Campbell Dep., pp. 25-27; App, Ex. A). According to Campbell's e-mail, his advertising costs had gone up and his sales had dropped since a new Internet software was introduced which allowed companies to outbid other companies for favorable placement on an Internet search engine. (Def's State., ¶ 12; Campbell Dep., p. 23-25; App., Ex. A). Campbell stated to Taylor that MAP was the proven "way to go," based on his prior experience as a consultant for Miele Vacuum. (Def's State., ¶ 14, Campbell Dep., pp. 28-29; App, Ex. A). Campbell suggested that other Austin distributors should be suspended until they complied with the MAP policy, and stated that "the minute you start suspending a few distributorships and halting shipment, they will listen—THEY WILL LISTEN!" (Def's State., ¶ 15, Campbell Dep., p. 30; App., Ex. A). At his deposition, Campbell acknowledged the difference between MAP, the minimum price for which a dealer may advertise, and the actual price for which a *65 dealer could actually sell a product. (Def's State., ¶ 16, Campbell Dep., pp. 30-31). Further, Campbell opined that the sales process only becomes competitive after a consumer contacts the distributor for a price. (Def's State., ¶ 17, Campbell Dep., pp. 31-32). According to his deposition testimony, Campbell voiced concerns in the fall of 2001 about new credit policies implemented by Robert Mahaney, Austin's comptroller. (Def's State., ¶ 18, Campbell Dep., pp. 46-54). Mahaney testified that Austin initially extended Campbell a $25,000 line of credit. (Def's State., ¶ 19, Mahaney Dep., p. 35 (attached as Ex. D to Aff)). Austin eventually increased Campbell's credit limit to $35,000. (Def's State., ¶ 19, Mahaney Dep., p. 35). According to Austin, its distributors, including Mr. Campbell, were charged set list prices, which were raised across the board in 2002. (Def's State., ¶ 20). However, according to the sworn affidavit of Heather Peterson, a former Austin employee, Austin only raised the unit prices for a handful of distributors, including Campbell. (Peterson Aff, ¶ 9).[3] Austin unilaterally terminated its Agreement with Campbell on June 17, 2002. (Def's State., ¶ 29; Doman Aff, Exs. A, B). Austin alleges that it was forced to terminate Campbell as a dealer because he refused to comply with Austin's Internet advertising policy. (Taylor Aff, ¶ 18). For example, Austin alleges that Campbell's Internet advertisement claimed the "lowest prices," without specifying Austin's list price. (Taylor, 15, 18). Austin contends that when he was confronted, Campbell initially added the list price to his website, but subsequently deleted the price after Austin confirmed that the site was in compliance. (Taylor Aff, ¶¶ 15, 18). Campbell disputes Austin's contention that he was terminated for refusing to comply with Austin's Internet MAP policy. (Pl.'s State., ¶¶ 19-14). Rather, Campbell claims that his problems with Austin began in September of 2001 when he sold deeply discounted air filter systems to victims of the 9/11 tragedy in New York City. (Campbell Aff, ¶ 7). Campbell contends that his competing distributors complained to Austin about the discounts he was providing. (Campbell Aff, ¶ 8). He alleges that in response to these complaints, Austin purposefully delayed the shipment of his orders to benefit other distributors, shipped Campbell's customers damaged units and units containing refurbished motors, and delayed shipment of replacement units. (Pl.'s State., ¶¶ 4-8). With respect to these disputed allegations, Campbell argues that "it cannot be any coincidence that at the same time my competitors were complaining to defendant that I was discounting my prices to my customers, my *66 customers began receiving defective units at a very high percentage rate of all units shipped." (Campbell Aff, ¶ 14). Austin contends that pursuant to its unconditional money back guarantee, any customer who complained about a unit was issued a new unit or a refund. (Def's State., ¶¶ 32, 38; Taylor Aff., ¶ 25). The facts as they relate to Austin's counterclaim for unpaid invoices are as follows. At the time of his termination, Austin had 86 invoices for goods shipped to Campbell's customers with invoice dates from May 17, 2002, through June 11, 2002, totaling $23,597.24. (Def's State., ¶ 30; Mahoney Aff, Ex. C). Campbell alleges that at the time of his termination, orders had been placed with Austin that were not shipped. (Pl.'s State., ¶ 3). Although Campbell complained about the accuracy of his account balance, Austin contends that it applied every payment received from Campbell to his account. (Def's State., ¶ 31, Mahoney Dep., pp. 22-26). B. Procedural History Plaintiff commenced this lawsuit on September 6, 2002, by filing a Complaint in the United States District Court for the Western District of New York. Defendant filed its Answer and a Counterclaim against Plaintiff on November 21, 2002. On January 14, 2005, Defendant filed the instant Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.[4] This Court heard oral argument on April 8, 2005, and reserved decision at that time. III. DISCUSSION A. Summary Judgment Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is warranted where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. Civ. P. 56(c). A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under governing law." Id. In deciding a motion for summary judgment, the evidence and the inferences drawn from the evidence must be "viewed in the light most favorable to the party opposing the motion." Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970). "Only when reasonable minds could not differ as to the import of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991). Ultimately, the function of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. 2505. B. Defendant's Motion for Summary Judgment Plaintiff asserts six causes of action against Defendant. In the first cause of *67 action, Plaintiff alleges that Defendant engaged in price fixing and terminated his distributorship in violation of the Sherman Act and the Clayton Act. Plaintiff's second cause of action asserts that Defendant violated the antitrust laws by fixing and maintaining prices on its air cleaner products. In his third cause of action, Plaintiff contends that Defendant engaged in price discrimination in violation of the Robinson-Patman Act. Plaintiff's fourth cause of action alleges that Defendant attempted to force him out of business in violation of the Hobbs Act. In his fifth and sixth causes of action, Plaintiff alleges that Defendant tortiously interfered with his consumer contracts and breached its own distributorship agreement. In its counterclaim against Plaintiff, Defendant seeks to recover unpaid invoices. This Court will address each cause of action in turn. 1. The Sherman Act Campbell claims that Austin terminated its distributorship in response to complaints from his competitors that he was selling deeply discounted Austin products.[5] He alleges that Austin's conduct constitutes a violation of Section 1 of the Sherman Act. Section 1 of the Sherman Act ("Section 1") declares illegal "[e]very contract, combination in the form of a trust or otherwise, or conspiracy in restraint of trade or commerce among the several states or with foreign nations." 15 U.S.C.A. § 1. There are "very specific rules which make summary judgment . . . available to dismiss claims of antitrust conspiracy in violation of [Section 1 of the] Sherman Act." H.L. Hayden Co. of New York, Inc. v. Siemens Med. Sys., Inc., 879 F.2d 1005, 1012 (2d Cir.1989). To establish a violation of Section 1 in a distributortermination case, a plaintiff must show concerted action between the manufacturer and other distributors. 15 U.S.C.A. § 1; Schwimmer v. Sony Corp. of Amer., 677 F.2d 946, 952 (2d Cir.1982) (stating that "[o]ther elements aside, . . . the essence of a [Section 1] violation is a combination or agreement between two or more persons"). The law is clear that independent action on the part of a manufacturer is not proscribed under the Sherman Act. Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 923 (2d Cir.1985). Rather, "a manufacturer . . . generally has a right to deal, or refuse to deal, with whomever it likes, as long as it does so independently." Id. (internal citations omitted; United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992 (1919)). The leading case on Section 1 conspiracy claims, Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 760-761, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775 (1984), involved a terminated distributor of agricultural herbicides who alleged that a manufacturer and other distributors conspired to fix resale prices and to terminate Plaintiff's distributorship in furtherance of the conspiracy. Therein, the Court held that a plaintiff asserting a Section 1 conspiracy must present "evidence that tends to exclude the possibility of independent action by the manufacturer and distributor" in order to survive a motion for summary judgment. Monsanto, 465 U.S. at 768, 104 S.Ct. 1464. "That is, there must be direct or circumstantial evidence that reasonably *68 tends to prove that the manufacturer and others had a conscious commitment to a common scheme designed to achieve an unlawful objective," or the claim will not survive. Monsanto, 465 U.S. at 768, 104 S.Ct. 1464. The Monstanto Court recognized that any Section 1 claim involving distributor termination implicates the right of a manufacturer to choose the distributors with whom it does business. Under the doctrine articulated by the Supreme Court in Colgate, a manufacturer has the right: (1) to deal or refuse to deal with whomever it chooses; and (2) "to announce in advance the circumstances under which it will refuse to sell," so long as it does so independently. Colgate, 250 U.S. at 307, 39 S.Ct. 465; Hayden, 879 F.2d at 1013 n. 5. To protect against erosion of this principle,[6] the Monsanto Court explicitly held that evidence of complaints by distributors, standing alone, does not support an inference of antitrust conspiracy. Mansanto, 465 U.S. at 764, 104 S.Ct. 1464; see also Hayden, 879 F.2d at 1013-14. The Court reasoned that complaints about price cutters "are natural-and from the manufacturer's perspective, unavoidable— reactions by distributors to the activities of their rivals," which "arise in the normal course of business and do not indicate illegal concerted action." Monsanto, 465 U.S. at 763, 104 S.Ct. 1464 (internal citations omitted). Accordingly, it cautioned that barring a manufacturer from acting "solely because the information upon which it acts originated as a price complaint would create an irrational dislocation in the market." Monsanto, 465 U.S. at 763, 104 S.Ct. 1464. Further, it warned that "[p]ermitting an [illegal] agreement to be inferred merely from the existence of complaints, or even from the fact that termination *69 came about `in response to' complaints, could deter or penalize perfectly legitimate conduct," "inhibit management's exercise of independent business judgment," and "emasculate the terms of the [Sherman Act]." Monsanto, 465 U.S. at 763-64, 104 S.Ct. 1464 (internal citations omitted); see also Schwimmer, 677 F.2d at 953. In the instant case, Campbell claims that unnamed competitors complained to Austin that he was price cutting, and that in response, Austin raised his list prices, sent damaged or substandard units to his customers in an untimely fashion and eventually terminated his distributorship. Construing the record in a light most favorable to Plaintiff, as it must, this Court finds that there is no direct or circumstantial evidence which reasonably tends to prove that Austin and Campbell's competitors shared a "conscious commitment" to a "common scheme" designed to fix prices.[7] The law is clear that this Court may not infer an illegal conspiracy from evidence that Campbell's competitors complained that he was selling Austin air filters at deeply discounted prices. Monsanto, 465 U.S. at 764, 104 S.Ct. 1464. Competitor complaints have been characterized as highly ambiguous evidence of antitrust conspiracy, Monsanto, 465 U.S. at 764, 104 S.Ct. 1464, and it is well settled that "antitrust law limits the range of permissible inferences from ambiguous evidence in a [Section 1] case." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (stating that conduct which is as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy). Based on the foregoing, this Court finds that no reasonable trier of fact could conclude that Austin entered into a common scheme with Campbell's competitors to fix prices. Campbell has failed to present any evidence in opposition to summary judgment that tends to exclude the possibility that Austin acted independently. Monsanto, 465 U.S. at 768, 104 S.Ct. 1464. Further, this Court finds that Campbell's allegation that Austin terminated his distributorship in response to the complaints of his competitors is legally insufficient to infer concerted action required under Section 1 of the Sherman Act. Accordingly, Campbell's Sherman Act claim must be dismissed. 2. Clayton Act In his first cause of action, Plaintiff also invokes Section 3 of the Clayton Act, 15 U.S.C. § 14. However, Campbell does not allege how Austin's alleged conduct violates this provision of the antitrust laws. Section 3 of the Clayton Act provides, in pertinent part, that "Mt shall be unlawful for any person . . . to . . . make a sale or contract for sale of goods . . . on the condition, agreement, or understanding that the . . . purchaser thereof shall not use or deal *70 in the goods . . . of a competitor or competitors . . . where the effect . . . may be to substantially lessen competition or tend to create a monopoly in any line of commerce." 15 U.S.C. § 14. "[T]he gravamen of [any] Section 3 violation is the forbidden condition, agreement or understanding of exclusivity, and a proper pleading should assert this ultimate fact." McElhenney Co. v. Western Auto Supply Co., 269 F.2d 332, 338 (4th Cir.1959). Among other things, Section 3 provides a cause of action for anti-competitive "product tying" and "exclusive dealing" arrangements. See Bennett v. Cardinal Health Marmac Distrib., Inc., No. 02 CV3095 (JG), 2003 WL 21738604, at *5-6 (E.D.N.Y. July 14, 2003). To establish an illegal "tying" arrangement, a buyer must demonstrate, among other things, that a defendant tied the sale of two distinct products; in other words, that it sold one product on the condition that another be purchased as well. See In re Visa Check/Master Money Antitrust Litigation, 280 F.3d 124, 133 n. 5 (2d Cir.2001). To prove an illegal exclusive dealing arrangement, a plaintiff must demonstrate that a manufacturer designated a single distributor as the sole outlet for their products in a particular geographic area. See, Bennett, 2003 WL 21738604, at *5-6. Viewing the record as a whole, this Court finds that Campbell has presented no evidence from which a reasonable juror could infer that Austin entered into an agreement or understanding of exclusivity, such as a product tying or exclusive dealing arrangement. Accordingly, Plaintiff's claim under Section 3 of the Clayton Act will be dismissed. 3. Price Fixing and Maintenance Plaintiff's second claim alleging price fixing and maintenance is duplicative of his first cause of action. As previously discussed herein, evidence that Campbell terminated Austin in response to the complaints of Austin's competitors is legally insufficient to establish price fixing. Because competitors' complaints are wholly consistent with permissible competition, they cannot, standing alone, support an inference of antitrust conspiracy. Mansanto, 465 U.S. at 764, 104 S.Ct. 1464; see also Hayden, 879 F.2d at 1013-14. For the reasons set forth above, this Court finds that the evidence provided by Campbell in support of this price fixing and maintenance claim is insufficient to withstand summary judgment. Accordingly, Plaintiff's cause of action for price fixing will be dismissed. 4. Price Discrimination Under the Robinson-Patman Act In his third cause of action, Plaintiff claims that Defendant discriminated between distributors with respect to pricing in violation of Section 2 of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. § 13. Section 2, provides in pertinent part, that "[i]t shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, . . . where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly." 15 U.S.C. § 13. Thus, the act prohibits a seller from engaging in price discrimination that is likely to result in competitive injury. For the purposes of this Section, "price discrimination means nothing more than a difference in price charged to different purchasers or customers of the discriminating seller for products of like grade and quality." Best Brands Beverage, Inc. v. Falstaff Brewing Corp., 842 F.2d 578, 584 (2d Cir.1987). By its terms, *71 Section 2 is a "prophylactic statute which is violated merely upon a showing that the effect of such discrimination may be substantially to lessen competition." J. Truett Payne Co., Inc. v. Chrysler Motors Corp., 451 U.S. 557, 561-62, 101 S.Ct. 1923, 1927, 68 L.Ed.2d 442 (1981). In turn, Section 4 of the Clayton Act provides that "[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States . . ., and shall recover three-fold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee." 15 U.S.C. § 15. In comparison to Section 2, Section 4 of the Clayton Act is essentially a remedial statute, which provides treble damages to a party who is in fact injured by conduct forbidden by the antitrust laws. J. Truett, 451 U.S. at 561-62, 101 S.Ct. 1923. Therefore, to recover treble damages "a plaintiff must make some showing of actual injury attributable to something the antitrust laws were designed to prevent." J. Truett, 451 U.S. at 561-62, 101 S.Ct. 1923; see also Perkins v. Standard Oil Co., 395 U.S. 642, 648, 89 S.Ct. 1871, 1874, 23 L.Ed.2d 599 (1969) (holding that a plaintiff "must, of course, be able to show a causal connection between the price discrimination in violation of the Act and the injury suffered"). This Court finds that a genuine issue of fact exists with respect to whether Austin discriminated against Campbell in regards to pricing. That is, there is some dispute as to whether Austin raised its list prices between 2001 and 2002 across the board, or if Austin raised its unit prices for only a "handful" of dealers including Campbell, as Ms. Peterson, Austin's former employee stated in her sworn affidavit. (Peterson Aff, ¶ 9). However, this fact is only a material one if Plaintiff has presented sufficient evidence to show that he was injured because of this alleged price discrimination. As evidence of injury, Campbell cites to his Schedule C tax returns for the years 2000 through 2002. (Mahaney Aff, Ex. B). These returns reflect a net profit of $9,703.00 in 2000, $24,252.00 in 2001, and $14,054.00 in 2002. (Mahaney Aff, Ex. B). Further, Campbell alleges that since he was terminated by Austin, a manufacturer that dominates the residential air cleaner market, he has become associated with a much smaller company known as Aller Air. (Campbell Dep., ¶¶ 19-21). Moreover, he alleges "that those dealers who were complaining directly benefitted and profited from my termination by the decrease in competition." (Campbell Aff, ¶ 29). However, in producing this "evidence," Campbell misapprehends what is necessary to prove a price discrimination claim under the Robinson-Patman Act. Under the Act, a plaintiff is required to establish some connection between the alleged price discrimination and injuries to the plaintiff in the form of lost sales or profits. Hayden, 879 F.2d at 1022. Campbell's losses resulting from his termination and the effect of his termination on his unnamed competitors is not relevant to this inquiry. The only relevant evidence presented are Campbell's Schedule C tax returns, which demonstrate that Campbell's net profits varied between 2000 and 2001, and again between 2001 and 2002. These records reflect that Campbell did experience a decrease in profits from 2001 to 2002. However, this evidence, standing alone and without explanation, is insufficient to suggest a causal connection between Austin's alleged price discrimination and his losses. That is, no reasonable factfinder could determine from Campbell's lump sum profit figure that his losses in 2002 are attributable to an increase in *72 Austin's list prices. In the view of this Court, Campbell has failed to present a sufficient breakdown of his financial figures for such an inference to be reasonably drawn from the evidence.[8] For example, without a fundamental breakdown of the approximate number of units sold or the price comparisons per unit sold during the relevant years, no fact-finder could reasonably determine that Austin's alleged price discrimination caused Campbell's losses. This Court notes that Campbell's alleged losses in 2002 are easily attributable to the termination of his distributorship in June, halfway through the sales year, or any number of other factors unrelated to Austin's allegQd price discrimination. Based on Campbell's figures, his 2002 sales likely could have eclipsed his 2001 sales had his distributorship not been terminated. However, Campbell's alleged losses, which have not been connected in any way to Austin's alleged discriminatory price increases, are insufficient to establish a violation of the Robinson-Patman Act. Based on the foregoing, this Court finds that Campbell has failed to demonstrate a causal connection between the alleged price discrimination and his alleged injury sufficient to survive summary judgment. See Truett, 451 U.S. at 562, 101 S.Ct. 1923. Accordingly, Plaintiffs Robinson-Patman claim will be dismissed. 5. Private Causes of Action Under the Hobbs Act Plaintiffs fourth cause of action alleges that Defendant attempted to force him out of business in violation of the Hobbs Act. However, federal courts have consistently found that the Hobbs Act does not support a private cause of action. See, e.g., Barge v. Apple Computer, No. 95 Civ. 9715(KMW), 1997 WL 394935, at *2 (S.D.N.Y. July 15, 1997); John's Insulation Inc. v. Siska Constr. Co., 774 F.Supp. 156, 163 (S.D.N.Y.1991); see also Bajorat v. Columbia-Breckenridge Dev. Corp., 944 F.Supp. 1371, 1377-78 (N.D.III.1996) (collecting cases holding that the Hobbs Act and other criminal statutes do not allow for a private right of action). When questioned at oral argument, Plaintiffs counsel conceded that his private cause of action under the Hobbs Act could not be maintained. Accordingly, Defendant is entitled to summary judgment with respect to Plaintiffs Hobbs Act claim. 6. Plaintiff's State Law Claims for Tortious Interference with Contracts, and Breach of Contract and Defendant's Counterclaim for Unpaid Invoices As previously noted herein, Campbell asserts claims against Austin based on tortious interference with contracts and breach of contract, and Austin counterclaims for unpaid invoices. However, in light of the fact that no federal claims remain in this case, this Court need not retain jurisdiction over these state law claims. Rocco v. New York State Teamsters Conference Pension & Ret. Fund, 281 F.3d 62, 72 (2d Cir.2002). It is well settled that the decision to exercise supplemental jurisdiction is vested in the sound discretion of the district *73 court. See Grace v. Rosenstock, 228 F.3d 40, 55 (2d Cir.2000). The Second Circuit has advised that district courts should typically decline to exercise jurisdiction over state law claims where all federal claims have been eliminated before trial. See Travelers Ins. Co. v. Keeling, 996 F.2d 1485, 1490 (2d Cir.1993); see also Martz v. Incorporated Vill. of Valley Stream, 22 F.3d 26, 32 (2d Cir.1994) ("Having dismissed all of [the] federal claims, the district court was correct in also dismissing [the] pendent state law claims."). By the plain language of the Agreement, the rights and obligations of the parties thereunder are governed by and must be construed under New York State law. (Domon Aff, Ex. A, ¶ 8(c)). As such, Plaintiff's remaining claims relating to tortious interference and breach of contract, and Defendant's counterclaim for unpaid invoices, necessarily involve an analysis of the Agreement under New York law. Having dismissed all of the federal claims, this Court finds that these remaining issues are best left to the state courts. Accordingly, Plaintiff's state law claims and Defendant's counterclaim will be dismissed without prejudice. See Burgos v. City of Rochester, No. 99-CV-6480, 2003 WL 22956907, at *6 (W.D.N.Y. Mar.31, 2003) (citing Giordano v. City of New York, 274 F.3d 740, 754 (2d Cir.2001)); United Mine Workers v. Gibbs, 383 U.S. 715, 726 n. 15, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). IV. CONCLUSION For the foregoing reasons, Defendant's Motion for Summary Judgment is granted. Further, this Court declines to exercise supplemental jurisdiction over Plaintiff's state law claims and Defendant's state law counterclaim. Accordingly, those claims are dismissed without prejudice. V. ORDERS IT HEREBY IS ORDERED, that Defendant's Motion for Summary Judgment (Docket No. 37) is GRANTED. FURTHER, that Plaintiff's state law causes of action and Defendant's counterclaim are dismissed without prejudice. FURTHER, that the Clerk of the Court is directed to take the steps necessary to close this case. SO ORDERED. NOTES [1] Rule 56.1(c) of the Local Rules of Civil Procedure for the Western District of New York provides that facts contained in the moving party's Rule 56 Statement are deemed admitted unless controverted by the opposing party. [2] The Affidavits of Gerald T. Walsh, Richard Taylor, Michael Domon, and Roberts Mahaney are attached to Defendant's Motion for Summary Judgment. (Docket No. 37). [3] Defendant argues that Ms. Peterson's affidavit should be disregarded because it contradicts her prior deposition testimony. The Second Circuit has held that "a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City Dept. of Corr., 84 F.3d 614, 619 (2d Cir.1996). The reasoning behind this rule is straightforward—"if a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Id. While this Court agrees that Ms. Peterson's affidavit does contradict her deposition testimony with respect to shipping and back orders, and the incidence of complaints made by Campbell's customers compared with other customers, Austin has cited to no such inconsistency with respect to unit pricing. Accordingly, this Court finds that the issue of whether Austin raised unit prices across the board is a disputed fact. [4] In support of its Motion for Summary Judgment, Defendant filed a memorandum of law, affidavits by Gerald T. Walsh, Richard Taylor, Michael Domon, and Roberts Mahaney with exhibits, a Local Rule 56 statement with an appendix thereto, a reply memorandum of law, and a second affidavit by Gerald T. Walsh with exhibits. Plaintiff filed a memorandum of law, affidavits by Douglas Campbell and Heather Peterson, and a Local Rule 56 statement with exhibits in opposition to the Motion. [5] Specifically, Campbell argues that in response to his competitor's complaints, Austin employed unduly aggressive tactics in an effort to coerce him to adhere to a favorite pricing policy. Campbell disputes Austin's contention that it terminated him because he failed to comply with Austin's Internet MAP policy. He contends that Austin fired him for selling Austin products for below the suggested retail price rather than for advertising or failing to advertise at or above Austin's Advertising Price Schedule. [6] With respect to the Colgate doctrine, the Monsanto Court held that: On a claim of concerted price fixing, the antitrust plaintiff must present evidence sufficient to carry its burden of proving that there was such an agreement. If an inference of such an agreement may be drawn from highly ambiguous evidence, there is a considerable danger that the doctrines enunciated in Sylvania and Colgate will be seriously eroded. Monsanto, 465 U.S. at 763, 104 S.Ct. 1464. The Sylvania doctrine states that a court may not construe a non-price restriction imposed by a manufacturer on a distributor as illegal per se; rather, the restriction is to be judged under the "rule of reason." Continental T.V. Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49-50, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568 (1977). Under the rule of reason, "the factfinder weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition." Id.; see also Business Electronics Corp. v. Sharp Electronics Corp., 485 U.S. 717, 735-36, 108 S.Ct. 1515, 1525, 99 L.Ed.2d 808 (1988) (holding that even when an anti-trust plaintiff can prove a vertical agreement between a manufacturer and a full price dealer to terminate a competing price-cutting dealership, the agreement is not per se illegal under Section 1 of the Sherman Act, unless the plaintiff also offers proof of an agreement by the full price dealer to set its price at some level). In the instant case, Campbell disputes that he was terminated for violating Austin's Internet MAP policy set forth in the Agreement. Rather, he contends that the conspiracy between Austin and his competitors to fix prices existed outside of the Agreement. As such, this Court's analysis does not focus on the Agreement itself. For the record, however, this Court finds that the Agreement does not impose an unreasonable restraint on competition under the "rule of reason" set forth in Sylvania. 433 U.S. at 57-59, 97 S.Ct. 2549. By its plain language, Austin's Internet MAP policy restricts only the minimum price for which a dealer could advertise on the Internet. (Domon Aff., Exh. A, If 4(f)). With respect to actual sales pricing, the Agreement explicitly states that a dealer may sell Austin Air Cleaners for any price. (Domon Aff., Exh. A, ¶ 3(f)). As such, this Court finds that the Agreement itself does not violate Section 1 of the Sherman Act, nor does it constitute proof of a vertical agreement to fix prices. [7] Plaintiff makes reference to a phone message left by Austin's representative Dan Block, in which he allegedly threatened to suspend Campbell if he did not comply with the suggested retail price. However, Plaintiff has not produced this tape and his allegations regarding the substance of the tape are contradicted by Mr. Block's sworn testimony that he told Campbell that he could sell the products for "whatever he wanted to," but he had to comply with Austin's MAP policy. (Block Dep., pp. 15-16 (attached as Ex. B to second Walsh Aff.)). It is well settled that a reviewing court is only required to consider admissible evidence in ruling on a motion for summary judgment. Nora Beverages v. Perrier Group of Am., Inc., 164 F.3d 736, 746 (2d Cir.1998). Accordingly, this Court declines to consider Plaintiff's unsubstantiated (and disputed) allegations regarding the substance of Mr. Block's phone message. [8] Moreover, it is not this Court's duty or function to search the record in support of a litigant's suggested arguments. See Amnesty Am. v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir.2002) ("[Rule 56] does not impose an obligation on a district court to perform an independent review of the record to find proof of a factual dispute."); Smith v. Ward Leonard Elec. Co., Inc., No. 00 Civ. 3703, 2004 WL 1661098, at *3 n. 2 (S.D.N.Y. July 23, 2004) ("It is the job of Plaintiff's counsel, not the Court, to identify evidence sufficient to avoid summary judgment.").

179 F.2d 806 86 U.S.App.D.C. 70 DEBOBULA,v.MACONDRAY et al. No. 10158. United States Court of Appeals District of Columbia Circuit. Argued Dec. 8, 1949.Decided Jan. 3, 1950. Mr. Titus de Bobula, pro se. Mr. Samuel F. Beach, Washington, D.C., with whom Mr. Leslie C. Garnett, Washington, D.C., was on the brief, for appellees. Mr. Karl Kindleberger, Washington, D.C., also entered an appearance for appellees. Before EDGERTON, PRETTYMAN and WASHINGTON, Circuit Judges. PER CURIAM. 1 Plaintiff brought this action against twelve defendants, four of whom are the appellees here. The complaint, drawn by the plaintiff himself, appears to be based on allegations of wrongful and abusive eviction from the premises occupied by the plaintiff as tenant, damages being sought against the marshal who executed the eviction, and others. The four defendant-appellees were the owners of the premises, and landlords of the plaintiff. A motion for summary judgment was made on behalf of the four defendant-appellees, among the supporting documents being the affidavit of one appellee that the marshal executed the writ of restitution 'solely on his own responsibility and without instructions from the proponent and her daughters, or their agents.' Plaintiff filed an answering affidavit, denying the statement just quoted and alleging that the marshal proceeded upon instructions from appellees' attorney and from their real estate agent. 2 The District Court granted the motion for summary judgment and plaintiff appealed. Reading the complaint and its exhibits along with the affidavits of the parties and the other relevant papers, we consider that at least two genuine issues of material fact were in controversy, i.e., whether the alleged wrongful conduct of the marshal was procured or authorized by appellees' attorney or real estate agent, or both, and if so, whether such action was within the scope of authority. In this posture of the case, appellees are not entitled to summary judgment. That being the sole question before us, we do not rule on any other. 3 Reversed.

186 Ariz. 409 (1996) 923 P.2d 875 Lee Anne FLOYD, a married woman, Plaintiff-Appellant, v. Anthony DONAHUE and Jane Doe Donahue, husband and wife, Defendants-Appellees. No. 1 CA-CV 95-0460. Court of Appeals of Arizona, Division 1, Department B. September 3, 1996. *411 Wade F. Waldrip, Harland E. Carey, Phoenix, for Plaintiff-Appellant. Raymond, Greer & Sassaman, P.C. by Randy L. Sassaman, Leonard D. Greer, Michael J. Raymond, Phoenix, for Defendants-Appellees. OPINION LANKFORD, Judge. On this appeal from the dismissal of a complaint, we consider whether the statute of limitations bars a plaintiff's claims that her father sexually molested her from the time she was twelve years old. We hold that her claims of childhood abuse are barred, but that she may sue for acts occurring less than two years before she filed this action. Although the trial court dismissed the complaint, it considered evidentiary matters in ruling on the motion to dismiss. The court thereby treated the motion as one for summary judgment. See Ariz. R. Civ. P. 12(b). Accordingly, we view the evidence in the record favorably to Floyd, the person against whom summary judgment was granted. Hill-Shafer Partnership v. Chilson Family Trust, 165 Ariz. 469, 472, 799 P.2d 810, 813 (1990). In addition, we determine de novo whether genuine issues of material fact exist and whether the trial court correctly applied the law. Gonzalez v. Satrustegui, 178 Ariz. 92, 97, 870 P.2d 1188, 1193 (App. 1993). Appellant Lee Anne Floyd was born in December 1958. Beginning in about 1970, when Floyd was twelve years old, Appellee Anthony Donahue began sexually abusing her.[1] The abuse during her minority included numerous acts of inappropriate touching, exhibitionism, oral sex, and attempted intercourse. Donahue warned Floyd not to tell her mother, and Floyd feared that telling her mother would result in the breakup of the family. In addition to the more egregious forms of abuse perpetrated from 1970 through 1974, Floyd claims Donahue used familial hugs and other opportunities as occasions for additional abuse, including open-mouthed kisses and thrusting his groin against Floyd in a sexually suggestive manner. This behavior continued into Floyd's adulthood until the day before her mother died on September 2, 1992. Floyd filed her complaint on June 28, 1994. This date was more than seventeen years after her eighteenth birthday, but less than two years after her mother's death. After Floyd filed an amended complaint, Donahue moved to dismiss it based on the statute of limitations. The trial court granted the motion. In general, the statute of limitations defense is disfavored; courts prefer to resolve cases on their merits. Gust, Rosenfeld & Henderson v. Prudential Ins. Co., 182 Ariz. 586, 590, 898 P.2d 964, 968 (1995). However, statutes of limitations serve the important public policy functions of protecting defendants and the courts from stale claims and from the evidentiary problems such claims generate, and protecting defendants from economic and psychological insecurity. Ritchie v. Grand Canyon Scenic Rides, 165 Ariz. 460, 464, 799 P.2d 801, 805 (1990). In Arizona, a plaintiff must file suit for personal injuries "within two years after the cause of action accrues." Ariz. Rev. Stat. Ann. ("A.R.S.") § 12-542 (1992). Floyd argues that because of the unique issues involved in adults' claims against persons who sexually abused them as children, the statute should not apply. In a recent case, however, the Arizona Supreme Court applied A.R.S. section 12-542 to adult victims' claims against persons who sexually abused them as children. Florez v. Sargeant, 185 Ariz. 521, 524-25, 917 P.2d 250, 253-54 (1996). We therefore reject Floyd's argument that no statute of limitations applies to her claims. *412 Because most of the alleged abuse in this case occurred when Floyd was a minor, the running of the limitations period on the acts occurring during childhood was tolled until she reached age eighteen. A.R.S. § 12-502(A) (1992). Floyd's claims as to the childhood abuse are facially untimely because she filed suit more than two years after her eighteenth birthday. Floyd has the burden to show some ground for tolling the statute of limitations. Ulibarri v. Gerstenberger, 178 Ariz. 151, 155, 871 P.2d 698, 702 (App. 1993). Floyd offers several theories[2] in arguing that her claims are not time-barred. Some of these questions were resolved in Florez, in which the Arizona Supreme Court ruled that the claims of two persons sexually abused as children were barred by the statute of limitations. We will first briefly address those issues resolved in Florez, and then address an unresolved issue: May a victim sue for childhood sexual abuse beyond the two-year limitations period when the perpetrator continues to engage in unwanted sexually suggestive touching until within the two-year period? Floyd contends that accrual of her cause of action was delayed until psychological counseling made her aware of the extent of injuries and of the causal connection between the abuse and her emotional problems. We disagree. In Arizona, a claim accrues when a "plaintiff knows or, in the exercise of reasonable diligence, should know the facts" underlying that claim. Gust, Rosenfeld, 182 Ariz. at 588, 898 P.2d at 966; accord Kowske v. Life Care Centers of Am., 176 Ariz. 535, 537, 863 P.2d 254, 256 (App. 1993). The discovery rule delays accrual until the plaintiff has reason to know "by the exercise of reasonable diligence" that defendant harmed her. Mayer v. Good Samaritan Hospital, 14 Ariz. App. 248, 252, 482 P.2d 497, 501 (App. 1971). The discovery rule did not render Floyd's claims timely. In Florez, the Arizona Supreme Court held that when adult victims knew who had abused them, what the abusers had done, and that this abuse had caused them injury, they could have filed their claims. 185 Ariz. at 527-29, 917 P.2d at 256-58. The record reveals that Floyd remembered her father's abuse, and was aware that this abuse had injured her. After she became an adult, Floyd began counseling to help her deal with psychological problems resulting from Donahue's abuse. In 1983, she began treatment at the Center Against Sexual Assault ("CASA"). In 1986 or 1987 she again sought counseling, and in 1993 sought marital counseling for problems associated with the past abuse. In 1993 Floyd also began counseling sessions with Kim Whiting, a counselor specializing in sexual abuse cases. Once Floyd had reason to know her father's abuse caused her injury, which occurred at the latest by 1983, her cause of action accrued. The discovery rule thereafter had no effect on the limitations period.[3] Because the limitations period for the childhood abuse had expired when plaintiff commenced the action, the complaint was properly dismissed. Floyd also argues that because her father used his parental authority and threats against Floyd to keep her silent, and because his acts caused the mental impairment that prevented Floyd from timely filing *413 suit, Donahue should be estopped from asserting the statute of limitations. Although Floyd states that she is not claiming an "unsound mind" disability, her grounds for estoppel differ little from the "unsound mind" argument rejected in Florez. In Florez, the Arizona Supreme Court held that post-traumatic stress syndrome did not toll the statute of limitations unless its effects rendered the plaintiff "incapable of carrying on the day-to-day affairs of human existence." 185 Ariz. at 526, 917 P.2d at 255. There is no such evidence in this case, and we therefore decline to apply estoppel. Floyd also asserts estoppel on this basis: She failed to file because she feared confronting her father would hurt her mother and lead to the breakup of her family. There is no evidence of concealment in this case. Compare Ulibarri, 178 Ariz. at 156, 871 P.2d at 703 (post-hypnotic suggestion to forget sexual conduct). In the absence of evidence of concealment, a specific threat or demonstrable duress, we decline to apply estoppel. Floyd no longer lived with her father, and she alleges merely that she forbore filing suit to protect her mother from unpleasant information that may have changed her mother's opinion about her husband. See Rigazio v. Archdiocese of Louisville, 853 S.W.2d 295, 297 (Ky. Ct. App. 1993) (abuser's telling victim not to tell anyone about abuse not sufficient to constitute obstruction or concealment); Franke v. Geyer, 209 Ill. App.3d 1009, 154 Ill.Dec. 710, 713, 568 N.E.2d 931, 934 (1991) (to show equitable estoppel, victim must show that the abuser's actions caused her to forbear filing suit); cf. Roer v. Buckeye Irrigation Co., 167 Ariz. 545, 547, 809 P.2d 970, 972 (App. 1991) (non-committal acts insufficient to establish estoppel). Accordingly, we reject the contention that defendant is estopped from raising the statute of limitations defense. Floyd also claims that her father's continuing acts of sexually suggestive, offensive behavior into her adulthood extends the limitation period. The last such act occurred the day before her mother died and within the two year statutory limitations period. Floyd contends that all the conduct is linked and that the most recent acts sweep all prior conduct within the limitations period.[4] She further argues that although these later acts were not as nefarious as those Donahue committed during her childhood, these acts severely aggravated her depression and the post-traumatic stress syndrome caused by past abuse. We agree that under certain conditions a tort is continuous, and in such cases the limitations period does not commence until the date of the last tortious act. See Garcia v. Sumrall, 58 Ariz. 526, 533, 121 P.2d 640, 643 (1942) (trespass to property). However, the continuing tort rule does not apply here because each claimed act is a separate assault causing separate as well as cumulative injury. See, e.g., Doe v. Doe, 671 So.2d 466, 469-70 (La. App. 1995) (separate acts of sexual abuse not a continuing tort); Hertel v. Sullivan, 261 Ill. App.3d 156, 198 Ill.Dec. 574, 578, 633 N.E.2d 36, 40 (1994) (continuing tort rule does not extend to sexual abuse claim); Davis v. Bostick, 282 Or. 667, 580 P.2d 544, 547-48 (1978) (separate but repeated acts of spousal abuse did not fall within continuing tort rule; claims for abuse occurring outside of limitations period barred). Cf. Mardis v. Robbins Tire & Rubber Co., 669 So.2d 885, 888 (Ala. 1995) (acts of sexual harassment occurring more than two years before suit time-barred); Doe v. Roe, ___ Ariz. ___, ___, ___ P.2d ___, ___, 1996 WL 445314, 222 Ariz. Adv. Rep. 17, 22 (App. Aug. 8, 1996) (Lankford, J., dissenting) (each act of abuse is a separate tort); but cf. Giuliani v. Stuart Corp., 512 N.W.2d 589, *414 595 (Minn. Ct. App. 1994) (sexual harassment claim timely if "at least one incident of harassment occurred within limitations period"). In this case, each of Donahue's acts against Floyd was a separate tort, and Floyd cannot assert claims for abuse occurring outside the two year limitation period. We hold that Floyd's claims of abuse occurring more than two years from the date she filed are time-barred. We note, however, that Floyd claims that at least one act of offensive, sexually suggestive touching occurred within two years before she filed suit, and that this touching aggravated her preexisting psychological problems and thereby caused additional injury. Because this act occurred within the statutory period, we remand the claims filed within two years for further proceedings. WEISBERG, P.J., and VOSS, J., concur. NOTES [1] Because we have assumed for purposes of this appeal that Donahue molested Floyd as alleged in the amended complaint, we find no merit to Floyd's argument that she should have been allowed to depose Donahue before resolution of the limitation issue. [2] We note that Floyd does not claim that she was under the disability of "unsound mind" for purposes of tolling the statute of limitation. Accordingly, we need not address Donahue's argument that Floyd is attempting to tack disabilities in violation of A.R.S. section 12-503 (1992). [3] Floyd argues that discovery of her cause of action was triggered by her son's reporting that Donahue told him not to tell his mother about something. However, the record shows that Floyd did not repress all memory of abuse and it is therefore unclear what memory her son's statement "triggered." Floyd also argues that the trial court erred in disregarding the affidavit of her expert on the issue. We have reviewed the record de novo to determine whether an issue of material fact exists. We agree with the trial court that Floyd's concessions that she always remembered the abuse and that she sought counseling at least by 1983 to deal with psychological problems resulting from that abuse resolves the question. The expert's testimony did nothing to change that result because she merely opined that Floyd had discovered the full impact of Donahue's abuse after her mother died and after she began counseling. [4] We reject Donahue's argument that Floyd waived this argument by failing to raise it in the trial court. In the amended complaint, made more specific than the original complaint because the trial court granted Donahue's motion for more definite statement, Floyd specifically alleged that Donahue's "harmful and offensive touching" continued until September 1992. Although Floyd did not use the words "continuing tort" in her written memoranda, fairly read these documents assert that Donahue's inappropriate conduct continued from 1970 through 1992, and that Floyd's claims were not separate claims for each alleged assault but were claims for her injuries resulting from the cumulative effects of those assaults. This is sufficient to raise the issue.

443 F.2d 368 UNITED STATES of America, Appellee,v.James Arthur O'NEAL, Appellant. No. 26211. United States Court of Appeals, Ninth Circuit. May 28, 1971. Donald R. Shaw (argued), of Tonkoff, Dauber & Shaw, Yakima, Wash., for appellant. Carroll D. Gray (argued), Asst. U. S. Atty., Dean C. Smith, U. S. Atty., Spokane, Wash., for appellee. Before JERTBERG, ELY and KILKENNY, Circuit Judges. PER CURIAM: 1 Appellant was found guilty of refusing to submit to induction into the Armed Forces in violation of 50 U.S.C. App. § 462. He appeals. We affirm. 2 On March 27, 1967, after registration with his local draft board, appellant was classified I-A. Subsequently, he furnished additional information and applied for a IV-D classification. The local board refused to reopen. 3 (1) Relying upon Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970); Miller v. United States, 388 F.2d 973 (9th Cir. 1967), and similar authorities, appellant claims that he made a prima facie case for reopening. The lower court thought otherwise and we agree. To qualify for a IV-D classification, a registrant must show that he is pursuing a full time course of instruction at a reconized theological or divinity school. 50 U.S.C. App. § 456(g). There is nothing in the record indicating that appellant was pursuing such a course, or that the alleged school was recognized. 4 (2) Although our decision on point (1) would, under ordinary circumstances, dispose of the appeal, we feel we should express our views on appellant's second contention. He urges that the actions of the board in his case amounted to a de facto reopening within the rules stated in Mulloy and Miller. In each of those cases, the registrant presented a prima facie case and the conduct of the board was tantamount to a reopening. Here, the board granted appellant a "courtesy interview," but refused to reopen. On the record before us, we hold that the actions of the board did not rise to the dignity of a de-facto reopening. Consequently, the rules in Mulloy and Miller are inapplicable. United States v. Price, 427 F.2d 162, 163 (9th Cir. 1970); United States v. Bowen, 423 F.2d 266, 267 (9th Cir. 1969). 5 We have considered, but found without merit, other points raised by appellant. 6 Affirmed.

37 A.3d 1223 (2011) IN RE ADOPTION OF C.T.L.; APPEAL OF C.T.L. No. 875 WDA 2011. Superior Court of Pennsylvania. October 4, 2011. Affirmed.

510 U.S. 870 Lawmasterv.United States. No. 93-267. Supreme Court of United States. October 4, 1993. 1 Appeal from the C. A. 10th Cir. 2 Certiorari denied. Reported below: 993 F. 2d 773.

235 F.3d 975 (6th Cir. 2000) Richard J. Rybarczyk, Minoru Mizuba, and William Rittenhouse, Plaintiffs-Appellees,v.TRW, Inc. and TRW Salaried Pension Plan, Defendants-Appellants. No. 97-4167 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Argued: December 9, 1998Decided and Filed: December 21, 2000 Appeal from the United States District Court for the Northern District of Ohio at Cleveland. Nos. 95-02800; 96-02493, Ann Aldrich, District Judge.[Copyrighted Material Omitted] John Winship Read, Amanda Martinsek, VORYS, SATER, SEYMOUR & PEASE, Cleveland, Ohio, for Appellants. David S. Cupps, Robert N. Webner, VORYS, SATER, SEYMOUR & PEASE, Columbus, Ohio, John Winship Read, Amanda Marinsek, VORYS, SATER, SEYMOUR & PEASE, Cleveland, Ohio, for Defendant-Appellant. Robert D. Gary, Gary, Naegele & Theado, Lorain, Ohio, Paul E. Slater, SPERLING, SLATER & SPITZ, Chicago, Illinois, Eric H. Zagrans, ZAGRANS LAW FIRM, Elyria, Ohio, for Appellees. Before: WELLFORD, NELSON, and DAUGHTREY, Circuit Judges. NELSON, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. WELLFORD, J. (p. 987), delivered a separate opinion concurring in part and dissenting in part. OPINION DAVID A. NELSON, Circuit Judge. 1 Here we have an appeal by a manufacturing company and its pension plan from a summary judgment in favor of a class of employees who took early retirement from the company. The plaintiff class-members claimed that the lump sum pension benefits distributed to them at retirement were too low in amount. 2 The district court concluded that the employer (TRW, Inc.) was collaterally estopped to make its lump sum benefit calculations under a methodology less favorable to the retirees than that mandated by this court in an earlier class action,Costantino v. TRW, Inc., 13 F.3d 969 (6th Cir. 1994). The district court further held that the members of the class were entitled to prejudgment interest at the greater of the interest rate on 52-week U.S. Treasury bills or the rate of return actually realized by TRW on the money found to have been wrongfully withheld. 3 Upon de novo review of the benefit calculation issue, we conclude that the plaintiff class is not entitled to avail itself of the collateral estoppel doctrine. We further conclude, however, that the portion of the lump sum payments attributable to service rendered prior to a certain plan amendment adopted on December 18, 1986, reflects a violation of the "anti-cutback rule"contained in the Employee Retirement Income Security Act of 1974 ("ERISA") and the Internal Revenue Code (the "I.R.C." or "Code"). There was no violation, in our view, with respect to the portion attributable to service rendered subsequent to the amendment. 4 As to the district court's resolution of the prejudgment interest question, we find no abuse of the court's discretion. 5 The challenged judgment will be affirmed in part and reversed in part. 6 * As of 1984 - prior to the enactment by Congress of the first of a series of ERISA and I.R.C. amendments that we shall describe presently - TRW's Salaried Pension Plan (a defined benefit plan, as opposed to a defined contribution plan) offered employees a "normal retirement" option and an "early retirement" option. Employees electing to retire at age 65 were entitled to receive a normal retirement annuity consisting of specified monthly payments starting at age 65 and continuing until the retiree's death. The second option was designed to provide an incentive for early retirement by offering salaried employees who retired between ages 60 and 65 the same annuity, with the same monthly payments, starting immediately on retirement. (In addition, a slightly reduced monthly payment was offered to employees who retired between ages 55 and 60.) Because the level of benefits for early retirees was not lowered (or was not sufficiently lowered) to make up for the increase in the length of time over which payments would be made to them, the total lifetime pension benefit available to early retirees was greater than the total lifetime benefit available to age-65 retirees. The benefit received by early retirees was called, in the jargon of the cognoscenti, a "subsidized" benefit. 7 The plan also provided that retirees could elect to take their pension benefits in a lump sum, payable up-front, rather than as a series of monthly payments. The amount of the lump sum was calculated under a prescribed formula that discounted the monthly payment stream to its present value. Prior to 1986, the plan provided that the interest rate used in making the present value calculation would be the Moody's Aaa bond rate. 8 In the Retirement Equity Act of 1984,1 Congress set a ceiling on the interest rates that could be used in calculating the present value of future pension payments. (It will be helpful to keep the following relationship in mind: the higher the interest rate utilized in the present value calculation, the lower the lump sum produced by that calculation.) Under the statute, the interest rate was capped at a level set by the Pension Benefit Guaranty Corporation. This rate - the technical derivation of which need not concern us here - is commonly called the "PBGC rate." The statutory cap meant that TRW employees electing to take their early retirement benefits in a lump sum would receive payments substantially greater in amount than the payments to which they would have been entitled under the plan as originally written2. 9 The Retirement Equity Act also provided that early retirement subsidies such as those offered in the TRW plan were subject to an "anti-cutback" rule embodied in ERISA and the Internal Revenue Code. The anti-cutback rule prohibits the amendment of pension plans in such a way as toreduce benefit rights that have already accrued. See ERISA § 204(g), 29 U.S.C. § 1054(g), and I.R.C. (26 U.S.C.) §411(d)(6) (1984)3. 10 As of October 22, 1986, the Tax Reform Act of 19864 retroactively raised the interest rate ceiling where the vested accrued benefit (calculated in a manner specified by statute) exceeded $25,000. The new ceiling for such distributions was 120 percent of the PBGC rate. (The amended ceiling - i.e., the PBGC rate for distributions of $25,000 or less and 120 percent of the PBGC rate for distributions exceeding $25,000 - is commonly called the "§ 1139 rate," after the relevant section of the Tax Reform Act.) The Code and ERISA also provided that a plan could not distribute a benefit in a lump sum without the participant's consent if the benefit was over $3,5005. 11 Because of the ballooning effect of the Retirement Equity Act on early retirement lump sum distributions (or so we surmise), TRW eventually decided to eliminate any early retirement subsidy where the lump sum form of payment was chosen. This decision was implemented in plan amendments adopted on December 18, 1986 - a date critically important, as we shall see, to the resolution of the case now before us. 12 With the December 18 amendments, which were made retroactive to January 1, 1985, TRW's retirement plan provided in relevant part as follows: 13 "The lump sum benefit shall be the present value of the monthly single life annuity (excluding any early retirement subsidy) to which the Participant would have been entitled except for the election of the lump sum form of payment. The lump sum shall include the present value of the anticipated Post-Retirement Adjustments which would have been made had the Participant elected monthly payments." TRW Salaried Pension Plan, Section 5.9(b)(i), as amended December 18, 1986 (emphasis supplied)6. 14 The elimination of the early retirement lump sum subsidy gave rise to the class action in which we issued the decision reported as Costantino v. TRW, Inc., 13 F.3d 969 (6th Cir. 1994). The Costantino class was made up of TRW employees who had taken early retirement between January 1, 1985, and October 22, 1986, and who had elected to receive lump sum distributions. It was claimed on behalf of this class that the retroactive amendments adopted on December 18, 1986, violated the anti-cutback rule quoted in note 2, supra. 15 TRW argued in Costantino that the amendments had not reduced the benefit in terms of real dollars. This court held, however, that regardless of the dollar amount of the lump sum distribution, the anti-cutback rule prohibited elimination of the early retirement subsidy for a retiree who had already qualified for the subsidy. Costantino, 13 F.3d at 977-78. 16 TRW also argued in Costantino that the rate cap was applicable only to "accrued benefits," a term that according to TRW meant only unsubsidized benefits. Id. at 978. This court rejected TRW's arguments in a two-part analysis. First, we noted, a Treasury Department regulation codified at 26 C.F.R. § 1.411(a)-11(a)(2) required that the amount of any accrued benefit be calculated in accordance with prescribed valuation rules that contemplated use of the § 1139 rate. Costantino, 13 F.3d 979. Second, the regulation required that the subsidized early retirement benefit be treated as an accrued benefit for purposes of the anti-cutback rule. Id. The regulation, Costantino declared, "expressly requires that, where a plan provides that a lump sum distribution of a subsidized early retirement benefit is available as an option, the section 1139 interest rate must be applied to calculate the value of the distribution." Id. And the regulation, said Costantino, "treats subsidized benefits as if they were accrued benefits" for the purpose of "limiting an employer's ability to distribute benefits without appropriately calculating the value of any subsidies." Id. 17 Turning to the case at bar, we note that plaintiff Richard Rybarczyk represents a class of TRW retirees who retired between October 23, 1986, and July 1, 1996. Plaintiffs Minoru Mizuba and William Rittenhouse represent a class of retirees who retired between January 1, 1989, and July 1, 1996. The two classes have been merged for purposes of the lawsuit. All members of the merged class have received lump sum distributions of more than $25,000. 18 The members of this class were beneficiaries of certain plan amendments adopted by TRW on Oct. 24, 1988, retroactiveto Jan. 1, 1985. Insofar as lump sum payments of more than $25,000 were concerned, the 1988 amendments called for alternative calculations: the Moody's Aaa rate was to be applied to the subsidized early retirement benefit, and 120 percent of the PBGC rate was to be applied to the unsubsidized early retirement benefit, with the amount of the lump sum payment being determined under the calculation that would give the employee the larger benefit7. Notwithstanding that the 1988 amendments yielded more generous lump sum payments than those provided for by the version of the plan in effect prior to the amendments, the plaintiffs contend that use of the Moody's rate under any circumstance violates the relevant provisions of ERISA and the I.R.C.8 19 In granting summary judgment to the plaintiffs, the district court relied on the doctrine of collateral estoppel.Costantino, said the district court, had "clearly held that § 1139 applies whenever a plan calculates the present value of subsidized benefits." Rybarczyk v. TRW, Inc., 1997 U.S. Dist. LEXIS 3186, at *23 (N.D. Ohio 1997). Therefore, the district court concluded, TRW could "no longer assert . . .that the law allows it to calculate the present value of a subsidized benefit without using the § 1139 rate. TRW raised these very arguments before the Sixth Circuit in Costantino, and the Sixth Circuit ruled against it." Id. at *27. 20 The district court also awarded prejudgment interest to the plaintiffs at a rate determined in accordance with the following formula: 21 "[T]he greater of (a) interest at a rate equal to the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled immediately prior to the date of the initial lump sum distribution to the class member, compounded annually, or (b) interest equal to the rate of return actually earned on the principal amount of the underpayment during the prejudgment period." Rybarczyk, 1997 U.S. Dist. LEXIS 13848, at *15 - *16. 22 In the present appeal, TRW challenges both the district court's use of collateral estoppel and the court's prejudgment interest rate formula. II 23 * The doctrine of collateral estoppel, as the district court explained, precludes a party from relitigating issues resolved against that party in a prior proceeding. See Parklane Hosiery Co. , Inc. v. Shore, 439 U.S. 322, 326 (1979). If the benefit of the collateral estoppel doctrine is to be claimed successfully,"(1) the precise issue raised in the present case must have been raised and actually litigated in the prior proceeding; (2) determination of the issue must have been necessary to the outcome of the prior proceeding; (3) the prior proceeding must have resulted in a final judgment on the merits; and (4) the party against whom estoppel is sought must have had full and fair opportunity to litigate the issue in the prior proceeding." United States v. Sandoz Pharmaceuticals Corp., 894 F.2d 825, 826-27 (6th Cir. 1990). 24 The first of these requirements, as we see it, has not been met in the case at bar. TRW asserted in Costantino that the regulations did not require use of the § 1139 rate for subsidized benefits under the 1986 plan amendments inasmuch as adoption of the amendments meant that the plan did not offer a subsidized lump sum as an option. The Costantino court responded that while TRW's assertion "may be true, it is not relevant in the present case, in which Plaintiffs qualified for their subsidies prior to the 1986 plan amendment." Costantino, 13 F.3d at 979. In the case at bar, however, the plaintiff class is presumably made up largely, if not entirely, of people who did not take early retirement until after the 1986 amendments. This class thus includes retirees who assert that they qualified for subsidies at least partially on the strength of service performed after the 1986 amendments. To that extent, obviously, this case does not involve the "precise issue" decided in Costantino9. 25 In Costantino, moreover, nothing much turned on the 1988 amendments. In the present case, by contrast, the plaintiffs concentrate most (if not all) of their fire on the 1988 amendments. That being so, we are not persuaded that the plaintiffs are entitled to avail themselves of the collateral estoppel doctrine. B 26 The inapplicability of collateral estoppel does not mean that TRW automatically wins. We must still examine the parties' arguments in light of the Costantino decision (which has precedential effect under the doctrine of stare decisis) and the relevant federal law and regulations. 27 The plaintiffs make much of the statement in Costantino that 26 C.F.R. § 1.411(a)-11(a)(2) "expressly requires that, where a plan provides that a lump sum distribution of a subsidized early retirement benefit is available as an option, the section 1139 interest rate must be applied to calculate the value of the distribution." Costantino, 13 F.3d at 979. TRW's response is that the plan does not offer an option of a "lump sum distribution of a subsidized early retirement benefit." Before the 1988 amendments, rather, the plan offered a lump sum distribution of the unsubsidized benefit calculated with the PBGC rate - and the 1988 amendments merely added an alternate calculation method in which the Moody's rate is applied to the subsidized level of benefit. This alternate calculation, in TRW's submission, does not create a stand-alone option of a lump sum distribution of the subsidized benefit. The option entails the election of a lump sum distribution per se, and only after the lump sum distribution is selected does the plan present alternative calculation methods. 28 TRW further points to this court's definition of "optional form of benefit" in Ross v. Pension Plan for Hourly Employees of SKF Indus., 847 F.2d 329, (6th Cir. 1988), as meaning a benefit that "involves the power or right of an employee to choose the way in which payments due to himunder a plan will be made or applied." Id. at 333. TRW argues that the plaintiffs do not have the "power or right" to choose a subsidized lump sum for payment; once a given retiree has chosen a lump sum distribution, rather, the plan "automatically determines the payment amount based solely upon whether the Section 1139 rate applied to the standard unsubsidized amount, or the Moody's rate applied to a subsidized amount, yields a larger amount." 29 Finally, TRW stresses that ERISA does not mandate any particular benefits. Specifically, TRW points out, nothing in ERISA requires that pension plans "offer subsidized lump sum early retirement payments." 30 TRW's argument seems sound as far as it goes. It is certainly true that until the 1988 amendments liberalized the lump sum benefit calculation for early retirees, the 1986 version of the plan did not provide for lump sum distributions of subsidized benefits; the only lump sum on offer to an early retiree under the 1986 plan was a sum based on the present value of the normal (i.e. unsubsidized) retirement annuity benefit. And setting aside the anti-cutback rule for the moment, we see absolutely nothing wrong in this. The applicable Treasury Department regulations say, unambiguously, that 31 "if a plan that provides a subsidized early retirement annuity benefit specifies that the single sum distribution benefit available at early retirement age is the present value of the normal retirement annuity benefit, then the normal retirement annuity benefit is used to apply the valuation requirements of this section and the resulting amount of the single sum distribution available at early retirement age." 26 C.F.R. § 1.411(a)-11(a)(2) (emphasis supplied). 32 With the liberalization of the benefit calculation formula in 1988, of course, the plan introduced a possibility that thesubsidized early retirement annuity benefit would play a role in the calculation. But such use of the subsidized benefit was prescribed only where application of the Moody's rate to that benefit yielded a larger lump sum than the retiree would have received under the 1986 edition of the plan, in which the §1139 rate had to be applied to the unsubsidized retirement annuity benefit. The 1988 amendments merely provided for the possibility of some icing on the early retirement cake - and we are aware of nothing in ERISA, the Code, or the regulations that can fairly be said to make such a bonus problematic in any way. 33 Unless we ignore the anti-cutback rule embodied in ERISA § 204(g), however, the 1986 plan amendments would be highly problematic to the extent they eliminated the prospect of early retirement lump sum payments calculated on the basis of subsidized annuity benefits attributable to service performed before the date (December 18, 1986) on which the amendments were adopted. The anti-cutback rule (which is quoted in note 2, supra) clearly barred TRW from amending its retirement plan in such a way as to reduce accrued early retirement benefits "attributable to service before the amendment . . . ." Most or all of the retirees in the class before us here must have had what would amount to a mix of accrued early retirement benefits, with part being attributable to service rendered before the plan was amended on December 18, 1986, and part being attributable to service rendered after that date. Although nothing in ERISA § 204(g) prevented TRW from reducing benefits attributable to post-December 18 service, accrued benefits attributable to pre-December 18 service had to remain inviolate. And, under §204(g), benefits attributable to pre-December 18 service remain inviolate whether the age condition be satisfied "before or after the amendment.. . ." 34 As mentioned in n.8, supra, Mr. Rybarczyk raised this issue in paragraph 23 of his class action complaint. Paragraph 23 reads as follows:"TRW's Plan violates the anti-cutback provisions of ERISA and the Code, and provides lower lump sum distributions to Plan participants than they are properly entitled to receive, when it applies the present value calculation to an impermissible benefit, excluding the early retirement subsidy, notwithstanding the fact that the calculation uses the permissible interest rate." 35 Curiously, however, the plaintiffs have failed to press this point on appeal. 36 Failure to raise an issue on appeal would normally constitute a waiver of that issue. Brindley v. McCullen, 61 F.3d 507, 509 (6th Cir. 1995). Here, however, we have a pure question of law that cries out for resolution - and in such a situation we are not foreclosed from considering the issue. See Dorris v. Absher, 179 F.3d 420, 425 - 26 (6th Cir. 1999) (allowing appellate consideration of an unbriefed issue that involved a misinterpretation of a "pure question of law, with no material facts being in dispute"). Given the paternalistic purposes underlying ERISA, and given the Congressional findings and declaration of policy set forth in Title I, § 2 of the statute, 29 U.S.C. § 1001,10 we consider this a particularly appropriate case for exercising our discretion to address the unbriefed issue. We shall proceed to do so. 37 The Tax Reform Act, as we have seen, required TRW to determine the present value of the annuity benefits of employees electing early retirement "using an interest rate no greater than 120 percent of the [PBGC] rate if the vested accrued benefit exceeds $25,000 . . . ." 26 U.S.C. §417(e)(3), quoted at n.4, supra. Under the anti-cutback rule, the right to a present value calculation made under this statutory interest rate cap "with respect to benefits attributable to service before the amendment" is a right that must be treated as "accrued" as long as the amendment has the effect of "eliminating or reducing an early retirement benefit or a retirement-type subsidy . . . ." ERISA § 204(g), quoted at n.2, supra. And because such a right must be treated as having accrued insofar as it is attributable to service before the plan amendment, it is, to that extent, protected by the prohibition contained in §204(g)(1): "The accrued benefit of a participant under a plan may not be decreased by an amendment of the plan ...." That is what the statute clearly says, and that is clearly the logic of our decision in Costantino. 38 The language of the TRW plan itself suggests that the drafters shared our understanding that prior to December 18, 1986, early retirement subsidies were subject to accrual. Section 5.5 of the plan, for example, says that the lump sum benefit will be calculated as the greater of the Moody's rate applied to the "accrued or subsidized Early Retirement Benefit" [emphasis added] or 120 percent of the PBGC rate applied to the "accrued Normal or unsubsidized" benefit. By using "accrued" and "subsidized" as synonyms, this provision indicates that the early retirement subsidized benefit can be accrued. 39 Our conclusion is not undermined, as we see it, by the favorable "determination letter" that TRW received from the Internal Revenue Service with respect to the TRW pension plan as amended effective January 1, 1989. Although this letter, by its terms, "relates only to the status of [TRW's] plan under the Internal Revenue Code," ERISA contains a provision requiring the Secretary of Labor to accept favorable determination letters "as prima facie evidence of initial compliance by the plan with the standards [of relevant portions of ERISA]." 29 U.S.C. § 1201(d). As far as the anti-cutback rule is concerned, however, we are not persuaded that the letter is prima facie evidence of anything. 40 This is so because of the representations that TRW made to the IRS in requesting the letter. In an IRS form entitled "Application for Determination for Employee Benefit Plan," TRW was asked this question: "Does any amendment to the plan reduce or eliminate any section 411(d)(6) protected benefit?" (It may be recalled that § 411(d)(6) is the I.R.C. counterpart of the anti-cutback rule contained in ERISA §204(g).) In response to this question as to whether any amendment to the TRW plan reduced or eliminated any benefit protected by the anti-cutback rule, TRW checked a box marked "No." 41 TRW's answer, as we have demonstrated, was incorrect. The IRS, however, was entitled to assume that TRW had answered the question correctly - and a favorable determination based on this incorrect assumption is entitled to no presumption of validity. 42 The Second Circuit, moreover, has said that a "favorable determination letter indicates only that an employee retirement plan qualifies for favorable tax treatment by meeting the formal requirements of I.R.C. § 401(a)." Esden v. Bank of Boston, No. 99-7210, 2000 U.S. App. LEXIS 23227, at *64 (2d Cir., Sept. 12, 2000). That court went on to say that "adjudication of [an employee's] rights is for the federal courts, not the field offices of the IRS." Id. at *65. Subject to the qualification that determination letters carry a rebuttable presumption of validity, we are constrained to agree. The determination letter does not change our analysis in the case at bar. 43 In brief summary, then, our conclusion is this: 44 -Employees taking early retirement after December 18, 1986, and electing to receive their accrued retirement benefits in a lump sum, are entitled to have the § 1139 rate used in the determination of the present value of subsidized benefits attributable to service before the amendment; 45 -With respect to unsubsidized retirement benefits attributable to service after the amendment, such employees are entitled to receive the advantage of the alternative present value calculation prescribed by the plan amendments adopted on October 24, 1988; and 46 -Each member of the plaintiff class should be awarded judgment for the amount, if any, by which the lump sum to which he or she is entitled exceeds the lump sum actually paid. C 47 As to the district court's award of prejudgment interest under the formula described at p. 11, supra, we have "long recognized that the district court may [award prejudgment interest] at its discretion in accordance with general equitable principles." Ford v. Uniroyal, 154 F.3d 613, 616 (6th Cir. 1998). We therefore apply an "abuse of discretion" standard in reviewing the award. 48 Among the constraints on a district court's discretion to shape an award of prejudgment interest in an ERISA case is the fact that we look with disfavor on simply adopting state law interest rates. ERISA is "not an area 'primarily of state concern.'" Ford, 154 F.3d at 617. Interest awards should not be punitive, but should "simply compensate a beneficiary for the lost interest value of money wrongly withheld from him or her." Id. at 618. 49 The question faced by the district court in this case, then, was how best to calculate the "lost interest value of money wrongly withheld . . . ." TRW urges that the only appropriate rate would be either that established by 28 U.S.C. § 1961 - a rate tied to the average 52-week United States Treasury bill rate for the relevantperiod - or a rate linked to the PBGC rate in the manner prescribed by § 1139. 50 We have upheld a district court's award of prejudgment interest calculated under 28 U.S.C. § 1961. Ford, 154 F.3d at 619. Other courts have done so as well. See, e.g., Algie v. RCA Global Communication, Inc., 60 F.3d 956, 960 (2d Cir. 1995) (upholding a district court's choice of the § 1961 rate on the grounds that it provided a "closer approximation of the likely return on plaintiffs' unpaid benefits"). 51 This is not to say, however, that the § 1961 rate is the only permissible prejudgment interest rate. Our court and others have also upheld awards of prejudgment interest that were tied to prevailing market rates, thus reflecting what the defendants would have had to pay in order to borrow the money at issue. See, e.g., EEOC v. Wooster Brush Co. Employees Relief Ass'n, 727 F.2d 566, 579 (6th Cir. 1984) (using adjusted prime rate); Katsaros v. Cody, 744 F.2d 270, 281 (2d Cir. 1984) ("Expert testimony revealed that at the time . . . other banking institutions were in the market to borrow at a rate of prime plus one percent. Awarding prejudgment interest in accord with prevailing interest rates is consistent with prior case law"); Donovan v. Mazzola, 716 F.2d 1226, 1232-33 (9th Cir. 1983). Despite TRW's claim that an award of prejudgment interest based on the actual rate of return is unprecedented, the Seventh Circuit seems to have upheld just such an award. See Lorenzen v. Employees Ret. Plan of Sperry & Hutchinson Co., 896 F.2d 228, 236-37 (7th Cir. 1990) ("The retirement plan held money that belonged to Mrs. Lorenzen - held it on her account, as it were. Now that the collateral dispute is over, the plan must return it to her together with the fruits that it has gleaned by holding on to it"). 52 Using the interest rate actually realized by TRW on the relevant funds seems an appropriate way of avoiding unjust enrichment. As we declared in an earlier case, "[t]o allow the Fund to retain the interest it earned on funds wrongfully withheld would be to approve of unjust enrichment." Sweet v. Consolidated Aluminum Corp., 913 F.2d 268, 270 (6th Cir. 1990) (quoting Short v. Central States, Southeast & Southwest Areas Pension Fund, 729 F.2d 567, 576 (8th Cir. 1984)). 53 We are aware of no decision approving a formula like the one used here, where the plaintiffs are to receive the higher of the § 1961 rate or the rate actually realized by TRW. But although this formula may be unusual, we are not persuaded that it represents an abuse of discretion. As we have already noted, the § 1961 rate has been upheld numerous times. If that rate should prove to be the higher one for the relevant period, TRW would presumably have no legitimate basis for objecting to it. If TRW's actual rate of return turns out to have been higher than the § 1961 rate, on the other hand, a requirement that TRW pay the actual rate merely deprives TRW of its profit on the wrongfully denied benefits. In neither instance would the effect be punitive, as it might have been had the district court chosen to use a state-law rate much higher than prevailing market rates of return. Cf. Ford, 154 F.3d at 617 (holding that Michigan's state law rate of 12 percent was punitive for purposes of ERISA because it was meant to compensate the winner for litigation expenses and was higher than the market rate of roughly nine percent). 54 TRW argues that the district court's award of prejudgment interest has the effect of amending the plan "to confer a benefit which no other Plan participant will receive." This argument is, in our view, misguided. If the plaintiffs received lump sum distributions in amounts less than those to which they were actually entitled, the entry of judgment for the amount of the shortfall with interest through the end of the litigation would simply make the plaintiffs whole. This is not a "benefit" for which other plan participants are ineligible; other participants would have been equally eligible for pre-judgmentinterest had they found it necessary to go to court to obtain benefits wrongfully denied them. 55 TRW also argues that the award of prejudgment interest under the formula challenged here will result in a "windfall recovery for plan participants." We disagree. If the award of prejudgment interest were lower than TRW's actual rate of return, it is TRW that would arguably receive a windfall. Because the plan with which we are concerned in this case is a defined benefit plan, TRW has to contribute only enough money to fund the plan's defined obligations. If TRW were able to keep part of the return on wrongfully withheld funds, it would have to contribute that much less to fund the plan's obligations to other retirees. 56 The judgment of the district court is AFFIRMED in part and REVERSED in part, and the case is REMANDED for further proceedings not inconsistent with this opinion. Notes: 1 Pub. L. No. 98-397, 98 Stat. 1426 (1984) (amending ERISA §§203(e)(2) and 205(g)(3), 29 U.S.C. §§ 1053(e)(2) and 1055(g)(3), and I.R.C. (26 U.S.C.) §§ 411(a)(11) and 417(e)(3)). 2 On its face, the proposition that Congress could and did presume to abrogate the settled expectations of the contracting parties retroactively might seem open to question. See Landgraf v. USI Film Prods., 511 U.S. 244, 271 (1994). TRW has not challenged the constitutionality of the retroactive application of the newly-adopted interest rate cap, however, and we intimate no opinion on this issue one way or the other. 3 ERISA § 204(g), captioned "Decrease of accrued benefits through amendment of plan," provides in pertinent part as follows: "(1) The accrued benefit of a participant under a plan may not be decreased by an amendment of the plan . . . . (2) For purposes of paragraph (1), a plan amendment which has the effect of (A) eliminating or reducing an early retirement benefit or a retirement-type subsidy (as defined in regulations), or (B) eliminating an optional form of benefit, with respect to benefits attributable to service before the amendment shall be treated as reducing accrued benefits. In the case of a retirement-type subsidy, the preceding sentence shall apply only with respect to a participant who satisfies (either before or after the amendment) the preamendment conditions for the subsidy. . . ." The corresponding section of the Internal Revenue Code, 26 U.S.C. §411(d)(6), denies favorable tax treatment to a plan amended in violation of an anti-cutback rule framed in essentially the same terms. 4 Pub. L. No. 99-514 § 1139, 100 Stat. 2085, 2487 (1986), codified at ERISA §§ 203(e)(2) and 205(g)(3), 29 U.S.C. §§ 1053(e)(2) and 1055(g)(3) (1988) and I.R.C. (26 U.S.C.) §§ 411(a)(11)(B) and 417(e)(3) (1988). The above-cited sections of ERISA and the I.R.C. were later amended by the Retirement Protection Act of 1994, Pub. L. No. 103-465, 108 Stat. 5038 (1994). That Act, however, did not become applicable until July 1, 1996 - a date which, not coincidentally, is the closing date for membership in the present plaintiff class. The class representatives and TRW have agreed that the older statutory provisions govern this case. 5 Specifically, I.R.C. § 417(e)(2) and (3) provided as follows: "(2) Plan may distribute benefit in excess of $3,500 only with consent. -- If -- (A) the present value of the qualified joint and survivor annuity or the qualified preretirement survivor annuity exceeds $3,500, and (B) the participant and the spouse of the participant (or where the participant has died, the surviving spouse) consent in writing to the distribution, the plan may immediately distribute the present value of such annuity. (3) Determination of present value. -- (A) In general. -- For purposes of paragraphs (1) and (2), the present value shall be calculated -- (i) by using an interest rate no greater than the applicable interest rate if the vested accrued benefit (using such rate) is not in excess of $25,000, and (ii) by using an interest rate no greater than 120 percent of the applicable interest rate if the vested accrued benefit exceeds $25,000 (as determined under clause (i)). In no event shall the present value determined under subclause (II) [sic] be less than $25,000. (B) Applicable interest rate. -- For purposes of subparagraph (A), the term 'applicable interest rate' means the interest rate which would be used (as of the date of the distribution) by the Pension Benefit Guaranty Corporation for purposes of determining the present value of a lump sum distribution on plan termination." ERISA's parallel provision (since amended) was codified at 29 U.S.C. §1055(g)(3). 6 The amended plan also provided, as to distributions with respect to 1985 and 1986, that the interest rate for distributions not exceeding $25,000 would be the PBGC rate at the beginning of the calendar year, while for distributions over $25,000 the interest rate would be the lesser of the Moody's Aaa rate or the § 1139 rate at the beginning of the calendar year. The amended plan contained an almost identical provision regarding interest rates for the years 1987 and thereafter, except that the PBGC rate would be the one in effect during the month of distribution. TRW Salaried Pension Plan, §§ 5.9(b)(iii)(B) and (C), as amended December 18, 1986. 7 The plan retained the distinction between years 1985 and 1986 (for which the PBGC rate was set at the beginning of the calendar year) and years 1987 and 1988 (for which the PBGC rate was set at the month of distribution). 8 The plaintiffs persistently characterize their claims as alleging violations of the I.R.C. (e.g., 26 U.S.C. § 417(e)). Technically, violations of the Code merely result in the loss of preferred tax treatment, including the employer's deduction for contributions under I.R.C. § 401(a) and the employees' tax deferral under I.R.C. § 402(a). Because ERISA provisions are deliberately designed to parallel those of the I.R.C., however, we shall treat the plaintiffs' claims as arising under ERISA and as brought pursuant to ERISA's right-of-action provision, 29 U.S.C. §1132. See Counts v. Kossack Water & Oil Serv., Inc., 986 F.2d 1322, 1324 n.1 (10th Cir. 1993). We also note that ERISA provides that regulations promulgated by the Treasury Department pursuant to I.R.C. §§ 410(a), 411, and 412 are deemed applicable to the parallel provisions of ERISA. 29 U.S.C. § 1202(c). 9 We note that TRW attempts to draw a distinction between Costantino and this case on the ground that Costantino involved ERISA's anti-cutback rule while here the plaintiffs "do not even invoke those provisions." Mr. Rybarczyk did invoke ERISA's anti-cutback rule in ¶ 23 of his class action complaint, however, so this distinction will not wash. 10 One of the considerations that led to the enactment of ERISA is described in these terms: "despite the enormous growth in such [retirement] plans[,] many employees with long years of employment are losing anticipated retirement benefits owing to the lack of vesting provisions in such plans . . . ." Id. 57 HARRY W. WELLFORD, Circuit Judge, concurring in part and dissenting in part. 58 I concur entirely with my colleague, Judge Nelson, through part II.B of his opinion. I would hold, however, that we should adhere to our usual procedure and deem that plaintiffs have waived any anti-cutback argument in this appeal under Brindley v. McCullen, 61 F.3d 507 (6th Cir. 1995); see also Wright v. Holbrook, 794 F.2d 1152 (6th Cir. 1986). This case is not about loss of vested benefits under our ruling as to pre-December 18, 1996 provisions of the plan and amended plans. TRW has, indeed, dealt generously with its employees, and I would not stretch our procedures to consider that which plaintiffs have failed adequately to argue or brief. I think that the rationale to reverse is supported by the effect of the IRS' approval or "favorable 'determination letter'" issued with respect to the TRW plan, amended effective January 1, 1989. 59 In general, I deem Constantino not controlling under the differing facts and circumstances of this case. Plaintiffs are not entitled to the post-amendment claim that they assert. 60 I dissent with respect to the award of prejudgment interest, particularly in view of the generous awards heretofore ordered by this court as to retirement benefits deemed to be accrued. In the first place, "ERISA does not mandate the award of prejudgment interest to prevailing plan participants." Ford v. Uniroyal Pension Plan, 154 F.3d 613, 616 (6th Cir. 1998). It may be awarded at the reasonable discretion of the district judge. See id. The purpose of any such award is not to punish the employer. See id. at 617. I would hold that plaintiffs are more than adequately compensated by award under 28 U.S.C. § 1961, and not some other rate. See Ford, 154 F.3d at 619. Lorenzen v. Employees Retirement Plan of Sperry & Hutchinson Co., 896 F.2d 228 (7th Cir. 1990), cited as support for the majority's prejudgment interest decision, is, in my view, readily distinguishable. See Marshall v. Security State Bank of Hamilton (In re Marshall), 970 F.2d 383, 385 (7th Cir. 1992) (distinguishing Lorenzen). It was a split decision and there was a strong overtone of wrongdoing by the employer in that case, unlike TRW's role in the instant case. The Lorenzen court was particularly concerned about the welfare and need for "full compensation of the victim" and his widow. I would, accordingly, conclude that awarding any prejudgment interest beyond that called for in 28 U.S.C. § 1961 was an abuse of discretion.

(2008) UNITED STATES of America, v. Gregory M. PATZER. No. 07 CR 90-1. United States District Court, N.D. Illinois, Eastern Division. April 28, 2008. STATEMENT OF REASONS JOAN B. GOTTSCHALL, District Judge. On April 2, 2008, the court sentenced the defendant in this case, Gregory M. Patzer ("Patzer"), to a term of imprisonment of thirteen years to be followed by a five-year term of supervised release, as well as $4,923 in restitution and a $300 special assessment. The reasons for this sentence were stated in open court and are fully set forth herein. I. BACKGROUND[1] Patzer is a thirty-year old man with a long history of family troubles, mental health issues, and drug abuse. At the age of fifteen, he was expelled from his family and placed with a foster family. He has a history of non-violent crimes that relate to drugs or to obtaining money to buy drugs. Patzer has attempted drug treatment several times, and has endured a series of medications and treatment in an effort to ameliorate his mental health problems, none of which has been entirely successful. Patzer has been variously diagnosed with a slew of psychiatric afflictions, from depression to bipolar disorder. However, it was only recently — in anticipation of this sentencing — that Patzer was diagnosed with Attention Deficit/Hyperactivity Disorder ("ADHD"). In the six years immediately preceding the crimes for which he is being sentenced herein, Patzer had achieved some success in being a productive member of society. He had been in methadone treatment and had steady work as a welder and machinist. However, Patzer began using heroin again around February 2007. On February 24, 2007, he robbed a TCF Bank in Schaumburg, Illinois and, on February 28, 2007, he robbed a Mutual Bank in Roselle, Illinois. During both robberies, Patzer showed the teller a handgun and demanded cash. He got away with about $5,000 total, which he says he used to buy drugs. He fled Illinois and turned up a few weeks later at a Sheraton Hotel in Seattle, Washington, where he ate breakfast and left without paying. When he was confronted by a hotel security guard, Patzer told him that he was wanted for bank robbery in Illinois. The Seattle, Washington Police Department took him into custody, where he confessed to the two bank robberies. On August 15, 2007, the court accepted Patzer's plea of guilty to Counts One (bank robbery), Three (bank robbery), and Four (firearm) of the Indictment. II. SENTENCING PROCEDURE "In sentencing a defendant, the district court is obliged first to calculate the correct advisory guidelines range and then to decide whether to impose a sentence within the range or outside of it." United States v. Miranda, 505 F.3d 785, 791 (7th Cir.2007) (citing United States v. Robinson, 435 F.3d 699, 700-01 (7th Cir.2006)). The first step requires calculation of the applicable guidelines. Gall v. United States, ___ U.S. ___, ___, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007); Miranda, 505 F.3d at 791. However, "the [g]uidelines are not mandatory and thus the [district court's] range of choice dictated by the facts of the case is significantly broadened." Gall, 128 S.Ct. at 602. The second step in sentencing requires an application of the factors set forth in 18 U.S.C. § 3553(a), which remains mandatory even though the guidelines are treated as advisory. Miranda, 505 F.3d at 791 (citing United States v. Booker, 543 U.S. 220, 261-63, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)). Typically, a court considers the Pre-Sentence Report ("PSR") and its interpretation of the guidelines and then hears arguments by prosecution and defense as to whether a guideline sentence should apply. Id. (citing Rita v. United States, ___ U.S. ___, ___, 127 S.Ct. 2456, 2459, 168 L.Ed.2d 203 (2007)). The court then determines whether to impose a sentence at, above, or below the guideline range keeping in mind that "[a] sentencing court should not consider itself constrained by the guidelines to the extent that there are sound, case-specific reasons for deviating from them." Gall, 128 S.Ct. at 598. Where the evidence presented indicates that the case falls outside the "heartland" of the intended guidelines, or where the guideline fails to properly reflect the § 3553(a) considerations, or where the case warrants a different sentence, the court may impose a sentence below the guideline range. See Rita, 127 S.Ct. at 2465 (discussing the importance of subjecting the defendant's sentence to adversarial testing by the district court). This is true "even though that deviation seemingly contravenes a broad policy pronouncement of the Sentencing Commission." See United States v. Martin, 520 F.3d 87, 95-97 (1st Cir.2008) (noting that a district court may impose a sentence below the guideline range for a career offender, 28 U.S.C. § 994(h) notwithstanding) (citing Kimbrough v. United States, ___ U.S. ___, ___, 128 S.Ct. 558, 574-75, 169 L.Ed.2d 481 (2007)). III. ADVISORY GUIDELINES RANGE AND THE PARTIES' ARGUMENTS At the time of Patzer's plea agreement, the government anticipated an offense level with respect to Counts One and Three of 25, an anticipated criminal history category of II, and an advisory sentencing guidelines range of 63 to 78 months' imprisonment. Count Four, the firearms charge, carries a mandatory consecutive sentence of 84 months' imprisonment. Thus, at the time of his plea, Patzer's anticipated guideline range for all three counts was 147 to 162 months. In the PSR, the probation officer concluded that Patzer has a criminal history category of IV. This raised the advisory guideline range for Counts One and Three to 110 to 137 months, which raised the total guideline range to 194 to 221 months. Additionally, the probation officer concluded that Patzer qualified as a career criminal, pursuant to U.S.S.G. § 4B1.1,[2] based on two prior felony convictions: a controlled substance offense in 1997 and a conviction for aggravated robbery in 1999. This boosted the applicable advisory guideline range for Counts One and Three to 262 to 327 months, bringing his total guideline range to 346 to 411 months (approximately twenty-eight to thirty-four years). The government argued that a sentence within the guideline range was appropriate. It cited Patzer's criminal history and his repeated failed rehabilitation through drug treatment and the criminal justice system. It also stressed the fact that the nature of the crime was such that Patzer was a danger to the community, and a long sentence was needed to deter him from future crimes. The defense did not object to the PSR guideline calculations, but argued that the strict application of the guidelines would lead to a sentence greater than necessary to accomplish the goals of sentencing. The defense urged the court not to apply the career offender enhancement because it overstated Patzer's past crimes, especially where Patzer's criminal activity had been precipitated by the estrangement from his family, untreated ADHD, and long-term drug addiction. The defense suggested a sentence of thirteen years (156 months) as sufficient punishment, which is approximately what was contemplated originally in the plea agreement and represents a 20% variance from the minimum guideline range before the career criminal application. IV. 18 U.S.C. § 3553(a) FACTORS Section 3553(a) provides in relevant part: (a) Factors to be considered in imposing a sentence. — The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider — (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed — (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.... 18 U.S.C. § 3553(a). Under § 3553(a)(2), "the primary purposes of a criminal sentence are to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment for the offense, to afford adequate deterrence to criminal conduct, to protect the public from further crimes by the defendant, and to provide the defendant with needed training, medical care or correctional treatment in the most effective manner." Miranda, 505 F.3d at 793. A. The Career Offender Application This case is atypical for a career criminal application. First, the nature of the underlying crimes is less serious than those typically encompassed by the career criminal application. Patzer's drug conviction was for selling $50-worth of marijuana and LSD to an undercover informant. The aggravated robbery involved a demand for $30 made to a giftcard store employee where, although he said he had a gun, Patzer did not display a weapon. He did not physically harm anyone in either crime, and did not commit the crimes for profit; both crimes were fueled by a need for money to buy drugs to feed Patzer's own drug addition. Although crimes resulting from drug addiction are an insufficient basis for departure under the guidelines, a court may properly consider the "realities of [the defendant's] personal history and characteristics," including reasons for the crimes, under § 3553(a)(1). See, e.g., United States v. Hernandez, 04 CR 424-20, 2005 WL 1423276, *7-8 (S.D.N.Y. June 13, 2005) (finding the career offender designation misplaced in part because the defendant's non-violent crimes stemmed from drug addiction). Second, there is a temporal gap between the crimes on account of which Patzer qualifies as a career criminal and the instant crime. He was nineteen when he was convicted of unlawful delivery of a controlled substance and twenty-one when convicted of aggravated robbery. He is now thirty years old. Almost one-third of his life has passed since those crimes occurred and the court is struck by Patzer's young age when he committed those offenses. Such circumstances may "undercut ] the need to rely on those convictions to enhance [the] sentence." See United States v. Naylor, 359 F.Supp.2d 521, 524 (W.D.Va.2005) (refusing to apply the career offender designation where the defendant was seventeen when he committed the crimes of breaking and entering). Also, the great disparity between the guideline sentence here and the sentences imposed for Patzer's prior offenses gives the court pause. The longest period of incarceration Patzer has served thus far is a term of two years, on a five-year sentence. Now, the government requests a sentence of between twenty-eight and thirty-four years. Courts have noted that a large disparity between the punishment prescribed by the career criminal designation and the time served for prior offenses might indicate that the career criminal sentence is in excess of that needed to accomplish the desired deterrent effect. See United States v. Mishoe, 241 F.3d 214, 220 (2d Cir.2001) (citing 18 U.S.C. § 3553(b) to explain its consideration of past sentences under § 4A1.3 pre-Booker); United States v. Quails, 373 F.Supp.2d 873, 877 (E.D.Wis.2005) ("It is appropriate for a court, when considering the type of sentence necessary to protect the public and deter future misconduct, to note the length of any previous sentences imposed."). The nature of the past felonies, the temporal gap between those crimes and the instant crime, and the huge disparity in sentences caused by application of the career offender guidelines suggests that imposing a sentence within the range recommended by the PSR may not comport with the goals of sentencing. Rather, the advisory range of 346 to 411 months pursuant to § 4B1.1 overstates the seriousness of Patzer's prior qualifying convictions and is in excess of the sentence required for deterrence. B. Nature of Offense The instant offenses represent an escalation in the nature of Patzer's criminal conduct, from robbery and small-scale drug sales to robbery of a bank. Also, Patzer carried a gun to the robberies. There is no evidence in the record, however, that Patzer pointed the gun at anyone or waved it around: it appears it was tucked into his belt for one robbery and was shown to one teller at the other robbery. The goal of the robbery was to obtain money for drugs and Patzer obtained about $5,000 in total from both robberies. Obviously, armed robbery is a serious crime, deserving of serious punishment. Nevertheless, on a sliding scale, this armed bank robbery was not the most heinous: Patzer acted alone, no one was injured or killed, and only a modest amount of money was taken. Perhaps as significant, the fact that Patzer turned himself into the authorities, and the manner in which he did so, indicates he is exhausted with his criminal life. C. Character of Defendant The court concludes that there are several reasons that Patzer's background and character mitigate against a guideline sentence. First, at the time the probation officer prepared the PSR, she did not have the benefit of the psychological evaluation of Patzer. The PSR does not consider Patzer's undiagnosed ADHD and its resulting mental health problems as a possible reason for departure from the sentencing guidelines under § 5K2.13. Rather, the probation officer concluded that Patzer's mental health problems were caused by his drug use. PSR at 34:937-41. However, the previously-undiagnosed ADHD explains Patzer's self-medication with illegal drugs from a very young age, as well as his intolerance for past mental health treatment that did not address his actual problems. Patzer now has the benefit of an accurate medical diagnosis of his mental health problem: ADHD, and the record indicates that, properly diagnosed, his condition is treatable. The expert reports, the school reports, and the family letters all show that — with hindsight — much of Patzer's behavior has been caused by his ADHD. The new diagnosis gives hope that Patzer's condition can be treated and his incentive to commit crimes decreased without "the added encouragement of a lengthy sentence." See United States v. Miranda, 505 F.3d 785, 793 (7th Cir.2007) (reserving to the district court's discretion whether a long sentence was needed to deter a bank robber with a history of drug addiction and previously-undiagnosed schizophrenia from committing further crimes). With the proper treatment, provided for in the court's designation to the medical facility of the Bureau of Prisons, the chance of successful treatment increases and the risk of recidivism decreases. Defense counsel pointed out that the medical report indicates that Patzer's condition can be treated with medication and requested designation to the federal medical division to ensure that Patzer received the treatment he needs. Second, Patzer had a difficult childhood, no doubt made more difficult by the absence of an appropriate diagnosis for his ADHD. The record indicates that his biological family was abusive and unsupportive, relinquishing custody of Patzer to DCFS at the age of 15. He suffered from psychological difficulties throughout his childhood and early adulthood, as indicated by repeat periods of commitment to an institution. Nevertheless, Patzer is, according to letters from friends and family, basically a good person with a heart who has never, even in the depths of his addiction, physically harmed anyone and who sincerely regrets the choices that have led him here. Patzer has a GED and some college education. He has a trade (machinist and welder). He has shown that he has the ability to be a productive member of society when he is not abusing drugs. His personal statement showed he was articulate and understood the mistakes he had made. The court concludes that the sentence imposed, plus the lengthy term of supervised release, provides ample opportunity for Patzer to receive treatment so that he can be rehabilitated. D. Needs of The Public Although Patzer stands convicted of a violent crime, there is no evidence he has physically harmed the public. The reports indicate that he cooperated with law enforcement and suggest a willingness to take responsibility for his actions. A thirteen-year sentence provides for a significant period of confinement which reflects the seriousness of the crime, acts as an appropriate deterrent, protects the public, and provides the necessary length of time for Patzer to get treatment for his addiction and psychological problems. The risk of recidivism reduced by sentence that includes drug treatment and appropriate medical care for ADHD. Additionally, the court imposed the maximum possible term of supervised release to ensure that Patzer continues to get the help and treatment he so obviously needs. V. CONCLUSION The court finds that Patzer's criminal conduct stems from his mental health problems and his ongoing drug addiction, but that these problems are treatable and Patzer's personal characteristics, education, and support from his foster family and friends indicate he has a capacity for rehabilitation. On balance, the court finds that a non-guideline sentence of thirteen years of incarceration (six years for Counts One and Three, to be served concurrently, and seven years for Count Four, to be served consecutively) meets § 3553(a)'s requirement to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of sentencing. See 18 U.S.C. § 3553(a). Following incarceration, Patzer will be subject to a total of five years of supervised release (three years for Counts One and Three, and five for Count Four, to run concurrently). Due immediately is $300 for the mandatory special assessment and $4,923 in restitution (interest waived). The court finds that Patzer does not have the ability to pay a fine, and waives costs of prosecution, incarceration, and supervision. Count Two is dismissed upon the government's motion. NOTES [1] The defendant filed his sentencing memorandum under seal pursuant to Local Rule 26.2, in accordance with a protective order dated March 10, 2008. He did so to ensure that Patzer's psychological evaluation, school records, and the information contained in personal interviews remained shielded from public view. In order to respect Patzer's privacy. the court discusses herein only those facts upon which the determination of sentence rested. [2] A defendant is a career criminal if: (1) he was at least eighteen years old at the time he committed the instant offense: (2) the instant offense is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1.

31 Mass. App. Ct. 527 (1991) 580 N.E.2d 1047 COMMONWEALTH vs. NEAL HEALIS. No. 90-P-1296. Appeals Court of Massachusetts, Middlesex. September 6, 1991. November 14, 1991. Present: ARMSTRONG, SMITH, & GILLERMAN, JJ. Richard B. Klibaner for the defendant. Kevin J. Mahoney, Assistant District Attorney, for the Commonwealth. SMITH, J. The defendant was convicted by a jury of trafficking in cocaine in excess of fourteen grams (G.L.c. 94C, § 32E[b][1], as amended by St. 1988, c. 124). On appeal, he claims that the judge committed error when he denied the defendant's motion for disclosure of the full name and address of an informant. The defendant also contends that the *528 evidence was insufficient for the jury to find that the defendant intended to traffic in cocaine. At trial, it was the Commonwealth's theory that the defendant, a seller of cocaine, had arranged to meet a buyer in Cambridge and went there to deliver cocaine to him. The buyer was, in fact, a police informer. At 8:30 P.M. on May 20, 1989, in Cambridge, a police officer met and searched a man (informant) whom he had known for four months. Finding no drugs on him, the police officer and the informant entered a restaurant. The informant remained with the police officer until 9:00 P.M. when the defendant drove up in his automobile and parked across the street from the restaurant. A second police officer, stationed on the same side of the street, watched the defendant from twenty to thirty feet away. Two other detectives were stationed in the area. The defendant looked around and appeared to be surveying the area. The informant left the restaurant, crossed the street, and approached the defendant's automobile. The informant's hands were empty and at his side, and the police officers did not observe him giving anything to the defendant. The informant exchanged words with the defendant and then returned to the restaurant. Once inside the restaurant, the informant and the police officer had a conversation, and the police officer instructed the informant to leave. Meanwhile, the defendant drove down the street, made a U-turn, and parked directly in front of the entrance to the restaurant. The police officer, stationed in the street in an unmarked cruiser, followed the defendant and parked about forty to fifty feet behind the defendant's automobile. The police officer in the restaurant left and gave a prearranged signal to the other police officers. The police officer who was parked behind the defendant pulled up alongside the defendant's automobile. He observed the defendant reach under his front seat. The police officer drew his gun, identified himself, and ordered the defendant out of the automobile. The police officer then reached under the front seat of the defendant's automobile and removed a *529 clear plastic bag of 27.86 grams of 37 per cent pure cocaine in solid "rock" form. The defendant had thirty-five dollars on his person. The defendant's story was as follows: Earlier on May 20, 1989 (the day he was arrested), the defendant had arranged to meet an individual whom he knew by the name of "Orlando," not to sell cocaine to him, but rather to buy cocaine from him for his (the defendant's) personal use. He had met Orlando about three or four years before and had purchased cocaine from him on several occasions over the years. The amount of cocaine that the defendant purchased varied depending on how much money he had with him. On the day he was arrested, the defendant had thirty-five dollars and went looking for Orlando in order to buy some cocaine from him. He found Orlando, and the two men made arrangements to meet that evening in front of a restaurant at which time the defendant would buy some cocaine from Orlando. The defendant arrived at the agreed location and parked across from the restaurant. At first he did not see Orlando, but a few minutes later Orlando came running out of the restaurant, leaned into the defendant's automobile, dropped a bag onto the floor, and ran back into the restaurant. The defendant looked briefly at the bag and assumed it was cocaine. The bag, however, contained a grater amount of cocaine than the defendant intended to purchase. The defendant made a U-turn and drove his automobile up to the front of the restaurant. As he did so, he shouted to Orlando, "What's going on?" The defendant was then arrested. 1. Motion to disclose name and address of "informant." Prior to trial, the defendant filed a motion requesting that the judge order the Commonwealth to divulge the name, address, and criminal record of the individual who first approached his automobile on the evening he was arrested. In an affidavit accompanying his motion, the defendant stated that the individual was known to him only by his first name, "Orlando." He did not know his last name or residential address; therefore, he was unable to summon him as a witness. *530 The Commonwealth relied on the government's privilege not to disclose the identity of an informant. The judge denied the motion. "The government's privilege not to disclose the identity of an informant has long been recognized in this Commonwealth." Commonwealth v. Douzanis, 384 Mass. 434, 441 (1981). See also Commonwealth v. Amral, 407 Mass. 511, 516-517 (1990). "It was originally justified as a means of encouraging `every citizen' in his `duty ... to communicate to his government any information which he has of the commission of an offence against its laws.'" Commonwealth v. Ennis, 1 Mass. App. Ct. 499, 501 (1973), quoting from Worthington v. Scribner, 109 Mass. 487, 488 (1872). The privilege, however, is not absolute, particularly where a demand for disclosure is made at trial and the issue is the defendant's ultimate guilt or innocence. Roviaro v. United States, 353 U.S. 53, 60-61 (1957). Commonwealth v. Lugo, 406 Mass. 565, 571 (1990). In general, at trial, an informant's identity must be disclosed "[w]here [such] disclosure ... is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause...." Commonwealth v. Nelson, 26 Mass. App. Ct. 794, 797 (1989), quoting from Roviaro v. United States, 353 U.S. at 60-61. Here, the defendant was charged with a violation of G.L.c. 94C, § 32E(b)(1). "[T]he conduct prohibited by the statute ... is the knowing or intentional manufacture, distribution, dispensing or possession with intent to manufacture, distribute, dispense or bring into the Commonwealth [a net weight of fourteen grams but less than twenty-eight grams] of cocaine...." Commonwealth v. Chappee, 397 Mass. 508, 522 (1986). His defense consisted of a denial that he possessed the cocaine with an intent to "distribute [or otherwise] dispense" the drug. Also, implicit in his testimony was a claim that he was "set up" by the informant (and by the police), whereby the informant planted in the defendant's automobile cocaine far in excess of the amount he intended to buy. *531 The questions before the jury were clear — was the defendant a buyer of a small amount of cocaine for personal use or a seller of a large amount of cocaine? Further, who was telling the truth — was it the police officers who testified that the informant did not place anything in the defendant's automobile, or was it the defendant, who testified that the informant had dropped cocaine into his automobile? The testimony of the informant, obviously, was critical. Here, the informant was an active participant and the only nongovernment witness to events that gave rise to the defendant's arrest. See Commonwealth v. Lugo, 406 Mass. at 572 ("In the informer situation, where the informer is an active participant in the alleged crime or the only nongovernment witness, disclosure usually has been ordered"). Also, it was the informant who arranged the meeting at which the defendant's arrest occurred and who acted under the direction of the police at all times just prior to the defendant's arrest. See Commonwealth v. Ennis, 1 Mass. App. Ct. at 503 ("[T]he informer was the only other person present at the sale [of narcotics] and, what is more, arranged the meeting at which it occurred. On these facts disclosure was required"). The Commonwealth, however, argues that disclosure of the informant's identity is not required because the defendant failed to show how the lack of the informant's testimony prejudiced him. But "[t]here is ... no requirement that a defendant, denied access to evidence that might prove helpful in his defence, must make a specific showing of just what the evidence would have proved and how far he was prejudiced by the withholding." Commonwealth v. Johnson, 365 Mass. 534, 547 (1974). We, of course, cannot tell what effect the disclosure of the informant's identity might have had on the case. "[W]e do not know what ... [the informer's] testimony might have been or what other evidence might have been introduced if defence counsel had had the benefit of [the identity of the informer]...." Commonwealth v. Ennis, 1 Mass. App. Ct. *532 at 504, quoting from and paraphrasing Commonwealth v. Balliro, 349 Mass. 505, 517 (1965). On these facts, we hold that disclosure of the informant's identity was essential to a fair determination of the case.[1] 2. Denial of motion for required finding of not guilty. The defendant argues that the trial judge erred in denying his motion for a required finding of not guilty. He contends that the Commonwealth did not introduce sufficient evidence for a rational jury to find, beyond a reasonable doubt, that he was guilty of trafficking in cocaine. On this issue we must determine "whether, after viewing the evidence in light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis original). Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The defendant argues that there was insufficient evidence from which the jury could warrantably conclude that there was an intent to distribute. "Intent is a factual matter that may be proved by circumstantial evidence." Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 427 (1985). Possession of a large quantity of cocaine can support an inference that the defendant intended to sell cocaine. See Commonwealth v. Sendele, 18 Mass. App. Ct. 755, 758-759 (1984). A police officer was qualified as an expert in narcotics distribution. He testified that the amount (27.86 grams) and purity (37 per cent) of the cocaine was consistent with an intent to distribute.[2] In addition, the evidence showed that the cocaine was in "rock" form, which also raised an inference that the cocaine was being held for distribution. See *533 Commonwealth v. Sendele, 18 Mass. App. Ct. at 758. There was no error in denying the defendant's motion. Compare Turner v. United States, 396 U.S. 398, 423 (1970)(14.68 grams of a cocaine and sugar mixture not sufficient to support conviction of distribution); Commonwealth v. Sendele, 18 Mass. App. Ct. at 756, 758 (14.4 grams of 37 per cent pure cocaine in rock form, standing alone, might not be sufficient to justify inference of intent to distribute). There must be a new trial because of the denial of the defendant's motion to obtain the name and address of the informant. Judgment reversed. Verdict set aside. NOTES [1] On appeal, the defendant also argued that the privilege did not apply because he was aware that "Orlando" was the informant. See Commonwealth v. Curcio, 26 Mass. App. Ct. 738, 747 (1989)("With the informer's identity known, the Commonwealth could not claim the `informer's privilege' ..."). Trial counsel did not make the argument below and, consequently, we do not consider it now. Commonwealth v. Lazarovich, 410 Mass. 466, 476 (1991). [2] The expert witness also testified that a user of cocaine "[g]enerally" would have a smaller amount.

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS § BONDED BUILDERS HOME WARRANTY ASSOCIATION § No. 08-14-00090-CV OF TEXAS D/B/A BONDED BUILDERS WARRANTY GROUP, § Appeal from DANIEL AVILA, GRISELE EDITH ARIZPE, AND § 327th District Court AA BUILDERS, LLC, § of El Paso County, Texas Appellants, § (TC # 2013DCV4125) v. § PATRICIA ROCKOFF, § Appellee. § OPINION This is an interlocutory appeal from the denial of motions to compel arbitration. See TEX.CIV.PRAC.&REM.CODE ANN. § 51.016 (West Supp. 2015)(permitting an interlocutory appeal from the denial of a motion to compel arbitration under the Federal Arbitration Act). Appellants raise a single issue contending the trial court erred in not compelling arbitration. We sustain that issue and remand the case to address one remaining issue: whether the cost issues raised by the arbitration agreement render it procedurally unconscionable.  FACTUAL SUMMARY AA Builders, LLC, constructed a home at 3715 Laguna Court in El Paso, Texas. Appellants Grisele Arizpe and Daniel Avila are alleged to be the general partners of AA Builders, LLC (collectively we refer to all three as “AA Builders”). The original homeowners of 3715 Laguna Court obtained a new home warranty on the residence from Bonded Builders Home Warranty Association of Texas d/b/a Bonded Builders Warranty Group (“BBWG”). The original homeowners then sold the house to Appellee Patricia Rockoff in July 2013. By paying a $40.00 processing fee to BBWG, the warranty was transferred to her on July 11, 2013. Shortly after acquiring the property she noticed cracks in the walls of the house which she attributes to the failure of load-bearing walls. It appears that the house was built on a lot that was cut and filled, meaning that some portion of the lot was graded away and other portions filled in to level the property. One of Rockoff’s allegations is that a portion of the house was built over the fill dirt which was insufficiently engineered or compacted such that it could not carry the weight of the house. Rockoff first complained to AA Builders who denied her claim. Rockoff then made a warranty claim with BBWG. There are two distinct warranties provided by BBWG on the home. The first is called the “Workmanship, Materials and Systems Warranty.” Under that particular warranty, AA Builders warranted that the house meets certain specified construction performance standards detailed in the warranty document. One of those standards, for instance, states that a slab foundation should not tilt or deflect in excess of one percent from the original construction elevations. If there is a breach of one of those the standards, AA Builders would be primarily obligated to repair or replace the defective item under the terms of the warranty. BBWG in turn acts only as the guarantor and meets AA Builder’s obligation if either: (1) it is unwilling or unable to comply -2- with the terms of the warranty, or (2) following the alternative dispute resolution procedures and arbitration called for in the agreement, AA Builders refuses to or is unable to comply with the arbitration award. Under the Workmanship, Materials and Systems Warranty, the homeowner is obligated to first contact AA Builders to make a claim. If the homeowner and AA Builders are unable to resolve their issues, the homeowner submits a claim form to BBWG who then contacts the builder to attempt to gain their compliance. Any dispute after that point must be submitted through BBWG’s “conciliation process.” That process contemplates that a conciliator, appointed by BBWG, meets with all the parties at the house, and then issues a non-binding award if no agreement is reached. Unless all parties accept that non-binding recommendation, the dispute is then submitted to a “Claim Review Group” consisting of the conciliator, a qualified representative for the homeowner, and AA Builders. If this meeting does not resolve matters, any dispute must be submitted “to binding arbitration pursuant to the terms and conditions of the Arbitration Section of this warranty.” BBWG pays the cost of the conciliation process, other than the cost of the representative the homeowner may hire to participate in the Claim Review Group. A second warranty, referred to as the “Express Limited Major Structural Defect Warranty,” has its own unique set of provisions. This warranty covers damage to designated load-bearing walls that are impaired to the extent that the house becomes “unsafe, unsanitary, or otherwise unlivable.” Under this warranty, BBWG is primarily obligated to repair or replace covered defects. To make a claim, the homeowner first completes a designated form which is sent to BBWG. Any dispute under the terms of this warranty must be referred to mediation, with each party paying their share of the mediation expense. If not resolved by mediation, any dispute -3- must again be submitted to “binding arbitration pursuant to the terms and conditions of the Arbitration Section of this warranty.” The Arbitration Section of the warranty first contains a broad agreement to arbitrate disputes: In the event any Dispute under any BBWG warranty, including without limitation, a claim of subrogation, negligent or intentional misrepresentation or nondisclosure in the inducement, breach of any alleged duty of good faith and fair dealing, and/or any dispute over the scope of this Arbitration Provision, cannot be resolved by one of the Alternative Dispute Resolution processes described herein, You, the Builder and BBWG agree to submit the Dispute to binding arbitration…. By accepting the warranty, You are agreeing to waive Your right to a trial by either judge or jury in a court of law.” The term “Dispute” is defined to include “any dispute, controversy, claim or matters in question . . . between Builder, You, Your successors in interest and/or BBWG arising out of or relating to this Warranty. . . . ” The Arbitration Section has several other terms which bear on the parties arguments raised in this appeal. One term addresses selection of the arbitrator: You will have the right to select the arbitration company from the list of approved arbitration companies BBWG will provide to You when arbitration is requested. The arbitration will be conducted under the arbitration company’s rules in effect at the time of the arbitration. Another term addresses payment of the expenses of the arbitration: The arbitrator’s compensation fee, administrative fee and all expenses charged by the arbitrator and/or the arbitration service shall be borne equally by the arbitrating parties. Each party shall pay their own attorney fees and expenses. Additional fees may be assessed in accordance with the arbitration company rules and fees. The arbitrator shall have the discretion to reallocate such fees and expenses, save and except attorney’s fees, in the interest of justice. Two provisions address initiation of arbitration: Any party who shall commence a judicial proceeding concerning a dispute, which is arbitrable hereunder, shall also be deemed to be a party requesting arbitration within the meaning of this paragraph. …. -4-  Arbitration may be demanded at any time, but only after completion of all conditions precedent, and may be compelled by summary proceedings in Court. The agreement is made expressly subject to the Federal Arbitration Act (Title 9 of the United States Code), and contains a savings clause: If any provision of this arbitration agreement shall be determined to be unenforceable by the arbitrator or by the court, the remaining provisions shall be deemed to be severable there from and enforceable according to their terms. The “General Conditions” section of the warranty provides that the homeowner’s sole remedy against AA Builders, and all those associated with it, is under the terms and conditions of the warranty. This exclusive remedy agreement is “enforceable to the fullest extent permissible by the law of the state in which the property is located . . . .” Likewise, to the extent permitted by the applicable state law, the homeowner waives any implied warranties. The General Conditions also provides that each party is to pay their own litigation costs and “under no circumstances shall any party, prevailing or otherwise be entitled to an award and/or judgment which includes or provides for attorney’s fees and/or court costs.” The General Conditions section contains its own severability clause which provides that should a court find any provision unenforceable, the remaining portions of this warranty will still be effective. On September 9, 2013, Rockoff sent notice to AA Builders which promptly denied her claim. On October 10, 2013, she then completed BBWG’s designated claim forms for both the warranty sections set out above. On October 25, 2013, BBWG sent her a letter stating that it would assign a conciliator after she completed an additional enclosed form. The next correspondence in the record, however, is a November 4, 2013, demand letter from Rockoff’s attorney to BBWG demanding payment of the entire limit under the warranty.1 On the same day, Rockoff also filed suit against AA Builders and BBWG asserting claims under the Texas 1 The warranty states that its aggregate limit is $245,000.00. The warranty has many more terms, limitations, and exclusions which we have not attempted to fully set out in this opinion. -5- Deceptive Trade Practices Act, and specifically asserting a breach of express and implied warranties pertaining to the BBWG’s warranty. She later added claims for negligence and breach of implied warranties under the Texas Property Code. Her suit also seeks declaratory relief, which in part contends that the arbitration clause is unconscionable and unenforceable. Both AA Builders and BBWG filed motions to compel arbitration. Rockoff filed a response, which after setting out various legal principles governing arbitration, recites in forty- two numbered paragraphs “factors for consideration by the court.” Some of the paragraphs are simply statements of factual matters she claims are supported by certain referenced exhibits. Other paragraphs could (charitably) be viewed as specific reasons why the arbitration clause was substantively or procedurally unconscionable. We have carefully reviewed the Rockoff’s response, and her arguments at the hearing, and discern that she raised the following objections to arbitration:  The scope of the arbitration provision is not broad enough to encompass all of Rockoff’s claims under the Texas Deceptive Trade Practices Act, the Texas Declaratory Judgment Act, or her theories of alter ego, civil conspiracy, negligence, breach of implied warranty of good and workmanlike construction of residential property and/or habitability.  AA Builders and BBWG materially breached the agreement which excuses Rockoff’s performance under the arbitration clause, (or it failed to meet a condition precedent). Specifically, she contends that BBWG failed to contact AA Builders to attempt to get them to remedy the problem, and then it failed to appoint a conciliator.  The agreement is substantively unconscionable because it limits her claims and remedies. Specifically, it requires Rockoff to pay her own attorney’s fees and costs, despite provisions in the DTPA and court rules which would permit her to recover those if she were a prevailing litigant. It disclaims implied warranties and denies her the ability to seek injunctive relief because “[t]he arbitrator can’t issue an injunction.”  The agreement is substantively unconscionable because it fails to designate a neutral third party arbitration organization. Instead, BBWG has the sole right to -6-  designate the pool of potential arbitration firms and thus “unconscionably controls selection of the arbitration organization.” The agreement itself fails to designate how the selected arbitration firm would designate qualified arbitrator(s), what rules might apply, or dictate that arbitration should be in El Paso.2  The agreement is procedurally unconscionable because Rockoff had no ability or power to negotiate any of the language of the warranty, the terms of the agreement were never explained to her, the arbitration clause was not conspicuous, and she never signed any document signifying her approval of the arbitration agreement. Rockoff also claimed that the cost of arbitration would exceed litigation costs, which under the agreement must be borne equally by the parties. She contended, however, that until the identity of the proposed arbitrator is actually known, there was no way to complete that cost analysis. (“You’ve got to know who the arbitrator is, you’ve got to know what rules of arbitration are going to apply. So, we’re not even in a position to make that analysis at this point.”) Consistent with an interrogatory answer, BBWG asserted that in the past it had designated the America Arbitration Association (AAA) and Construction Dispute Resolution Services, LLC as suitable arbitration companies. It did not stipulate, nor can we find anywhere in the record, that these were the arbitration firms being designated for this particular dispute.3 The trial court denied the motion to compel arbitration, and was not requested to, nor did it file, findings of fact and conclusions of law explaining its decision. FRAMEWORK FOR REVIEW A party seeking to compel arbitration must (1) establish the existence of a valid arbitration agreement; and (2) demonstrate that the claims asserted are within the scope of the agreement. In re AdvancePCS Health L.P., 172 S.W.3d 603, 605 (Tex. 2005); Delfingen US- 2 At the hearing, BBWG and AA Builders agreed that any arbitration would be in El Paso. 3 The consolidated brief of BBWG and AA Builders to this Court now stipulates that AAA and Construction Dispute Resolution Services, LLC will be included on the list to be provided Rockoff. Their brief was filed August 12, 2014 and is the first reference we find that Appellants concretely proposed particular arbitrators for this matter. -7- Texas, L.P. v. Valenzuela, 407 S.W.3d 791, 797 (Tex.App.--El Paso 2013, no pet.). While this particular arbitration agreement is governed by the Federal Arbitration Act (FAA), state contract law principles determine whether there is a valid underlying contract requiring arbitration. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003); Delfingen, 407 S.W.3d at 797. We review de novo a trial court’s determination as to the existence of a valid agreement to arbitrate. See In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009)(orig.proceeding); J.M. Davidson, 128 S.W.3d at 227. The second inquiry--whether a particular claim is subject to the arbitration clause--is decided in light of the federal policy and presumption favoring arbitration under the FAA. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983); accord Ellis v. Schlimmer, 337 S.W.3d 860, 861-62 (Tex. 2011); Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896, 898-99 (Tex. 1995)(orig.proceeding). If the proponent of arbitration proves the existence of a valid agreement which covers the dispute, then the burden shifts to the resisting party to raise an affirmative defense to enforcing that agreement. Royston, Rayzor, Vickery, & Williams, LLP v. Lopez, 467 S.W.3d 494, 499 (Tex. 2015); In re Poly-America, L.P., 262 S.W.3d 337, 348 (Tex. 2008)(orig. proceeding); In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex. 1999). So long as there are no factual disputes, defenses to arbitration such as waiver or unconscionability are legal issues also subject to de novo review. Lopez, 467 S.W.3d at 499; In re Poly-America, L.P., 262 S.W.3d at 348; Delfingen, 407 S.W.3d at 798. The determination of any facts relevant to a defense is for the trial court which we review deferentially for record support under the abuse of discretion standard. Delfingen, 407 S.W.3d at 798-800. Because the trial court here did not enter findings of fact or conclusions of law to explain its denial of the motion to compel, we must uphold the trial court’s decision on any appropriate -8- legal theory urged below. Shamrock Foods Co. v. Munn & Assocs., Ltd., 392 S.W.3d 839, 844 (Tex.App.--Texarkana 2013, no pet.); Inland Sea, Inc. v. Castro, 420 S.W.3d 55, 57-59 (Tex.App.--El Paso 2012, pet. denied)(affirming denial of motion to compel arbitration on alternative ground where order did not specify the basis for the ruling); In re Weeks Marine, Inc., 242 S.W.3d 849, 854 (Tex.App.--Houston [14th Dist.] 2007, orig. proceeding). EXISTENCE OF AN ARBITRATION AGREEMENT COVERING THIS DISPUTE BBWG and AA Builders satisfied their initial burden of demonstrating the existence of a valid arbitration agreement. They attached a copy of the warranty to their motion to compel arbitration which contains the arbitration agreement as set out above. Rockoff’s pleadings attached the same warranty document. While Rockoff did not sign any particular document acknowledging or agreeing to the terms of the warranty, the FAA does not require that agreements to arbitrate be signed, so long as they are written and agreed to by the parties. In re AdvancePCS Health L.P., 172 S.W.3d at 606. Assent to arbitration can arise from a party’s conduct. In re Halliburton Co., 80 S.W.3d 566, 569 (Tex. 2002)(holding arbitration clause was accepted by continued employment). In this case, Rockoff’s assent is found in her filing claims form under the warranty and then suing on the warranty itself. A party seeking the benefits under an agreement cannot simultaneously disclaim knowledge of an arbitration agreement embodied in that same agreement. See In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 741 (Tex. 2005)(party bound to arbitration clause it did not sign “if it seeks, through the claim, to derive a direct benefit from the contract containing the arbitration provision”); In re FirstMerit Bank, N.A., 52 S.W.3d 749, 755 (Tex. 2001)(“a litigant who sues based on a contract subjects him or herself to the contract’s terms.”). -9-  Rockoff argued below that the arbitration agreement does not cover all of her theories of liability. We disagree. To determine whether a party’s claims fall within the scope of an arbitration agreement, we focus on the complaint’s factual allegations rather than the legal causes of action asserted. In re FirstMerit Bank, N.A., 52 S.W.3d at 754. Rockoff’s petition alleges that because of various failings of AA Builders, the house “began to visibly sink into the ground” and “began experiencing structural distress.” These problems are attributed to “bearing capacity failure in the supporting soil underneath the footing areas.” The last amended petition alleges direct breaches of the BBWG’s warranty, breach of implied warranties in the construction of the house, and negligence in the construction of the house. The warranty agreement is actually a three party agreement, placing burdens and benefits on the holder of the warranty (Rockoff), BBWG, and AA Builders. The arbitration provision is triggered by any “Dispute” under the BBWG warranty. Both warranty clauses define the term “Dispute” to include “any dispute, controversy, claim or matters in question . . . between Builder, You, Your successors in interest and/or BBWG arising out of or relating to this Warranty including without limitation, a claim of subrogation, negligent or intentional misrepresentation or nondisclosure in the inducement, and breach of any alleged duty of good faith and fair dealing . . . .” This definition used of phrase “relate to” which renders it a “broad arbitration clauses capable of expansive reach.” See PoolRe Ins. Corp. v. Organizational Strategies, Inc., 783 F.3d 256, 262-63 (5th Cir. 2015), quoting Pennzoil Exploration & Prod. Co. v. Ramco Energy Ltd., 139 F.3d 1061, 1067 (5th Cir. 1998). The allegations asserted here fall within the broad scope of this arbitration provision. On appeal, Rockoff does not contend otherwise, other than to argue that there is not a valid agreement to arbitrate because BBWG retained the right to appoint the pool of potential -10- arbitrators. Citing In re Phelps Dodge Magnet Wire Co., 225 S.W.3d 599, 605-06 (Tex.App.-- El Paso 2005, orig. proceeding, [mand. denied]), she contends BBWG’s control over the potential pool of arbitration firms renders the Arbitration Provision not an arbitration clause at all. We decided in Phelps Dodge Magnet Wire whether a company’s “Problem Solving Procedure” constituted a true arbitration agreement or whether it was only an internal employment grievance procedure. Id. The policy at issue included a multi-step process to resolve disputes between an employee and management, which if unsuccessful, sent the dispute to a five member group made up of salaried and hourly employees. The employer alternatively retained the right to submit the dispute to an arbitrator if it so chose. Id. at 604. We held this was not a true arbitration provision because “[t]he entire pool of arbitrators consists of Phelps Dodge employees, making Phelps Dodge the sole arbitrator in resolution of the dispute.” Id. at 606; see also BDO Seidman v. Miller, 949 S.W.2d 858, 861 (Tex.App.--Austin 1997, writ dism’d w.o.j.)(decided under New York law, agreement which designated employer’s partners and board members as decision makers was void); Manes v. Dallas Baptist College, 638 S.W.2d 143, 145 (Tex.App.--Dallas 1982, writ ref’d n.r.e.)(one party could not designate its own Board of Trustees to be the final decision maker and then contend the agreement is enforceable as an arbitration agreement). But these cases are inapposite. BBWG is obligated to provide a list of potential arbitration firms from which Rockoff then selects one firm. The word “Arbitration” in the warranty agreement is a defined term, meaning: “[a]n Alternative Dispute Resolution process wherein the designated neutral third party conducts a hearing wherein the parties present live testimony and evidence to the arbitrator.” [Emphasis added]. The definition imposes an obligation that the ultimate arbitrator is a neutral third party, precluding BBWG from designating -11- itself or some captive arbitration company as a potential arbitrator. That a neutral third party must arbitrate the dispute distinguishes this case from Phelps Dodge Magnet Wire, Miller and Manes where one of the two disputing parties established itself as the decision maker. While we acknowledge that BBWG’s control over the pool of arbitration firms might create other problems, we address those concerns in the unconscionability discussion below. But to the extent the trial court denied BBWG and AA Builders’ motion to compel arbitration on the basis that they failed to satisfy their initial burden, the trial court erred. UNCONSCIONABILITY The FAA states arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2 (2009). The FAA was enacted “to reverse the longstanding judicial hostility to arbitration agreements . . . and to place arbitration agreements upon the same footing as other contracts.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). Nonetheless, the FAA’s purpose is to make arbitration agreements “as enforceable as other contracts, but not more so.” In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 192 (Tex. 2007), quoting Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 n.12, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967). As such, arbitration agreements are subject to traditional state law defenses, including unconscionability. AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 131 S.Ct. 1740, 1746, 179 L.Ed.2d 742 (2011); In re Poly-America, L.P., 262 S.W.3d at 348. An arbitration agreement may be unconscionable in one or both of two ways: (1) procedurally, which refers to the circumstances surrounding the adoption of the arbitration provision, and (2) substantively, which refers to the fairness of the arbitration provision itself. ReadyOne Industries, Inc. v. Flores, 460 S.W.3d 656, 666-67 (Tex.App.--El Paso 2014, pet. -12- denied). The unconscionability defense has a long history at common law. An early decision described an unconscionable contract as one that “no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.” Earl of Chesterfield v. Janssen, 28 Eng. Rep. 82, 100, 2 Ves. Sr. 125, 155 (1751), quoted in Venture Cotton Cooperative. v. Freeman, 435 S.W.3d 222, 228 (Tex. 2014). “The grounds for substantive abuse must be sufficiently shocking or gross to compel the court to intercede, and the same is true for procedural abuse--the circumstances surrounding the negotiations must be shocking.” Delfingen, 407 S.W.3d at 798. Unconscionability has no precise legal definition because it is not a concept but a determination to be made in light of a variety of factors. Id., citing Southwestern Bell Telephone Company v. DeLanney, 809 S.W.2d 493, 498 (Tex. 1991)(Gonzalez, J. concurring). In deciding whether a contract is procedurally unconscionable, “we must examine (1) the entire atmosphere in which the agreement was made; (2) the alternatives, if any, available to the parties at the time the contract was made; (3) the non-bargaining ability of one party; (4) whether the contract was illegal or against public policy; and (5) whether the contract is oppressive or unreasonable.” [Internal quotation marks omitted]. Delfingen, 407 S.W.3d at 798. The critical inquiry in reviewing an agreement for substantive unconscionability “is whether the arbitral forum in a particular case is an adequate and accessible substitute to litigation, a forum where the litigant can effectively vindicate his or her rights.” In re Olshan Foundation Repair Company, L.L.C., 328 S.W.3d 883, 894 (Tex. 2010)(orig. proceeding). “That inquiry is not satisfied by speculation but by specific proof in the particular case of the arbitral forum’s inadequacy.” Venture Cotton Cooperative, 435 S.W.3d at 232. We measure unconscionability from the point the contract formed. Delfingen, 407 S.W.3d at 798. -13-  Was the Agreement Procedurally Unconscionable? Rockoff acknowledges that unconscionability is measured at the time the arbitration agreement is entered into, but she contends that date was when the warranty was assigned to her (rather than when the original homeowners purchased it). Under this premise, she raised below procedural unconscionability--that is, how the agreement was entered into in the first place. Those arguments include such matters as the conspicuousness of the arbitration clause, her lack of bargaining power, and lack of formal assent to the arbitration clause. She does not brief any of these arguments on appeal. Assignees, third party beneficiaries, and successors in interest are often bound to arbitration clauses that an original contracting party entered into. Mohamed v. Auto Nation USA Corp., 89 S.W.3d 830, 836 (Tex.App.--Houston [1st Dist.] 2002, no pet.), citing Capitan Enters., Inc. v. Jackson, 903 S.W.2d 772, 775 (Tex.App.--El Paso 1994, writ denied); Carlin v. 3V Inc., 928 S.W.2d 291, 294 (Tex.App.--Houston [14th Dist.] 1996, no pet.)(collecting cases). The logical extension of this principle is that the assignee, third party beneficiary, or successor interest has no greater defenses than the original contracting party. Stated otherwise, defenses such as unconscionability are defined by the events surrounding the initial contract. That would seem particularly true here, when both parties agree there was no negotiation involved in transferring the balance of the warranty term to Rockoff. Neither the length of the warranty, or its substantive provisions were changed in any respect. She did no more than step into the shoes of the original home owners who secured the warranty. And because there was no evidence before the trial court regarding any of the factors governing procedural unconscionability as to the original homeowners, there would be no basis to find the warranty procedurally unconscionable. To the extent the trial court did so, it erred. -14-  Does One Party’s Right to Designate the Pool of Potential Arbitrators Make the Agreement Substantively Unconscionable? Rockoff also contends that the arbitration clause is unconscionable because BBWG has the sole right to designate the pool of potential arbitration firms (from which she is to select one of her choosing). Rockoff’s argument is premised on the possibility that BBWG would only designate those arbitration firms that it thought would favor its position, thus denying Rockoff an impartial decision maker. Several federal court decisions are supportive of her position. In Hooters of Am., Inc. v. Phillips, 173 F.3d 933, 938 (4th Cir. 1999), the court analyzed an arbitration clause that in multiple ways favored an employer over its employees in resolving disputes. An aggrieved employee was required to file a statement of claims and list of witnesses, setting out contentions along with a summary of the evidence supporting them. The employer was required to file nothing. Id. Once the arbitration started, the employee’s contentions were limited by the claim statement, but the employer could add new issues as it wished. Id. at 939. And as germane here, the employer provided a list of potential arbitrators from which the employee and employer would then make one selection, with the two arbitrators then selecting a third from the list. But there were apparently no restrictions on whom the company could place on the list. Id. at 938. The employee in Hooters developed a record that the arbitration scheme as a whole was so one sided that reputable arbitration firms would have refused to participate in it. 4 The court concluded that the rules were so “egregiously unfair” as to breach a duty of good faith the court read into the contract. Id. at 940. 4 As an example, a senior vice president of the American Arbitration Association (AAA), testified that “the system established by the Hooters rules so deviated from minimum due process standards that the Association would refuse to arbitrate under those rules” Id. at 939. -15-  The arbitration selection issue was more squarely addressed in McMullen v. Meijer, Inc., 355 F.3d 485, 488, 493-94 (6th Cir. 2004) which on the basis of the arbitrator selection provision alone, prompted the court to hold the provision unenforceable. There, the employer would select a pool of at least five arbitrators who could not be employed by or affiliated with the employer and who must generally be recognized as a neutral. Id. at 488. Noting the plan was considerably more even handed than that in Hooters, the court nonetheless found it risked a “symbiotic relationship” between the company and the arbitrators, which was apparently evidenced by the use of the same five to seven arbitrators in each of its past arbitration hearings. Id. at 493. The court remanded the case with instructions for the district court to determine if the selection provision was severable, because under the FAA, the trial court would have the authority to appoint a neutral arbitrator if the parties’ selection provision could be severed from the agreement. Id. at 496-97. See also Murray v. United Food and Commercial Workers Int’l Union, 289 F.3d 297, 303-04 (4th Cir. 2002)(court found provision unconscionable where employer created list of potential arbitrators from whom parties then alternatively struck); Milliner v. Bock Evans Financial Counsel, Ltd., 114 F.Supp.3d 871 (N.D. Calif. 2015)(allowing plaintiff to select one of three arbitrators from list created by defendant was substantively unconscionable). On this record, however, we reject the argument that the arbitration selection scheme is unconscionable on its face. First, as we previously noted, the warranty agreement includes a definition requiring the arbitration to be before a neutral third party. The warranty therefore imposes an obligation which precludes BBWG from designating a captive arbitration company as a potential source for arbitrators. If Rockoff discovers that the arbitrator fails that neutrality standard, she of course has remedies. See Tenaska Energy, Inc. v. Ponderosa Pine Energy, LLC, -16- 437 S.W.3d 518, 519 (Tex. 2014)(setting aside arbitration award on basis of arbitrator’s evident partiality). Additionally, the federal cases noted above invalidated schemes where one party designated a pool of specific arbitrators. In this agreement, BBWG is to designate potential arbitration companies. That distinction places an important step between BBWG and the actual arbitrator, because whatever company Rockoff selects will then present some list of potential arbitrators from which the parties will designate the actual decision maker. See Lawson v. Archer, 267 S.W.3d 376, 384 (Tex.App.--Houston [14th Dist.] 2008, no pet.)(agreement which required parties to mutually agree to three neutral arbitrators from designated groups was not unconscionable). We acknowledge the possibility that BBWG might only designate arbitration companies with only a few available arbitrators whom it trusts, but nothing in this record suggests it has done so in the past. The only evidence in this record is that it has designated the American Arbitration Association and Construction Dispute Resolution Services, LLC in prior matters. Materials from each of these firms were admitted at the hearing below. Those materials suggest each firm has detailed selection procedures which require their panel arbitrators to disclose any potential biases. Even under our deferential standard to a trial court’s fact findings, this record would not support a finding that BBWG designates biased arbitration firms. Other than speculation, in which we are precluded from engaging, we find no support for the contention that the procedure to appoint arbitrators is per se unconscionable. Olshan, 328 S.W.3d at 896 (speculation not proper basis to find unconscionability); see Venture Cotton Cooperative v. Freeman, 11-11-00093-CV, 2015 WL 1967251, at *6 (Tex.App.--Eastland Apr. 30, 2015, no pet. h.)(claim that trade group who was tasked with appointing arbitrators would be biased because of ties to one party were only speculative, and did not support unconscionability claim). -17-  Does the Limitation on Attorney’s Fees or Limitations or Implied Warranties Make the Agreement Substantively Unconscionable? Rockoff also argued below that the warranty’s limitations on recovery of attorney’s fees, court costs, and disclaimers of implied warranties render the arbitration agreement unconscionable. On appeal, she carries forward the argument with respect to attorney’s fees, and correctly notes that the Deceptive Trade Practices Act allegations, if proven, would entitle her to recover attorney’s fees. TEX.BUS.&COMM.CODE ANN. § 17.50(d)(West 2011). The statute prevents a waiver of that right unless certain predicates are present, which are not apparent on the record before us. Id. at § 17.42. Yet, the warranty, and the arbitration clause, specifically prevent any fee shifting for attorney’s fees. Rockoff’s challenges in this regard are largely answered by the Texas Supreme Court’s holdings in Venture Cotton Cooperative v. Freeman, 435 S.W.3d 222 (Tex. 2014). That case involved a number of cotton farmers who were challenging acreage agreements which committed them to sell their crop to a cotton buyer at a set price. Id. at 225. The underlying agreement required arbitration of disputes under the rules of an industry trade group. Id. at 226. Those rules would prevent the award of attorney’s fees or additional damages under the DTPA, a claim which the farmers had pleaded in their lawsuit against the cotton buyer. Id. The court of appeals had held the arbitration agreement unconscionable, reasoning that it prevented the farmers from pursuing the statutory remedies and attorney’s fees as alleged in their pleadings. Id. at 229. The court of appeals premised its decision on In re Poly-America, L.P., 262 S.W.3d 337 (Tex. 2008) which held that arbitration clauses only select the forum for resolving statutory claims, and are not meant to re-legislate the remedies found in those statutes. See Poly-America, L.P., 262 S.W.3d at 352 (“[a]n arbitration agreement covering statutory claims is valid so long as the arbitration agreement does not waive the substantive rights and -18- remedies the statute affords and the arbitration procedures are fair, such that the employee may effectively vindicate his statutory rights.”)[Internal quotations omitted]. But the Texas Supreme Court in Venture Cotton Cooperative disagreed in part and held the invalid waiver of DTPA remedies did not invalidate the arbitration clause as a whole. 435 S.W.3d at 230. As it did in Poly-America, L.P., the court concluded the invalid waiver provision could be severed from the balance of the agreement, thus preserving the parties’ choice of arbitration as the forum for resolving disputes. Id. Similarly, we hold that to the extent an arbitrator ever found that a viable DTPA claim was proven, the arbitrator would be bound, as we would be, to follow Venture Cotton Cooperative, strike the limitation on attorney’s fees, and sever it from the arbitration agreement. The parties’ pleadings here did not expressly urge severance as an option. 5 Instead, with regard to the DTPA claim, they focused on whether Rockoff is a consumer under that statute which is a threshold requirement for bringing a DTPA claim. They both carry that argument forward on appeal. We decline, however, to jump into the merits of the lawsuit to resolve that issue. Our role is limited to the gateway function of deciding arbitrability. The court of appeals in Venture Cotton Cooperative believed the severance option had been waived because it was not asserted at the trial court. 395 S.W.3d at 277. The Texas Supreme Court held that to be error by the court of appeals, because it at most delayed the inevitable. 435 S.W.3d at 230-31. The Texas Supreme Court reasoned that once the case was remanded, a party could have urged severance and the parties might be back in the appellate pipeline and no closer to having the merits of their case decided. Id. For the same reason, we 5 One of the attorneys for AA Builders mentioned the option of severance of the attorney’s fees provision once in passing at the hearing and only in the context of the arbitrator severing the provision. Severance is not urged in either the Motion to Compel arbitration or the response, and is next suggested to us in Appellants’ brief as a reason any invalid clause would not support denial of arbitration. -19- apply Venture Cotton Cooperative. and hold that to the extent a DTPA claim is proven, the limitation on recovery of attorney’s fee should be struck. The inclusion of that clause, therefore, would not be a valid basis to refuse to arbitrate this dispute.6 Rockoff also urged below that other claim-limiting provisions in the warranty, such as its disclaimer of implied warranties, render the arbitration agreement unconscionable. These issues, however, are questions addressed to the broader context of the entire warranty, rather than the separable agreement to arbitrate, and would therefore be matters entrusted to the arbitrator. Lopez, 467 S.W.9d at 500; Venture Cotton Cooperative., 435 S.W.3d at 231, citing PacifiCare Health Sys., Inc. v. Book, 538 U.S. 401, 407 n.2, 123 S.Ct. 1531, 155 L.Ed.2d 578 (2003)(“the preliminary question [of] whether the remedial limitations at issue . . . prohibit[ed] an award of RICO treble damages [was] not a question of arbitrability”); In re FirstMerit Bank, 52 S.W.3d at 756 (noting that the defenses of unconscionability, duress, fraudulent inducement, and revocation must specifically relate to the arbitration portion of a contract, not the contract as a whole). To the extent the trial court refused to compel arbitration based on the remedy and claim limitation provisions found in the warranty, we hold that would have been error. Do the Costs of Arbitration Render the Agreement Substantively Unconscionable? Rockoff raised the argument that the cost of arbitration prevents her from pursuing her claim. A court may find an arbitration agreement unconscionable if it imposes excessive costs which prevent a litigant from effectively vindicating his or her rights in the arbitral forum. Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 90, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000); In re Olshan Foundation Repair Co., LLC, 328 S.W.3d 883, 893 (Tex. 2010). 6 We note that when the trial court here heard the motions to compel Venture Cotton Cooperative had not yet been decided by the Texas Supreme Court. The court remanded the case to the court of appeals to hear the remaining challenges, including the issue of substantive unconscionability based on the cost of arbitration. That issue has now also been resolved. Venture Cotton Cooperative v. Freeman, 11-11-00093-CV, 2015 WL 1967251, at *3 (Tex.App.--Eastland Apr. 30, 2015, no pet. h.). -20- Rockoff bears the burden of making that showing. Green Tree, 531 U.S. at 92, 121 S.Ct. 513; Olshan, 328 S.W.3d at 893. She is obligated to present “some evidence that [she] will likely incur arbitration costs in such an amount as to deter enforcement of statutory rights in the arbitral forum.” [Emphasis in original]. Poly-America, 262 S.W.3d at 356. That evidence might consist of “invoices, expert testimony, reliable cost estimates, or other comparable evidence.” Olshan, 328 S.W.3d at 895; Venture Cotton Cooperative. v. Freeman, 11-11-00093-CV, 2015 WL 1967251, at *3 (Tex.App.--Eastland Apr. 30, 2015, no pet. h.). The evidence must allow the trial court to analyze: (1) the claimant’s ability to pay the arbitration fees and costs, (2) the expected cost differential between arbitration and litigation and whether that differential is so substantial that it deters the claimant from bringing its claims, and (3) the actual cost of arbitration compared to the total amount of damages that the claimant is seeking. Olshan, 328 S.W.3d at 895. “[A] comparison of the total costs of the two forums is the most important factor in determining whether the arbitral forum is an adequate and accessible substitute to litigation.” Id. at 894-95. BBWG and AA Builders now claim that Rockoff has failed to meet her burden to make such a showing. But we agree with Rockoff that she could hardly present to the trial court a calculation of the cost of arbitration versus litigation when no one knew the identity of the arbitrator. And the identity of the arbitrator could not be known until BBWG and AA Builders satisfied their obligation to present a list of potential arbitration firms. It is not enough to merely suggest the names of arbitration firms used in the past, and then ask the trial court to speculate what their costs might be if in fact they were put on the final list. We hold the cost analysis under the substantive unconscionability claim would have been premature when the trial court denied the motions to compel, and it cannot be done on the record before us. Accordingly, to the -21- extent that Rockoff wishes to re-urge this ground, she is free to do so once the identity of the arbitrator is decided. BREACH OF CONTRACT Rockoff also urged below that BBWG’s failure to informally talk with AA Builders to gain its compliance with the warranty, and its failure to appoint a conciliator, breached the contract, or was at least a condition precedent to arbitration. She additionally contends this now excuses her performance under the arbitration provisions. In support of this view, Rockoff principally relies on In re Igloo Products Corp., 238 S.W.3d 574, 581 (Tex.App.--Houston [14th Dist.] 2007, orig. proceeding) which held that the failure to mediate a dispute as required by the parties contract meant that any obligation to arbitrate was never triggered. The contract in that case expressly stated that arbitration “shall not be invoked unless the party seeking arbitration has first mediated the dispute with the other party or parties.” Id. at 578; see also In re Pisces Foods, L.L.C., 228 S.W.3d 349, 351 (Tex.App.-- Austin 2007, orig. proceeding)(similar holding based on clause that specified pre-arbitration procedures that “must be followed in sequence”). The warranty before us is not as explicit, stating only that if the conciliation process required for the Workmanship, Materials and Systems Warranty, or the mediation required for the Express Limited Major Structural Defect Warranty fails, then Rockoff “must submit the Dispute to binding arbitration pursuant to the terms and conditions of the Arbitration Section of this warranty.” Nor are the sequence of events here as clear as in Igloo Prod. and Pisces Food, and therein lies one problem with Rockoff’s argument. Conditions precedent to arbitration are generally viewed as procedural arbitrability issue, and are accordingly matters for the arbitrator to determine. Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84-85, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002); John Wiley & Sons, Inc. v. -22- Livingston, 376 U.S. 543, 557, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); In re Global Const. Company, L.L.C, 166 S.W.3d 795, 798 (Tex.App.--Houston [14th Dist.] 2005, orig. proceeding). Accordingly, questions of exhaustion of internal dispute resolution procedures would be a matter for the arbitrator. Omoruyi v. Grocers Supply Co., Inc., 14-09-00151-CV, 2010 WL 1992585, at *8 (Tex.App.--Houston [14th Dist.] May 20, 2010, no pet.). Omoruyi is instructive, because the court distinguished its own earlier opinion in Igloo Prods., describing it as an exception applying only when the issues were “factually undisputed.” Id. See also General Warehousemen & Helpers Union Local 767 v. Albertson’s Distribution, Inc., 331 F.3d 485, 488 (5th Cir. 2003)(referring to this as a “rare exception” applying only if “no rational mind could question that the parties intended for a procedural provision to preclude arbitration and that the breach of the procedural requirement was clear.”)(internal quotations omitted). By contrast the parties in Omoruyi disputed whether certain predicate steps were taken or not, and the court left that disputed issue to the arbitrator. Id. at *8. In much the same the way, at best Rockoff’s contention that BBGW breached its pre- arbitration obligations is disputed, and at worse, there is no evidence any breach. We find no evidence in the record, for instance, that BBWG failed to contact AA Builders to attempt to get them to comply with its warranty obligation. The only evidence in the record regarding conciliation is a letter from BBGW to Rockoff’s attorney asking that a claim form be completed so it could designate an appropriate conciliator. Ten days later, Rockoff served a demand for the monetary limit of the warranty and simultaneously filed a lawsuit. BBWG claimed in an interrogatory answer that Rockoff filed suit before it could appoint a conciliator. We find no record support that BBGW breached its obligation to appoint a conciliator. -23-  There is a second problem with Rockoff’s breach of contract claim. She asserted claims under both of the warranty clauses we previously described. Her complaints below addressed alleged failure of BBGW to contact AA Builders, and failure to appoint a conciliator. Those requirements apply only the Workmanship, Materials and Systems Warranty. She never complained below of any failure to hold a mediation, which is the only preliminary procedure required for the Express Limited Major Structural Defect Warranty. We find nothing in the record where she presented any evidence regarding mediation at all. So even if she were correct that the BBWG failed to follow the conciliation process, that would not excuse arbitration under the Express Limited Major Structural Defect Warranty claims. But the record here does confront us with one glaring deficiency with BBWG and AA Builders’ request for arbitration--neither Appellant ever provided Rockoff with a list of potential arbitration firms to hear this dispute. Neither BBWG or AA Builders point to a place in the record below where Rockoff was given a list of approved arbitration companies from which she was to choose an arbitrator at the time arbitration was requested. At most, an interrogatory answer set out the identity of two firms that BBGW had approved in the past. The same interrogatory answer states that “Arbitrators and arbitration companies are selected by agreement on a case by case basis.” In their opening brief to this court, BBWG and AA Builders contend that they could not provide a list of suitable arbitrators until Rockoff asked for arbitration. There is nothing in the arbitration clause, however, that imposes such an obligation distinctly on Rockoff. Moreover, we note the agreement provides that the filing of a lawsuit is itself deemed to be request to arbitrate. BBWG and AA Builders never provided Rockoff with the list of arbitrators from which to choose. -24-  Ordinarily this might end the inquiry, but Rockoff never distinctly raised this issue below as a reason to deny the motion, nor does she on appeal.7 And even if she had, we would be in the same posture as Venture Cotton Cooperative where a remand solely on this basis without addressing the other issues would not put the parties any closer to a final resolution of their dispute. This arbitration agreement is governed by the FAA which has a specific gap filling provision when there is a failure to appoint an arbitrator pursuant to the parties’ agreement: If in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed; but if no method be provided therein, or if a method be provided and any party thereto shall fail to avail himself of such method, or if for any other reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then upon the application of either party to the controversy the court shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under the said agreement with the same force and effect as if he or they had been specifically named therein; and unless otherwise provided in the agreement the arbitration shall be by a single arbitrator. [Emphasis added]. 9 U.S.C.A. § 5 (2009); see Pacific Reinsurance Management Corp. v. Ohio Reinsurance Corp., 814 F.2d 1324, 1329 (9th Cir. 1987)(“the intent of Congress was to spur the arbitral process forward, rather than to let it stagnate into endless bickering over the selection process”). Were the matter left entirely to us, we would remand with instructions for the trial court to appoint an arbitrator given that BBWG and AA Builders “fail[ed] to avail” themselves of the method set out in the agreement. The gap filling provision of Section 5, however, requires an “application of either party” which we view as limiting our ability to order this on our own initiative. On remand, however, we are confident that the trial court will expedite the process of selecting an arbitrator (or one party may make an application under Section 5) so that the trial 7 Her argument below, obscured in one of the forty-two numbered paragraphs of “factors for the trial court to consider,” was that there never a “pre-existing” list of approved arbitrators. But that was never a requirement under the warranty. Instead, the warranty states that “BBWG will provide [the list] to You when arbitration is requested.” -25- court may resolve one last issue that was raised below: whether the agreement is substantively unconscionable because of the costs of arbitration. CONCLUSION Appellants met their initial burden to show the existence of an arbitration agreement that covered the claims asserted in the lawsuit. Two of the three reasons that Rockoff urges on appeal to deny arbitration--substantive unconscionability because of the manner of arbitrator selection, and breach of contract--lack merit on this record and cannot sustain the trial court’s order. Of the other reasons she asserted below--procedural unconscionability and that the claims are not covered by the agreement--likewise lack merit. Her assertion here and below that the arbitration costs might make the agreement procedurally unconscionable cannot be decided on this record because the identity of the arbitrator is yet to be determined. Accordingly, we remand the case with instructions to obtain an appointment of an arbitrator. So long as the costs of arbitration do not render the agreement substantively unconscionable under the applicable legal standards, we order the trial court to grant the pending motions to stay the litigation and compel arbitration. June 16, 2016 ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rodriguez, and Hughes, JJ. -26- 

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued February 28 and 29, 2012 Decided June 26, 2012 No. 09-1322 COALITION FOR RESPONSIBLE REGULATION, INC., ET AL., PETITIONERS v. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT STATE OF MICHIGAN, ET AL., INTERVENORS Consolidated with 10-1024, 10-1025, 10-1026, 10-1030, 10-1035, 10-1036, 10-1037, 10-1038, 10-1039, 10-1040, 10-1041, 10-1042, 10-1044, 10-1045, 10-1046, 10-1234, 10-1235, 10-1239, 10-1245, 10-1281, 10-1310, 10-1318, 10-1319, 10-1320, 10-1321 On Petitions for Review of Final Actions of the Environmental Protection Agency Patrick R. Day, Harry W. MacDougald, and Jeffrey Bossert Clark argued the causes for Non-State Petitioners and Supporting Intervenors. With them on the briefs were John J. Burns, Attorney General, Office of the Attorney General of the State of Alaska, Steven E. Mulder, Chief Assistant Attorney  2 General, Peter Glaser, Mark E. Nagle, Matthew Dukes, Paul D. Phillips, John A. Bryson, Ellen Steen, Eric Groten, John P. Elwood, James A. Holtkamp, Chet M. Thompson, Robin S. Conrad, Rachel L. Brand, Sheldon Gilbert, Quentin Riegel, Jeffrey A. Rosen, Robert R. Gasaway, William H. Burgess, Sam Kazman, Hans Bader, Matthew G. Paulson, Harry Moy Ng, Michele Marie Schoeppe, Michael R. Barr, Alexandra M. Walsh, Adam J. White, Jeffrey A. Lamken, Timothy K. Webster, Roger R. Martella, Neal J. Cabral, Theodore Hadzi-Antich, Ashley C. Parrish, Cynthia A. M. Stroman, Scott C. Oostdyk, Gordon R. Alphonso, Shannon L. Goessling, Edward A. Kazmarek, F. William Brownell, Norman W. Fichthorn, Henry V. Nickel, and Allison D. Wood. Paul D. Clement, Mark W. DeLaquil, Andrew M. Grossman, and David B. Rivin, Jr. entered appearances. E. Duncan Getchell, Jr., Solicitor General, Office of the Attorney General for the Commonwealth of Virginia, argued the cause for State Petitioners Texas and Virginia on Denial of Reconsideration of the Endangerment Finding and State Petitioners and Supporting Intervenors on Endangerment Finding Delegation Issues. With him on the briefs were Kenneth T. Cuccinelli, II, Attorney General, Stephen R. McCullough, Senior Appellate Counsel, Charles E. James Jr., Chief Deputy Attorney General, and Wesley G. Russell, Jr., Deputy Attorney General. Greg Abbott, Attorney General, Office of the Attorney General for the State of Texas, Bill Cobb, Deputy Attorney General for Civil Litigation, J. Reed Clay, Jr., Special Assistant and Senior Counsel to the Attorney General, Jonathan F. Mitchell, Solicitor General, Michael P. Murphy, Assistant Solicitor General, Luther Strange III, Attorney General, Office of the Attorney General for the State of Alabama, Pamela Jo Bondi, Attorney General, Office of the Attorney General for the  3 State of Florida, Gregory F. Zoeller, Attorney General, Office of the Attorney General for the State of Indiana, Jack Conway, Attorney General, Office of the Attorney General for the Commonwealth of Kentucky, James D. “Buddy” Caldwell, Attorney General, Office of the Attorney General for the State of Louisiana, Bill Schuette, Attorney General, Office of the Attorney General for the State of Michigan, John J. Bursch, Solicitor General, Neil D. Gordon, Assistant Attorney General, Gary C. Rikard, Jon Bruning, Attorney General, Office of the Attorney General for the State of Nebraska, Katherine J. Spohn, Special Counsel to the Attorney General, Wayne Stenehjem, Attorney General, Office of the Attorney General for the State of North Dakota, Margaret Olson, Assistant Attorney General, Scott Pruitt, Attorney General, Office of the Attorney General for the State of Oklahoma, Alan Wilson, Attorney General, Office of the Attorney General for the State of South Carolina, Marty Jackley, Attorney General, Office of the Attorney General for the States of South Dakota, Roxanne Giedd, Chief, Civil Litigation Division, Mark L. Shurtleff, Attorney General, Office of the Attorney General for the State of Utah, and Kenneth T. Cuccinelli, II, Attorney General, Office of the Attorney General for the Commonwealth of Virginia were on the briefs for State Petitioners and Supporting Intervenors. Robert D. Tambling, Assistant Attorney General, Office of the Attorney General for the State of Alabama, entered an appearance. Christian J. Ward, Scott A. Keller, and April L. Farris were on the brief for amici curiae Scientists in support of Petitioners. Derek Schmidt, Attorney General, Office of the Attorney General for the State of Kansas, and John Campbell, Chief Deputy Attorney General, were on the brief for amicus curiae State of Kansas in support of Petitioners. Martin R. Levin, Michael J. O’Neill, Donald M. Falk, Mark  4 S. Kaufman, Steven J. Lechner, and Richard P. Hutchison were on the brief for amici curiae Landmark Legal Foundation, et al. in support of Petitioners. Jon M. Lipshultz and Angeline Purdy, Attorneys, U.S. Department of Justice, argued the causes for respondent. With them on the brief were John Hannon, Carol Holmes, and Steven Silverman, U.S. Environmental Protection Agency, Attorneys. Thomas A. Lorenzen, Attorney, U.S. Department of Justice, entered an appearance. Carol Iancu, Assistant Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, argued the cause for State and Environmental Intervenors in support of respondents. With her on the briefs were Martha Coakley, Attorney General, William L. Pardee, Attorney Assistant General, Sean H. Donahue, Howard I. Fox, David S. Baron, Megan Ceronsky, Vickie L. Patton, Peter Zalzal, Kamala D. Harris, Attorney General, Office of the Attorney General for the State of California, Kathleen A. Kenealy, Senior Assistant Attorney General, Marc N. Melnick and Nicholas Stern, Deputy Attorneys General, Joseph R. Biden, III, Attorney General, Office of the Attorney General for the State of Delaware, Valerie M. Satterfield, Deputy Attorney General, George Jepsen, Attorney General, Office of the Attorney General for the State of Connecticut, Kimberly P. Massicotte, Matthew I. Levine, Scott N. Koschwitz, Assistant Attorneys General, Lisa Madigan, Attorney General, Office of the Attorney General for the State of Illinois, Gerald T. Karr, Assistant Attorney General, Thomas J. Miller, Attorney General, Office of the Attorney General for the State of Iowa, David R. Sheridan, Assistant Attorney General, Douglas F. Gansler, Attorney General, Office of the Attorney General for the State of Maryland, Mary E. Raivel, Assistant Attorney General, Michael A. Delaney, Attorney General, Office of the Attorney General for the State  5 of New Hampshire, K. Allen Brooks, Senior Assistant Attorney General, William J. Schneider, Attorney General, Office of the Attorney General for the State of Maine, Gerald D. Reid, Assistant Attorney General, Lori Swanson, Attorney General, Office of the Attorney General for the State of Minnesota, Jocelyn F. Olson, Assistant Attorney General, Gary K. King, Attorney General, Office of the Attorney General for the State of New Mexico, Stephen R. Farris, Assistant Attorney General, Eric T. Schneiderman, Attorney General, Office of the Attorney General for the State of New York, Michael J. Myers and Yueh-Ru Chu, Assistant Attorneys General, John Kroger, Attorney General, Office of the Attorney General for the State of Oregon, Paul Logan, Assistant Attorney-in-Charge, Robert M. McKenna, Attorney General, Office of the Attorney General for the State of Washington, Leslie R. Seffern, Assistant Attorney General, Peter F. Kilmartin, Attorney General, Office of the Attorney General for the State of Rhode Island, Gregory S. Schultz, Special Assistant Attorney General, William H. Sorrell, Attorney General, Office of the Attorney General for the State of Vermont, Thea J. Schwartz, Assistant Attorney General, Christopher King, Assistant Corporation Counsel, Corporation Counsel for the City Of New York, Ann B. Weeks, Helen D. Silver, David Doniger, Meleah Geertsma, Morgan Butler, Frank W. Rambo, Joseph Mendelson III, Craig Holt Segall, and Joanne Spalding. Deborah Sivas, Douglas A. Ruley, Edward Lloyd, and Susan J. Kraham were on the brief for amici curiae America's Great Waters Coalition, et al. in support of respondent. James K. Thornton entered an appearance. _____  6 No. 10-1073 COALITION FOR RESPONSIBLE REGULATION, INC., ET AL., PETITIONERS v. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT AMERICAN FROZEN FOOD INSTITUTE, ET AL., INTERVENORS Consolidated with 10-1083, 10-1099, 10-1109, 10-1110, 10-1114, 10-1118, 10-1119, 10-1120, 10-1122, 10-1123, 10-1124, 10-1125, 10-1126, 10-1127, 10-1128, 10-1129, 10-1131, 10-1132, 10-1145, 10-1147, 10-1148, 10-1199, 10-1200, 10-1201, 10-1202, 10-1203, 10-1206, 10-1207, 10-1208, 10-1210, 10-1211, 10-1212, 10-1213, 10-1216, 10-1218, 10-1219, 10-1220, 10-1221, 10-1222 On Petitions for Review of Final Agency Action of the Environmental Protection Agency Jonathan F. Mitchell, Solicitor General, Office of the Attorney General for the State of Texas, argued the cause for State Petitioners and Supporting Intervenor. With him on the briefs were Gregg Abbott, Attorney General, Bill Cobb, Deputy Attorney General, J. Reed Clay, Jr., Special Assistant and Senior Counsel to the Attorney General, Michael P. Murphy and  7 James P. Sullivan, Assistant Solicitors General, Luther Strange, Attorney General, Office of the Attorney General for the State of Alabama, Herman Robinson, Donald Trahan, Kathy M. Wright, Gary C. Rikard, John Bruning, Attorney General, Office of the Attorney General for the State of Nebraska, Katherine J. Spohn, Special Counsel, Wayne Stenehjem, Attorney General, Office of the Attorney General for the State of North Dakota, Margaret Olson, Assistant Attorney General, Alan Wilson, Attorney General, Office of the Attorney General for the State of South Carolina, J. Emory Smith, Jr., Assistant Deputy Attorney General, Marty Jackley, Attorney General, Office of the Attorney General for the State of South Dakota, Roxanne Giedd, Chief, and Kenneth T. Cuccinelli, II, Attorney General, Office of the Attorney General for the Commonwealth of Virginia. Mark W. DeLaquil, Earle D. Getchell, Jr., Assistant Attorney General, Office of the Attorney General for the Commonwealth of Virginia, Andrew M. Grossman, David B. Rivkin, Jr., and Robert D. Tambling, Assistant Attorney General, Office of the Attorney General for the State of Alabama, entered appearances. F. William Brownell and Peter Keisler argued the causes for Non-State Petitioners and Supporting Intervenors. With them on the briefs were Norman W. Fichthorn, Henry V. Nickel, Allison D. Wood, Charles H. Knauss, Shannon S. Broome, Timothy K. Webster, Roger R. Martella, Eric Groten, Patrick R. Day, John A. Bryson, Matthew G. Paulson, John P. Elwood, Paul D. Phillips, James A. Holtkamp, Shannon L. Goessling, Harry W. MacDougald, William H. Lewis, Jr., Ronald J. Tenpas, Gordon R. Alphonso, Edward A. Kazmarek, Chet M. Thompson, Neal J. Cabral, Scott C. Oostdyk, Richard P. Hutchison, John J. McMackin, Jr., Robin S. Conrad, Sheldon Gilbert, Michael W. Steinberg, Levi McAllister, Jeffrey A. Rosen, Robert R. Gasaway, Jeffrey Bossert Clark, William H. Burgess, Ashley C. Parrish, Cynthia A.M. Stroman, Ellen Steen,  8 Leslie Sue Ritts, Peter Glaser, Mark E. Nagle, Terry J. Satterlee, Thomas J. Grever, Margaret Claiborne Campbell, Bryon W. Kirkpatrick, Quentin Riegel, Elizabeth Gaudio, Elizabeth Henry Warner, Harry Moy Ng, Michele Marie Schoeppe, Thomas J. Ward, and Peter H. Wyckoff. Mark A. Behrens, Paul D. Clement, Matthew Dukes, Virginia L. Hudson, and David B. Salmons entered appearances. Jonathan S. Massey was on the brief for amicus curiae Municipal Gas Commission of Missouri. John G. Horne, II, Samuel B. Boxerman and Leslie A. Hulse were on the brief for amici curiae the Commonwealth of Kentucky and the American Chemistry Council in support of petitioners. Angus Macbeth entered an appearance. Amanda Shafer Berman and Perry M Rosen, Attorneys, U.S. Department of Justice, argued the causes for respondents. With them on the briefs were Howard Hoffman, Elliott Zenick, Brian Doster, and David Orlin, Counsel, U.S. Environmental Protection Agency. Thomas A. Lorenzen and Kim N. Smaczniak, Attorneys, U.S. Department of Justice, and John D. Gunter, II and Michele L. Walter, Counsel, U.S. Environmental Protection Agency, entered appearances. Sean H. Donahue and Michael J. Myers argued the causes for State and Environmental Intervenors in support of respondents. With them on the briefs were Vickie L. Patton, Pamela A. Campos, Megan Ceronsky, Petere Zalzal, Eric T. Schneiderman, Attorney General, Office of the Attorney General for the State of New York, Barbara D. Underwood, Solicitor General, Morgan A. Costello, Assistant Attorney General, Monica Wagner, Howard I. Fox, David S. Baron, Lisa Madigan, Attorney General, Office of the Attorney General for the State of Illinois, Gerald T. Karr, Assistant Attorney General, Joanne  9 Spalding, Nathan Matthews, Craig Holt Segall, Kamala D. Harris, Attorney General, Office of the Attorney General for the State of California, Kathleen A. Kenealy, Senior Assistant Attorney General, Susan Durbin, Raissa Lerner, Marc N. Melnick, and Nicholas Stern, Deputy Attorneys General, Martha Coakley, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, William L. Pardee and Carol Iancu, Assistant Attorneys General, David Doniger, Meleah Geertsma, William J. Schneider, Attorney General, Office of the Attorney General for the State of Maine, Gerald D. Ried, Assistant Attorney General, Ann B. Weeks, Helen D. Silver, Thomas J. Miller, Attorney General, Office of the Attorney General for the State of Iowa, David R. Sheridan, Assistant Attorney General, Douglas F. Gansler, Attorney General, Office of the Attorney General for the State of Maryland, Mary Raivel, Deputy Attorney General, Michael A. Delaney, Attorney General, Office of the Attorney General for the State of New Hampshire, K. Allen Brooks, Senior Assistant Attorney General, Barbara Baird, William B.Wong, Peter F. Kilmartin, Attorney General, Office of the Attorney General for the State of Rhode Island, Gregory S. Schultz, Special Assistant Attorney General, Frank Rambo, Morgan Butler, Gary K. King, Attorney General, Office of the Attorney General for the State of New Mexico, Stephen Farris, Assistant Attorney General, John Kroger, Attorney General, Office of the Attorney General for the State of Oregon, Paul Logan, Assistant Attorney-in- Charge, Roy Cooper, Attorney General, Office of the Attorney General for the State of North Carolina, and J. Allen Jernigan and Marc Bernstein, Special Deputy Attorneys General. Kenneth P. Alex and Gavin G. McCabe, Deputy Assistant Attorneys General, Office of the Attorney General for the State of California, entered appearances.  10 No. 10-1092 COALITION FOR RESPONSIBLE REGULATION, INC., ET AL., PETITIONERS v. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT LANGBOARD, INC. - MDF, ET AL., INTERVENORS Consolidated with 10-1094, 10-1134, 10-1143, 10-1144, 10-1152, 10-1156, 10-1158, 10-1159, 10-1160, 10-1161, 10-1162, 10-1163, 10-1164, 10-1166, 10-1182 On Petitions for Review of Final Actions of the Environmental Protection Agency Peter Glaser argued the cause for petitioners. With him on the briefs were John P. Elwood, Eric Groten, Patrick R. Day, John A. Bryson, Shannon L. Goessling, Harry W. MacDougald, Paul D. Phillips, James A. Holtkamp, Edward A. Kazmarek, Chet M. Thompson, Sam Kazman, Hans Bader, Gordon R. Alphonso, Richard P. Hutchison, Neal J. Cabral, Scott C. Oostdyk, Ronald J. Tenpas, Michael W. Steinberg, Levi McAllister, John J. McMackin Jr., Robin S. Conrad, Rachel L. Brand, Sheldon Gilbert, F. William Brownell, Norman W. Fichthorn, Henry V. Nickel, Allison D. Wood, Ashley C. Parrish, Cynthia A.M. Stroman, Mark E. Nagle, Michael Higgins, Ellen  11 Steen, Timothy K. Webster, Roger R. Martella, Matthew G. Paulson, Charles H. Knauss, Shannon S. Broome, Quentin Riegel, Elizabeth Gaudio, Thomas J. Ward, Harry Moy Ng, and Michele Marie Schoeppe. Greg Abbott, Attorney General, Office of the Attorney General for the State of Texas, Bill Cobb, Deputy Attorney General for Civil Litigation, Jonathan F. Mitchell, Solicitor General, J. Reed Clay Jr., Special Assistant and Senior Counsel to the Attorney General, Michael P. Murphy, Assistant Solicitor General, Luther Strange, Attorney General, Office of the Attorney General for the State of Alabama, Samuel S. Olens, Attorney General, Office of the Attorney General for the State of Georgia, John E. Hennelly, Senior Assistant Attorney General, Gary C. Rikard, Jon C. Bruning, Attorney General, Office of the Attorney General for the State of Nebraska, Katherine J. Spohn, Special Counsel to the Attorney General, Wayne K. Stenehjem, Attorney General, Office of the Attorney General for the State of North Dakota, Margaret Olson, Assistant Attorney General, Alan Wilson, Attorney General, Office of the Attorney General for the State of South Carolina, J. Emory Smith, Jr., Assistant Deputy Attorney General, Marty Jackley, Attorney General, Office of the Attorney General for the State of North Dakota, Roxanne Giedd, Chief, Civil Litigation Division, and Kenneth T. Cuccinelli, II, Attorney General, Office of the Attorney General for the Commonwealth of Virginia, were on the briefs for State Petitioners and Supporting Intervenor. Paul D. Clement, James W. Coleman, Wayne J. D'Angelo, Mark W. DeLaquil, E. Duncan Getchell Jr., Solicitor General, Office of the Attorney General for the Commonwealth of Virginia, Andrew M. Grossman, Virginia L. Hudson, David B. Rivkin Jr., and Robert D. Tambling, Assistant Attorney General, Office of the Attorney General for the State of Alabama, entered appearances.  12 Samuel B. Boxerman and Leslie A. Hulse were on the brief for amicus curiae American Chemistry Council in support of petitioners. Angus Macbeth entered an appearance. Eric G. Hostetler, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were John Hannon and Steven Silverman, Attorneys, U.S. Environmental Protection Agency. Raymond B. Ludwiszewski argued the cause for intervenors Association of Global Automakers, et al. With him on the brief were Kathleen M. Sullivan, Sanford I. Weisburst, and William B. Adams. Gavin G. McCabe, Deputy Attorney General, Office of the Attorney General for the State of California, argued the cause for intervenor State of California. On the brief were Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Senior Assistant Attorney General, Marc N. Melnick and Nicholas Stern, Deputy Attorneys General, Sean H. Donahue, Howard I. Fox, David S. Baron, Pamela Campos, Megan Ceronsky, Vickie L. Patton, Peter Zalzal, Joseph R. Biden, III, Attorney General, Office of the Attorney General for the State of Delaware, Valerie M. Satterfield, Deputy Attorney General, Thomas J. Miller, Attorney General, Office of the Attorney General for the State of Iowa, David R. Sheridan, Assistant Attorney General, Douglas F. Gansler, Attorney General, Office of the Attorney General for the State of Maryland, Roberta R. James, Assistant Attorney General, Lisa Madigan, Attorney General, Office of the Attorney General for the State of Illinois, Gerald T. Karr, Assistant Attorney General, William T. Schneider, Attorney General, Office of the Attorney General for the State of Maine, Gerald D. Reid, Assistant Attorney General, Martha Coakley, Attorney General, Office of the Attorney General for the  13 Commonwealth of Massachusetts, Carol Iancu, Tracy Triplett, and William L. Pardee, Assistant Attorneys General, Gary K. King, Attorney General, Office of the Attorney General for the State of New Mexico, Stephen R. Farris, Assistant Attorney General, John Kroger, Attorney General, Office of the Attorney General for the State of Oregon, Paul Logan, Assistant Attorney-in-Charge, William H. Sorrell, Attorney General, Office of the Attorney General for the State of Vermont, Thea J. Schwartz, Assistant Attorney General, Eric T. Schneiderman, Attorney General, Office of the Attorney General for the State of New York, Michael J. Myers and Yueh-Ru Chu, Assistant Attorneys General, Peter F. Kilmartin, Attorney General, Office of the Attorney General for the State of Rhode Island, Gregory S. Schultz, Special Assistant Attorney General, Robert M. McKenna, Attorney General, Office of the Attorney General for the State of Washington, Leslie R. Seffern, Assistant Attorney General, Christopher King, Assistant Corporation Counsel, Corporation Counsel for the City of New York, Joanne Spalding, Craig Holt Segall, David Doniger and Meleah Geertsma. Judith A. Stahl Moore, Assistant Attorney General, Office of the Attorney General for the State of New Mexico, and John D. Walke entered appearances. Richard E. Ayres, Jessica L. Olson, and Kristin L. Hines were on the brief for amicus curiae Honeywell International, Inc. in support of respondents. Richard L. Revesz, Michael A. Livermore, and Jennifer S. Rosenberg were on the brief for amicus curiae Institute for Policy Integrity at New York University School of Law in support of respondents.  14 No. 10-1167 AMERICAN CHEMISTRY COUNCIL, PETITIONER v. ENVIRONMENTAL PROTECTION AGENCY AND LISA PEREZ JACKSON, ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENTS CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, ET AL., INTERVENORS Consolidated with 10-1168, 10-1169, 10-1170, 10-1173, 10-1174, 10-1175, 10-1176, 10-1177, 10-1178, 10-1179, 10-1180 On Petitions for Review of a Final Action of the Environmental Protection Agency Timothy K. Webster, Roger R. Martella, Jr., James W. Coleman, William H. Lewis, Jr., Ronald J. Tenpas, Charles H. Knauss, Shannon S. Broome, Bryan M. Killian, and Matthew G. Paulson were on the briefs for petitioners. Peter D. Keisler, Leslie A. Hulse, and Quentin Riegel entered appearances.  15 Amanda Shafer Berman and Perry M. Rosen, Attorneys, U.S. Department of Justice, and Elliott Zenick and Howard J. Hoffman, Counsel, U.S. Environmental Protection Agency, were on the brief for respondents. Jon M. Lipshultz, Senior Counsel, U.S. Department of Justice, entered and appearance. Ann Brewster Weeks, Sean H. Donahue, Vickie Patton, Peter Zalzal, Joanne Spalding, Craig Segall, David Doniger, and Meleah Geertsma were on the brief of intervenors in support of respondents. David S. Baron, Pamela A. Campos, Colin C. O’Brien, and John D. Walke entered appearances. Vera P. Pardee, Brendan R. Cummings, and Kevin P. Bundy were on the brief for amicus curiae Center for Biological Diversity in support of respondents. Before: SENTELLE, Chief Judge; ROGERS and TATEL, Circuit Judges. Opinion for the Court filed PER CURIAM. PER CURIAM: Following the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007)—which clarified that greenhouse gases are an “air pollutant” subject to regulation under the Clean Air Act (CAA)—the Environmental Protection Agency promulgated a series of greenhouse gas-related rules. First, EPA issued an Endangerment Finding, in which it determined that greenhouse gases may “reasonably be anticipated to endanger public health or welfare.” See 42 U.S.C. § 7521(a)(1). Next, it issued the Tailpipe Rule, which set emission standards for cars and light trucks. Finally, EPA determined that the CAA requires major stationary sources of greenhouse gases to obtain construction and operating permits. But because immediate regulation of all such sources would result in overwhelming permitting burdens on permitting  16 authorities and sources, EPA issued the Timing and Tailoring Rules, in which it determined that only the largest stationary sources would initially be subject to permitting requirements. Petitioners, various states and industry groups, challenge all these rules, arguing that they are based on improper constructions of the CAA and are otherwise arbitrary and capricious. But for the reasons set forth below, we conclude: 1) the Endangerment Finding and Tailpipe Rule are neither arbitrary nor capricious; 2) EPA’s interpretation of the governing CAA provisions is unambiguously correct; and 3) no petitioner has standing to challenge the Timing and Tailoring Rules. We thus dismiss for lack of jurisdiction all petitions for review of the Timing and Tailoring Rules, and deny the remainder of the petitions. I. We begin with a brief primer on greenhouse gases. As their name suggests, when released into the atmosphere, these gases act “like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat.” Massachusetts v. EPA, 549 U.S. at 505. A wide variety of modern human activities result in greenhouse gas emissions; cars, power plants, and industrial sites all release significant amounts of these heat- trapping gases. In recent decades “[a] well-documented rise in global temperatures has coincided with a significant increase in the concentration of [greenhouse gases] in the atmosphere.” Id. at 504-05. Many scientists believe that mankind’s greenhouse gas emissions are driving this climate change. These scientists predict that global climate change will cause a host of deleterious consequences, including drought, increasingly severe weather events, and rising sea levels. The genesis of this litigation came in 2007, when the  17 Supreme Court held in Massachusetts v. EPA that greenhouse gases “unambiguous[ly]” may be regulated as an “air pollutant” under the Clean Air Act (“CAA”). Id. at 529. Squarely rejecting the contention—then advanced by EPA—that “greenhouse gases cannot be ‘air pollutants’ within the meaning of the Act,” id. at 513, the Court held that the CAA’s definition of “air pollutant” “embraces all airborne compounds of whatever stripe.” Id. at 529 (emphasis added). Moreover, because the CAA requires EPA to establish motor-vehicle emission standards for “any air pollutant . . . which may reasonably be anticipated to endanger public health or welfare,” 42 U.S.C. § 7521(a)(1) (emphasis added), the Court held that EPA had a “statutory obligation” to regulate harmful greenhouse gases. Id. at 534. “Under the clear terms of the Clean Air Act,” the Court concluded, “EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.” Id. at 533. The Court thus directed EPA to determine “whether sufficient information exists to make an endangerment finding” for greenhouse gases. Id. at 534. Massachusetts v. EPA spurred a cascading series of greenhouse gas-related rules and regulations. First, in direct response to the Supreme Court’s directive, EPA issued an Endangerment Finding for greenhouse gases. Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act (“Endangerment Finding”), 74 Fed. Reg. 66,496 (Dec. 15, 2009). The Endangerment Finding defined as a single “air pollutant” an “aggregate group of six long-lived and directly-emitted greenhouse gases” that are “well mixed” together in the atmosphere and cause global climate change: carbon dioxide, methane, nitrous oxide, hydroflourocarbons, perflourocarbons, and sulfur hexafluoride. Id. at 66,536-37. Following “common practice,” EPA measured  18 the impact of these gases on a “carbon dioxide equivalent basis,” (CO2e) which is based on the gases’ “warming effect relative to carbon dioxide . . . over a specified timeframe.” Id. at 66,519. (Using the carbon dioxide equivalent equation, for example, a mixture of X amount of nitrous oxide and Y amount of sulfur hexafluoride is expressed as Z amount of CO2e). After compiling and considering a considerable body of scientific evidence, EPA concluded that motor-vehicle emissions of these six well-mixed gases “contribute to the total greenhouse gas air pollution, and thus to the climate change problem, which is reasonably anticipated to endanger public health and welfare.” Id. at 66,499. Next, and pursuant to the CAA’s requirement that EPA establish motor-vehicle emission standards for “any air pollutant . . . which may reasonably be anticipated to endanger public health or welfare,” 42 U.S.C. § 7521(a)(1), the agency promulgated its Tailpipe Rule for greenhouse gases. Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule (“Tailpipe Rule”), 75 Fed. Reg. 25,324 (May 7, 2010). Effective January 2, 2011, the Tailpipe Rule set greenhouse gas emission standards for cars and light trucks as part of a joint rulemaking with fuel economy standards issued by the National Highway Traffic Safety Administration (NHTSA). Id. at 25,326. Under EPA’s longstanding interpretation of the CAA, the Tailpipe Rule automatically triggered regulation of stationary greenhouse gas emitters under two separate sections of the Act. The first, the Prevention of Significant Deterioration of Air Quality (PSD) program, requires state-issued construction permits for certain types of stationary sources—for example, iron and steel mill plants—if they have the potential to emit over 100 tons per year (tpy) of “any air pollutant.” See 42 U.S.C. § 7475; 7479(1). All other stationary sources are subject to PSD  19 permitting if they have the potential to emit over 250 tpy of “any air pollutant.” Id. § 7479(1). The second provision, Title V, requires state-issued operating permits for stationary sources that have the potential to emit at least 100 tpy of “any air pollutant.” Id. § 7602(j). EPA has long interpreted the phrase “any air pollutant” in both these provisions to mean any air pollutant that is regulated under the CAA. See Requirements for Preparation, Adoption, and Submittal of Implementation Plans; Approval and Promulgation of Implementation Plans (“1980 Implementation Plan Requirements”), 45 Fed. Reg. 52,676, 52,711 (Aug. 7, 1980) (PSD program); Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule (“Tailoring Rule”), 75 Fed. Reg. 31,514, 31,553-54 (June 3, 2010) (discussing history of Title V regulation and applicability). And once the Tailpipe Rule set motor-vehicle emission standards for greenhouse gases, they became a regulated pollutant under the Act, requiring PSD and Title V greenhouse permitting. Acting pursuant to this longstanding interpretation of the PSD and Title V programs, EPA issued two rules phasing in stationary source greenhouse gas regulation. First, in the Timing Rule, EPA concluded that an air pollutant becomes “subject to regulation” under the Clean Air Act—and thus subject to PSD and Title V permitting—only once a regulation requiring control of that pollutant takes effect. Reconsideration of Interpretation of Regulations That Determine Pollutants Covered by Clean Air Act Permitting Programs (“Timing Rule”), 75 Fed. Reg. 17,004 (Apr. 2, 2010). Therefore, EPA concluded, major stationary emitters of greenhouse gases would be subject to PSD and Title V permitting regulations on January 2, 2011—the date on which the Tailpipe Rule became effective, and thus, the date when greenhouse gases first became regulated under the CAA. Id. at 17,019.  20 Next, EPA promulgated the Tailoring Rule. In the Tailoring Rule, EPA noted that greenhouse gases are emitted in far greater volumes than other pollutants. Indeed, millions of industrial, residential, and commercial sources exceed the 100/250 tpy statutory emissions threshold for CO2e. Tailoring Rule, 75 Fed. Reg. at 31,534-36. Immediately adding these sources to the PSD and Title V programs would, EPA predicted, result in tremendous costs to industry and state permitting authorities. See id. As a result, EPA announced that it was “relieving overwhelming permitting burdens that would, in the absence of this rule, fall on permitting authorities and sources.” Id. at 31,516. Departing from the CAA’s 100/250 tpy emissions threshold, the Tailoring Rule provided that only the largest sources—those exceeding 75,000 or 100,000 tpy CO2e, depending on the program and project—would initially be subject to greenhouse gas permitting. Id. at 31,523. (The Tailoring Rule further provided that regulated sources must also emit greenhouse gases at levels that exceed the 100/250 tpy emissions threshold on a mass basis. That is, they must emit over 100/250 tpy of actual pollutants, in addition to exceeding the 75,000/100,000 tpy carbon dioxide equivalent. Id. at 31,523.) A number of groups—including states and regulated industries—filed petitions for review of EPA’s greenhouse gas regulations, contending that the agency misconstrued the CAA and otherwise acted arbitrarily and capriciously. This appeal consolidates the petitions for review of the four aforementioned rules: the Endangerment Finding, the Tailpipe Rule, the Timing Rule, and the Tailoring Rule. “The Clean Air Act empowers us to reverse the Administrator’s action in rulemaking if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.’” Med. Waste Inst. & Energy Recovery  21 Council v. EPA, 645 F.3d 420, 424 (D.C. Cir. 2011) (quoting 42 U.S.C. § 7607(d)(9)(A)). Questions of statutory interpretation are governed by the familiar Chevron two-step: “First . . . if the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). But “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843. This opinion proceeds in several steps. Part II explains why the Endangerment Finding was neither arbitrary nor capricious, while Part III does the same for the Tailpipe Rule. Turning to stationary source regulation, Part IV examines whether any petitioners may timely challenge EPA’s longstanding interpretation of the PSD statute. Because we conclude that they may, Part V addresses the merits of their statutory arguments, and explains why EPA’s interpretation of the CAA was compelled by the statute. Next, Part VI explains why petitioners lack standing to challenge the Timing and Tailoring Rules themselves. Finally, Part VII disposes of several arguments that have nothing to do with the rules under review, and thus are not properly before us. II. We turn first to State and Industry Petitioners’ challenges to the Endangerment Finding, the first of the series of rules EPA issued after the Supreme Court remanded Massachusetts v. EPA. In the decision ordering the remand, the Supreme Court held that EPA had failed in its statutory obligations when it “offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change.”  22 Massachusetts v. EPA, 549 U.S. at 534. On remand, EPA compiled a substantial scientific record, which is before us in the present review, and determined that “greenhouse gases in the atmosphere may reasonably be anticipated both to endanger public health and to endanger public welfare.” Endangerment Finding, 74 Fed. Reg. at 66,497. EPA went on to find that motor-vehicle emissions of greenhouse gases “contribute to the total greenhouse gas air pollution, and thus to the climate change problem, which is reasonably anticipated to endanger public health and welfare.” Id. at 66,499. State and Industry Petitioners challenge several aspects of EPA’s decision, including (1) EPA’s interpretation of CAA § 202(a)(1), which sets out the endangerment-finding standard; (2) the adequacy of the scientific record supporting the Endangerment Finding; (3) EPA’s decision not to “quantify” the risk of endangerment to public health or welfare created by climate change; (4) EPA’s choice to define the “air pollutant” at issue as an aggregate of six greenhouse gases; (5) EPA’s failure to consult its Science Advisory Board before issuing the Endangerment Finding; and (6) EPA’s denial of all petitions for reconsideration of the Endangerment Finding. We ultimately conclude that the Endangerment Finding is consistent with Massachusetts v. EPA and the text and structure of the CAA, and is adequately supported by the administrative record. A. Industry Petitioners contend that EPA improperly interpreted CAA § 202(a)(1) as restricting the Endangerment Finding to a science-based judgment devoid of considerations of policy concerns and regulatory consequences. They assert that CAA § 202(a)(1) requires EPA to consider, e.g., the benefits of activities that require greenhouse gas emissions, the effectiveness of emissions regulation triggered by the  23 Endangerment Finding, and the potential for societal adaptation to or mitigation of climate change. They maintain that eschewing those considerations also made the Endangerment Finding arbitrary and capricious. These contentions are foreclosed by the language of the statute and the Supreme Court’s decision in Massachusetts v. EPA. Section 202(a) of the CAA states in relevant part that EPA’s Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. 42 U.S.C. § 7521(a)(1). This language requires that the endangerment evaluation “relate to whether an air pollutant ‘cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.’” Massachusetts v. EPA, 549 U.S. at 532–33. At bottom, § 202(a)(1) requires EPA to answer only two questions: whether particular “air pollution”—here, greenhouse gases—“may reasonably be anticipated to endanger public health or welfare,” and whether motor-vehicle emissions “cause, or contribute to” that endangerment. These questions require a “scientific judgment” about the potential risks greenhouse gas emissions pose to public health or welfare—not policy discussions. Massachusetts v. EPA, 549 U.S. at 534. In Massachusetts v. EPA, the Supreme Court rebuffed an attempt by EPA itself to inject considerations of  24 policy into its decision. At the time, EPA had “offered a laundry list of reasons not to regulate” greenhouse gases, including that a number of voluntary Executive Branch programs already provide an effective response to the threat of global warming, that regulating greenhouse gases might impair the President’s ability to negotiate with “key developing nations” to reduce emissions, and that curtailing motor-vehicle emissions would reflect “an inefficient, piecemeal approach to address the climate change issue.” Id. at 533 (citations omitted). The Court noted that “these policy judgments . . . have nothing to do with whether greenhouse gas emissions contribute to climate change. Still less do they amount to a reasoned justification for declining to form a scientific judgment.” Id. at 533–34. In the Court’s view, EPA’s policy- based explanations contained “no reasoned explanation for [EPA’s] refusal to decide” the key part of the endangerment inquiry: “whether greenhouse gases cause or contribute to climate change.” Id. at 534. As in Massachusetts v. EPA, a “laundry list of reasons not to regulate” simply has “nothing to do with whether greenhouse gas emissions contribute to climate change.” Id. at 533–34. The additional exercises State and Industry Petitioners would have EPA undertake—e.g., performing a cost-benefit analysis for greenhouse gases, gauging the effectiveness of whatever emission standards EPA would enact to limit greenhouse gases, and predicting society’s adaptive response to the dangers or harms caused by climate change—do not inform the “scientific judgment” that § 202(a)(1) requires of EPA. Instead of focusing on the question whether greenhouse gas emissions may reasonably be anticipated to endanger public health or welfare, the factors State and Industry Petitioners put forth only address  25 what might happen were EPA to answer that question in the affirmative. As EPA stated in the Endangerment Finding, such inquiries “muddle the rather straightforward scientific judgment about whether there may be endangerment by throwing the potential impact of responding to the danger into the initial question.” 74 Fed. Reg. at 66,515. To be sure, the subsection following § 202(a)(1), § 202(a)(2), requires that EPA address limited questions about the cost of compliance with new emission standards and the availability of technology for meeting those standards, see infra Part III, but these judgments are not part of the § 202(a)(1) endangerment inquiry. The Supreme Court made clear in Massachusetts v. EPA that it was not addressing the question “whether policy concerns can inform EPA’s actions in the event that it makes such a finding,” 549 U.S. at 534–35, but that policy concerns were not part of the calculus for the determination of the endangerment finding in the first instance. The Supreme Court emphasized that it was holding “that EPA must ground its reasons for action or inaction in the statute.” Id. at 535. The statute speaks in terms of endangerment, not in terms of policy, and EPA has complied with the statute. State and Industry Petitioners insist that because statutes should be interpreted to avoid absurd results, EPA should have considered at least the “absurd” consequences that would follow from an endangerment finding for greenhouse gases. Specifically: having made an endangerment finding, EPA will proceed to promulgate emission standards under § 202(a)(1). Issuing those standards triggers regulation—under EPA’s PSD and Title V programs—of stationary sources that emit greenhouse gases at levels above longstanding statutory thresholds. Because greenhouse gases are emitted in much higher volumes than other air pollutants, hundreds of thousands of small stationary sources would exceed those thresholds. This would subject those sources to PSD and Title V permitting  26 requirements despite what Petitioners claim was Congress’s clear intent that the requirements apply only to large industrial sources. Petitioners assert that even EPA believed such overbroad regulation to be an absurd result, which it attempted to rectify by adopting the Tailoring Rule to raise the statutory thresholds, see infra Part VI. However “absurd” Petitioners consider this consequence, though, it is still irrelevant to the endangerment inquiry. That EPA adjusted the statutory thresholds to accommodate regulation of greenhouse gases emitted by stationary sources may indicate that the CAA is a regulatory scheme less-than- perfectly tailored to dealing with greenhouse gases. But the Supreme Court has already held that EPA indeed wields the authority to regulate greenhouse gases under the CAA. See Massachusetts v. EPA. The plain language of § 202(a)(1) of that Act does not leave room for EPA to consider as part of the endangerment inquiry the stationary-source regulation triggered by an endangerment finding, even if the degree of regulation triggered might at a later stage be characterized as “absurd.” B. State and Industry Petitioners next challenge the adequacy of the scientific record underlying the Endangerment Finding, objecting to both the type of evidence upon which EPA relied and EPA’s decision to make an Endangerment Finding in light of what Industry Petitioners view as significant scientific uncertainty. Neither objection has merit. 1. As an initial matter, State and Industry Petitioners question EPA’s reliance on “major assessments” addressing greenhouse gases and climate change issued by the Intergovernmental Panel  27 on Climate Change (IPCC), the U.S. Global Climate Research Program (USGCRP), and the National Research Council (NRC). Endangerment Finding, 74 Fed. Reg. at 66,510–11. These peer- reviewed assessments synthesized thousands of individual studies on various aspects of greenhouse gases and climate change and drew “overarching conclusions” about the state of the science in this field. Id. at 66,511. The assessments provide data and information on, inter alia, “the amount of greenhouse gases being emitted by human activities”; their continued accumulation in the atmosphere; the resulting observed changes to Earth’s energy balance, temperature and climate at global and regional levels, and other “climate-sensitive sectors and systems of the human and natural environment”; the extent to which these changes “can be attributed to human-induced buildup of atmospheric greenhouse gases”; “future projected climate change”; and “projected risks and impacts to human health, society and the environment.”Id. at 66,510–11. State and Industry Petitioners assert that EPA improperly “delegated” its judgment to the IPCC, USGCRP, and NRC by relying on these assessments of climate-change science. See U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 566 (D.C. Cir. 2004). This argument is little more than a semantic trick. EPA did not delegate, explicitly or otherwise, any decision-making to any of those entities. EPA simply did here what it and other decision- makers often must do to make a science-based judgment: it sought out and reviewed existing scientific evidence to determine whether a particular finding was warranted. It makes no difference that much of the scientific evidence in large part consisted of “syntheses” of individual studies and research. Even individual studies and research papers often synthesize past work in an area and then build upon it. This is how science works. EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.  28 Moreover, it appears from the record that EPA used the assessment reports not as substitutes for its own judgment but as evidence upon which it relied to make that judgment. EPA evaluated the processes used to develop the various assessment reports, reviewed their contents, and considered the depth of the scientific consensus the reports represented. Based on these evaluations, EPA determined the assessments represented the best source material to use in deciding whether greenhouse gas emissions may be reasonably anticipated to endanger public health or welfare. Endangerment Finding, 74 Fed. Reg. at 66,510–11. It then reviewed those reports along with comments relevant to the scientific considerations involved to determine whether the evidence warranted an endangerment finding for greenhouse gases as it was required to do under the Supreme Court’s mandate in Massachusetts v. EPA. 2. Industry Petitioners also assert that the scientific evidence does not adequately support the Endangerment Finding. As we have stated before in reviewing the science-based decisions of agencies such as EPA, “[a]lthough we perform a searching and careful inquiry into the facts underlying the agency’s decisions, we will presume the validity of agency action as long as a rational basis for it is presented.” Am. Farm Bureau Fed’n v. EPA, 559 F.3d 512, 519 (D.C. Cir. 2009) (internal quotation marks omitted). In so doing, “we give an extreme degree of deference to the agency when it is evaluating scientific data within its technical expertise.” Id. (internal quotation marks omitted). The body of scientific evidence marshaled by EPA in support of the Endangerment Finding is substantial. EPA’s scientific evidence of record included support for the proposition  29 that greenhouse gases trap heat on earth that would otherwise dissipate into space; that this “greenhouse effect” warms the climate; that human activity is contributing to increased atmospheric levels of greenhouse gases; and that the climate system is warming. Based on this scientific record, EPA made the linchpin finding: in its judgment, the “root cause” of the recently observed climate change is “very likely” the observed increase in anthropogenic greenhouse gas emissions. Endangerment Finding, 74 Fed. Reg. at 66,518. EPA found support for this finding in three lines of evidence. First, it drew upon our “basic physical understanding” of the impacts of various natural and manmade changes on the climate system. For instance, EPA relied on evidence that the past half-century of warming has occurred at a time when natural forces such as solar and volcanic activity likely would have produced cooling. Endangerment Finding, Response to Comments (RTC) Vol. 3, at 20. Other evidence supports EPA’s conclusion that the observed warming pattern—warming of the bottommost layer of the atmosphere and cooling immediately above it—is consistent with greenhouse-gas causation. Id. EPA further relied upon evidence of historical estimates of past climate change, supporting EPA’s conclusion that global temperatures over the last half-century are unusual. Endangerment Finding, 74 Fed. Reg. at 66,518. Scientific studies upon which EPA relied place high confidence in the assertion that global mean surface temperatures over the last few decades are higher than at any time in the last four centuries. Technical Support Document for the Endangerment Finding (TSD), at 31. These studies also show, albeit with significant uncertainty, that temperatures at many individual locations were higher over the last twenty-five years than during any period of comparable length since 900 A.D. Id.  30 For its third line of evidence that anthropogenic emissions of greenhouse gases spurred the perceived warming trend, EPA turned to computer-based climate-model simulations. Scientists have used global climate models built on basic principles of physics and scientific knowledge about the climate to try to simulate the recent climate change. These models have only been able to replicate the observed warming by including anthropogenic emissions of greenhouse gases in the simulations. Endangerment Finding, 74 Fed. Reg. at 66,523. To recap, EPA had before it substantial record evidence that anthropogenic emissions of greenhouse gases “very likely” caused warming of the climate over the last several decades. EPA further had evidence of current and future effects of this warming on public health and welfare. Relying again upon substantial scientific evidence, EPA determined that anthropogenically induced climate change threatens both public health and public welfare. It found that extreme weather events, changes in air quality, increases in food- and water-borne pathogens, and increases in temperatures are likely to have adverse health effects. Id. at 66,497–98. The record also supports EPA’s conclusion that climate change endangers human welfare by creating risk to food production and agriculture, forestry, energy, infrastructure, ecosystems, and wildlife. Substantial evidence further supported EPA’s conclusion that the warming resulting from the greenhouse gas emissions could be expected to create risks to water resources and in general to coastal areas as a result of expected increase in sea level. Id. at 66,498. Finally, EPA determined from substantial evidence that motor-vehicle emissions of greenhouse gases contribute to climate change and thus to the endangerment of public health and welfare. Industry Petitioners do not find fault with much of the substantial record EPA amassed in support of the Endangerment  31 Finding. Rather, they contend that the record evidences too much uncertainty to support that judgment. But the existence of some uncertainty does not, without more, warrant invalidation of an endangerment finding. If a statute is “precautionary in nature” and “designed to protect the public health,” and the relevant evidence is “difficult to come by, uncertain, or conflicting because it is on the frontiers of scientific knowledge,” EPA need not provide “rigorous step-by-step proof of cause and effect” to support an endangerment finding. Ethyl Corp. v. EPA, 541 F.2d 1, 28 (D.C. Cir. 1976). As we have stated before, “Awaiting certainty will often allow for only reactive, not preventive, regulation.” Id. at 25. Congress did not restrict EPA to remedial regulation when it enacted CAA § 202(a). That section mandates that EPA promulgate new emission standards if it determines that the air pollution at issue “may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 7521(a)(1). This language requires a precautionary, forward-looking scientific judgment about the risks of a particular air pollutant, consistent with the CAA’s “precautionary and preventive orientation.” Lead Indus. Ass’n, Inc. v. EPA, 647 F.2d 1130, 1155 (D.C. Cir. 1980). Requiring that EPA find “certain” endangerment of public health or welfare before regulating greenhouse gases would effectively prevent EPA from doing the job Congress gave it in § 202(a)—utilizing emission standards to prevent reasonably anticipated endangerment from maturing into concrete harm. Cf. id. (“[R]equiring EPA to wait until it can conclusively demonstrate that a particular effect is adverse to health before it acts is inconsistent with both the [CAA]’s precautionary and preventive orientation and the nature of the Administrator's statutory responsibilities. Congress provided that the Administrator is to use his judgment in setting air quality standards precisely to permit him to act in the face of uncertainty.”).  32 In Massachusetts v. EPA the Supreme Court confirmed that EPA may make an endangerment finding despite lingering scientific uncertainty. Indeed, the Court held that the existence of “some residual uncertainty” did not excuse EPA’s decision to decline to regulate greenhouse gases. Massachusetts v. EPA, 549 U.S. at 534. To avoid regulating emissions of greenhouse gases, EPA would need to show “scientific uncertainty . . . so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming.” Id. Clearly, then, EPA may issue an endangerment finding even while the scientific record still contains at least “some residual uncertainty.” Industry Petitioners have shown no more than that. In the end, Petitioners are asking us to re-weigh the scientific evidence before EPA and reach our own conclusion. This is not our role. As with other reviews of administrative proceedings, we do not determine the convincing force of evidence, nor the conclusion it should support, but only whether the conclusion reached by EPA is supported by substantial evidence when considered on the record as a whole. See, e.g., New York v. EPA, 413 F.3d 3, 30 (D.C. Cir. 2005). When EPA evaluates scientific evidence in its bailiwick, we ask only that it take the scientific record into account “in a rational manner.” Am. Petroleum Inst. v. Costle, 665 F.2d 1176, 1187 (D.C. Cir. 1981). Industry Petitioners have not shown that EPA failed to do so here. C. State Petitioners, here led by Texas, contend that the Endangerment Finding is arbitrary and capricious because EPA did not “define,” “measure,” or “quantify” either the atmospheric concentration at which greenhouse gases endanger public health or welfare, the rate or type of climate change that it anticipates will endanger public health or welfare, or the risks  33 or impacts of climate change. According to Texas, without defining these thresholds and distinguishing “safe” climate change from climate change that endangers, EPA’s Endangerment Finding is just a “subjective conviction.” It is true that EPA did not provide a quantitative threshold at which greenhouse gases or climate change will endanger or cause certain impacts to public health or welfare. The text of CAA § 202(a)(1) does not require that EPA set a precise numerical value as part of an endangerment finding. Quite the opposite; the § 202(a)(1) inquiry necessarily entails a case-by- case, sliding-scale approach to endangerment because “[d]anger . . . is not set by a fixed probability of harm, but rather is composed of reciprocal elements of risk and harm, or probability and severity.” Ethyl, 541 F.2d at 18. EPA need not establish a minimum threshold of risk or harm before determining whether an air pollutant endangers. It may base an endangerment finding on “a lesser risk of greater harm . . . or a greater risk of lesser harm” or any combination in between. Id. Ethyl is instructive. There, EPA made an endangerment finding for airborne lead. During its endangerment inquiry, EPA initially tried to do what Texas asks of it here: find a specific concentration of the air pollutant below which it would be considered “safe” and above which it would endanger public health. Id. at 56. However, EPA abandoned that approach because it failed to account for “the wide variability of dietary lead intake” and lacked predictive value. EPA substituted a “more qualitative” approach, which relied on “predictions based on uncertain data” along with clinical studies. Id. at 56–57. This court upheld the endangerment finding that used that qualitative approach despite the lack of a specific endangerment “threshold.” In its essence, Texas’s call for quantification of the  34 endangerment is no more than a specialized version of Industry Petitioners’ claim that the scientific record contains too much uncertainty to find endangerment. EPA relied on a substantial record of empirical data and scientific evidence, making many specific and often quantitative findings regarding the impacts of greenhouse gases on climate change and the effects of climate change on public health and welfare. Its failure to distill this ocean of evidence into a specific number at which greenhouse gases cause “dangerous” climate change is a function of the precautionary thrust of the CAA and the multivariate and sometimes uncertain nature of climate science, not a sign of arbitrary or capricious decision-making. D. EPA defined both the “air pollution” and the “air pollutant” that are the subject of the Endangerment Finding as an aggregate of six greenhouse gases, which EPA called “well mixed greenhouse gases”: carbon dioxide (CO2), methane (CH4), nitrous oxide (N 2 O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6). Industry Petitioners argue that EPA’s decision to include PFCs and SF6 in this group of greenhouse gases was arbitrary and capricious primarily because motor vehicles generally do not emit these two gases. No petitioner for review of the Endangerment Finding has established standing to make this argument. Industry Petitioners concede that EPA’s decision to regulate PFCs and SF6 along with the other four greenhouse gases does not injure any motor- vehicle-related petitioner. Nor has any non-motor-vehicle- related petitioner shown an injury-in-fact resulting from EPA’s inclusion of these two gases in the six-gas amalgam of “well- mixed greenhouse gases.” At oral argument, Industry Petitioners asserted for the first time that certain utility  35 companies—members of associations that petitioned for review of the Endangerment Finding—own utility transformers that emit SF6. However, they never demonstrated or even definitively asserted that any of these companies would not be subject to regulation or permitting requirements but for EPA’s decision to include SF6 as part of the “well-mixed greenhouse gases” that are the subject of the Endangerment Finding. See Sierra Club v. EPA, 292 F.3d 895, 898–900 (D.C. Cir. 2002) (requiring that a petitioner seeking review of agency action demonstrate standing by affidavit or other evidence if standing is not “self-evident” from the administrative record). Absent a petitioner with standing to challenge EPA’s inclusion of PFCs and SF6 in the “air pollution” at issue, this court lacks jurisdiction to address the merits of Industry Petitioners’ contention. E. EPA did not submit the Endangerment Finding for review by its Science Advisory Board (SAB). Industry Petitioners claim that EPA’s failure to do so violates its mandate to “make available” to the SAB “any proposed criteria document, standard, limitation, or regulation under the Clean Air Act” at the time it provides the same “to any other Federal agency for formal review and comment.” 42 U.S.C. § 4365(c)(1); see Am. Petroleum Inst., 665 F.2d at 1188. To begin with, it is not clear that EPA provided the Endangerment Finding “to any other Federal agency for formal review and comment,” which triggers this duty to submit a regulation to the SAB. EPA only submitted a draft of the Endangerment Finding to the Office of Information and Regulatory Affairs pursuant to Executive Order 12,866. EPA contends that this was merely an informal review process, not “formal review and comment”—at least when compared with a  36 statutory review-and-comment requirement in which other agencies are given the opportunity to provide written comments about the impacts of a proposed regulation on the reviewing agency’s universe of responsibility. See, e.g., 49 U.S.C. § 32902(j). Industry Petitioners failed to respond to this contention. In any event, even if EPA violated its mandate by failing to submit the Endangerment Finding to the SAB, Industry Petitioners have not shown that this error was “of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made.” 42 U.S.C. § 7607(d)(8); see Am. Petroleum Inst., 665 F.2d at 1188–89 (applying this standard to EPA’s failure to submit an ozone standard to the SAB). F. Lastly, State Petitioners maintain that EPA erred by denying all ten petitions for reconsideration of the Endangerment Finding. Those petitions asserted that internal e- mails and documents released from the University of East Anglia’s Climate Research Unit (CRU)—a contributor to one of the global temperature records and to the IPCC’s assessment report—undermined the scientific evidence supporting the Endangerment Finding by calling into question whether the IPCC scientists adhered to “best science practices.” EPA’s Denial of the Petitions To Reconsider the Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act (“Reconsideration Denial”), 75 Fed. Reg. 49,556, 49,556–57 (Aug. 13, 2010). The petitions pointed to factual mistakes in the IPCC’s assessment report  37 resulting from the use of non-peer-reviewed studies and several scientific studies postdating the Endangerment Finding as evidence that the Endangerment Finding was flawed. Id. On August 13, 2010, EPA issued a denial of the petitions for reconsideration accompanied by a 360-page response to petitions (RTP). Id. at 49,556. It determined that the petitions did not provide substantial support for the argument that the Endangerment Finding should be revised. According to EPA, the petitioners’ claims based on the CRU documents were exaggerated, contradicted by other evidence, and not a material or reliable basis for questioning the credibility of the body of science at issue; two of the factual inaccuracies alleged in the petitions were in fact mistakes, but both were “tangential and minor” and did not change the key IPCC conclusions; and the new scientific studies raised by some petitions were either already considered by EPA, misinterpreted or misrepresented by petitioners, or put forth without acknowledging other new studies. Id. at 49,557–58. 1. EPA is required to convene a proceeding for reconsideration of a rule if a party raising an objection to the rule can demonstrate to the Administrator that it was impracticable to raise such objection within such time or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule. 42 U.S.C. § 7607(d)(7)(B). For the purpose of determining whether to commence reconsideration of a rule, EPA considers  38 an objection to be of “central relevance to the outcome” of that rule “if it provides substantial support for the argument that the regulation should be revised.” Reconsideration Denial, 75 Fed. Reg. at 49,561. State Petitioners have not provided substantial support for their argument that the Endangerment Finding should be revised. State Petitioners point out that some studies the IPCC referenced in its assessment were not peer-reviewed, but they ignore the fact that (1) the IPCC assessment relied on around 18,000 studies that were peer-reviewed, and (2) the IPCC’s report development procedures expressly permitted the inclusion in the assessment of some non-peer-reviewed studies (“gray” literature). Moreover, as EPA determined, the limited inaccurate information developed from the gray literature does not appear sufficient to undermine the substantial overall evidentiary support for the Endangerment Finding. State Petitioners have not, as they assert, uncovered a “pattern” of flawed science. Only two of the errors they point out seem to be errors at all, and EPA relied on neither in making the Endangerment Finding. First, as State Petitioners assert, the IPCC misstated the percentage of the Netherlands that is below sea level, a statistic that was used for background information. However, the IPCC corrected the error, and EPA concluded that the error was “minor and had no impact,” and the Endangerment Finding did not refer to the statistic in any way. Id. at 49,576–77. Second, the IPCC acknowledged misstating the rate at which Himalayan glaciers are receding. EPA also did not rely on that projection in the Endangerment Finding. Id. at 49,577. State Petitioners also contend that a new study contradicts EPA’s reliance on a projection of more violent storms in the future as a result of climate change, but the study they cite only  39 concerns past trends, not projected future storms. The record shows that EPA considered the new studies on storm trends and concluded that the studies were consistent with the Endangerment Finding. In sum, State Petitioners have failed to show that these isolated “errors” provide substantial support for their argument to overturn the Endangerment Finding. 2. State Petitioners’ further argument that EPA erred in denying reconsideration fails as well. These Petitioners claim EPA erred by failing to provide notice and comment before denying the petitions for reconsideration because EPA’s inclusion of a 360-page RTP amounted to a revision of the Endangerment Finding, and revision of a rule requires notice and comment. The RTP, however, appears to be exactly what EPA called it—a response to the petitions for reconsideration, not a revision of the Endangerment Finding itself. EPA certainly may deny petitions for reconsideration of a rule and provide an explanation for that denial, including by providing support for that decision, without triggering a new round of notice and comment for the rule. III. State and Industry Petitioners contend that in promulgating the Tailpipe Rule, EPA relied on an improper interpretation of CAA § 202(a)(1), and was arbitrary and capricious in failing to justify and consider the cost impacts of its conclusion that the Rule triggers stationary-source regulation under the PSD and Title V provisions. They do not challenge the substantive standards of the Rule and focus principally on EPA’s failure to consider the cost of stationary-source permitting requirements triggered by the Rule. Positing an absurd-consequences scenario, Petitioners maintain that if EPA had considered these  40 costs it “would have been forced” to exclude carbon dioxide from the scope of the emission standards, to decline to issue greenhouse gas emission standards at all, or “to interpret the statute so as not to automatically trigger stationary source regulation.” Industry Tailpipe Br. 17; see also Industry Tailpipe Reply Br. 8–9. Both the plain text of Section 202(a) and precedent refute Petitioners’ contentions. A. Section 202(a)(1) provides: The Administrator shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. 42 U.S.C. § 7521(a)(1). By employing the verb “shall,” Congress vested a non-discretionary duty in EPA. See Sierra Club v. Jackson, 648 F.3d 848, 856 (D.C. Cir. 2011). The plain text of Section 202(a)(1) thus refutes Industry Petitioners’ contention that EPA had discretion to defer issuance of motor- vehicle emission standards on the basis of stationary-source costs. Neither the adjacent text nor the statutory context otherwise condition this clear “language of command,” id. (citation omitted). Having made the Endangerment Finding pursuant to CAA § 202(a), 42 U.S.C. § 7521(a), EPA lacked discretion to defer promulgation of the Tailpipe Rule on the basis of its trigger of stationary-source permitting requirements under the PSD program and Title V. The Supreme Court’s decision in Massachusetts v. EPA  41 compels this interpretation of Section 202(a)(1). “If EPA makes a finding of endangerment, the Clean Air Act requires the [a]gency to regulate emissions of the deleterious pollutant from new motor vehicles.” 549 U.S. at 533. “Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.” Id. (emphasis added). In the Endangerment Finding, EPA determined that motor-vehicle emissions contribute to greenhouse gas emissions that, in turn, endanger the public health and welfare; the agency therefore was in no position to “avoid taking further action,” id., by deferring promulgation of the Tailpipe Rule. Given the non-discretionary duty in Section 202(a)(1) and the limited flexibility available under Section 202(a)(2), which this court has held relates only to the motor-vehicle industry, see infra Part III.C, EPA had no statutory basis on which it could “ground [any] reasons for” further inaction, Massachusetts v. EPA, 549 U.S. at 535. The plain text of Section 202(a)(1) also negates Industry Petitioners’ contention that EPA had discretion to defer the Tailpipe Rule on the basis of NHTSA’s authority to regulate fuel economy. The Supreme Court dismissed a near-identical argument in Massachusetts v. EPA, rejecting the suggestion that EPA could decline to regulate carbon-dioxide emissions because the Department of Transportation (DOT) had independent authority to set fuel-efficiency standards. Id. at 531–32. “[T]hat DOT sets mileage standards in no way licenses EPA to shirk its environmental responsibilities,” because EPA’s duty to promulgate emission standards derives from “a statutory obligation wholly independent of DOT’s mandate to promote energy efficiency.” Id. at 532. Just as EPA lacks authority to refuse to regulate on the grounds of NHTSA’s regulatory authority, EPA cannot defer regulation on that basis. A  42 comparison of the relevant statutes bolsters this conclusion. Compare 49 U.S.C. § 32902(f) (“When deciding maximum feasible average fuel economy . . . , the Secretary of Transportation shall consider . . . the effect of other motor vehicle standards of the Government on fuel economy . . . .”), with 42 U.S.C. § 7521(a) (including no such direction). Nor, applying the same reasoning, was EPA required to treat NHTSA’s proposed regulations as establishing the baseline for the Tailpipe Rule. Furthermore, the Tailpipe Rule provides benefits above and beyond those resulting from NHTSA’s fuel- economy standards. See, e.g., Tailpipe Rule, 75 Fed. Reg. at 25,490 (Table III.F.1-2), 25,636 (Table IV.G.1-4). Petitioners’ related contentions regarding the PSD permitting triggers are addressed in Part V. B. Turning to the APA, Industry Petitioners contend, relying on Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 525 (D.C. Cir. 1983), and Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976), that EPA failed both to justify the Tailpipe Rule in terms of the risk identified in the Endangerment Finding and to show that the proposed standards “would meaningfully mitigate the alleged endangerment,” Industry Tailpipe Br. 35. Instead, they maintain that EPA “separated these two integral steps,” id. at 11, and “concluded that it had no obligation to show . . . ‘the resulting emissions control strategy or strategies will have some significant degree of harm reduction or effectiveness in addressing the endangerment,’” id. at 11–12 (quoting Endangerment Finding, 74 Fed. Reg. at 66,508). These contentions fail. Petitioners’ reliance on Small Refiner, 705 F.2d at 525, is misplaced; the court there laid out guidelines for assessing  43 EPA’s discretion to set numerical standards and Petitioners do not challenge the substance of the emission standards. In Ethyl, 541 F.2d at 7, the court assessed the scope of EPA’s authority, under CAA § 211(c)(1), 42 U.S.C. § 1857f-6c(c)(1) (1970) (currently codified as amended at 42 U.S.C. § 7545(c)(1)), to regulate lead particulate in motor-vehicle emissions. The court rejected the argument that the regulations had to “be premised upon factual proof of actual harm,” Ethyl, 541 F.2d at 12, and instead deferred to EPA’s reasonable interpretation that regulations could be based on a “significant risk of harm,” id. at 13. Nothing in Ethyl implied that EPA’s authority to regulate was conditioned on evidence of a particular level of mitigation; only a showing of significant contribution was required. EPA made such a determination in the Endangerment Finding, concluding that vehicle emissions are a significant contributor to domestic greenhouse gas emissions. See, e.g., Endangerment Finding, 74 Fed. Reg. at 66,499. Further, in the preamble to the Tailpipe Rule itself, EPA found that the emission standards would result in meaningful mitigation of greenhouse gas emissions. For example, EPA estimated that the Rule would result in a reduction of about 960 million metric tons of CO2e emissions over the lifetime of the model year 2012–2016 vehicles affected by the new standards. See Tailpipe Rule, 75 Fed. Reg. at 25,488–90. Other precedent is likewise unhelpful to Petitioners: in Chemical Manufacturers Association v. EPA, 217 F.3d 861, 866 (D.C. Cir. 2000), “nothing in the record” indicated that the challenged regulatory program would “directly or indirectly, further the Clean Air Act’s environmental goals,” whereas here the record is fulsome, see supra Part II. C. Petitioners also invoke Section 202(a)(2) as support for their contention that EPA must consider stationary-source costs in the Tailpipe Rule. Section 202(a)(2) provides:  44 Any regulation prescribed under paragraph (1) of this subsection . . . shall take effect after such period as the Administrator finds necessary to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance within such period. 42 U.S.C. § 7521(a)(2). State Petitioners maintain the reference to compliance costs encompasses those experienced by stationary sources under the PSD program, while Industry Petitioners maintain stationary-source costs are a relevant factor in EPA’s Section 202(a)(1) rulemaking. This court, however, has held that the Section 202(a)(2) reference to compliance costs encompasses only the cost to the motor-vehicle industry to come into compliance with the new emission standards, and does not mandate consideration of costs to other entities not directly subject to the proposed standards. See Motor & Equip. Mfrs. Ass’n, Inc. v. EPA, 627 F.2d 1095, 1118 (D.C. Cir. 1979). D. Petitioners’ remaining challenges to the Tailpipe Rule fail as well. In Part II, the court rejects the contention that the Tailpipe Rule fails due to flaws in the underlying Endangerment Finding. The record also refutes Industry Petitioners’ suggestion that EPA “employed a shell game to avoid,” Industry Tailpipe Reply Br. 9 (capitalization removed), responding to comments regarding stationary-source costs. Industry Tailpipe Br. 19–20; see also Industry Tailpipe Reply Br. 14–15. EPA adequately responded to “significant comments,” 42 U.S.C. § 7607(d)(6)(B). See, e.g., Tailpipe Rule, 75 Fed. Reg. at 25,401–02; Tailpipe Rule, Response to Comments at 7-65 to 7- 69. And, assuming other statutory mandates provide a basis for judicial review, see Industry Tailpipe Br. 21–22 (listing mandates); see, e.g., Small Refiner, 705 F.2d at 537–39, the  45 record shows EPA’s compliance, see Tailpipe Rule, 75 Fed. Reg. at 25,539–42, and that EPA was not arbitrary and capricious by not considering stationary-source costs in its analyses. See, e.g., Michigan v. EPA, 213 F.3d 663, 689 (D.C. Cir. 2000); Mid-Tex Elec. Coop., Inc. v. FERC, 773 F.2d 327, 341–42 (D.C. Cir. 1985). EPA’s economic impact assessment conducted pursuant to CAA § 317, 42 U.S.C. § 7617, does not provide grounds for granting the petitions because Petitioners’ contentions that EPA, “[i]n defiance of these requirements, . . . refused to estimate or even consider the costs of the [Tailpipe Rule] for stationary sources,” Industry Tailpipe Br. 22, are no more than another attempt to avoid the plain text of Section 202(a). See also 42 U.S.C. § 7617(e). IV. We turn next to the stationary source regulations. As noted supra in Part I, EPA’s interpretation of the CAA requires PSD and Title V permits for stationary sources whose potential emissions exceed statutory thresholds for any regulated pollutant—including greenhouse gases. Industry Petitioners now challenge EPA’s longstanding interpretation of the scope of the permitting requirements for construction and modification of major emitting facilities under CAA Sections 165(a) and 169(1), 42 U.S.C. §§ 7475(a) & 7479(1) (“the PSD permitting triggers”). EPA maintains that this challenge is untimely because its interpretation of the PSD permitting triggers was set forth in its 1978, 1980, and 2002 Rules. In 1978, EPA defined “major stationary source” as a source that emits major amounts of “any air pollutant regulated under the [CAA].” Part 51–Requirements for Preparation, Adoption, and Submittal of Implementation Plans; Prevention of Significant Air Quality Deterioration (“1978 Implementation Plan Requirements”), 43 Fed. Reg. 26,380, 26,382 (June 19,  46 1978). Industry petitioners’ challenge to the 1978 Rule in Alabama Power Co. v. Costle, 636 F.2d 323 (D.C. Cir. 1980) reflected their understanding that EPA would apply the PSD permitting program to both pollutants regulated pursuant to National Ambient Air Quality Standards (NAAQS) and other regulated pollutants. See Br. for Industry Pet’rs on Regulation of Pollutants other than Sulfur Dioxide and Particulates, No. 78- 1006 (and consolidated cases) (Dec. 19, 1978) at 10, 12. In the 1980 Rule, EPA highlighted that to be subject to PSD review, a “source need only emit any pollutant in major amounts (i.e., the amounts specified in [CAA § 169(1)]) and be located in an area designated attainment or unclassifiable for that or any other pollutant.” 1980 Implementation Plan Requirements, 45 Fed. Reg. at 52,711 (emphasis in original). EPA explained that “any pollutant” meant “both criteria pollutants, for which national ambient air quality standards have been promulgated, and non- criteria pollutants subject to regulation under the Act.” Id. The same explanation of EPA’s interpretation appeared in the 2002 Rule. Prevention of Significant Deterioration and Nonattainment New Source Review, 67 Fed. Reg. 80,186, 80,239-40, 80,264 (Dec. 31, 2002). CAA Section 307(b)(1) provides that a petition for review of any promulgated nationally applicable regulations: “shall be filed within sixty days from the date notice of such promulgation . . . appears in the Federal Register, except that if such petition is based solely on grounds arising after such sixtieth day, then any petition for review . . . shall be filed within sixty days after such grounds arise.” 42 U.S.C. § 7607(b)(1). The exception encompasses the occurrence of an event that ripens a claim. See Chamber of Commerce v. EPA, 642 F.3d 192, 208 n.14 (D.C. Cir. 2011);  47 Am. Rd. & Transp. Builders Ass’n v. EPA, 588 F.3d 1109, 1113 (D.C. Cir. 2009). EPA acknowledges this precedent, but maintains that the “new grounds” exception is narrow and inapplicable because Industry Petitioners’ challenge to EPA’s interpretation of the PSD permitting triggers is based on legal arguments that were available during the normal judicial review periods for the 1978, 1980, and 2002 Rules, and the “new ground” on which they now rely is a factual development, namely the regulation of greenhouse gases by the Tailpipe Rule. This is correct so far as it goes, but fails to demonstrate that Industry Petitioners’ challenge is untimely. Industry Petitioners point out that two petitioners—the National Association of Home Builders ( NAHB ) and National Oilseed Processors Association ( NOPA ) – have newly ripened claims as a result of the Tailpipe Rule, which had the effect of expanding the PSD program to never-regulated sources: • NAHB’s members construct single family homes, apartment buildings, and commercial buildings. According to the Vice President of Legal Affairs, prior to the Tailpipe Rule, no member of NAHB was a major source of any regulated pollutant, and thus no member was ever required to obtain a PSD permit. Decl. of Thomas J. Ward, Vice President of Legal Affairs for NAHB, ¶ 6 (May 10, 2011). Since the Tailpipe Rule rendered greenhouse gases a regulated pollutant, it is now certain that NAHB members that engage in construction projects that emit greenhouse gases in major amounts will have to obtain PSD permits sometime in the future. Id. at ¶¶ 7, 8. Indeed, EPA estimated that 6,397 multifamily buildings and 515 single family homes would trigger PSD review annually absent the Tailoring Rule. See Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Proposed Rule (“Proposed Tailoring Rule”), 74 Fed. Reg.  48 55,292, 55,338 (Oct. 27, 2009). • NOPA’s members are large companies that monthly produce millions of tons of vegetable meals and over a billion pounds of oils from oilseeds, such as soybeans. See, e.g., NOPA, January 2012 Statistical Report (Feb. 14, 2012) available at www.nopa.org; NOPA, February 2012 Statistical Report (Mar. 14, 2012), available at www.nopa.org. According to the Executive Vice President of Regulatory Affairs, NOPA members operate facilities that are major sources of criteria pollutants and, for this reason, are subject to PSD review. Decl. of David C. Ailor, Executive Vice President of Regulatory Affairs of NOPA, ¶ 8 (May 10, 2011). Prior to promulgation of the Tailpipe Rule, no member’s facility had triggered PSD review by virtue of emissions of a non-criteria pollutant. Id. Now that greenhouse gases are a regulated non-criteria pollutant, many NOPA members will have to obtain PSD permits as result of their facilities’ emissions of a non-criteria pollutant. Id. at ¶¶ 9,10. For some NOPA members this time is not far off because renovations to their facilities will result in greenhouse gas emissions above the significance thresholds set by the Tailoring Rule, 75 Fed. Reg. at 31,567. Id. at ¶ 9. Industry Petitioners thus maintain that because NAHB and NOPA filed their petitions on July 6, 2010, within 60 days of the promulgation of the Tailpipe Rule in the Federal Register on May 7, 2010, their challenges are timely. “Ripeness, while often spoken of as a justiciability doctrine distinct from standing, in fact shares the constitutional requirement of standing that an injury in fact be certainly impending.” Nat’l Treasury Emp. Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996). During an initial review  49 period, although purely legal claims may be justiciable and, thus, prudentially ripe, a party without an immediate or threatened injury lacks a constitutionally ripe claim. See Baltimore Gas & Elec. Co. v. ICC, 672 F.2d 146, 149 (D.C. Cir. 1982). EPA’s position would conflate the constitutional and prudential considerations. Constitutional ripeness exists where a challenge “involve[s], at least in part, the existence of a live ‘Case or Controversy.’” Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 81 (1978). Prudential considerations embodied in the ripeness doctrine relate to “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967); see Duke Power, 438 U.S. at 81. Standing to challenge agency action exists where a petitioner can demonstrate an “injury in fact” that is fairly traceable to the challenged action and is likely to be redressed by a favorable judicial decision. Reytblatt v. NRC, 105 F.3d 715, 721 (D.C. Cir. 1997) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). Had NAHB and NOPA challenged EPA’s interpretation of the PSD permitting triggers in 1978, 1980, or 2002, as EPA suggests, the court would have lacked jurisdiction under Article III of the Constitution because their alleged injuries were only speculative. See, e.g., Occidental Permian Ltd. v. FERC, 673 F.3d 1024, 1026 (D.C. Cir. 2012); Baltimore Gas & Elec. Co., 672 F.2d at 149. At that time, NAHB and NOPA could have shown only the possibility that their members would be injured if EPA were someday to determine that greenhouse gases were a pollutant that endangers human health and welfare and to adopt a rule regulating the greenhouse gas emissions of stationary sources. EPA does not challenge the assertions in the NAHB and NOPA declarations, which establish no such rule was promulgated prior to the Tailpipe Rule.  50 The NAHB and NOPA challenges ceased to be speculative when EPA promulgated the Tailpipe Rule regulating greenhouse gases and their challenges ripened because of the “substantial probability” of injury to them. See Baltimore Gas & Elec. Co., 672 F.2d at 149. Although, as EPA notes, other Industry Petitioners’ challenges to EPA’s interpretation of the PSD permitting triggers ripened decades earlier, this court has assured petitioners with unripe claims that “they will not be foreclosed from judicial review when the appropriate time comes,” Grand Canyon Air Tour Coalition v. FAA, 154 F.3d 455, 473 (D.C. Cir. 1998), and that they “need not fear preclusion by reason of the 60-day stipulation [barring judicial review],” Baltimore Gas & Elec. Co., 672 F.2d at 149–50. EPA expresses concern that allowing NAHB and NOPA to litigate their newly ripened claims will have far-reaching implications for finality of agency actions, but “the ripeness doctrine reflects a judgment that the disadvantages of a premature review that may prove too abstract or unnecessary ordinarily outweigh the additional costs of – even repetitive – . . . litigation.” Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 735 (1998). Some limitations inhere in doctrines such as stare decisis or the law-of-the-circuit doctrine, see LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc). Because petitioners NAHB and NOPA’s challenges to EPA’s PSD permitting triggers are newly ripened upon promulgation of the Tailpipe Rule and they filed petitions for review within sixty days thereof, their challenge to EPA’s interpretation of the PSD permitting triggers is timely. V. Having established that Industry Petitioners’ challenges to the PSD permitting triggers are both timely and ripe, we turn to the merits of their claims.  51 A. CAA Title I, Part C—entitled “Prevention of Significant Deterioration of Air Quality” (PSD)—largely focuses on the maintenance of national ambient air quality standards (NAAQS). Under the PSD program, EPA designates specific pollutants as “NAAQS pollutants” and sets national ambient air quality standards for those pollutants—requiring, for example, that the concentration of a given NAAQS pollutant may not exceed more than a certain number of parts per billion in the ambient air. See generally 42 U.S.C. § 7407. Thus far, EPA has designated six NAAQS pollutants: carbon monoxide, lead, nitrogen dioxide, ozone, particle pollution, and sulfur dioxide. None of these NAAQS pollutants is one of the six well-mixed greenhouse gases defined as an “air pollutant” in the Endangerment Finding. See Environmental Protection Agency, National Ambient Air Quality Standards, available at http://www.epa.gov/air/criteria.html (last visited May 3, 2012); Endangerment Finding, 74 Fed. Reg. 66,536-37. Acting upon information submitted by states, EPA then determines whether each region of the country is in “attainment” or “nonattainment” with the promulgated air quality standard for each NAAQS pollutant, or, alternatively, whether a region is “unclassifiable” for that pollutant. 42 U.S.C. § 7407(d)(1)(A). An area in attainment for a NAAQS pollutant is “any area . . . that meets the . . . ambient air quality standard for the pollutant.” Id. § 7407(d)(1)(A)(ii). By contrast, an area in nonattainment for a NAAQS pollutant is “any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the national . . . ambient air quality standard for the pollutant.” Id. § 7407(d)(1)(A)(i). Finally, an unclassifiable area is any area that “cannot be classified on the basis of available information as meeting or not meeting the . . . ambient air quality standard for the pollutant.” Id. § 7407(d)(1)(A)(iii).  52 The PSD program applies to those areas of the United States designated as in “attainment” or “unclassifiable” for any NAAQS pollutant, see id. § 7471, and requires permits for major emitting facilities embarking on construction or modification projects in those regions. Id. § 7475(a). A separate part of Title I of the CAA, Part D, governs the construction and modification of sources in nonattainment regions. See id. §§ 7501, 7502. It bears emphasis that attainment classifications are pollutant- specific: depending on the levels of each NAAQS pollutant in an area, a region can be designated as in attainment for NAAQS pollutant A, but in nonattainment for NAAQS pollutant B. If a major emitting facility in such a region wishes to undertake a construction or modification project, both Part C and Part D’s substantive requirements apply—that is, the source must obtain a general PSD permit and must also abide by Part D’s more stringent, pollutant-specific requirements for any NAAQS pollutants for which the area is in nonattainment. See 1980 Implementation Plan Requirements, 45 Fed. Reg. at 52,711-12 (“where a source emits in major amounts a pollutant for which the area in which the source would locate is designated nonattainment, Part D NSR rather than Part C PSD review should apply to those pollutants.”) (emphasis added). The key substantive provision in the PSD program is CAA Section 165(a), which establishes permitting requirements for “major emitting facilities” located in attainment or unclassifiable regions. In relevant part, section 165(a) provides that “[n]o major emitting facility . . . may be constructed in any area to which this part applies unless” the facility obtains a PSD permit. 42 U.S.C. § 7475(a). To obtain a PSD permit, a covered source must, among other things, install the “best available control technology [BACT] for each pollutant subject to regulation under [the CAA]”—regardless of whether that pollutant is a NAAQS pollutant. Id. § 7475(a)(4). Since the Tailpipe Rule became effective, EPA has regulated automotive greenhouse gas  53 emissions under Title II of the Act. Thus, greenhouse gases are now a “pollutant subject to regulation under” the Act, and, as required by the statute itself, any “major emitting facility” covered by the PSD program must install BACT for greenhouse gases. See id. The dispute in this case centers largely on the scope of the PSD program—specifically, which stationary sources count as “major emitting facilities” subject to regulation. CAA Section 169(1) defines “major emitting facility,” for the purposes of the PSD program, as a stationary source “which emit[s], or [has] the potential to emit” either 100 tons per year (tpy) or 250 tpy of “any air pollutant.” 42 U.S.C. § 7479(1) (emphasis added). As discussed supra in Part I, whether the 100 or 250 tpy threshold applies depends on the type of source. Certain listed categories of sources—for example, iron and steel mill plants—qualify as “major emitting facilities” if they have the potential to emit over 100 tons per year of “any air pollutant.” Id. All other stationary sources are “major emitting facilities” if they have the potential to emit over 250 tons per year of “any air pollutant.” Id. As mentioned above, since 1978 EPA has interpreted the phrase “any air pollutant” in the definition of “major emitting facility” as “any air pollutant regulated under the CAA.” See 1978 Implementation Plan Requirements, 43 Fed. Reg. at 26,388, 26,403; supra Part IV. Thus, because the PSD program covers “major emitting facilities” in “any area to which this part applies,” 42 U.S.C. § 7475, EPA requires PSD permits for stationary sources that 1) are located in an area designated as attainment or unclassifiable for any NAAQS pollutant, and 2) emit 100/250 tpy of any regulated air pollutant, regardless of whether that pollutant is itself a NAAQS pollutant. See 1980 Implementation Plan Requirements, 45 Fed. Reg. at 52,710-11. Consequently, once the Tailpipe Rule took effect and made  54 greenhouse gases a regulated pollutant under Title II of the Act, the PSD program automatically applied to facilities emitting over 100/250 tpy of greenhouse gases. But because immediate regulation of greenhouse gas-emitting sources exceeding the 100/250 tpy benchmark would result in “overwhelming permitting burdens that would . . . fall on permitting authorities and sources,” Tailoring Rule, 75 Fed. Reg. at 31,516, EPA’s Tailoring Rule provided that, for now, sources are subject to PSD permitting requirements only if they have the potential to emit over 100,000 tpy of greenhouse gases (for a construction project) or 75,000 tpy (for a modification project). Id. at 31,523; see also infra, Part VI. According to EPA, its longstanding interpretation of the phrase “any air pollutant”—“any air pollutant regulated under the CAA”—is compelled by the statute. See id. at 31,517. Disputing this point, Industry Petitioners argue that the phrase is capable of a far more circumscribed meaning and that EPA could have—and should have—avoided extending the PSD permitting program to major greenhouse gas emitters. For the reasons discussed below, we agree with EPA that its longstanding interpretation of the PSD permitting trigger is statutorily compelled. Thus, as EPA argues, it “must give effect to the unambiguously expressed intent of Congress,” Chevron, 467 U.S. at 843, which here requires PSD coverage for major emitters of any regulated air pollutant. We begin our analysis, as we must, with the statute’s plain language. See Chevron, 467 U.S. at 842 (“First, always, is the question whether Congress has directly spoken to the precise question at issue.”). CAA Section 169(1) requires PSD permits for stationary sources emitting major amounts of “any air pollutant.” 42 U.S.C. § 7479(1) (emphasis added). On its face, “the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind,’ ” United States v. Gonzales,  55 520 U.S. 1, 5 (1997) (quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 97 (1976)). Greenhouse gases are indisputably an “air pollutant.” See Massachusetts v. EPA, 549 U.S. at 528–29. Congress’s use of the broad, indiscriminate modifier “any” thus strongly suggests that the phrase “any air pollutant” encompasses greenhouse gases. This plain-language reading of the statute is buttressed by the Supreme Court’s decision in Massachusetts v. EPA. There the Court determined that CAA’s overarching definition of “air pollutant” in Section 302(g)—which applies to all provisions of the Act, including the PSD program—unambiguously includes greenhouse gases. Noting that “[t]he Clean Air Act’s sweeping definition of ‘air pollutant’ includes ‘any air pollution agent or combination of such agents . . . . which is emitted into or otherwise enters the ambient air,” the Court held that “the definition embraces all airborne compounds of whatever stripe, and underscores that intent through repeated use of the word ‘any.’” Id. at 529 (quoting 42 U.S.C. § 7602(g)) (second and third emphases added). Crucially for purposes of the issue before us, the Court concluded that “[t]he statute is unambiguous.” Id. Thus, we are faced with a statutory term—“air pollutant”—that the Supreme Court has determined unambiguously encompasses greenhouse gases. This phrase is preceded by the expansive term “any,” a word the Court held “underscores” Congress’s intent to include “all” air pollutants “of whatever stripe.” See id. Absent some compelling reason to think otherwise, “ ‘any’ . . . means any,” Ford v. Mabus, 629 F.3d 198, 206 (D.C. Cir. 2010), and Petitioners have given us no reason to construe that word narrowly here. To the contrary: given both the statute’s plain language and the Supreme Court’s decision in Massachusetts v. EPA, we have little trouble concluding that the phrase “any air pollutant” includes all  56 regulated air pollutants, including greenhouse gases. In reaching this conclusion, we recognize that EPA’s definition of “any air pollutant” slightly narrows the literal statutory definition, which nowhere requires that “any air pollutant” be a regulated pollutant. See 42 U.S.C. § 7479(1). But this does not make the statutory language ambiguous. Indeed, “any regulated air pollutant” is the only logical reading of the statute. The CAA’s universal definition of “air pollutant”—the one at issue in Massachusetts v. EPA—provides that the term includes “any physical, chemical, biological [or] radioactive . . . substance or matter which is emitted into or otherwise enters the ambient air.” Id. § 7602(g). Of course, nothing in the CAA requires regulation of a substance simply because it qualifies as an “air pollutant” under this broad definition. As discussed supra in Parts II and III, for example, the Act requires EPA to prescribe motor vehicle “standards applicable to the emission of any air pollutant” only if that pollutant “cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.” Id. § 7521(a)(1). But if “any air pollutant” in the definition of “major emitting facility” was read to encompass both regulated and nonregulated air pollutants, sources could qualify as major emitting facilities—and thus be subjected to PSD permitting requirements—if they emitted 100/250 tpy of a “physical, chemical, [or] biological” substance EPA had determined was harmless. It is absurd to think that Congress intended to subject stationary sources to the PSD permitting requirements due to emissions of substances that do not “endanger public health or welfare.” Id. § 7521(a)(1). Thus, “any regulated air pollutant” is, in this context, the only plausible reading of “any air pollutant.” We find further support for this definition throughout the CAA. First, as previously mentioned, the PSD program provides that all major emitting facilities must install BACT for  57 “each pollutant subject to regulation under [the CAA].” Id. § 7475(a)(4). “Each pollutant subject to regulation under” the Act is, of course, synonymous with “any air pollutant regulated under the Act.” Thus, EPA’s interpretation of “any air pollutant” in the definition of “major emitting facilities” harmonizes the PSD program’s scope (i.e., which pollutants trigger PSD coverage) with its substantive requirements (i.e., which pollutants must be controlled to obtain a permit). In other words, because a covered source must control greenhouse gas emissions, it makes sense that major emissions of greenhouse gases would subject that source to the PSD program. Second, a PSD permittee is required to establish that it will not cause, or contribute to, air pollution in excess of any (A) maximum allowable increase or maximum allowable concentration for any pollutant in any area to which this part applies more than one time per year, (B) national ambient air quality standard in any air quality control region, or (C) any other applicable emission standard or standard of performance under [the CAA]. Id. § 7475(a)(3). Subsections (A) and (B) prohibit a permitted source from contributing to a concentration of NAAQS pollutants that exceeds EPA’s standards. By contrast, subsection (C) has an entirely different focus: it prohibits a permitted source from causing or contributing to air pollution in excess of any CAA emission standard. Thus, as EPA notes, “what this provision establishes is that while the PSD program was certainly directed towards NAAQS-criteria pollutants, it also was directed at maintaining air quality for other pollutants regulated under other provisions.” EPA Timing & Tailoring Br. 101. EPA’s determination that “any air pollutant” means “any air pollutant regulated under the Act”—encompassing the greenhouse gases regulated under Title II—is entirely consistent  58 with this focus. Finally, Congress made perfectly clear that the PSD program was meant to protect against precisely the types of harms caused by greenhouse gases. The PSD provision contains a section entitled “Congressional declaration of purpose,” which provides, in relevant part, that “[t]he purposes of this part are . . . to protect public health and welfare from any actual or potential adverse effect which in the Administrator’s judgment may reasonably be anticipated to occur from air pollution.” 42 U.S.C. § 7470(1). The CAA further provides that “[a]ll language referring to effects on welfare includes, but is not limited to, effects on . . . weather . . . and climate.” Id. § 7602(h). As previously noted, EPA in the Endangerment Finding “marshaled . . . substantial . . . . scientific evidence . . . for the proposition that greenhouse gases trap heat on earth that would otherwise dissipate into space [and] that this ‘greenhouse effect’ warms the climate.” Part II, supra at 28–29. It further concluded that this “anthropogenically induced climate change” was likely to threaten the public welfare through, among other things, “extreme weather events.” Id. at 15–16. Thus, one express purpose of the program is to protect against the harms caused by greenhouse gases. In sum, we are faced with a statutory term—“any air pollutant”—that the Supreme Court has determined is “expansive,” and “unambiguous[ly]” includes greenhouse gases. Massachusetts v. EPA, 549 U.S. at 529. Moreover, the PSD program requires covered sources to install control technology for “each pollutant” regulated under the CAA, 42 U.S.C. § 7475(a)(4), and to establish that they “will not cause, or contribute to, air pollution in excess of any . . . emission standard . . . under [the CAA].” Id. § 7475(a)(3) (emphasis added). These provisions demonstrate that the PSD program was intended to control pollutants regulated under every section of  59 the Act. Finally, Congress’s “Declaration of Purpose” expressly states that the PSD program was meant, in part, to protect against adverse effects on “weather” and “climate”—precisely the types of harm caused by greenhouse gases. See id. § 7470(1). Given all this, we have little trouble concluding that “any air pollutant” in the definition of “major emitting facility” unambiguously means “any air pollutant regulated under the CAA.” B. Industry Petitioners offer three alternative interpretations of the PSD permitting triggers, none of which cast doubt on the unambiguous nature of the statute. As a preliminary matter, we note that none of Petitioners’ alternative interpretations applies to Title V. To the contrary, all of the proposed alternative interpretations are based on the structure of—and purported Congressional intent behind—the PSD program. Indeed, Industry Petitioners never argue that their proposed alternative interpretations are relevant to Title V. Petitioners have thus forfeited any challenges to EPA’s greenhouse gas-inclusive interpretation of Title V. See, e.g., Nat’l Steel & Shipbuilding Co. v. NLRB, 156 F.3d 1268, 1273 (D.C. Cir. 1998) (petitioners forfeit an argument by failing to raise it in their opening brief). Industry Petitioners’ first alternative is simple enough. Because the PSD program focuses on “the air people breathe in certain geographically defined . . . areas,” Coalition for Responsible Reg. Timing & Tailoring Br. 38, Industry Petitioners contend that the term “pollutant” in the PSD statute encompasses only air pollutants that, unlike greenhouse gases,  60 “pollute locally.” Id. at 35. Industry Petitioners would thus apply a greenhouse gas-exclusive interpretation of “pollutant” throughout the statute’s PSD provision. Under this reading, a source would qualify as a “major emitting facility” only if it emits 100/250 tpy of “any air pollutant” except greenhouse gases. See 42 U.S.C. § 7479(1). Moreover, sources that are subject to PSD permitting requirements would be required to install BACT for “each pollutant subject to regulation under [the CAA]”—except greenhouse gases. Id. § 7475(a)(4). We can easily dispose of Industry Petitioners’ argument that the PSD program’s “concerns with local emissions,” Coalition for Responsible Reg. Timing & Tailoring Br. 36, somehow limit the BACT provision. The statutory text provides, without qualification, that covered sources must install the “best available control technology for each pollutant subject to regulation under [the CAA].” 42 U.S.C. § 7475(a)(4) (emphasis added). Because greenhouse gases are indisputably a pollutant subject to regulation under the Act, it is crystal clear that PSD permittees must install BACT for greenhouse gases. “When the words of a statute are unambiguous . . . judicial inquiry is complete.” Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992) (internal quotation marks omitted). Equally without merit is Industry Petitioners’ argument that the PSD program’s regional focus requires a greenhouse gas- exclusive interpretation of “any air pollutant” in the definition of “major emitting facility.” In support of this contention, Industry Petitioners note that CAA Section 161 provides that states’ implementation plans for the PSD program “shall contain emission limitations and such other measures as may be necessary . . . to prevent significant deterioration of air quality in each region.” 42 U.S.C. § 7471 (emphasis added). The term “air quality,” Industry Petitioners contend, implies a focus on “the air people breathe,” and the term “in each region” suggests  61 that Congress was concerned about local, not global, effects. See Coalition for Responsible Reg. Timing & Tailoring Br. 36. Moreover, Industry Petitioners note that when Congress enacted the PSD program in 1977, it did so “against the backdrop of a known universe of CAA-regulated pollutants.” Id. All these pollutants, Industry Petitioners argue, “were regulated because they could cause elevated ground-level concentrations in ambient air people breathe.” Id. And as Industry Petitioners point out, EPA itself has concluded that greenhouse gases are problematic for reasons other than local health and environmental concerns. In EPA’s Advance Notice of Proposed Rulemaking for the regulations at issue here, for example, the agency noted that “[a] significant difference between the major [greenhouse gases] and most air pollutants regulated under the CAA is that [greenhouse gases] have much longer atmospheric lifetimes [and] . . . can remain in the atmosphere for decades to centuries.” Regulating Greenhouse Gas Emissions Under the Clean Air Act (“Greenhouse Gas Advance Notice”), 73 Fed. Reg. 44,354, 44,400–01 (July 30, 2008). Moreover, “unlike traditional air pollutants,” greenhouse gases “become well mixed throughout the global atmosphere so that the long-term distribution of [greenhouse gas] concentrations is not dependant on local emission sources.” Id. Thus, Industry Petitioners conclude, greenhouse gases are problematic for reasons entirely distinct from the local concerns that provided the basis for the PSD program. Given this, the phrase “any air pollutant” cannot be applied to greenhouse gases in the context of the regionally- focused PSD program. As an initial matter, we note that the Supreme Court rejected a very similar argument in Massachusetts v. EPA. There, EPA attempted to distinguish between greenhouse gases and other air pollution agents “because greenhouse gases permeate the world’s atmosphere rather than a limited area near the earth’s surface.” Massachusetts v. EPA, 549 U.S. at 529  62 n.26. The Court held that this was “a plainly unreasonable reading of a sweeping statutory provision designed to capture ‘any physical, chemical . . . substance or matter which is emitted into or otherwise enters the ambient air,” id. (quoting 42 U.S.C. § 7602(g)), thus rejecting the dissent’s view that “EPA’s exclusion of greenhouse gases . . . is entitled to deference.” Id. As the Court noted, the purported distinction between greenhouse gases and “traditional” air pollutants “finds no support in the text of the statute, which uses the phrase ‘the ambient air’ without distinguishing between atmospheric layers.” Id. Massachusetts v. EPA thus forecloses Industry Petitioners’ argument that because greenhouse gases do not “cause elevated ground-level concentrations in ambient air people breathe,” Coalition for Responsible Reg. Timing & Tailoring Br. 36, EPA should have adopted a greenhouse gas- exclusive interpretation of “any air pollutant.” We also have little trouble disposing of Industry Petitioners’ argument that the PSD program is specifically focused solely on localized air pollution. True, as Industry Petitioners note, one part of the PSD program requires states to “prevent significant deterioration of air quality in each region.” 42 U.S.C. § 7471 (emphasis added). But while localized air quality is obviously one concern of the PSD program, a comprehensive reading of the statute shows it was also meant to address a much broader range of harms. As an initial matter, the PSD provision’s “Congressional declaration of purpose” section expansively provides that the program is intended “to protect public health and welfare from any actual or potential adverse effect . . . from air pollution.” Id. § 7470(1) (emphasis added). Nothing in this section limits the PSD program to adverse effects on local air quality; to the contrary, the word “any” here gives this clause an “expansive meaning” which we see “no reason to contravene.” New York, 443 F.3d at 885 (internal quotation marks omitted). Indeed, the CAA expressly provides that effects on “welfare”  63 means “effects on . . . weather . . . and climate.” 42 U.S.C. § 7602(h). It seems quite clear to us, then, that the PSD program was intended to protect against precisely the types of harms caused by greenhouse gases. This broad understanding of the PSD program’s scope is buttressed by the fact that the program requires covered sources to control “each pollutant subject to regulation under [the CAA],” and further requires sources to comply with “any . . . emission standard” under the CAA. Id. §§ 7475(a)(3); (a)(4) (emphasis added). These substantive requirements amount to further evidence that Congress wanted the PSD program to cover all regulated pollutants, regardless of the type of harm those pollutants cause. In light of the PSD program’s broad scope of regulation and the express purposes of the program, we conclude—consistent with the Supreme Court in Massachusetts v. EPA—that Industry Petitioners’ greenhouse gas-exclusive interpretation of “pollutant” is “a plainly unreasonable reading” of the statute. Massachusetts v. EPA, 549 U.S. at 529 n.26. 2. For their second alternative interpretation, Industry Petitioners argue that the PSD program’s definition of “major emitting facility” establishes a “pollutant-specific situs requirement.” Am. Chemistry Council Br. 33. Under this reading of the statute, a stationary source is subject to PSD permitting requirements only if “(1) a source has major emissions of a NAAQS criteria pollutant and (2) the source is located in an area attaining that pollutant’s” air quality standard. Coalition for Responsible Reg. Timing & Tailoring Br. 23. Thus, for example, a source would be subject to the PSD permitting requirements if it 1) emits over 100/250 tpy of sulfur dioxide (a NAAQS criteria pollutant), and 2) is located in an area that is in “attainment,” or is “unclassifiable,” for sulfur  64 dioxide. But under this approach, a stationary source could never be subject to the PSD program solely because of its greenhouse gas emissions. After all, Industry Petitioners observe, EPA declined to make greenhouse gases a NAAQS criteria pollutant. Instead, EPA regulated greenhouse gases only under Title II of the Act, dealing with motor vehicle emissions. Because “no major source of [greenhouse gases] can be located in an area attaining the nonexistent [air quality standard] for [greenhouse gases],” id. at 24, Industry Petitioners point out that their reading of the statute would bring no new stationary sources under the PSD program’s ambit—alleviating any “absurd results” caused by excessive permitting requirements, id. at 25. Industry Petitioners emphasize that, unlike their first proposed alternative, nothing in this approach would “wholly exempt [greenhouse gases] from PSD.” Coalition for Responsible Reg. Timing & Tailoring Reply Br. 20. Although a pollutant-specific situs requirement would limit the number of sources subject to the PSD program, nothing in this proposed reading of the statute would alter the substantive requirements for PSD permits, including the requirement that all regulated sources install BACT “for each pollutant subject to regulation under [the CAA].” 42 U.S.C. § 7475(a)(4). So, for example, under this interpretation, a hypothetical stationary source emitting more than 100/250 tpy of sulfur dioxide and located in an area designated as “in attainment” for sulfur dioxide, must still install BACT for “each pollutant subject to regulation” under the Act, including greenhouse gases. Their key point, though, is that sources emitting only major amounts of greenhouse gases—but not major amounts of a NAAQS criteria pollutant—would escape PSD permitting requirements. Industry Petitioners’ argument in support of this interpretation proceeds in several steps. First, they argue that the  65 term “any air pollutant,” though “capacious and flexible by itself,” “is a chameleon term” when placed in certain contexts. Am. Chemistry Council Br. 38. Indeed, Industry Petitioners note that EPA has already narrowed the literal meaning of the term “any air pollutant” here. After all, and as discussed supra, although the statutory term “air pollutant” includes “any physical [or] chemical . . . substance or matter,” 42 U.S.C. § 7602(g), EPA has long maintained that the term “any air pollutant” in the definition of “major emitting facility” encompasses only air pollutants regulated under the Act. Moreover, Industry Petitioners point out that when interpreting CAA Part C, Subpart 2, entitled “Visibility Protection,” EPA determined that the term “any pollutant” in the definition of “major stationary source” meant “any visibility-impairing pollutant.” See Coalition for Responsible Reg. Timing & Tailoring Br. 34 (emphasis added). The statute’s definition of “major stationary source” in the visibility-protection subpart is quite similar to the definition of “major emitting facility” in the PSD subpart: for the purposes of the visibility program, a “major stationary source” is defined as a “stationary source[ ] with the potential to emit 250 tons or more of any pollutant.” 42 U.S.C. § 7491(g)(7)); compare 42 U.S.C. § 7479(1) (“major emitting facility” for the purposes of the PSD program is a source which “emit[s], or [has] the potential to emit,” either 100 or 250 tons per year “of any air pollutant”). These narrowed interpretations, Industry Petitioners argue, prove that the seemingly capacious term “any air pollutant” is, notwithstanding that the Supreme Court called this term “expansive” and “sweeping,” Massachusetts v. EPA, 549 U.S. at 529 nn.25–26, capable of a far more circumscribed meaning. According to Industry Petitioners, EPA should have adopted that more circumscribed meaning by interpreting “any air pollutant” as establishing a pollutant-specific situs requirement. As Industry Petitioners point out, the PSD program requires  66 permits for “major emitting facilit[ies] . . . in any area to which this part applies,” 42 U.S.C. § 7479(1), and defines “major emitting facilities” as stationary sources emitting 100/250 tpy of “any air pollutant.” Id. § 7475(a). In this context, Industry Petitioners contend, the phrases “any air pollutant” and “in any area to which this part applies” must be read in concert. And, Industry Petitioners argue, these phrases “together mean” that a source is subject to PSD permitting requirements only if it emits major amounts of “any [NAAQS] air pollutant whose NAAQS an area is attaining.” Am. Chemistry Council Br. 33. In support of this supposedly holistic interpretation of the statute, Industry Petitioners cite CAA § 163(b), a different section of the PSD provision in which the phrase “any air pollutant” and “any area to which this part applies” are used in conjunction with one another. Unlike § 165(a), which sets permitting requirements for sources covered by the PSD program, § 163 provides guidelines for areas designated as “in attainment” under the program. Specifically, § 163(b) limits the “maximum allowable increase in concentrations of” airborne NAAQS pollutants that may occur in an attainment area before that area’s “attainment” status is jeopardized. See 42 U.S.C. § 7473(b)(1). Subsections (1) through (3) of § 163(b)—not directly relevant here—set limits on the maximum allowable increases for two specific NAAQS pollutants, sulfur dioxide and particulate matter. Subsection (4) is a catchall provision, which limits the maximum allowable increases for all other NAAQS pollutants. It is in subsection (4) that Industry Petitioners find what they believe is their payoff: the terms “any air pollutant” and “any area to which this part applies” in conjunction with one another. Section 163(b)(4) provides: The maximum allowable concentration of any air pollutant in any area to which this part applies shall not exceed a concentration for such pollutant for each period of exposure  67 equal to— (A) the concentration permitted under the national secondary ambient air quality standard, or (B) the concentration permitted under the national primary ambient air quality standard, whichever concentration is lowest for such pollutant for such period of exposure. 42 U.S.C. § 7473(b)(4) (emphasis added). As Industry Petitioners correctly point out, in this context the phrase “any air pollutant” must mean “any NAAQS pollutant,” and “in any area to which this part applies” must mean “any area that is in attainment for that NAAQS pollutant.” After all, the statute states that the “maximum allowable concentration of any air pollutant . . . shall not exceed” either the primary or secondary national ambient air quality standards. But, as Industry Petitioners observe, national ambient air standards exist only for NAAQS pollutants, so even if “any air pollutant” in CAA § 163(b)(4) was read to include non-NAAQS pollutants, the phrase, in context, would have no practical effect for those pollutants. Moreover, “any area to which this part applies” must mean “any area that is in attainment for that NAAQS pollutant,” because if an area was in nonattainment for a particular pollutant, Part D—rather than the PSD program—would govern emissions limits for that specific pollutant. See id. § 7501(2) (“[t]he term ‘nonattainment area’ means, for any air pollutant, an area which is designated ‘nonattainment’ with respect to that pollutant”); § 7502(c) (setting out required “Nonattainment plan provisions”). Finally, Industry Petitioners correctly note that a pollutant-specific reading of the phrase “air pollutant” must also apply to CAA § 165(a)(3)(A), which prohibits PSD permittees from “caus[ing], or contribut[ing] to, air pollution in excess of any . . . maximum allowable concentration for any air pollutant in any area to which this part applies more than one time per year.” Id. § 7475(a)(3)(A) (emphasis added). This clause, as  68 Industry Petitioners point out, piggybacks off the NAAQS pollutant-specific definition of “maximum allowable concentration” in § 163(b)(4), prophylactically restricting PSD permittees from endangering an area’s attainment status. See Am. Chemistry Council Br. 32 (describing the interplay between the two provisions as “Section 163(b)(4) (and Section 165(a)(3)(A), which implements it) . . .”). Based on all of this, Industry Petitioners conclude that because the phrase “any air pollutant in any area to which this part applies” in § 163(b)(4) means “any NAAQS pollutant in any area in attainment for that NAAQS pollutant,” an identical reading must apply to the definition of “major emitting facility.” As a result, a stationary source may be subject to the PSD program only if it emits 100/250 tpy of any NAAQS pollutant and is located in an area designated as in attainment for that NAAQS pollutant. We are unpersuaded. Although we agree that the term “any air pollutant” is, in some contexts, capable of narrower interpretations, we see nothing in the definition of “major emitting facility” that would allow EPA to adopt a NAAQS pollutant-specific reading of that phrase. The contrast with the visibility program is instructive. There, EPA determined that “any pollutant” in the definition of “major stationary source” meant “any visibility-impairing pollutant.” See 40 C.F.R. pt. 51, App. Y, § II.A. But as EPA notes, the entire visibility program, codified in CAA Part C, Subpart 2, deals with visibility-impairing pollutants, as reflected in that subpart’s title: “Visibility Protection.” See 42 U.S.C. prec. § 7491. From this, “it naturally follows that EPA’s regulations under that section should address ‘visibility- impairing pollutants.’ ” EPA Timing & Tailoring Br. 99 n.19. No similar guidance can be garnered from Part C, Subpart 1, which contains the phrase “any air pollutant” at issue here. Dealing with far more than NAAQS pollutants, Part C, Subpart  69 1 requires, for example, covered sources to install BACT for “each pollutant subject to regulation under [the CAA].” 42 U.S.C. § 7475(a)(4). Indeed, Subpart 1 is simply—and expansively—entitled “Clean Air.” Id. prec. § 7470. Moreover, Congress designed the PSD program broadly to protect against “adverse effect[s]” on “public health and welfare,” Id. § 7470(1), including effects on global problems like weather and climate. Id. § 7602(h). Furthermore, the phrases “any air pollutant” and “in any area to which this part applies” are used differently in Section 163(b)(4) and in the PSD program’s definition of “major emitting facility.” The presumption that “[a] term appearing in several places in a statutory text is generally read the same way each time it appears,” Ratzlaf v. United States, 510 U.S. 135, 143 (1994), “readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent,” Atl. Cleans & Dryers, Inc. v. United States, 286 U.S. 427, 433 (1933). Here, the focus and structure of § 163(b)(4) is entirely distinct from the PSD permitting trigger. Section 163(b)(4) provides that “[t]he maximum allowable concentration of any air pollutant in any area to which this part applies shall not exceed a [particular] concentration.” 42 U.S.C. § 7473(b)(4). By contrast, § 165(a) provides that “[n]o major emitting facility . . . may be constructed in any area to which this part applies” unless certain conditions are met, id. § 7475(a), and § 169(1) defines “major emitting facility” as any stationary source that emits or has the potential to emit threshold amounts of “any air pollutant,” id. § 7479(1). The differences between these two provisions are manifest. In § 163(b)(4), the phrases “any air pollutant” and “in any area to which this part applies” appear next to one another, and it is the concentration of the pollutant in an area that matters. In the PSD permitting trigger, the phrases appear in  70 different subsections and it is the location of the facility that matters. Section 163(b)(4) thus does nothing to undermine the unambiguous meaning of “any air pollutant” in the definition of “major emitting facility.” Industry Petitioners’ pollutant-specific reading of “any air pollutant” is further undermined by contrasting Part C of the Act (the PSD program) with Part D (which regulates areas in nonattainment). Unlike Part C, Part D is expressly pollutant- specific, providing that “[t]he term ‘nonattainment area’ means, for any air pollutant, an area which is designated ‘nonattainment’ with respect to that pollutant.” Id. § 7501(2) (emphasis added). Congress thus clearly knew how to promulgate a narrow, pollutant-specific definition of “any air pollutant.” That it did so in Part D but not in Part C strongly suggests that the phrase “any air pollutant” in Part C was meant to be construed broadly. Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (“[W]here Congress includes particular language in one section of a statute but omits it in another . . . , it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)). A final point: Industry Petitioners observe that every area in the country has always been in attainment for at least one NAAQS criteria pollutant. See Tailoring Rule, 75 Fed. Reg. at 31,561. Thus, pursuant to EPA’s pollutant-indifferent reading of § 165(a), under which a major emitting facility must abide by PSD requirements so long as it is located in an attainment area for any NAAQS pollutant, every facility in the United States has always been in an “area to which this part applies.” Consequently, Industry Petitioners argue, “[i]f EPA’s interpretation were right, Congress simply could have left out the phrase ‘in any area to which this part applies’” in the PSD permitting trigger. Am. Chemistry Council Br. 36. But  71 “Congress does not enact ‘stillborn’ laws,” id. (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 714 (2004)), and interpretations that render statutory language superfluous are disfavored. Am. Chemistry Council Reply Br. 19. The fact that the PSD program has applied nationwide since its inception, Industry Petitioners conclude, thus militates against EPA’s pollutant-indifferent approach. This argument fails at its premise, for Industry Petitioners confuse a lack of practical import with a lack of meaning. To say that the phrase “in any area to which this part applies” is currently without practical import is quite different than showing that the phrase means nothing. Indeed, under different circumstances, the phrase would have a significant effect. If, hypothetically, one area of the country was designated as “nonattainment” for every NAAQS pollutant, the phrase “in any area to which this part applies” would limit PSD coverage, as covered sources in that area would be subject only to Part D requirements. In fact, Environmental Intervenors point out that when Congress drafted the PSD permitting triggers “the prospect that some areas could be in nonattainment for all NAAQS was not far-fetched.” Sierra Club Historic Reg. Br. 23. “In the years leading up to 1977, EPA air quality data identified a number of areas that failed to meet all five of the then-current [air quality standards] for which EPA had gathered data.” Id. Accordingly, “in any area to which this part applies” is a meaningful phrase under EPA’s pollutant-indifferent interpretation of the PSD permitting triggers: it provides that sources need not obtain PSD permits if they are located in areas designated “nonattainment” for all six NAAQS pollutants. In short, although we agree with Industry Petitioners that phrases like “any air pollutant” are, in certain contexts, capable of a more limited meaning, they have failed to identify any reasons that the phrase should be read narrowly here. Nor do we  72 know of one. We thus conclude that EPA’s 34-year-old interpretation of the PSD permitting triggers is statutorily compelled: a source must obtain a permit if it emits major amounts of any regulated pollutant and is located in an area that is in attainment or unclassifiable for any NAAQS pollutant. 3. We can quickly dispose of Industry Petitioners’ third alternative interpretation, namely, that in order to regulate new pollutants through the PSD program, EPA was required to go through the process prescribed by CAA § 166. Section 166 provides specific steps that EPA must take when designating new “pollutants for which national ambient air quality standards” apply. 42 U.S.C. § 7476(a). Here, Industry Petitioners argue, EPA unlawfully failed to follow the steps laid out in Section 166, including a required study of the pollutant and a one-year delay before the effective date of regulations, before adding greenhouse gases “to the PSD [c]onstellation.” Coalition for Responsible Reg. Timing & Tailoring Br. 41. This argument fails on its face. By its terms, § 166 applies only to new “pollutants for which national ambient air quality standards” apply, 42 U.S.C. § 7476(a) (emphasis added), i.e., NAAQS criteria pollutants for which regions may be classified as in “attainment,” “non-attainment,” or “unclassifiable.” And EPA never classified greenhouse gases as a NAAQS criteria pollutant. Instead, it simply determined that under § 165, major emitters of greenhouse gases are subject to the PSD program and all covered sources must install BACT for greenhouse gases. Contrary to Industry Petitioners’ arguments, then, § 166 has no bearing on this addition of greenhouse gases into “the PSD [c]onstellation.” Coalition for Responsible Reg. Timing & Tailoring Br. 41. Indeed, we rejected a nearly identical argument in Alabama Power, holding that there is “no implied or apparent  73 conflict between sections 165 and 166; nor . . . must the requirements of section 165 be ‘subsumed’ with those of section 166.” Alabama Power, 636 F.2d at 406. Stating what should have been obvious from the text of the statute, we concluded: “[S]ection 166 has a different focus from section 165.” Id. Thus, because EPA has never classified greenhouse gases as a NAAQS criteria pollutant, the § 166 requirements are entirely inapplicable here. This section of the CAA has absolutely no bearing on our conclusion that EPA’s interpretation of the PSD permitting trigger is compelled by the statute itself. VI. Having concluded that the CAA requires PSD and Title V permits for major emitters of greenhouse gases, we turn to Petitioners’ challenges to the Tailoring and Timing Rules themselves. As an initial matter, we note that Petitioners fail to make any real arguments against the Timing Rule. To be sure, at one point State Petitioners contend that the Timing Rule constitutes an attempt “to extend the PSD and Title V permitting requirements to greenhouse-gas emissions,” State Pet’rs’ Timing & Tailoring Br. 67. This is plainly incorrect. As discussed in the previous section, greenhouse gases are regulated under PSD and Title V pursuant to automatic operation of the CAA. All the Timing Rule did was delay the applicability of these programs, providing that major emitters of greenhouse gases would be subject to PSD and Title V permitting requirements only once the Tailpipe Rule actually took effect on January 2, 2011. See Timing Rule, 75 Fed. Reg. at 17,017-19. Despite this, Petitioners confusingly urge us to vacate “[t]he Tailoring and Timing Rules,” e.g. State Pet’rs’ Timing & Tailoring Br. 24  74 (emphasis added), although it is unclear what practical effect vacature of the Timing Rule would have. Nonetheless, given this phrasing of their argument, and given our conclusion that Petitioners lack Article III standing to challenge both rules, we shall, where appropriate, discuss the Timing Rule in conjunction with the Tailoring Rule. In the Tailoring Rule, EPA announced that it was “relieving overwhelming permitting burdens that would, in the absence of this rule, fall on permitting authorities and sources.” Tailoring Rule, 75 Fed. Reg. at 31,516. Although the PSD statute requires permits for sources with the potential to emit 100/250 tpy of “any air pollutant,” 42 U.S.C. § 7479(1), EPA noted that immediate application of that threshold to greenhouse gas- emitting sources would cause permit applications to jump from 280 per year to over 81,000 per year. Tailoring Rule, 75 Fed. Reg. at 31,554. Many of these applications would come from commercial and residential sources, which would “each incur, on average, almost $60,000 in PSD permitting expenses.” Id. at 31,556. Similarly, if the Title V 100 tpy threshold applied immediately to greenhouse gases, sources needing operating permits would jump from 14,700 per year to 6.1 million per year. Id. at 31,562. “The great majority of these sources would be small commercial and residential sources” which “would incur, on average, expenses of $23,175.” Id. And were permitting authorities required to hire the 230,000 full-time employees necessary to address these permit applications, “authorities would face over $21 billion in additional permitting costs each year due to [greenhouse gases], compared to the current program cost of $62 million each year.” Id. at 31,563. Thus, instead of immediately requiring permits for all sources exceeding the 100/250 tpy emissions threshold, EPA decided to “phas[e] in the applicability of these programs to [greenhouse gas] sources, starting with the largest [greenhouse  75 gas] emitters.” Id. at 31,514. The Tailoring Rule established the first two steps in this phased-in process. During Step One, only sources that were “subject to PSD requirements for their conventional pollutants anyway” (i.e., those sources that exceeded the statutory emissions threshold for non-greenhouse gas pollutants) were required to install BACT for their greenhouse gas emissions. Id. at 31,567. Step Two, which took effect on July 1, 2011, also requires PSD permits for sources with the potential to emit over 100,000 tpy CO2e after a proposed construction project, or 75,000 tpy CO2e after a proposed modification project. Id. at 31,523. Step Two further requires Title V permits for sources which have the potential to emit over 100,000 tpy CO2e. Id. at 31,516. EPA has since proposed—but has yet to finalize—a “Step Three,” which would maintain the current thresholds while the agency evaluates the possibility of regulating smaller sources. See EPA’s 28(j) Letter 1-2, February 27, 2012. In the Tailoring Rule, EPA justified its phased-in approach on three interrelated grounds, each of which rests on a distinct doctrine of administrative law. First, EPA concluded “the costs to sources and administrative burdens . . . that would result from [immediate] application of the PSD and title V programs . . .at the statutory levels . . . should be considered ‘absurd results,’” which Congress never intended. Id. at 31,517; see Am. Water Works Ass’n v. EPA, 40 F.3d 1266, 1271 (D.C. Cir. 1994) (“[W]here a literal reading of a statutory term would lead to absurd results, the term simply has no meaning . . and is the proper subject of construction by EPA and the courts.”). Thus, under the “absurd results” doctrine, EPA concluded that the PSD and Title V programs “should not [immediately] be read to apply to all [greenhouse gas] sources at or above the 100/250 tpy threshold.” Tailoring Rule, 75 Fed. Reg. at 31,554. Second, emphasizing that immediate regulation at the 100/250 tpy threshold would cause tremendous administrative burden, EPA  76 justified its deviation from this threshold on the basis of the “administrative necessity” doctrine. Id. at 31,576; see Envtl. Def. Fund, Inc. v. EPA, 636 F.2d 1267, 1283 (D.C. Cir. 1980) (“[A]n agency may depart from the requirements of a regulatory statute . . . to cope with the administrative impossibility of applying the commands of the substantive statute.”). Finally, asserting that there exists a judicial doctrine that allows agencies to implement regulatory programs in a piecemeal fashion, EPA stated that the Tailoring Rule was justified pursuant to this “one-step-at-a- time” doctrine. Tailoring Rule, 75 Fed. Reg. at 31,578; see Massachusetts v. EPA, 549 U.S. at 524 (“Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop.”). Petitioners—particularly State Petitioners—argue that none of these doctrines permit EPA to “depart unilaterally from the [CAA’s] permitting thresholds and replace them with numbers of its own choosing.” State Pet’rs’ Timing & Tailoring Br. 29. Admitting the “lamentable policy consequences of adhering to the unambiguous numerical thresholds in the Clean Air Act,” State Petitioners rather colorfully argue that EPA’s attempts to alleviate those burdens “establish only that EPA is acting as a benevolent dictator rather than a tyrant.” Id. at 26. And because EPA exceeded the boundaries of its lawful authority, Petitioners urge us to vacate the Tailoring Rule. Before we may address the merits of these claims, however, we must determine whether we have jurisdiction. “No principle,” the Supreme Court has repeatedly explained, “is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U.S. 811, 818 (1997) (internal quotation marks omitted). The doctrine of standing “is an essential and unchanging part of the case-or-controversy requirement.” Lujan v. Defenders of  77 Wildlife, 504 U.S. 555, 560 (1992). To establish standing, a petitioner must have suffered an “injury in fact” that is 1) “concrete and particularized . . . [and] actual or imminent, not conjectural or hypothetical,” 2) was caused by the conduct complained of, and 3) is “likely, as opposed to merely speculative [to] be redressed by a favorable decision.” Id. at 560–61 (internal quotation marks and citations omitted). Petitioners fall far short of these “irreducible constitutional . . . elements” of standing, id. at 560. Simply put, Petitioners have failed to establish that the Timing and Tailoring Rules caused them “injury in fact,” much less injury that could be redressed by the Rules’ vacatur. Industry Petitioners contend that they are injured because they are subject to regulation of greenhouse gases, Coalition for Responsible Reg. Timing & Tailoring Br. 14. State Petitioners claim injury because they own some regulated sources and because they now carry a heavier administrative burden. State Pet’rs’ Timing & Tailoring Br. 22–23. But as discussed above, see supra Part V, the CAA mandates PSD and Title V coverage for major emitters of greenhouse gases. Thus, Industry Petitioners were regulated and State Petitioners required to issue permits not because of anything EPA did in the Timing and Tailoring Rules, but by automatic operation of the statute. Given this, neither the Timing nor Tailoring Rules caused the injury Petitioners allege: having to comply with PSD and Title V for greenhouse gases. Indeed, the Timing and Tailoring Rules actually mitigate Petitioners’ purported injuries. Without the Timing Rule, Petitioners may well have been subject to PSD and Title V for greenhouse gases before January 2, 2011. Without the Tailoring Rule, an even greater number of industry and state-owned sources would be subject to PSD and Title V, and state authorities would be overwhelmed with millions of additional permit applications. Thus, Petitioners have failed to “show that,  78 absent the government’s allegedly unlawful actions, there is a substantial probability that they would not be injured and that, if the court affords the relief requested, the injury will be removed.” Chamber of Commerce v. EPA, 642 F.3d 192, 201 (D.C. Cir. 2011) (quotations and alterations omitted). Far from it. If anything, vacature of the Tailoring Rule would significantly exacerbate Petitioners’ injuries. Attempting to remedy this obvious jurisdictional defect, State Petitioners present two alternative theories, neither of which comes close to meeting the “irreducible constitutional . . . elements” of standing. Lujan, 504 U.S. at 560. First, State Petitioners counterintuitively suggest that they actually want EPA to immediately “appl[y] the 100/250 tpy permitting thresholds to greenhouse-gas emissions.” State Pet’rs’ Timing & Tailoring Reply Br. 15. Admitting that vacature of the Tailoring Rule would result in astronomical costs and unleash chaos on permitting authorities, State Petitioners predict that Congress will be forced to enact “corrective legislation” to relieve the overwhelming permitting burdens on permitting authorities and sources, thus mitigating their purported injuries. Id. This theory fails. To establish standing, plaintiffs must demonstrate that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision,” Lujan, 504 U.S. at 561 (internal quotation marks omitted), but here, State Petitioners simply hypothesize that Congress will enact “corrective legislation.” State Pet’rs’ Timing & Tailoring Reply Br. 15. We have serious doubts as to whether, for standing purposes, it is ever “likely” that Congress will enact legislation at all. After all, a proposed bill must make it through committees in both the House of Representatives and the Senate and garner a majority of votes in both chambers—overcoming, perhaps, a filibuster in the Senate. If passed, the bill must then be signed  79 into law by the President, or go back to Congress so that it may attempt to override his veto. As a generation of schoolchildren knows, “by that time, it’s very unlikely that [a bill will] become a law. It’s not easy to become a law.” Schoolhouse Rock, I’m Just a Bill, at 2:41, available at http://video.google.com/videoplay?docid=7266360872513258 185# (last visited June 1, 2012). And even if the astronomical costs associated with a 100/250 tpy permitting threshold make some Congressional action likely, State Petitioners are still unable to show that it is “likely, as opposed to merely speculative,” Lujan, 504 U.S. at 561, that Congress will redress their injury. State Petitioners apparently assume that if the 100/250 tpy permitting threshold was immediately applied to greenhouse gases, Congress would exempt those pollutants from the PSD and Title V programs entirely. But this is just one of many forms “corrective legislation” could take. For example, were we to vacate the Tailoring Rule, Congress could decide to readopt its key provisions in the PSD and Title V statutes. Or it could set PSD and Title V permitting thresholds at 25,000 tpy for greenhouse gases—higher than the 100/250 tpy threshold, but lower (and thus more costly to Petitioners) than the thresholds promulgated in the Tailoring Rule. Or it could do something else entirely. All of this is guesswork, which is precisely the point: State Petitioners’ faith that Congress will alleviate their injury is inherently speculative. State Petitioners’ second alternative theory of standing fares no better. In their reply brief, they contend that even if vacating the Timing or Tailoring Rules would indeed exacerbate their costs and administrative burdens (the purported injuries they claimed in their opening brief), “then State Petitioners can establish Article III standing under Massachusetts by asserting injuries caused by EPA’s failure to regulate sooner.” State  80 Pet’rs’ Timing & Tailoring Reply Br. 5. Essentially, State Petitioners’ reply brief contends that, contrary to the position taken in the opening brief, they want more regulation, not less, and that they wanted regulation sooner rather than later. And because the Commonwealth of Massachusetts had standing to seek regulation of greenhouse gases in Massachusetts v. EPA, State Petitioners argue that they now have standing to seek more regulation of greenhouse gases as well. This argument is completely without merit. As an initial matter, we are aware of no authority which permits a party to assert an entirely new injury (and thus, an entirely new theory of standing) in its reply brief. Quite to the contrary, we have held that, where standing is not self-evident, “[i]n its opening brief, the petitioner should . . . include . . . a concise recitation of the basis upon which it claims standing.” Sierra Club v. EPA, 292 F.3d 895, 901 (D.C. Cir. 2002) (emphasis added); see also D.C. Cir. R. 28(a)(7) (“[i]n cases involving direct review in this court of administrative actions, the brief of the appellant or petitioner must set forth the basis for the claim of standing.”); American Library Ass’n v. FCC, 401 F.3d 489, 493–94 (D.C. Cir. 2005) (discussing limitations on this principle). After all, “it is often the case . . . that some of the relevant facts are known only to the petitioner, to the exclusion of both the respondent and the court.” Sierra Club, 292 F.3d at 901. If “the petitioner does not submit evidence of those facts with its opening brief,” the respondent is “left to flail at the unknown in an attempt to prove the negative.” Id. This principle is particularly important here, for State Petitioners’ asserted fear of global warming stands in stark contrast to the position they took throughout this litigation. In an earlier brief, for example, they characterized the Endangerment Finding as “a subjective conviction” State Pet’rs’ Endangerment Br. 19, “supported by highly uncertain climate forecasts,” id. at 18, and “offer[ing] no criteria for determining a harmful, as opposed to a safe, climate,” id. at 17. Given this,  81 EPA could not possibly have anticipated that State Petitioners, abruptly donning what they themselves call “an environmentalist hat,” State Pet’rs’ Timing & Tailoring Reply Br. 4, would assert that global warming causes them concrete and particularized harm. In any event, State Petitioners fail to cite any record evidence to suggest that they are adversely affected by global climate change. This is in stark contrast to the evidence put forward in Massachusetts v. EPA, where the Commonwealth submitted unchallenged affidavits and declarations showing that 1) rising sea tides due to global warming had “already begun to swallow Massachusetts’ coastal land,” and 2) “[t]he severity of that injury will only increase over the course of the next century.” Massachusetts v. EPA, 549 U.S. at 522–23. These specific, factual submissions were key to the standing analysis in Massachusetts v. EPA: the Court held that “petitioners’ submissions as they pertain to Massachusetts have satisfied the most demanding standards of the adversarial process.” Id. at 521 (emphasis added). It is true, as State Petitioners emphasize, that the Supreme Court held that states are “entitled to special solicitude in our standing analysis.” Id. at 522. But nothing in the Court’s opinion remotely suggests that states are somehow exempt from the burden of establishing a concrete and particularized injury in fact. State Petitioners, like Industry Petitioners, failed to do so here. We shall thus dismiss all challenges to the Timing and Tailoring Rules for lack of jurisdiction. VII. Following promulgation of the Timing and Tailoring Rules, EPA issued a series of rules ordering states to revise their PSD State Implementation Plans (SIPs) to accommodate greenhouse gas regulation. See Action to Ensure Authority to Issue Permits  82 Under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP Call, 75 Fed. Reg. 53,892 (Sept. 2, 2010), 75 Fed. Reg. 77,698 (Dec. 13, 2010); Action to Ensure Authority to Issue Permits Under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Finding of Failure to Submit State Implementation Plan Revisions Required for Greenhouse Gases, 75 Fed. Reg. 81,874 (Dec. 29, 2010). Industry Petitioners present several challenges to these SIP-related rules. But our review in this case is limited to four EPA decisions: the Endangerment Finding, the Tailpipe Rule, and the Timing and Tailoring Rules. We thus lack jurisdiction over the SIP-related rules. Moreover, challenges to these rules are currently pending in at least two separate cases before this court. See Utility Air Regulatory Group v. EPA, No. 11-1037 (consolidating various challenges); Texas v. EPA, No. 10-1425 (challenge brought by Texas). We decline Industry Petitioners’ invitation to rule on the merits of cases which are properly before different panels. VIII. For the foregoing reasons, we dismiss all petitions for review of the Timing and Tailoring Rules, and deny the remainder of the petitions. So ordered. 

312 B.R. 258 (2004) In re AXISTEL COMMUNICATIONS, INC., Novo Networks Global Services, Inc., Novo Networks International Services, Inc., e.Volve Technology Group, Inc., Novo Networks Operating Corp. Novo Networks Metro Services, Inc., Debtors. Novo Liquidating Trust, Plaintiff, v. Forval, Defendant. Bankruptcy No. 01-10005(JBR). Adversary No. 03-53996(PBL). United States Bankruptcy Court, D. Delaware. July 26, 2004. *259 Jeffrey M. Schlerf, Gary F. Seitz, The Bayard Firm, Wilmington, DE, for Plaintiff. Jeffrey R. Waxman, Cozen O'Connor, Chase Manhattan Centre, Wilmington, DE, Michael McLaughlin, Wasserman, Jurista & Stolz, P.C., Millburn, NJ, for Defendant. MEMORANDUM OPINION & ORDER PAUL B. LINDSEY, Bankruptcy Judge. BACKGROUND Plaintiff, successor to various rights and duties of Debtors under their confirmed Chapter 11 Plan,[1] brought this adversary proceeding by filing its complaint on June 27, 2003, seeking to avoid and recover certain transfers of property and prepetition *260 setoffs pursuant to 11 U.S.C. §§ 547, 553 and 550.[2] Defendant filed its answer, essentially denying the allegations of the complaint and asserting certain affirmative defenses. After court-ordered mediation was unsuccessful, a pre-trial conference was held and a scheduling order was entered to govern further pre-trial proceedings. On April 22, 2004, Plaintiff filed its motion for leave to amend its complaint. On May 12, 2004, Defendant filed its response, objecting to the relief sought by Plaintiff. A hearing was held before this Court on July 15, 2004, at the conclusion of which the Court took the contested matter of Plaintiffs motion and Defendant's response under advisement. THE ISSUES In its original complaint Plaintiffs sought: (i) to avoid an alleged preferential transfer in the amount of $24,714.15; (ii) to avoid four (4) allegedly preferential setoffs in the total amount of $477,286.63; and (iii) to recover the amount of the avoided transfer and setoffs, a total of $502,000.78. In its proposed amended complaint, Plaintiff retains the original allegations with regard to the transfer, setoffs and the recovery thereof. Plaintiff seeks to add to the complaint two additional counts seeking alternative relief. First, Plaintiff seeks the turnover of amounts due and owing under outstanding pre-petition invoices issued by Debtors to Defendant in the total amount of $137,375.96. In a separate count, Plaintiff alleges that, pursuant to a post-petition letter agreement purporting to resolve pre-petition business transactions between the parties that was not approved by the Bankruptcy Court, a transfer of property of the bankruptcy estate was effected in the amount of "around $128,000."[3] It is asserted that such transfer was in violation of the automatic stay provisions of § 362, that the transfer was void, and that Plaintiff is entitled to avoid and recover the value of such transfer pursuant to §§ 362 and 549. Finally, Plaintiff seeks to amend the complaint by seeking judgment against Defendant in the amount of "$628,000 as near as can presently be determined," with pre-judgment interest and costs. DISCUSSION AND DECISION Plaintiff seeks to amend its complaint under the authority of Rule 15, Fed. R.Civ.P., made applicable to this adversary proceeding by Rule 7015, Fed. R. Bankr.P. Under Rule 15, leave to amend pleadings "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Plaintiff asserts that there is a general presumption in favor of allowing amendment, citing Boileau v. Bethlehem Steel Corp., 730 F.2d 929, 938 (3d Cir.1984). It is also urged that the standard to be applied in ruling on a Rule 15(a) motion to amend has been set out by the Supreme Court and routinely applied in the Third Circuit and in this court, as follows: In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, *261 undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.—the leave sought, should, as the rules require, be "freely given." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Heyl & Patterson Intern., Inc. v. F.D. Rich Housing, 663 F.2d 419, 425 (3d Cir.1981), cert. denied, 455 U.S. 1018, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982); Procter & Gamble Co. v. Nabisco Brands, Inc., 125 F.R.D. 405, 408 (D.Del.1987). Plaintiff contends that none of the bases for denial of a motion to amend is present here and that leave to amend should be granted in order to "allow all claims against [Defendant] to be heard on the merits."(Plaintiffs Motion for Leave to Amend the Complaint, ¶ 21) Defendant objects to Plaintiffs motion, primarily asserting undue delay. Defendant recites numerous attempts to obtain documentation from Plaintiff concerning the offsets described in the complaint and notes that a copy of the February 25, 2002 letter agreement referred to above was provided to Plaintiff in a letter dated October 1, 2003. Defendant contends that the filing of the motion for leave to amend more than ten months after the filing of the complaint, six months after the February 25, 2002 letter agreement was first provided to Plaintiff, two months after the unsuccessful conclusion of mediation, and after the commencement of discovery, constituted undue delay. Alternatively, Defendant asserts that amendment of the complaint to avoid transfers pursuant to § 549 should not be allowed because such an amendment would be futile as the statute of limitations for filing an action under § 549 has expired.[4] Plaintiff requests that the amendment to the complaint relate back to the date of the original filing of the complaint,[5] effectively avoiding the application of the § 549(d) statute of limitations. Plaintiff contends that Rule 15(c)(2) is applicable. It is clear, however, that the outstanding, unpaid prepetition invoices of Debtors to Defendant and the February 25, 2002 letter agreement were entirely separate from the single specific transfer and the four specified setoff transactions described in the original complaint. Thus, relation back under Rule 15(c)(2) is not appropriate. At the hearing on the motion, Plaintiff contended, and Defendant appeared to concede, that as to Plaintiffs proposed § 362 claim, no statute of limitations is applicable, and that Plaintiff therefore could simply file a separate adversary proceeding to assert that claim if it is not permitted to amend its complaint herein. It is this Court's view that the delay in this case in seeking leave to amend has not been "undue" and that no bad faith or dilatory motive on the part of Plaintiff has been established. Furthermore, the Defendant has not established that it will be unduly prejudiced by the allowance of the amendment. In fact, the only prejudice asserted by Defendant was the possible need for additional discovery. However, discovery is not complete in this case, so any additional discovery should not be burdensome *262 and it does not appear likely that significant additional discovery will be necessary. In these circumstances, this Court is governed by the teaching of Rule 15(a), that "leave shall be freely given when justice so requires." However, this Court agrees with Defendant's contention that amendments should not be permitted to assert a § 549 post petition claim. Any such amendment would be futile, since the filing of the post petition claim under § 549 was barred by § 549(d) after February 25, 2004, two years after the date of the transfer sought to be avoided. The Court has previously noted that the new claims contained in the amended complaint did not arise out of the conduct, transaction or occurrence set forth in the original pleading, and that therefore the amendment of the complaint should not relate back to the date of the filing of the original complaint. Thus, any § 549 claim asserted in the amended complaint would be vulnerable to a motion to dismiss and the amendment would be futile. IT IS THEREFORE ORDERED that the Motion of Plaintiff Novo Liquidating Trust for Leave to Amend the Complaint be, and the same is hereby granted, provided, however, that the amendment of the complaint shall not assert any claim pursuant to 11 U.S.C. § 549. NOTES [1] AxisTel Communication, Inc., Novo Networks Global Services, Inc., Novo Networks International Services, Inc., e.Volve Technology Group, Inc., and Novo Networks Operating Corp. filed voluntary petitions for relief under chapter 11 of the Bankruptcy Code on July 30, 2001. Novo Networks Metro Services, Inc. filed a voluntary petition for relief on September 14, 2001. The cases were jointly administered and a joint Chapter 11 Plan was confirmed on March 14, 2002, to be effective on April 3, 2002. [2] References to statutory provisions by section number alone, unless otherwise specified, will be to provisions of the Bankruptcy Code, 11 U.S.C. §§ 101 et seq. [3] The agreement in question, attached to the amended complaint, was entered into on February 25, 2002. In it, $128,091.69 of Defendant's pre-petition invoices and other disputed items were netted against $137,375.96 of outstanding pre-petition invoices issued by Debtors to Defendant, resulting in the apparent payment by Defendant to Debtors of the balance, $9,284.27. [4] Section 549(d) provides that an action to avoid a transfer under that section may not be commenced after the earlier of two years after the date of the transfer sought to be avoided, or the time the case is closed or dismissed. [5] An amendment of a pleading relates back to the date of the original pleading when, inter alia, the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. Fed.R.Civ.P. 15(c)(2).

835 F.2d 874Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.B.C. EDWARDS; Mary Elizabeth Edwards, Plaintiff-Appellant,v.Edgar G. PUFFENBARGER; Lucille G. Puffenbarger, Defendant-Appellee. No. 87-3704. United States Court of Appeals, Fourth Circuit. Argued Oct. 6, 1987.Decided Dec. 11, 1987. J. Gregory Mooney; Michael McHale Collins (Collins, Crackel & Mooney, on brief), for appellant. Guy M. Harbet, III (S.D. Roberts Moore; Gentry, Locke, Rakes & Moore; Peter J. Judah, on brief), for appellee. Before HARRISON L. WINTER, Chief Judge, DONALD RUSSELL, and CHAPMAN, Circuit Judges. CHAPMAN, Circuit Judge: 1 * In September 1977 plaintiffs-appellants B.C. and Mary Elizabeth Edwards (Edwards) entered into an oral contract retaining defendants-appellees Edgar and Lucille Puffenbarger (Puffenbarger) to perform construction and renovation on Edwards' Bath County, Virginia property. Under the agreement, Puffenbarger would bill the plaintiffs his actual cost of labor and materials plus a ten-percent profit margin and, in addition, Edwards would pay Puffenbarger "the top wage that [the defendants] paid [their] top paid man. He [Puffenbarger] would get the same amount for the hours he actually worked on [the] job, he would get ten percent of that of his own pay." Edwards v. Puffenbarger, No. 84-1228, slip op. at 4 (4th Cir. Apr. 25, 1985). 2 Edwards became increasingly dissatisfied with Puffenbarger's progress, the quality of the workmanship, and the cost of the project and terminated the defendants' performance under the contract in October 1979. Edwards subsequently brought an action against Puffenbarger alleging fraudulent overbilling and "poor workmanship." Puffenbarger denied Edwards' allegations and counterclaimed for slander. 3 In a March 1982 bench trial, Judge Michael held that the Edwards failed to prove the "poor workmanship" or fraud claims. The court also found that the Edwards wrongfully terminated the oral contract. The district court dismissed the slander counterclaim, reasoning that although Puffenbarger was entitled to actual damages, he had failed to prove either malice or the amount of damages. On appeal, this court affirmed the dismissal of the "poor workmanship" claim and of the slander counterclaim. The court, however, reversed in part and remanded the cause, holding that Edwards advanced a viable claim of overbilling under the cost-plus contract. Edwards, slip op. at 10-11. We directed reference of the dispute to a special master for "determination of what amount, if any, the defendants owed the plaintiffs for any overbilling under the oral contract between the parties." Id. at 19. 4 On remand, Judge Michael referred the case to United States Magistrate Glen Conrad to act as special master. The magistrate issued a final report and recommendation, including a final accounting, which concluded that plaintiffs were entitled to $12,870.62. Magistrate Conrad's recommendation was based upon several findings. 5 First, he found that defendants had overbilled plaintiffs at a rate of $2.00 per hour more than Puffenbarger actually paid to his laborers. Thus, of the total labor charges of $58,150, the magistrate found that Edwards had been overcharged in the amount of $14,860. 6 Second, the magistrate found that plaintiffs were improperly billed for employee labor performed on other projects in the amount of $1,758 and, relying on the testimony of some of Puffenbarger's former employees and taking into account entries into the "time book" indicating the time computation for those workers, that defendants improperly billed plaintiffs for thirteen days during which Puffenbarger was actually on vacation. This overcharge amounted to $2,382. 7 Third, noting that Puffenbarger bore the burden of proving "actual costs of labor" in excess of wages paid, the magistrate found that FICA, worker's compensation insurance, and self-employment taxes were actual costs of labor. However, he further concluded that contractor's insurance premiums and overhead were not associated particularly with the Edwards' job, and that defendants had overbilled plaintiffs for such costs in the amount of $4,042.37. 8 Fourth, he found that defendants overbilled plaintiffs for materials in the amount of $6,345.54. Defendants, it seems, had billed for materials in the amount of $53,204.34, but could produce invoices at trial in the amount of $48.919.60. The magistrate rejected arguments by defendants that miscellaneous purchases, as evidenced by various cancelled checks, "clearly pertained" to Edwards' job since "Defendants' assertions [were] premised on nothing more than pure speculation." App. at 903. The magistrate limited adjustments in favor of plaintiffs to those items that the evidence affirmatively established as error or duplication. He reviewed the materials items individually and limited consideration of materials purchases to those actually tendered at trial as opposed to those actually billed to plaintiffs. He further determined that there was no evidence that materials were supplied by Edwards for the job, which would have entitled the Puffenbargers to a ten-percent profit markup, if such materials had been furnished. 9 Fifth, he determined that damages should not be computed by determining plaintiffs' amounts paid less the amount to which defendants were entitled under the contract. The problem, he determined, lay with duplicate payments made by plaintiffs. Therefore, the magistrate concluded that the truly accurate method of calculation was the difference between the total amount defendants should have properly charged for labor, materials, and profit under the contract and the actual amount charged. 10 Last, the magistrate examined our determination of "constructive fraud" of the defendants, and he recommended that prejudgment interest be assessed in favor of plaintiffs. However, he concluded that interest should not be calculated as of the day of termination of the contract in 1979. Rather, he found that there was some bona fide dispute as to labor charges which was not resolved until the first appeal in this case, and he concluded that prejudgment interest should accrue as of the date of our decision, April 25, 1985. 11 The district court, after reviewing the objections to the report, adopted the magistrate's recommendations and final accounting in full. App. at 937-40. Thus, the court awarded $12,870.62 to plaintiffs with prejudgment interest from April 25, 1985 calculated at 9.15% on $9,527.99 of the judgment. 12 Plaintiffs appeal this ruling, claiming that the magistrate and district court were in error in their determination and calculation of amounts overbilled by defendants and due to plaintiffs. Plaintiffs also assert that the district court abused its discretion in finding that prejudgment interest was warranted from April 1985 rather than the date of the termination of the contract. II 13 The scope of review of this court in factual matters is necessarily limited. Fed.R.Civ.P. 52 states: 14 Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. 15 The district court has great latitude under this standard. This court should not reverse those findings of fact when the district court's account of the evidence is plausible in light of the record viewed in its entirety, even if this court would have viewed the evidence differently had it been sitting as trier of fact. Anderson v. City of Bessemer City, N.C., 470 U.S. 564 (1985). It is apparent from the record that the district court, through the magistrate, carefully studied all evidence and it addressed the parties' arguments thoroughly. It is further evident that defendants' documentation of the various charges, particularly materials charges, was less than adequate. Therefore, upon review of the record, we find that the district court was not in clear error and we affirm its determination and calculation of the overbilling and overcharges. III 16 Plaintiffs also challenge the district court's calculation of accrued prejudgment interest from April 25, 1985, the date of our opinion, rather than from October 8, 1979, the date of plaintiffs' termination of the contract with defendants. Defendants argue that the magistrate's finding was correct because the labor charges were in dispute and in the prior appeal, this court was required to go into detailed analysis in order to determine the "actual cost of labor." Defendants refer to the magistrate's report, in which he stated that there was no reason for defendants, prior to that decision, to believe their factual misstatements resulted in an overcharge. 17 Generally, the allowance of prejudgment interest is in the trial court's discretion. Marks v. Sanzo, 231 Va. 350, 345 S.E.2d 263 (1986); see Hewitt v. Hutter, 432 F.Supp. 795 (W.D.Va.1977), aff'd, 568 F.2d 773 (4th Cir.) (unpublished memorandum decision), aff'd after remand, 574 F.2d 182 (4th Cir.1978). Those awards, as acknowledged by the magistrate, are sometimes inappropriate in cases of a bona fide dispute on the merits. The rationale for this is to avoid penalizing a defendant for exercising his right to litigate legal questions arising from a contract. Hewitt, 432 F.Supp. at 800. 18 The purpose of an award of prejudgment interest is to compensate a plaintiff for loss sustained by not receiving the amount to which he was entitled at the time he was entitled to receive it. Marks, 231 Va. at ----, 345 S.E.2d at 267 (citing Employer-Teamsters Jt. Council No. 84, Health & Welfare Fund v. Weatherall Concrete, Inc., 468 F.Supp. 1167, 1171 (S.D.W.Va.1979); see also, e.g., E.I. duPont deNemours & Co. v. Lyles & Lang Constr. Co., 219 F.2d 328 (4th Cir.1955). As noted by Judge Russell in the previous appeal, defendants' overcharges were not merely errors, but "constructive fraud." Plaintiffs had specifically given notice to defendants of labor overcharges in their letter of October 9, 1979. Further, it strains credulity to adopt the rationale of the magistrate and the defendants in characterizing all labor charges as being in dispute and to assert that defendants had no reason to believe their factual misstatments resulted in overcharge. There could be no justification for the Puffenbargers to bill the Edwards for vacation time or for general overhead not specifically related to the Edwards' construction. While some of the double-billing for materials may be explained by plaintiffs' requests for documentation for tax purposes, it was defendants' inadequate record-keeping that caused the materials overbillings. 19 Given that such overcharges were not so certain as to require disposition in the prior appeal, we find the plaintiffs are entitled to prejudgment interest accruing from the date of contract termination, October 8, 1979. Defendants clearly denied plaintiffs their funds in bad faith (i.e., through "constructive fraud"). We therefore reverse the district court insofar as it calculated prejudgment interest from April 25, 1984, the date of this circuit's earlier ruling, and remand with directions that prejudgment interest be calculated from October 8, 1979. 20 We affirm the district court's decision in all other respects. The judgment of the district court is 21 AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________ No. 14-3805 __________ UNITED STATES OF AMERICA v. ANTHONY J. MUNCHAK, a/k/a A. J. Munchak Amthony J. Munchak, Appellant __________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 3-10-cr-00075-002) District Judge: Honorable A. Richard Caputo Submitted Under Third Circuit LAR 34.1(a) September 9, 2015 BEFORE: VANASKIE, NYGAARD, and RENDELL, Circuit Judges (Filed April 26, 2016) __________ OPINION* __________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. NYGAARD, Circuit Judge. Anthony Munchak appeals the District Court’s order denying him a new trial pursuant to Fed. R. Crim P. 33. He asserts that the District Court made numerous errors by rejecting his motion premised on a claim of newly discovered evidence. We will affirm the District Court’s judgment of conviction and sentence. This opinion does not have any precedential value. Therefore our discussion of the case is limited to covering only what is necessary to explain our decision to the parties. In 2005, Munchak, a Commissioner for Lackawana County, Pennsylvania, joined a fellow commissioner in demanding payments of monies from Highland Associates, an architectural and engineering firm that was doing work for the County. The partners of Highland—Don Kalina, Dom Provini, and Kevin Smith—agreed to pay the demand of $30,000—each contributing $10,000—as well as two additional demands of the same amount over the next six months. The Government conducted an investigation and indicted Munchak and a fellow Commissioner on numerous charges arising from Highland’s payments to the Commissioners. A jury convicted Munchak on June 21, 2011, of conspiracy to commit theft or bribery concerning programs receiving federal funds (18 U.S.C. § 371); two counts of theft or bribery concerning programs receiving federal funds (18 U.S.C. § 666(a)(1)(B)); conspiracy to commit extortion under color of right (18 U.S.C. § 1951(a)); two counts of extortion under color of right (18 U.S.C. § 1951(a)); filing a false tax return 2 (26 U.S.C. § 7206(1)); and, attempted income tax evasion (26 U.S.C. § 7201). The District Court sentenced Munchak to 84 months of imprisonment.1 In January 2014, Munchak filed a Rule 33 motion for new trial, on the basis of newly discovered evidence that, he says, proves Smith, Provini and Kalina lied about the amount the County owed Highland.2 At Munchak’s trial, the partners were questioned about why they paid the extortion rather than report it to the authorities. Smith said they feared any such report would become “our word against their word,” putting their work with the county in jeopardy. J.A. 97. He said that, [I]t was kind of an interesting time for the request to come, and I think at that time I think we were owed 1.3 million dollars fees. We had probably 40 percent of the people in the Clarks Summit office were working on county contracts that were cancelable at any time. J.A. 95. He went on to say that, with their large payroll and overhead, they felt particularly vulnerable to negative cash flow consequences if the County began to slow its payments, or cancel the contract. After the third payment, Smith noted that they were “heading down on some of these contracts, but we were still –we had a lot of money out there.” J.A. 103. Provini was also questioned about their decision to pay money to the Commissioners. He said: 1 We affirmed the conviction on appeal. United States v. Munchak, 527 Fed. App’x. 191 (3d Cir. 2013). 2 The District Court convicted a co-defendant, Robert Cardaro, and we affirmed it. He joined Munchak in the filing of the Rule 33 motion and appeal of the District Court’s decision, but he withdrew his appeal. 3  A. “We reviewed alternatives. I happen to have the financials on my desk. I pretty much knew what the oldest, which was 1.2 or 1.3 million dollars. Q. Who owed you 1.2 or 1.3 million dollars? A. The county. At that particular time we were out that money. So that was all our cash out. J.A. 146. He went on to say: We looked at the amount of manpower we had on the project, what would we do with that manpower if the project was stopped or delayed or slowed. And then it became a problem of trying to place that many people on work that we really didn't have a contract in other areas. J.A. 149. Finally, Kalina said the following: “[A]t that time we had a significant amount of labor expended into the projects that we were working on. It was approximately 1.3 million dollars, in that area, that the county owed us.” J.A. 198. He said in another part of his testimony: “We had 1.3 million dollars of money that was due to us as we progressed forward with the work.” J.A. 214. He also testified: “We just [had] too much to lose. If we lose these contracts we can’t afford it, we’d be losing people, we’d be laying people off, and there’s too many families involved.” J.A. 199. He noted that, at the time of their last payment, “We did collect some money. Excuse me. Our receivables was still rather high in November of ’05.” J.A. 208. In his motion for new trial, Munchak focuses on one exchange between the prosecutor and Smith during trial. Q. When you say there were 1.3 million invoices outstanding, who were those invoices with? A. They were with the county. 4 J.A. 96. Munchak is convinced that this is an assertion by Smith that Highland had already submitted invoices to the County at that time, in that amount. His motion is an attempt to proffer “new evidence” that he says refutes this claim. In support of his argument that Smith, Kalina and Provini lied about the amount of money the County owed Highland, Munchak produces a statement by Thomas Durkin, County Chief Financial Officer, attesting that there was no outstanding invoice from Highland in mid-May 2005 in the amount of $1.3 million.3 He also proffers a chart from a trade journal reporting that Highland Associates had $23.8 million in revenue for 2005. This, Munchak asserts, demonstrates an exaggerated or false claim by Smith, Provini and Kalina that the loss of the County’s contract would have produced dire consequences for the firm.4 Motions for a new trial “are not favored and should ‘be granted sparingly and only in exceptional cases.’” United States v. Silveus, 542 F.3d 993, 1005 (3d Cir. 2008) (quoting Gov’t of the V.I v. Derricks, 810 F.2d 50, 55 (3d Cir. 1987)). We, first, conclude that the District Court did not err by relying upon a five-factor test to assess the motion: 3 “At no time during that period [August 20, 2004, through July 25, 2005] did the County owe $1.3 million to Highland Associates. . . . In mid-May 2005, only three invoices from Highland Associates to the County were unpaid, resulting in an outstanding balance of $95,807.32. Highland later submitted to the County a $64,511.97 invoice for the period ending March 25, 2005, but Highland did not submit that invoice until October 2005.” J.A. 320. 4 In a second statement, Durkin states: “I do not know the total amount of receivables from the County Highland was carrying on their books in mid-May 2005. . . .” He goes on to say: “Highland submitted invoices totaling $681,546.76 on May 27, 2005. The following month, Highland submitted invoices totaling $536,544.11.” J.A. 338. 5  (a) the evidence must be in fact, newly discovered, i.e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on, must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal. United States v. Cimera, 459 F.3d 452, 458 (3d Cir. 2006) (quoting United States v. Iannelli, 528 F.2d 1290, 1292 (3d Cir. 1976)). Moreover, we conclude that the District Court’s analysis of the evidence presented by Munchak was well within its discretion. Even if we ignore Munchak’s dubious assertion of diligence regarding the evidence he proffers,5 he has a problem. The District Court correctly concluded that Munchak’s motion does not expose false testimony. The evidence he proffers—Durkin’s statement—is completely undermined by the clarification Durkin gave to the Prosecution. As Durkin’s later statement makes evident, Highland was billing the County for large sums of money throughout that period of time. This is completely consistent with the partners’ testimony that, due to the large amount of work they were doing for the County in that period of time, they feared the business consequences of reporting Munchak to the authorities. We would have to ignore the larger context provided in Durkin’s subsequent statement to attach any significance to Munchak’s evidence that on one particular date, Highland had not invoiced the County for precisely $1.3 million. Likewise, a vague reference to 2005 revenues listed in one trade journal chart, listing revenue numbers of unknown provenance, is insufficient to help his cause. Even 5 We by no means imply that the record supports Munchak’s diligence. 6 if we assume that the number is accurate, Munchak does not give us anything beyond conclusory statements to enable us to understand how it discredits the partners’ testimony. A revenue figure, without more, does not satisfy his burden to substantiate his argument that the partners gave false testimony. None of this, as Munchak claims: “dramatically weaken[s] the partners’ claim that they acceded to the demand for cash out of fear.” Appellant Brief, p. 45. Ultimately, Munchak was required not just to convince us that the witnesses’ testimony is not credible, but rather to make the case that evidence of their false testimony creates a reasonable probability of a different outcome at trial. 6 Since, as the District Court correctly concluded, his “new evidence” does not discredit the partners’ testimony, it is impossible to conclude that it creates a reasonable likelihood (or, indeed, any rational chance) of a different outcome by the jury. This conclusion proves fatal to his claim, no matter how it is framed. Under a due process review, “a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” See United States v. Agurs, 427 U.S. 97, 103 (1976). A new trial grounded in newly discovered evidence requires the party to show the evidence is “of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.” United States v. Adams, 759 F.2d 1099, 1108 (3d Cir. 1985) (quoting Iannelli, 528 F.2d 6 Because of this, Munchak would have failed on this element even if the Larrison test had been used. United States v. Massac, 867 F.2d 174, 178 (3d Cir. 1989). 7 at 1292). A Brady violation occurs when material evidence favorable to the defense is suppressed. Simmons v. Beard, 590 F.3d 223, 234 (3d Cir. 2009). “Evidence is ‘material’ where ‘there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” Id. (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). Munchak fails to meet his evidentiary burden on any of these. Because of this, we conclude that the District Court did not err by denying the motion. For all of these reasons, we will affirm the order of the District Court. 8 

36 F.Supp.2d 1166 (1999) Ronald S. DEICHMANN and Usher's Waterworks, Inc., Plaintiffs, v. The BOEING COMPANY, Defendant. No. 4:97CV1913-SNL. United States District Court, E.D. Missouri, Eastern Division. March 3, 1999. *1167 Henry W. Cummings, Henry W. Cummings, St. Charles, MO, for plaintiffs. Robert G. Lancaster, Associate, David A. Roodman, Associate, Daniel A. Crowe, Associate, Bryan Cave L.L.P., St. Louis, MO, for defendant. MEMORANDUM AND ORDER LIMBAUGH, District Judge. This matter is before the Court on Defendant Boeing's Motion for Summary Judgment (# 81) filed February 10, 1999, as part of a Motion Package pursuant to Local Rule 4.05. This Court previously dismissed Counts II and IV of plaintiffs' Third Amended Complaint for failure to state a claim upon which relief could be granted. This motion seeks summary judgment on the remaining Counts I and III. Count I claims breach of an express contract. Count III states a federal statutory claim for correction of inventorship. Summary Judgment Standard Courts have repeatedly recognized that summary judgment, like dismissal, is a harsh remedy that should be granted only when the moving party has established his right to judgment with such clarity as not to give rise to controversy. New England Mut. Life Ins. Co. v. Null, 554 F.2d 896, 901 (8th Cir.1977). Summary judgment motions "can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts' trial time for those that really do raise genuine issues of material fact." Mt. Pleasant v. Assoc. Elec. Coop., Inc., 838 F.2d *1168 268, 273 (8th Cir.1988). But there must be absolutely "no genuine issue as to a material fact and the moving party [must be] entitled to judgment as a matter of law." Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962). The burden is on the moving party. Mt. Pleasant, 838 F.2d at 273. After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). Instead, the nonmoving party bears the burden of setting forth specific facts showing that there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). In passing on a motion for summary judgment, the court must review the facts in a light most favorable to the party opposing the motion and give that party the benefit of any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.1983). The court is required to resolve all conflicts of evidence in favor of the nonmoving party. Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210 (8th Cir.1976). With these principles in mind, the Court will now turn to the facts. Undisputed Facts As an initial matter, the Court deems admitted all the facts as outlined by defendant. Local Rule 4.01(E) states that the following: Every memorandum in opposition shall include a statement of material facts as to which the party contends a genuine issue exists. Those matters in dispute shall be set forth with specific references to portions of the record, where available, upon which the opposing party relies. The opposing party also shall note for all disputed facts the paragraph number from movant's listing of facts. All matters set forth in the statement of the movant shall be deemed admitted for purposes of summary judgment unless specifically controverted by the opposing party. Plaintiffs failed to identify the paragraph numbers from defendant's statement of The Uncontroverted Facts for any issues which they contend are in dispute. Rather, plaintiffs identify certain facts which they believe a jury could find which would result, they argue, in a verdict in their favor. However, "[a] district court is not required to speculate on which portion of the record the nonmoving party relies, nor is it obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 260 (8th Cir. 1996) (quoting White v. McDonnell Douglas Corp., 904 F.2d 456, 458 (8th Cir.1990)). Once defendant met its burden of demonstrating a lack of genuine issues of material fact, plaintiffs were required to designate specific facts creating a triable controversy. Plaintiffs' mere allegations that issues remain in dispute are insufficient to meet the requirements of Local Rule 4.01(E), and they are deemed to have admitted all facts which were not specifically controverted. See Ruby v. Springfield R-12 Pub. Sch. Dist., 76 F.3d 909, 911 n. 6 (8th Cir.1996). The Court will now outline the facts identified by defendant. Since 1973, McDonnell Douglas Corporation (MDC)[1] has designed, manufactured and used Automated Ultrasonic Scanning Systems (AUSS) to non-destructively inspect airplane parts for structural flaws. Defense Exhibit 1. While this originally required submerging the entire part in a tank of water, the current state of the art involves emitting an ultrasonic wave through a stream of water which can be moved slowly over the surface of the part being tested. See Defense Exhibit 13, United States Patent 5,431,342 (the '342 patent). Prior to 1989, MDC used ordinary nozzles to produce the necessary stream of water. However, MDC found that a stream of water emitted from an ordinary nozzle quickly becomes non-laminar or diffused. Id. As a result, it was necessary to keep the testing device very close to the part being tested. Id. This posed difficulty in the testing of oddly-shaped parts. Id. For that reason, *1169 MDC began contemplating the use of nozzles capable of producing a more laminar or coherent flow. Sometime prior to 1989, designers of ornamental fountains began using laminar flow nozzles in their displays. On July 2, 1987, California fountain designer Mark Fuller applied for a patent on a laminar flow nozzle. Defense Exhibit 8, United States Patent 4,795,092 (the Fuller patent). That patent application described a nozzle utilizing a "cylindrical enclosure ... having ... a substantially sharp edge [outlet] orifice," and a "turbulence reducing means compris[ing] an open cell foam member...." Id.[2] On January 3, 1989, that patent numbered 4,795,092 issued. Id. In July, 1989, MDC's AUSS engineers learned that plaintiff Usher's Waterworks, Inc. (Usher's), a St. Louis area fountain design firm, used laminar flow nozzles for ornamental fountains. Rich Lawson of MDC contacted Usher's to determine whether or not technology in the fountain nozzles would be adaptable for ultrasonic testing systems. Prior to this contact, no one connected with Usher's had any experience with ultrasonic testing applications or the use of laminar nozzles in such applications. Deichmann Deposition p. 69 ln. 16; Kuykendal Deposition pp. 127-28. David Usher, who worked for Usher's at that time, claimed that they in fact possessed the technology to produce a long and extremely coherent stream of water. Usher Deposition p. 49 ln. 20. Plaintiffs agreed to demonstrate this technology for MDC representatives immediately. Id. at lns. 23-24. However, prior to this demonstration, plaintiffs insisted that MDC enter a non-disclosure agreement (the Non-Disclosure Agreement) to protect plaintiffs' assertedly confidential information. Defense Exhibit 3. The agreement defined confidential information as "all information both written, oral, and as represented by viewing the external and internal mechanisms of the nozzle(s), which [Usher's] deem[s] to be confidential and proprietary, relating to the coherent flow nozzle (including, but not limited to mechanical operation, data, know-how, technical and non-technical materials, parts, and specifications"). Id. The agreement required MDC to maintain such information in confidence and prevented MDC from engaging in any communication with any third parties regarding the information for five years. Id. Representatives of both MDC and Usher's signed the Non-Disclosure Agreement, and Usher's demonstrated a laminar flow nozzle at their Fenton facility. Deichmann Deposition p. 137 ln. 16 — p. 139 ln. 18. Apparently MDC was impressed enough with plaintiffs' nozzle that it ordered production by plaintiffs of a prototype coherent flow ultrasonic nozzle. Defense Exhibit 9. In exchange for the prototype nozzle, MDC agreed to pay Usher's $18,500.00. Id. In March or April, 1990, plaintiffs advised MDC that they had completed a prototype nozzle which was available for demonstration at MDC's facility. Unfortunately, MDC was unhappy with the results achieved at the testing of the prototype. Lawson Deposition p. 34 ln. 12. The prototype nozzle that plaintiffs brought to MDC for testing apparently produced a laminar stream without MDC's additional requirements applied. Lawson Deposition p. 37 lns. 8-9. However, when the transducer was installed and the device placed in motion, the results were not satisfactory. Lawson Deposition p. 35 lns. 6-7; Usher Deposition p. 137 lns. 10-19. MDC informed plaintiffs the prototype nozzle yielded unusable data. Deichmann Deposition p. 157 lns. 21-22; p. 159 24. When Usher's personnel left MDC that day, they took the prototype nozzle with them. Deichmann Deposition p. 160 ln. 9. As Usher's had never provided any drawings, blueprints or schematics, this effectively ended the working relationship between Usher's and MDC. Deichmann Deposition p. 161 lns. 2-8. MDC's development of laminar flow nozzle technology for application in ultrasonic testing *1170 did not end with the failure of plaintiffs' prototype. In March of 1991, Rich Lawson contacted another MDC engineer, Kondala Saripalli, regarding the AUSS nozzles. A group of MDC engineers including Saripalli, David Parekh and others began working on the problem. This group ultimately designed a successful prototype nozzle which produced a laminar stream without the ultrasonic transducer interference previously experienced. On December 3, 1992, MDC applied for a patent on this nozzle, claiming (1) the introduction of water into a side-flow entry plenum chamber which results in the radial and uniform entry of water through a porous medium along the entire length and circumference of the main nozzle plenum chamber; and (2) the use of an angled knife-edge orifice plate which causes ultrasonic waves to reflect towards the porous membrane instead of being reflected back at the ultrasonic transducer. Defense Exhibit 13. On July 11, 1995, the '342 patent was issued for this nozzle, listing Kondala Saripalli, Eugene Myers, and Richard Lawson as inventors. On September 15, 1997, plaintiffs filed this lawsuit. Discussion I. Count I: Breach of Non-Disclosure Agreement Count I of plaintiffs' Third Amended Complaint states a simple breach of contract claim.[3] Plaintiffs allege that Usher's and MDC entered a contract regarding the disclosure of information surrounding the nozzle in controversy here.[4] Both sides provided valuable consideration: Usher's agreed to demonstrate a laminar flow nozzle and MDC agreed not to disclose any confidential information it received. The terms of the contract were written and both parties signed the agreement. In a contract case, summary judgment is appropriate where, as here, the language of the contract is clear and unambiguous and the meaning of the portion of the contract in issue is so apparent that it may be determined from the four corners of the document. See Betz v. Fagan, 962 S.W.2d 432, 436 (Mo.App.1998). Plaintiffs allege that they kept their end of the bargain by demonstrating for MDC's agents a laminar flow nozzle at Usher's facility in Fenton, Missouri. They allege MDC breached the contract by disclosing confidential information. Specifically, plaintiffs' Third Amended Complaint alleges that defendant disclosed to certain third-parties information regarding "the concept of introducing water in a radial direction inwardly in a cylindrical plenum chamber through a porous wall of permeable material and then to allow the water to exit through a knife-edged orifice in which the angle of the orifice was of the order of 30 degrees...." Plaintiffs' Third Amended Complaint, Factual Allegations ¶ 9; Count I ¶ 1. Plaintiffs' claim of breach by defendant has no merit. The language of the contract, drafted by plaintiffs, clearly and specifically excludes from coverage any information that defendant could demonstrate was "at the time of disclosure or thereafter [became] public knowledge through no fault or omission of [MDC]." Defense Exhibit 3 ¶ 5(b). It is undisputed that on January 3, 1989, the United States Patent Office issued to Mark Fuller of Studio City, California, a patent for a Laminar Flow Nozzle. That nozzle utilized a "cylindrical enclosure ... having ... a substantially sharp edge [outlet] orifice," and a "turbulence reducing means compris[ing] an open cell foam member...." Defense Exhibit 8. Plaintiffs' witnesses all admitted in their depositions that these are essentially the concepts plaintiffs alleged constituted confidential information. *1171 Patented information falls squarely under the contractual language "public knowledge." This particular patent was public knowledge at the time of the alleged disclosure in controversy here. Therefore, the Court concludes that defendant did not breach the non-disclosure contract as alleged by plaintiffs. Defendant is therefore entitled to judgment as a matter of law. II. Count III: Correction of Inventorship Count III is a claim for correction of inventorship under 35 U.S.C. § 256.[5] That count seeks to add Mr. Ronald S. Deichmann as co-inventor of U.S. Patent 5,431,342, and to name plaintiff Usher's Waterworks as part owner of the patent. "The patent laws provide that whoever `invents' patentable subject matter is entitled to a patent thereon, 35 U.S.C. § 101, and that when an `invention' is `made by two or more persons jointly they shall apply for [a] patent jointly.' 35 U.S.C. § 116 (1994)." Hess v. Advanced Cardiovascular Sys., 106 F.3d 976, 979 (Fed.Cir.1997). "Section 256 provides that if `through [inadvertent] error an inventor is not named in an issued patent ... the Commissioner [of Patents] may ... issue a certificate correcting such error,' and that `[the] court ... may order correction of the patent ... and the Commissioner shall issue a certificate accordingly.'" Id. Inventorship is a question of law. Ethicon, Inc. v. United States Surgical Corp., 135 F.3d 1456, 1460 (Fed.Cir.1998). Because conception is the touchstone of inventorship, each joint inventor must generally contribute to the conception of the invention. Burroughs Wellcome Co. v. Barr Labs., Inc., 40 F.3d 1223, 1227-28 (Fed.Cir. 1994). "Conception is the formation in the mind of the inventor of a definite and permanent idea of the complete and operative invention, as it is hereafter to be applied in practice." Ethicon, 135 F.3d at 1460 (quoting Hybritech, Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1376 (Fed.Cir.1986) (internal citation omitted)). An idea is sufficiently "definite and permanent" when "only ordinary skill would be necessary to reduce the invention to practice, without extensive research or experimentation." Burroughs Wellcome, 40 F.3d at 1228. "The conceived invention must include every feature of the subject matter claimed in the patent." Ethicon, 135 F.3d at 1460 (citing Sewall v. Walters, 21 F.3d 411, 415 (Fed.Cir.1994)). Nevertheless, for the conception of a joint invention, each of the joint inventors need not make the same type or amount of contribution to the invention. 35 U.S.C. § 116. "On the other hand, one does not qualify as a joint inventor by merely assisting the actual inventor after conception of the claimed invention." Ethicon, 135 F.3d at 1460. One who simply provides the inventor with well-known principles or explains the state of the art without ever having a firm and definite idea of the claimed contribution as a whole does not qualify as a joint inventor. Id., 135 F.3d at 1460 (citing Hess, 106 F.3d at 981). The Federal Circuit recently summed up the three elements which constitute joint inventorship. A joint inventor must (1) contribute in some significant manner to the conception or reduction to practice of the invention, (2) make a contribution to the claimed invention that is not insignificant in quality, when that contribution is measured against the dimension of the full invention, and (3) do more than merely explain to the real inventors well-known concepts and/or the current state of the art. Pannu v. Iolab Corp., 155 F.3d 1344, 1351 (Fed.Cir.1998). In order to succeed in this claim, the plaintiffs must be able to prove their contribution to the conception of the claims by clear and convincing evidence. See Ethicon, 135 F.3d at 1461. A claim of co-inventorship cannot rest merely on the plaintiff's testimony respecting the facts surrounding a claim of derivation or priority of invention. Fina Oil & Chem. Co. v. Ewen, 123 F.3d 1466, 1474 (Fed.Cir.1997). Without corroborating evidence, such as contemporaneous documents *1172 prepared by a putative inventor, circumstantial evidence about the inventive process or oral testimony by some third-party, a plaintiff in an action of this sort simply cannot meet the clear and convincing standard. Ethicon, 135 F.3d at 1461. This rule rests on important policy considerations. "[T]he temptation for even honest witnesses to reconstruct, in a manner favorable to their own position, what their state of mind may have been years earlier, is simply to great to permit a lower standard." Hess, 106 F.3d at 980 (quoting Amax Fly Ash Corp. v. United States, 206 Ct.Cl. 756, 514 F.2d 1041, 1047 (Cl.Ct.1975)). "This language is similarly applicable to claims of co-inventorship made after a patent has been issued — particularly where, as here, the patent has been outstanding for a considerable time and the patented device has been successful. In that situation, too, there is an equally strong temptation for persons who consulted with the inventor and provided him with materials and advice, to reconstruct, so as to further their own position, the extent of their contribution to the conception of the invention." Hess, 106 F.3d at 980. In such a situation, the Court must insist that plaintiffs be able to prove their case by a very high standard of proof. Plaintiffs have not once disputed that MDC first approached them with the concept of applying existing fountain nozzle technology in the non-destructive, ultrasonic testing field. Plaintiffs may be able to establish that they recommended certain existing nozzle technology which ultimately proved useful to MDC's engineers. However, there is absolutely no evidence currently in the record that plaintiffs contributed in any significant manner to the conception of the invention, made a significant contribution to the patented idea or ever did anything more than merely explain to MDC personnel the then current state of the art. See Pannu, 155 F.3d at 1351. Plaintiffs contend that their conceptual contribution was "[i]ntroducing water through a porous wall of permeable material, and then to allow the water to exit from a knife edged orifice in which the angle of the orifice was of the order of 30 degrees. Plenum chamber is cylindrical, and non-tapered." Answer to Interrogatory No. 6. Plaintiff Deichmann stated in his deposition that the confidential material he disclosed to MDC included only the cylindrical shape, the use of a foam diffuser material, and the knife edge orifice. Deichmann Deposition pp. 173-74. It is clear that all of those elements were known in the prior art. In fact, Mark Fuller, an individual not a party in this lawsuit, had discussed each and every one of those concepts in a patent issued before MDC ever contacted plaintiffs. In their Memorandum in Support of Plaintiffs' Opposition, plaintiffs attempt to present a somewhat different argument than that stated in their Third Amended Complaint. Plaintiffs argue not that they invented the concepts erroneously claimed as confidential information in the complaint, but rather that they conceived of applying those concepts in the ultrasonic testing environment. This argument is totally inconsistent with the factual allegations section of plaintiffs' Third Amended Complaint as well as the Facts section of the same memorandum in which they bring this argument for the first time. This argument is further belied by plaintiff Deichmann's testimony that prior to MDC's contacting Usher's, no one at Usher's had any knowledge or experience in the ultrasonic testing field. It is undisputed that MDC personnel first conceived of the idea of applying ornamental fountain technology in the ultrasonic testing field. This explains the initial phone call to Usher's, a local firm engaged in the design and manufacture of ornamental fountains. All Usher's did after that was demonstrate the use of an existing nozzle design. The particular design characteristics of that nozzle were virtually identical to those described in Fuller's patent. Explaining existing art is not co-inventorship. Not only did MDC first contact Usher's, but they also refused to disclose to plaintiffs any extraneous information beyond what Usher's would need to know in order to adapt the existing nozzle to MDC's specifications. See Usher Deposition p. 87 lns. 4-18. This further demonstrates that plaintiffs' contribution amounted to nothing more than supplying existing art. It may be that the nozzle ultimately designed by MDC's engineers *1173 incorporated many of the same principles as the failure prototype produced by Usher's. However, as those principles were undisputedly general knowledge in the ornamental fountain industry, this supply of existing art cannot form the basis of a claim of co-inventorship. The Court finds that plaintiffs have simply failed to allege facts sufficient to create an issue as to whether they were sufficiently involved in the conceptualization of the final and definite idea described in the patent at issue here. Even if the testimony of Deichmann and the other Usher's employees who gave depositions in this case could create such an issue, plaintiffs have provided no contemporaneous documentation that they invented these concepts. Apparently plaintiffs provided no schematics or drawings to MDC at the time of their negotiations. Plaintiffs ultimately kept the only prototype nozzle ever produced. With no documentation, nor any other evidence whatsoever that they conceived the idea for the patent at issue, plaintiffs could never prove their claim to a jury by clear and convincing evidence. Accordingly, defendant is entitled to judgment as a matter of law on both inventorship and ownership of the '342 patent. Conclusion Plaintiffs' fail to state a viable claim of breach of contract. Their Third Amended Complaint identifies very specifically the information they considered confidential, and which plaintiffs allege MDC wrongfully disclosed. However, defendant has established beyond any issue whatsoever that plaintiffs' claimed confidential information was public knowledge before the rocky relationship between these parties even began. The contractual language drafted by plaintiffs themselves unambiguously excluded such information from coverage by the Non-Disclosure Agreement. Plaintiffs' argument for correction of inventorship is similarly doomed by the undisputed facts. Plaintiffs admit that the concepts they claim as original in their complaint were actually patented by Mark Fuller before MDC ever contacted them. They attempt to salvage their claim by arguing that it was their idea to apply fountain technology in the ultrasonic testing environment. But this argument is wholly inconsistent with the undisputed fact that MDC contacted plaintiffs first with the express intention of learning state-of-the-art fountain technology for use in ultrasonic testing. Plaintiffs' incredible argument is further weakened by their admission that prior to their involvement with MDC they had no knowledge or experience in the ultrasonic testing field. A claim of co-inventorship cannot arise from the mere explanation of existing art to a party who wishes to apply that art in a different field. It is clear beyond dispute that that is what happened here. Therefore, summary judgment for defendant is correct in this case. IT IS HEREBY ORDERED, ADJUDGED and DECREED that defendant's Motion for Summary Judgment (# 81) is GRANTED. IT IS FURTHER ORDERED that this case is DISMISSED with prejudice. NOTES [1] Since the events in controversy occurred, MDC has been acquired by defendant Boeing. [2] In the Fuller nozzle, water was introduced in a tangential direction. The concept plaintiffs claim involves the introduction of water in a radial direction. However, the Court believes this difference does not constitute an unobvious, original design as the Fuller patent discusses the introduction of water in a radial direction as used in the prior art. The Fuller patent rejects radial injection in favor of tangential injection. [3] The Non-Disclosure Agreement included a clause selecting the law of Missouri as the controlling law. Since the parties do not dispute the enforceability of that choice of law clause, the Court will apply Missouri law to this contract. [4] In their Memorandum in Support of Plaintiffs' Opposition to Defendant's Motion for Summary Judgment, plaintiffs allege various illegal actions by defendant including violation of Missouri's version of the Uniform Trade Secrets Act, Mo. Rev.Stat. § 417.450 et seq., misappropriation of trade secrets, and breach of fiduciary duty. However, no allegations of these sorts are anywhere to be found in Count I of the Third Amended Complaint. Accordingly, any such arguments are completely irrelevant to this motion. [5] Again, their Memorandum in Support of Plaintiffs' Opposition to Defendants' Motion for Summary Judgment strays incredibly far afield from the scope of plaintiffs' complaint. The complaint alleges that plaintiff Ronald E. Deichmann should be added to the patent in issue as a co-inventor. In their Memorandum, plaintiffs argue for the addition of David Usher as well. David Usher is not even a party in this lawsuit.

Illinois Official Reports Appellate Court Villaverde v. IP Acquisition VIII, LLC, 2015 IL App (1st) 143187 Appellate Court MARCIAL VILLAVERDE, Plaintiff-Appellant and Cross-Appellee, Caption v. IP ACQUISITION VIII, LLC, BARBARA M. SPAIN 2004 REVOCABLE TRUST, and PATRICK SPAIN, Defendants- Appellees and Cross-Appellants. District & No. First District, Third Division Docket No. 1-14-3187 Filed August 12, 2015 Decision Under Appeal from the Circuit Court of Cook County, No. 12-CH-43070; the Review Hon. Neil Cohen, Judge, presiding. Judgment Affirmed. Counsel on Kristen E. Prinz, Jessica Fayerman, and Amit Bindra, all of Prinz Law Appeal Firm, P.C., of Chicago, for appellant. Paul W. Carrol and Jordan M. Hanson, both of Gould & Ratner, LLP, of Chicago, for appellees.  Panel JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Lavin and Mason concurred in the judgment and opinion. OPINION ¶1 Defendant, Marcial Villaverde won a $166,000 judgment for unpaid wages against his former employer, S1 Audio, LLC, owned by Christopher Gantz. During the wage litigation, creditors of S1 Audio, defendants IP Acquisition VIII, LLC, Barbara M. Spain 2004 Revocable Trust (Spain Trust or Trust) and Patrick Spain (collectively, defendants), conducted a foreclosure sale and acquired S1 Audio’s most valuable asset–its intellectual property, preventing Villaverde from being able to collect his judgment. ¶2 Villaverde filed suit alleging (1) successor liability; (2) civil conspiracy; and (3) violation of the Illinois Uniform Fraudulent Transfer Act (UFTA) (740 ILCS 160/1 et seq. (West 2010)). Defendants moved for summary judgment, and sanctions under Illinois Supreme Court Rule 137 (eff. July 1, 2013) for filing the suit. The trial court granted summary judgment in favor of defendants, finding that IP Acquisition was not a successor corporation to S1 Audio and that no transfer of assets took place between S1 Audio and IP Acquisition in violation of the UFTA. The court also denied the motion for sanctions. ¶3 Villaverde seeks reversal of the summary judgment order, claiming IP Acquisition conducted the foreclosure sale solely to avoid paying Villaverde’s judgment. Villaverde contends a genuine issue of material fact exists on whether IP Acquisition constitutes a successor to S1 Audio. He further contends ample evidence exists to support his civil conspiracy claim. Defendants cross-appealed contending the trial court should have granted their motion for sanctions, arguing the complaint contains false statements and meritless legal claims. ¶4 We affirm the trial court’s grant of summary judgment on the basis that no exception to the doctrine of corporate successor nonliability applies under the facts of this case. Furthermore, the trial court acted well within its discretion in denying defendants’ motion for sanctions against Villaverde. ¶5 BACKGROUND ¶6 Christopher Gantz owned S1 Audio between 2007 and December 2011 and employed five individuals. Gantz paid $750,000 to acquire the rights to NxSet’s intellectual property for a headphone that sits on a person’s shoulders. S1 Audio developed and attempted to sell, license, and market NxSet. ¶7 Villaverde worked for S1 Audio from November 2008 to July 16, 2010. On September 24, 2010, Villaverde filed suit against Gantz and S1 Audio for failing to pay him wages. On February 19, 2013, Villaverde obtained a judgment in the wage litigation against Gantz and S1 Audio in the amount of $166,000. ¶8 On December 4, 2012, some 10 weeks before the trial court entered judgment in the wage litigation, Villaverde filed this suit against defendants and Gantz to recover the judgment from his unpaid wages. In his first amended complaint, Villaverde alleged: (1) a violation of the UFTA (740 ILCS 160/1 et seq. (West 2010)) based on the transfer of the intellectual property from the Trust to IP Acquisition, (2) successor liability (claiming IP Acquisition is a merger or -2-  consolidation of S1 Audio and that defendants foreclosed the intellectual property to defraud Villaverde), and (3) civil conspiracy. ¶9 Gantz-Spain Relationship ¶ 10 Gantz had been friends with Patrick Spain since 1979. Between 2007 and 2010, Spain, either individually or through the Spain Trust, provided eight different loans to Gantz and S1 Audio. In 2009, the Spain Trust loaned S1 Audio $100,000 in exchange for a security interest in the company’s intellectual property. S1 Audio did not make any loan payments to Spain or the Spain Trust. On November 4, 2011, the Spain Trust provided the only notice of default, informing S1 Audio it had until November 11 to satisfy the $267,276.74 owed the Trust. S1 Audio did not cure the default and the Trust exercised its right as the primary secured creditor to foreclose its security interest. ¶ 11 In December 2011, the Spain Trust advertised in the Chicago Daily Law Bulletin the foreclosure sale of the intellectual property. On December 7, 2011, the date of the public sale, no outside bids were made for the intellectual property. The sale was extended and, on December 19, 2011, the Trust sold its security interest in S1 Audio to IP Acquisition of which Spain served as the managing member. The next day, IP Acquisition acquired the intellectual property of S1 Audio by making a credit bid–offering the amount of the debt S1 Audio owed. ¶ 12 Spain admitted IP Acquisition has only one asset–the S1 Audio intellectual property. Unlike S1 Audio, which developed and attempted to sell, license, and market the headphones, IP Acquisition’s business involved only selling or licensing the intellectual property. IP Acquisition attempted to sell the intellectual property at a targeted online auction but received only one bid of $5,000. IP Acquisition claims that before the auction, they offered Villaverde the right to share in the proceeds of any sale, but he refused. ¶ 13 On October 1, 2012, IP Acquisition hired Gantz as an independent sales representative. The agreement, dated June 1, 2012, provides Gantz with 20% of any money that IP Acquisition receives for the intellectual property. Gantz continued to try to license or market the intellectual property by working with prospective investors in America, Korea, and Japan. Gantz communicated with the potential investors; Spain did not participate in the conversations. ¶ 14 Neither Spain, the Trust, nor IP Acquisition entered into an agreement with S1 Audio to assume its liabilities after purchasing its assets. ¶ 15 Communications Between the Parties ¶ 16 Settlement Negotiations ¶ 17 IP Acquisition contends that Spain, as the Trust’s trustee, periodically sought information on when the loans to S1 Audio would be repaid. Defendants claim that in 2011, five months before the foreclosure, Spain threatened to foreclose on the Trust’s secured interest in S1 Audio’s intellectual property. That fall, Spain advised Gantz that the Trust lost confidence in the ability of S1 Audio to meet its obligations and advised Gantz that the trust would foreclose its security interest. According to defendants, Gantz was “not happy with the situation” and stayed out of the foreclosure process. ¶ 18 Between September 2011 (before the foreclosure) and January 24, 2012 (after the foreclosure), Spain, through his then counsel, Ken Obel, and Villaverde, through his counsel, -3-  the Prinz Law Firm, participated in settlement conversations. During a September 2011 meeting, Spain explained that he was attempting to settle Villaverde’s litigation against S1 Audio because he was trying to sell the intellectual property. During defendants’ first written offer for Villaverde to share in the proceeds from any sale or license of the intellectual property, defendants outlined three different payment scenarios in exchange for Villaverde agreeing to dismiss his wage litigation, and, in all three, Villaverde’s ability to share in the proceeds was second only to Spain’s. The agreement would allow Villaverde to still pursue the amounts he was owed if S1 Audio could not sell or license the intellectual property within six months of the agreement. Defendants sent Villaverde their second written settlement offer in December 2011. Again, Villaverde’s payment would be second only to Spain, but Gantz could receive proceeds only after Villaverde was paid in full. Defendants made a third written offer in January 2012–if Villaverde was not fully paid by April 29, 2012, the release he provided would be ineffective and he could pursue a claim for any deficiency. Again, Gantz would not receive proceeds from the sale or license of the intellectual property until Villaverde was paid in full. ¶ 19 On May 31, 2013, Gantz filed for bankruptcy and was removed from this litigation. ¶ 20 Email Correspondence ¶ 21 On February 9, 2011, Spain emailed Gantz, “It may be time to go BK to clear a bunch of this stuff up or at a minimum do an assignment for creditors. This will get rid of EAR [investor–Equipment Acquisition Resources] as well. Does Gould [counsel for Defendants] have a BK lawyer we can talk to? I will get the IP in a BK, but I will contribute it to a new company.” On February 17, Spain wrote, “If we BK the company, which I think we must, I will have a total nuisance of a co-security interest holder with an aggressive uninformed atty.” That same day, he wrote, “I really don’t want them to have access to IP. Please don’t give them that.” Five days later, Spain wrote, “getting the IP out of Sync1 ASAP is very important though.” ¶ 22 On March 28, 2011, Spain stated, “I looked at Assignment FBC again and I think this may be a viable way to go if you abandon the old company and sell the assets to the new company. I am not sure how slow you can go. Also, it does not stop court proceedings but makes them pretty pointless, effectively stopping many of them.” ¶ 23 In October 2011, Spain sent two emails to Gantz. In the first email, Spain wrote, “We need to be ready to foreclose on the assets by Monday, as we don’t want a judgment entered next week. It will go better for all if we have your cooperation and get your signature on the documents this week.” The next day, Spain emailed Gantz again and wrote, “And if Villaverde gets a judgment and the IP is still in the company he will likely get paid before me. The only way [I] know that I can make sure I get paid first and completely (assuming there is any cash) is to own the IP.” ¶ 24 On March 12, 2013, well after Villaverde received a judgment on his unpaid wages, Spain wrote Gantz, “It would have been simple as hell not to book [employees’] compensation as salary and we would both have been spared a lot of grief and expense.” -4- ¶ 25 Summary Judgment and Sanction Motions ¶ 26 On February 19, 2014, the trial court granted summary judgment in favor of IP Acquisition, holding that IP Acquisition had a perfected security interest and did not violate the UFTA (740 ILCS 160/1 et seq. (West 2010)). The court further found no evidence of civil conspiracy. ¶ 27 The court denied Villaverde’s motion to reconsider, stating: “This court found that even assuming IP Acquisition was the successor of S1Audio, Inc. a fact for which there was no evidentiary support, there was no wrongdoing for which IP Acquisition could be held liable. The foreclosure of the IP was not fraudulent, but specifically authorized by the Uniform Commercial Code ***. IP Acquisition foreclosed on a valid lien as it was entitled to under the Uniform Commercial Code.” ¶ 28 On September 19, 2014, the trial court denied IP Acquisition’s Rule 137 motion. The court held that sanctions would “punish a party or attorney for being zealous, yet unsuccessful.” The court explained that although it found Villaverde’s legal arguments to be “unconvincing,” sanctions could not be used to punish him for “misapplying the law.” Even though the court found the evidence did not support Villaverde’s position, it concluded that Villaverde acted reasonably in filing suit. ¶ 29 ANALYSIS ¶ 30 Villaverde argues errors of law and fact and that the trial court’s holding “allows unscrupulous businesspersons to avoid a court judgment by merely changing the form of the transfer of assets.” ¶ 31 Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West 2010). Summary judgment should be entered whenever the plaintiff fails to establish a prima facie case on an essential element of his or her claim. Pyne v. Witmer, 129 Ill. 2d 351, 358 (1989). We review the trial court’s decision to grant summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). ¶ 32 Uniform Commercial Code Applicability to Successor Liability ¶ 33 Villaverde asserts that the trial court premised its denial of his claims on the notion that a Uniform Commercial Code sale preempts any claim for successor liability. IP Acquisition responds that the trial court did and said no such thing. We agree. The ruling on summary judgment does not turn on whether a UCC sale preempts successor liability, and Villaverde’s argument to the contrary is without merit. The trial court entered summary judgment in IP Acquisition’s favor because “there was no evidence in the record to support [Villaverde’s] allegations that any of the defendants qualified as successors of S1” and “the record was devoid of any evidence of a tortious or unlawful act by IP Acquisition, Spain, or the Trust which would support a conspiracy claim.” ¶ 34 Illinois Uniform Fraudulent Transfer Act ¶ 35 Villaverde maintains that IP Acquisition served as a continuation of S1 Audio and defendants concocted the foreclosure sale for the fraudulent purpose of escaping liability. Villaverde accuses S1 Audio, through Gantz, of colluding with Spain, to place the only -5-  valuable asset–the intellectual property (NxSet)–into a new corporation (IP Acquisition) to avoid paying Villaverde’s wage litigation judgment. Villaverde raises, as genuine issues of material fact, whether the foreclosure proceedings and public sale were fraudulent. According to Villaverde, the trial court improperly concluded that IP Acquisition could be liable under the fraud exception to successor liability only after a fraudulent transfer as provided in the UFTA (740 ILCS 160/1 et seq. (West 2010)). ¶ 36 Defendants respond that they did not participate in fraud. Rather, as a secured creditor of S1 Audio, IP Acquisition properly foreclosed and bought S1 Audio’s intellectual property at a public sale. IP Acquisition offered to share the proceeds of any sale or license of the intellectual property with Villaverde, both before and after the foreclosure of S1 Audio, despite no legal obligation to do so. Villaverde counters that the facts as presented, specifically the relevant email correspondence, as well as Spain’s and Gantz’s conduct, create issues of material fact sufficient to defeat IP Acquisition’s motion for summary judgment. ¶ 37 The UFTA allows a creditor to defeat a debtor’s transfer of assets to which the creditor was entitled. 740 ILCS 160/5 (West 2010). Under the controlling definitions of the UFTA, the intellectual property here was not an “asset” and its “transfer” could not be a violation of the UFTA. “ ‘Asset’ means property of a debtor, but the term does not include *** property to the extent it is encumbered by a valid lien.” 740 ILCS 160/2(b)(1) (West 2010). Accordingly, the trial court properly granted summary judgment on count I of Villaverde’s complaint. ¶ 38 We disagree with Villaverde that the trial court based its ruling on count II (successor liability) and count III (civil conspiracy) on its denial of count I. The trial court addressed each claim individually, as will we. ¶ 39 Successor Corporate Liability ¶ 40 Generally, when a corporation sells its assets to another corporation, the seller’s liabilities do not become a part of the successor corporation unless an agreement so provides. Diguilio v. Goss International Corp., 389 Ill. App. 3d 1052, 1060-61 (2009) (citing Vernon v. Schuster, 179 Ill. 2d 338, 345 (1997)). But, four exceptions apply: (1) the transaction includes an express or implied agreement of assumption; (2) the transaction constitutes a consolidation or merger of the purchaser or seller corporation; (3) the purchaser is a continuation of the seller; or (4) the transaction is an improper attempt to escape liability for the seller’s obligations. Id. at 1060. ¶ 41 Villaverde argues, based on the evidence, that he met two exceptions to the general rule of successor corporate nonliability: (1) the transaction between S1 Audio and IP Acquisition was an attempt by the seller to escape liability for its obligations to Villaverde (exception 4) and (2) IP Acquisition exists as a continuation of S1 Audio (exception 3). ¶ 42 Evading Liability Exception ¶ 43 Villaverde argues IP Acquisition’s conduct before and after the 2011 foreclosure sale offers evidence that fraud tainted the transactions. As support, Villaverde offers these facts he claims are undisputed: (1) Villaverde filed a successful lawsuit for unpaid wages; (2) during the wage litigation, Spain sent several emails to Gantz in which Spain expressed concern Villaverde would receive a judgment; (3) Spain sent Gantz the only default notice less than two weeks after the emails and four years of no repayment; and (4) IP Acquisition conducted the foreclosure sale less than two months after Spain admitted he did not want a “judgment -6-  entered.” Villaverde also attaches great significance to his claim that Spain sought Gantz’s “corroboration.” As further evidence the sale attempts to escape liability, Villaverde questions the notice of the foreclosure sale being published solely in the Chicago Daily Law Bulletin and appearance of only the secured creditor at the public auction. Villaverde challenges the relevancy of IP Acquisition’s security interest in the intellectual property because “it is clear” the intent of the foreclosure sale was to avoid his judgment. ¶ 44 In addition, Villaverde relies on the factors outlined in the UFTA to support his claim of fraud. The UFTA offers 11 “badges of fraud” to consider when determining actual intent: “(1) the transfer or obligation was to an insider; (2) the debtor retained possession or control of the property transferred after the transfer; (3) the transfer or obligation was disclosed or concealed; (4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit; (5) the transfer was of substantially all the debtor’s assets; (6) the debtor absconded; (7) the debtor removed or concealed assets; (8) the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred; (9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred; (10) the transfer occurred shortly before or shortly after a substantial debt was incurred; and (11) the debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.” 740 ILCS 160/5(b) (West 2010); see also Kennedy v. Four Boys Labor Services, Inc., 279 Ill. App. 3d 361, 369 (1996). The presence of these “badges of fraud” may give rise to an inference or presumption of fraud; they are “considerations” the trial court should use in determining whether fraud occurred. Steel Co. v. Morgan Marshall Industries, Inc., 278 Ill. App. 3d 241, 251 (1996) (citing Kaibab Industries, Inc. v. Family Ready Homes, Inc., 80 Ill. App. 3d 782, 786 (1978) (four “badges of fraud” sufficient to give rise to inference of fraud)). ¶ 45 Villaverde relies on badges 4, 5, 8, 9, and 10, arguing the following: Before the foreclosure, Spain was aware that Villaverde had filed suit against Gantz and S1 Audio for unpaid wages (4). IP Acquisition acquired the intellectual property–S1 Audio’s most valuable asset–during the foreclosure (5 and 9), after which, Gantz personally filed bankruptcy (9). Although Gantz originally paid $750,000 for the intellectual property, IP Acquisition received their security interest in the intellectual property for $100,000 (8). During the wage litigation, the court entered a substantial judgment against S1 Audio and Gantz for Villaverde’s unpaid wages (10). ¶ 46 Villaverde further contends the record supports finding badges 1, 2, 3, and 11. Spain and Gantz have been friends since 1979 and, hence, even if they are not “insiders,” their 30-year relationship meant they were unable to bargain at arm’s-length (1). After the foreclosure, Gantz continued with his same day-to-day duties. Potential clients assumed Gantz owned the patent and rarely spoke to Spain (2). By advertising the intellectual property sale in the Chicago Daily Law Bulletin, the defendants essentially concealed the transfer, particularly in light of the absence of an outside bidder at the auction (3). Lastly, when the Spain Trust transferred its interest in the intellectual property to IP Acquisition, the debtor transferred essential assets to a lienor who transferred the assets to an insider, because Spain controls both entities (11). ¶ 47 We disagree with Villaverde’s major contention–that the trial court held the foreclosure sale automatically terminates successor liability. The court’s holding relates only to the facts as presented. The foreclosure sale was not an improper attempt to shed the debt obligations of -7-  unsecured creditors, such as Villaverde, but a proper means for the secured creditor to collect on its debt after a default and, therefore, any exception to the general rule against successor liability was inappropriate. See 15 William Meade Fletcher et al., Private Corporations § 7333, at 642-44 (perm. ed. 1999) (“where an individual purchases the assets of a corporation at a foreclosure sale and then resells to a new company composed largely of the members of the company whose assets were sold, and there is no fraud, the new company is not liable for the debts of the old”). ¶ 48 We agree with the trial court that the so-called badges of fraud identified by Villaverde do not establish, individually or collectively, that the foreclosure transaction was a fraud to avoid paying Villaverde his judgment. Examining the factors listed in section 5(b) of the UFTA, there is not a significant number of “badges of fraud” present to support a presumption of fraud. Under the UFTA, when the debtor is a corporation, like S1 Audio, an “insider” includes a director of the corporation, an officer of the corporation, anyone in control of the corporation, and a relative of a person in control of the corporation. 740 ILCS 160/2(g)(2) (West 2010). Spain does not qualify as an insider but as a creditor of S1 Audio (1). His friendship with Gantz does not alter his role relative to the corporation. Neither S1 Audio nor Gantz retained possession or control of the intellectual property after the foreclosure sale (2). Before the foreclosure sale, the Trust irrevocably sold and assigned its security interest in S1 Audio to IP Acquisition, whose managing member was Spain (who never worked for S1 Audio). Subsequently, IP Acquisition bid an amount equal to the amount S1 Audio owed under the promissory notes and obtained its intellectual property. IP Acquisition hired Gantz as an independent contractor for his expertise to help in IP Acquisition’s efforts to sell or license the intellectual property; Gantz’s employment does not mean he possessed or controlled the intellectual property. Spain and IP Acquisition controlled the intellectual property after the foreclosure. Defendants never tried to conceal the transfer of the asset (3) and actually kept Villaverde up to date on the intellectual property and offered to share the proceeds of any sale or license before or after the foreclosure. The debtor had not been sued or threatened with suit before the transfer was made or the obligation incurred (4). Between 2009 and 2010, the Trust purchased promissory notes from S1 Audio in return for a security interest in the intellectual property. Villaverde did not seek judgment or any other relief against S1 Audio and Gantz until at least December 14, 2011. Accordingly, the obligation was incurred well before the threat of suit. ¶ 49 Whether the transfer was of substantially all the debtor’s assets (5) is the only factor that potentially supports a finding of fraud. From the record before us, S1 Audio’s only asset was the intellectual property. This factor, however, is neutral at best because there is no in-depth discussion concerning whether S1 Audio owned other intellectual property or was involved in any other business pursuits. Gantz has not absconded (6); he actively sought to sell or license the intellectual property as an employee of IP Acquisition after the foreclosure sale. The intellectual property is the only asset at issue and Villaverde never contended its existence was concealed from him (7). The valuation of the intellectual property does not support finding fraud (8) where the undisputed facts establish the current value as $5,000 based on an outside bid at the online auction. The record shows Gantz personally filed bankruptcy, but there is no evidence concerning how S1 Audio fared following the foreclosure, so (9) does not support a finding of fraud. No allegation was made that the transfer of the intellectual property occurred before a substantial debt (10); in fact, the foreclosure sale took place four years after the -8-  promissory notes were executed. Lastly, there was no allegation that a third party was involved (11)–neither S1 Audio nor Gantz transferred the intellectual property to a lienor who transferred the assets to an insider. The undisputed facts do not support finding an inference of fraud based on the factors listed in section 5(b) of the UFTA. ¶ 50 Further, we are unpersuaded by Villaverde’s position regarding the value of the intellectual property. Even though a third party valued the intellectual property at $800,000 at one point and Gantz originally paid $750,000 for it, the only current valuation was the $5,000 bid received during the public online auction in the Spring 2012. Accordingly, Spain’s acquiring of the intellectual property as a security interest for his loan of $100,000 was not inadequate. Likewise, we are unpersuaded that the foreclosure process itself establishes fraud. Villaverde’s suggestion cannot be reconciled with defendants’ repeated attempts to have Villaverde share in the proceeds from any sale or license of the intellectual property. Additionally, after the foreclosure, defendants attempted to sell or market the intellectual property almost immediately and continued their offer to have Villaverde share in the proceeds. ¶ 51 Nor does the email correspondence indicate fraudulent intent. The email exchange shows a creditor exercising its right to be informed about its loan and the likelihood of repayment. Undisputed is that only Spain and his counsel participated in the foreclosure process. ¶ 52 Both before and after the foreclosure sale, defendants, who were under no legal obligation to do so, offered to enter into an agreement with Villaverde to provide him with proceeds from the license or sale of the IP, but he refused. Before the foreclosure sale, defendants were motivated by their need to sell the IP to recoup their investment and likely believed it would be easier to sell without Villaverde’s judgment. After the foreclosure, defendants, as a successor corporation, were under no legal obligation to pay Villaverde’s judgment but, again, probably believed it would be easier to sell the IP without it. ¶ 53 Continuation Exception ¶ 54 Villaverde argues the undisputed facts also establish that IP Acquisition serves as a continuation of S1 Audio and should be liable for his wage litigation judgment. Villaverde finds it significant that both before and after the foreclosure, Gantz and Spain were the only individuals who could receive any money from the sale or license of the intellectual property, and both had the same essential duties before as after the sale. ¶ 55 The correct standard for evaluating whether the continuation exception applies is set out in Vernon v. Schuster, 179 Ill. 2d 338, 346 (1997), cited by defendants, and not Steel Co. v. Morgan Marshall Industries, Inc., 278 Ill. App. 3d 241 (1996), as suggested by Villaverde. Illinois courts have held that the most important factor in determining whether a merger has occurred for purposes of the continuation exception is the identity of the ownership of the new and former corporations. Vernon, 179 Ill. 2d at 346-47; see also Diguilio v. Goss International Corp., 389 Ill. App. 3d 1052, 1062 (2009) (deciding factor whether there is a continuation of corporate entity of seller, not whether seller’s business operation continues). The exception seeks to avoid the situation that would “allow the predecessor to escape liability by merely changing hats.” (Internal quotation marks omitted.) Vernon, 179 Ill. 2d at 346. ¶ 56 Spain, the owner of IP Acquisition, was not an officer, director, or stockholder of S1 Audio–he was a creditor. Gantz, the CEO of S1 Audio is not an officer, director, or stockholder of IP Acquisition–he is an employee/independent contractor. The focus for the continuation exception is on the corporate entity of the seller and not whether there is a continuation of the -9-  seller’s business operation. See id. at 347 (identity of ownership necessary to impose successor liability). ¶ 57 No identity of ownership between S1 Audio and IP Acquisition exists that would justify the application of the continuation exception to the general rule of successor corporate nonliability. Under these facts, IP Acquisition, as a secured creditor of S1 Audio, properly foreclosed on the secured collateral following default and collected on its debt. As a successor corporation, IP Acquisition is not liable for the debts of S1 Audio and, because none of the four exceptions apply, summary judgment in IP Acquisition’s favor is proper. ¶ 58 Civil Conspiracy ¶ 59 Villaverde argues the foreclosure sale was a civil conspiracy intended to delay recovery of his unpaid wages. ¶ 60 “Civil conspiracy consists of a combination of two or more persons for the purpose of accomplishing by some concerted action either an unlawful purpose or a lawful purpose by unlawful means. *** A cause of action for civil conspiracy exists only if one of the parties to the agreement commits some act in furtherance of the agreement, which is itself a tort.” Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 62-63 (1994). ¶ 61 As support for this position, Villaverde relies on Zokoych v. Spalding, 36 Ill. App. 3d 654, 667 (1976), in which the court found a secured creditor bank cooperated with a co-owner of a business in a scheme to breach his fiduciary obligations to his fellow owner and, thus, engaged in a conspiracy to commit fraud. The bank claimed to be protecting its secured interest in company machinery from a third-party creditor by allowing the defendant co-owner to unilaterally transfer the secured machinery. Id. The court found the bank acted against the company and other co-owner’s rights by knowingly allowing the secured assets to be converted by the defendant co-owner without default on the underlying loan and with knowledge of the plaintiff co-owner’s interest in the company. Id. ¶ 62 We disagree that Zokoych resembles the facts here. The Spain Trust, the primary secured creditor of S1 Audio, enforced its undisputed right to foreclose on the secured collateral (intellectual property) following default. IP Acquisition took no action that defrauded, hindered, or delayed Villaverde from receiving his judgment. In contrast, IP Acquisition presented evidence of communication with Villaverde both before and after the foreclosure for him to share in any proceeds from the sale or license of the intellectual property. ¶ 63 The trial court properly found that the foreclosure and subsequent licensing of the intellectual property did not violate the UFTA and, therefore, there is no unlawful act to support a cause of action for a civil conspiracy. We affirm the trial court’s decision to grant summary judgment on the civil conspiracy claim. ¶ 64 Summary Judgment Affirmed ¶ 65 Villaverde fails to present a question of material fact precluding summary judgment for defendants and the trial court correctly found no exception to the doctrine of successor nonliability. - 10 - ¶ 66 Cross-Appeal on Denial of Rule 137 Sanctions ¶ 67 Defendants’ cross-appeal on the denial of Rule 137 sanctions for the filing of a vexatious and harassing lawsuit. They argue that Villaverde and his counsel sought a guaranteed payment through a lawsuit which purposely omitted key facts. As defendants tell it, Villaverde and his counsel “twist the story and try to make it fit into the theory underlying their nuisance pleading, ultimately setting forth a false and misleading version of the truth.” ¶ 68 Rule 137 provides a mechanism to keep parties from abusing the judicial process through the availability of sanctions for “vexatious and harassing actions” based on unsupported allegations of fact or law. (Internal quotation marks omitted.) Burrows v. Pick, 306 Ill. App. 3d 1048, 1050 (1999). The party moving for sanctions must show the other side made untrue and false allegations without reasonable cause. Id. at 1050-51. The trial court uses an objective standard to determine whether the party made a reasonable inquiry into the facts and law supporting the allegations. Id. at 1051. ¶ 69 We will uphold a ruling on Rule 137 sanctions unless the trial court abused its discretion. Yassin v. Certified Grocers of Illinois, Inc., 133 Ill. 2d 458, 467 (1990). The trial court, which sits in the best position to evaluate the circumstances, abuses its discretion only if no reasonable person would take its view. Fremarek v. John Hancock Mutual Life Insurance Co., 272 Ill. App. 3d 1067, 1074 (1995). Courts consider an allegedly offending complaint at the time of its filing rather than engage in hindsight. Lewy v. Koeckritz International, Inc., 211 Ill. App. 3d 330, 334 (1991). In reviewing the trial court’s decision, we determine whether it was “informed, based on valid reasons, and followed logically from the circumstances of the case.” Burrows, 306 Ill. App. 3d at 1051 (citing In re Estate of Smith, 201 Ill. App. 3d 1005, 1009-10 (1990)). ¶ 70 The trial court thoroughly examined the sanctions’ motion before issuing its ruling. As the trial court observed in its Memorandum and Order, “[w]hile this court ultimately found plaintiff’s legal arguments to be unconvincing, sanctions are not intended to punish litigants for misapplying the law.” As for the evidence, the trial court observed that despite having concluded that the evidence did not support Villaverde’s claims, “this does not mean that plaintiff could not reasonably argue that the facts supported [his] position. Defendants have failed to persuade us that the trial court abused its discretion in finding that Villaverde made a reasonable inquiry into the facts, a good faith argument, and did not file his suit for the improper purpose of harassment. Accordingly, we will not disturb the trial court’s denial of Rule 137 sanctions. ¶ 71 CONCLUSION ¶ 72 We affirm both the grant of summary judgment and the denial of sanctions. ¶ 73 Affirmed. - 11 - 

191 P.3d 738 (2008) 221 Or. App. 661 John M. UNO, M.D., P.C., Plaintiff-Appellant, v. PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY, a corporation, Defendant-Respondent. 06CV0163; A133991. Court of Appeals of Oregon. Argued and Submitted November 28, 2007. Decided August 13, 2008. *739 William A. McDaniel, Coos Bay, argued the cause for appellant. With him on the briefs was Whitty, Littlefield, McDaniel & Bodkin, LLP. R. Daniel Lindahl argued the cause for respondent. With him on the brief were Robert B. Miller and Bullivant Houser Bailey, PC, Portland. Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and SERCOMBE, Judge. SERCOMBE, J. Plaintiff, a disabled physician, appeals a judgment in favor of his insurer, defendant Provident Life & Accident Insurance Company (Provident). Provident issued plaintiff an overhead expense disability insurance policy. Plaintiff contends that the trial court erred in interpreting that policy to preclude coverage when plaintiff was not engaged in the practice of medicine. We disagree with the trial court's construction of the policy and reverse the entry of summary judgment in favor of Provident. Plaintiff is a physician who specializes in the practice of urology. In 1986, plaintiff purchased an overhead expense disability insurance policy from Provident. By the terms of the policy, Provident promised plaintiff to "pay benefits during a Period of Disability for Covered Overhead Expenses which accrue while you are totally disabled after the Elimination Period." The policy defined "Period of Disability" to include a period of "Total Disability (plus any Partial Disability which follows and for which benefits are paid)." "Total Disability" was defined, in turn, to mean "* * * that due to Injuries or Sickness: "1. you are not able to perform the substantial and material duties of your occupation; and "2. you are receiving care by a Physician which is appropriate for the condition causing the disability." "Partial Disability" means conditions where the insured is unable to perform one or more "substantial and material daily business duties," or unable to do "usual daily business duties for as much time as it would normally take * * * to do them" and is under the appropriate care of a physician. In July 2004, plaintiff became totally disabled and ceased treating patients. He placed his medical license in retirement status and cancelled his medical malpractice insurance. Plaintiff hoped to recover from his disability, reactivate his medical license, and resume his practice. Accordingly, plaintiff continued to maintain his medical office, employing a part-time employee for the limited purposes of collecting accounts receivable, copying and mailing patient charts, paying bills, and storing financial and patient records. In April 2005, plaintiff made a claim for benefits under the policy for expenses incurred in maintaining his downsized medical practice. Provident accepted the claim and paid approximately six months of benefits. Thereafter, Provident declined further payments on the basis that plaintiff's overhead expenses were not "covered overhead expenses" as defined by the policy. Plaintiff then brought an action against Provident for breach of contract. The parties' dispute concerns whether the office expenses were "covered overhead expenses." As defined by the policy, "covered overhead expenses" are "items of expense incurred by you which are usual and customary in the operation of your business or profession. They must be generally accepted as tax deductible business overhead expenses." The trial court concluded that the office expenses did not qualify as "covered overhead expenses" because they were not "incurred * * * in the operation of [plaintiff's] business or profession." To so qualify, the trial court reasoned, plaintiff must be "currently active in the operation of a profession involving the medical practice of urology" in order for the benefits to be payable. *740 Because it concluded that plaintiff was not so engaged, the trial court entered summary judgment in favor of Provident. On appeal, plaintiff contends that "there are more facets to the operation of a urology practice than simply seeing patients," therefore, maintenance of his office for collections, billing, and storing patient files is part of the total operation of the business of his urology practice. Plaintiff adds that any ambiguity in the scope of covered expenses is to be resolved against the insurer. Conversely, Provident contends that plaintiff's business is "practicing medicine" and because plaintiff is "not treating patients, perform[ing] surgery, or conduct[ing] hospital rounds," he is not operating a business or profession for which benefits are owed under the terms of the policy. In Provident's view, plaintiff is essentially operating a collection agency, expenditures for which are not a payable benefit under the insurance policy. Under the policy, plaintiff is entitled to benefits if he incurred "covered overhead expenses" during a period of "total disability." The parties do not dispute that plaintiff was totally disabled, as defined by the policy, during the period of the claim. Nor do they differ on whether the "items of expenses" here—the employee salaries, office rent and other costs of collecting accounts receivable, patient correspondence, and record keeping—are the types of expense that fit within the definition of "covered overhead expense" under the policy. The policy specifically lists "employees' salaries," "rent," and "accounting, billing and collection service fees" as types of qualified overhead expenses. Those are the "items of expense" plaintiff incurred. The policy also lists specific items that are not included in the definition of "covered overhead expenses": certain salaries, additions to inventory, extraordinary expenses, more than proportionately shared overhead, overhead expenses reimbursable under another policy. Those excluded expenses are not the type of "items of expense" plaintiff incurred.[1] Instead, the parties differ on whether costs associated with continuing plaintiff's business during a period of total disability were "items of expense incurred * * * in the operation of [plaintiff's] business or profession" and therefore were "covered overhead expenses" under the policy. Plaintiff contends that those business continuation expenses are part of the "operation of [plaintiff's] business or profession." Provident argues *741 that plaintiff is not "operating" his business unless he is practicing medicine. However, Provident does not specify the types of expenses that could be incurred after an insured becomes totally disabled and still qualify as "covered overhead expenses" under the policy. The interpretation of the meaning of "operation of [a] business or profession" is a question of law. Hoffman Construction Co. v. Fred S. James & Co., 313 Or. 464, 469, 836 P.2d 703 (1992). The governing rule of the construction of an insurance agreement is to ascertain the intent of the parties. Totten v. New York Life Ins. Co., 298 Or. 765, 770, 696 P.2d 1082 (1985). That analysis begins with the terms and conditions of the policy. If those terms are not defined in the policy, we look to their plain meaning. Hoffman, 313 Or. at 469-70, 836 P.2d 703. If, after reviewing the plain meaning in context, the term or terms are susceptible to more than one plausible interpretation, the policy will be construed against the drafter. Id. We conclude that the plain meaning of "operation of [a] business or profession" in the context of the insurance policy includes performing actions to continue plaintiff's business, without regard to whether patients are still being treated. The meaning of "operation" is "1 a * * * a doing or performing esp. of action: * * * b: a doing or performing of a practical work or of something involving practical application of principles or processes often experimentally or as part of a series of actions." Webster's Third New Int'l Dictionary 1581 (unabridged ed. 2002) "Business" is defined as "1 a (1) * * * purposeful activity: activity directed toward some end * * * (2): an activity engaged in as normal, logical, or inevitable and usu. extending over a considerable period of time." Id. at 302. Finally, "profession" is defined as "4 a: a calling requiring specialized knowledge and often long and intensive preparation * * *." Id. at 1811. Under those commonly understood definitions, business continuation activities are an "operation" in the sense that they are the performance of actions and the doing of practical work. The work is a "business" or part of plaintiff's "profession" because it is directed to some purposive end, the continuance of a professional practice, and because the billing and collection efforts continue normal activities that were part of plaintiff's professional practice. Thus, "covered overhead expenses" includes those type of expenses incurred in the continuation of the business or profession of the disabled insured. The context of the rest of the policy supports an interpretation that "covered overhead expenses" includes business continuation expenses of a disabled insured and not just more immediate expenses. There is no specific exclusion for business continuation expenses. Just as importantly, the policy contemplates the incurring of expenses by a disabled insured over a long period of time. First, the benefits do not start immediately after an insured becomes disabled. The policy provides that benefits are not payable for "Covered Overhead Expenses which accrue during an Elimination Period." An "elimination period" is the time of total disability that must elapse before benefits become payable." (The elimination period in plaintiff's policy was 90 days.) Second, the policy limits the monthly benefit to $10,000 and the maximum benefit to $120,000. It thus contemplates scenarios where benefits would be paid for a period of total disability that lasted a year or longer. Expenses for that length of time are likely to be those incurred to continue a business or profession. Finally, if an exclusion were intended for expenses incurred while an insured physician was not licensed or covered by malpractice insurance, the policy could have plainly said so. Based on the text of the definition of "covered overhead expenses," the failure to exclude business continuation expenses from that definition, and the context of the remaining portions of the policy, we conclude that the policy required the payment of business continuation expenses as part of "covered overhead expenses." Nonetheless, Provident relies on Richardson v. Guardian Life Ins. Co., 161 Or.App. 615, 984 P.2d 917, rev. den., 329 Or. 553, 994 P.2d 129 (1999), to argue that the policy covers only overhead expenses incurred while "operating a medical practice" in the sense of "examining patients, performing *742 surgeries, or making hospital rounds." However, we do not view Richardson as helpful to Provident's case because Richardson determined only that similar text in an overhead expense disability policy did not cover expenses incurred after a business was sold, expenses that obviously were not business continuation expenses.[2] In Richardson, the plaintiff, a dentist and sole shareholder of his incorporated dentistry practice, brought an action against his insurer for nonpayment under two business overhead disability insurance policies. The policies provided coverage for regular business expenses "incur[red] in the conduct of your business or profession" in the event the plaintiff became disabled. Id. at 617, 984 P.2d 917 (emphasis added). "Total disability" was defined as "the inability `to perform the major duties of your occupation.'" Id. at 618, 984 P.2d 917. The plaintiff's health deteriorated to a point where he could no longer practice dentistry, so he sold his stock in the professional corporation to one of his dentist employees and agreed in the stock purchase agreement to pay one year of the overhead expenses of the business. The plaintiff then submitted a notice of disability claim to his insurer. After denial of the claim, plaintiff filed a breach of contract action against the insurer to recover, among other things, the overhead expenses he had agreed to pay on behalf of his business successor. The trial court granted summary judgment in favor of the insurer on the breach of contract claim, finding that the policy did not cover the plaintiff's claim for business overhead expenses because he was not conducting a business after the sale of his corporation. This court agreed, holding that the plaintiff "did not conduct a business or profession after he sold his stock and, therefore, the policies did not cover his payment of overhead expenses." Id. at 623, 984 P.2d 917 (emphasis added). Notably, we did not decide whether the plaintiff conducted a business or profession after his disability and before he sold his stock, a situation more closely analogous to this case. The determination of whether the plaintiff in Richardson was due benefits under his policies turned on the fact that he had sold his practice. The court concluded that he could not be "conducting" a business if he was no longer in that business. In contrast to the plaintiff in Richardson, plaintiff here still owns his medical practice and intends to continue it in the future. Thus, Richardson does not alter our conclusion that plaintiff's business continuation expenses were part of "covered overhead expenses" under the policy. Based on the above, we conclude that the trial court erred in granting summary judgment to Provident and in determining that expenses incurred in the operation of plaintiff's business could not include business continuation expenses and must include only those expenses resulting from the treatment of patients. However, our finding of error does not imply any ultimate success in plaintiff's claim. Again, the policy defined "covered overhead expense" as "items of expense incurred by [the insured] which are usual and customary in the operation of [the insured's] business or profession." (Emphasis added.) As we have said, business continuation expenses are categorically the type of expenses that are "incurred * * * in the operation of [a disabled insured's] business or profession." What is less clear is whether the incurring of business continuation expenses by plaintiff for a long period after his disability was "usual and customary" in the practice of urology, given his lack of recovery and the ongoing loss of patients to other physicians. That factual issue was not decided in the summary judgment proceedings. Reversed and remanded. NOTES [1] The policy provides: "Covered Overhead Expense means items of expense incurred by you which are usual and customary in the operation of your business or profession. They must be generally accepted as tax deductible business overhead expenses. They include but are not limited to items such as: "1. employees' salaries (except as excluded below); "2. charges for utilities such as electricity, telephone, heat and water; "3. either a) rent, or b) an equivalent rental cost for space which you occupy in a building you own and which space you use in the operation of your business or profession, consisting of taxes, maintenance and mortgage interest payments plus the greater of scheduled depreciation for tax purposes or scheduled mortgage principal payments; "4. for furniture, equipment and implements of your business or profession; either a) leasing cost, or b) an equivalent cost consisting of taxes, maintenance and interest payments plus the greater of scheduled depreciation for tax purposes or scheduled principal payments; "5. laundry, janitorial and maintenance services; "6. business insurance premiums; and "7. accounting, billing and collection service fees. "Covered Overhead Expenses do not include: "1. salaries, fees, drawing accounts, profits or other remuneration for: "a. you; "b. any person sharing your profession or occupation; or "c. any member of your profession or occupation; or "d. any person employed to perform your duties; "2. additions to inventory or the costs of goods or merchandise purchased for sale; "3. any kind of expense for which you were not liable in the normal course of your business or profession prior to a covered Total Disability; "4. more than your share of expenses when they are shared with one or more persons; and "5. overhead expenses which would otherwise be covered were it not for such expenses being reimbursable under another business overhead expense policy or disability policy issued prior to the Effective Date of this policy. "An expense covering more than one month will be prorated to determine the expense for one month." [2] Other cases relied on by Provident are not binding on this court and suffer from the same factual difference. See, e.g., Wilson v. Monarch Life Ins. Co., 971 F.2d 312 (9th Cir.1992) (chiropractor did not "conduct" his practice after its sale); Principal Mutual Life Ins. Co. v. Toranto, (N.D.Tex.1997) (1997 WL 279751) (mem), on recons in part (N.D.Tex.1997) (1997 WL 361872) (surgeon no longer incurred overhead expenses after the sale of his practice).

FILED NOT FOR PUBLICATION MAY 20 2013 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT CALVIN MATTHEWS, et al., No. 11-17272 Plaintiffs - Appellants, D.C. No. 2:09-cv-02326-FJM v. MEMORANDUM * NPMG ACQUISITION SUB LLC, Defendant - Appellee. Appeal from the United States District Court for the District of Arizona Frederick J. Martone, District Judge, Presiding Submitted May 16, 2013 ** San Francisco, California Before: CLIFTON and BEA, Circuit Judges, and DUFFY, District Judge.*** * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Kevin Thomas Duffy, District Judge for the U.S. District Court for the Southern District of New York, sitting by designation.  Plaintiffs appeal the district court’s grant of summary judgment in favor of their former employer, NPMG Acquisition Sub, LLC. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Plaintiffs ratified the EEOC’s entry of the consent decree, which waived plaintiffs’ individual claims under 42 U.S.C. § 1981 against NPMG, and thereby are bound by its terms. Plaintiffs are bound to the decree if by their words or deeds they ratified the EEOC’s entry of the decree on their behalf. See All-Way Leasing, Inc. v. Kelly, 895 P.2d 125, 128 (Ariz. Ct. App. 1994) (“A person not bound by a contract may ratify the contract and thus become bound by its terms, by affirming the contract through words or deeds.”); Phx. W. Holding Corp. v. Gleeson, 500 P.2d 320, 326 (Ariz. Ct. App. 1972) (“Ratification is the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account, whereby the act . . . is given effect as if originally authorized by him.”) (quoting Restatement (Second) of Agency § 82 (1958)) (internal quotation marks omitted). A court may “infer an intent to ratify if a non-party to the contract voluntarily accepts benefits conferred by the contract.” All-Way Leasing, 895 P.2d at 128. Plaintiffs ratified the consent decree by accepting and spending the settlement payments NPMG paid them pursuant to the decree, while knowing that 2 the decree stated that they had waived any claims that could have been raised in the EEOC lawsuit. Plaintiffs’ waiver was “voluntary, deliberate, and informed” because the consent decree’s terms were unambiguous and there was no coercive atmosphere leading to the waiver of their rights. See Stroman v. W. Coast Grocery Co., 884 F.2d 458, 461-62 (9th Cir. 1989). Plaintiffs are bound by the consent decree, and the grant of summary judgment is affirmed.1 AFFIRMED. 1 Because plaintiffs became parties to the consent decree through ratification, we do not reach whether non-party preclusion bars plaintiffs’ claims. 3 

887 F.2d 1086 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.FERRELLGAS, INC., Appellant,v.David DEAN, Jr., Appellee. No. 89-5221. United States Court of Appeals, Sixth Circuit. Oct. 17, 1989. Before KRUPANSKY and WELLFORD, Circuit Judges and JAMES HARVEY,* Senior U.S. District Judge. WELLFORD, Circuit Judge. 1 David Dean was employed by Buckeye Gas Products, predecessor to defendant Ferrellgas, and by Ferrellgas itself, for about sixteen years. Ferrellgas was engaged in the liquid petroleum gas (LPG) distribution business and Dean was its route salesman and delivery agent. During his tenure, Dean signed a noncompetition agreement. The agreement prohibited Dean from disclosing any confidential information during or within two years following termination of his employment. The agreement also prohibited Dean from competing with Ferrellgas under certain circumstances following his termination: 2 4 .... Employee shall not interfere with the established business relationship between the Employer and the customers of Employer within a radius of fifty (50) miles of Employer's Location, and shall not call upon any such customer of Employer's Business for the purpose of soliciting, selling or delivering products of the kind which are the subject of Employer's Business, or rendering any service to such customer in connection with such products. 3 In August 1988, Ferrellgas terminated Dean's employment. The exact reason for the firing is in dispute, but the discharge occurred following rumors which reached defendant that Dean planned to start his own company in a business which would compete with Ferrellgas. Following his termination, Dean went to work for a competing company, and Ferrellgas claims that Dean has been "pirating" away its former customers while serving as a route salesman. 4 In assessing the appropriateness of a preliminary injunction, the trial court applied the test put forth in In re DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir.1985), considering: (1) the likelihood of plaintiff's success on the merits; (2) whether the injunction will save the plaintiff from irreparable injury; (3) whether the injunction would harm others; and (4) whether the public interest would be served by the injunction. The trial court found after consideration that the DeLorean test weighed against granting the injunction. The court found it unlikely that Ferrellgas would succeed on the merits, found no evidence to suggest that Ferrellgas would suffer irreparable injury in the absence of extraordinary relief, and found that the public interest would not be served by an injunction that might stifle competition in the LPG marketplace. 5 On appeal, Ferrellgas takes exception to the findings of the district court and its failure to enforce the agreement by injunctive relief. It maintains that the trial court misapplied Tennessee law in assessing its likelihood of success on the merits, and with respect to the equities of the case. Ferrellgas also argues that without the injunction it will not effectively be able to enforce its rights under the agreement. Ferrellgas maintains that the decision of the district court grows out of the court's misinterpretation of Tennessee law, and a failure to appreciate the relationship between Dean and Ferrellgas and Dean's subsequent conduct in "competition" with his former employer. 6 A trial court's decision to grant or deny injunctive relief will be disturbed only on a finding of abuse of discretion. Frisch's Restaurant, Inc. v. Shoney's Inc., 759 F.2d 1261, 1263 (6th Cir.1985); DeLorean, 755 F.2d at 1228; USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94 (6th Cir.1982). "Rigid adherence to the 'abuse of discretion' standard is required to avoid untoward disruption of the progression of lawsuits as the lower court decision 'was in no sense a final disposition'." Frisch's Restaurant, 759 F.2d 1261, 1263 (citations omitted). 7 We find no abuse of discretion and therefore affirm. 8 Ferrellgas has raised serious questions on the merits of its claim, but failed to convince the trial court that it would suffer irreparable harm without the injunction. Even assuming that it would suffer irreparable harm in the absence of a preliminary injunction (and that the trial court's contrary finding was an abuse of discretion), it is difficult to see how that harm would "decidedly outweigh" the potential harm to Dean if the injunction issued. 9 Agreements in restraint of trade, such as covenants restricting competition, are not invalid per se. Although disfavored by law, such agreements are valid and will be enforced, provided they are deemed reasonable under the particular circumstances. 10 There is no inflexible formula for deciding the ubiquitous question of reasonableness, insofar as noncompetitive covenants are concerned. Each case must stand or fall on its own facts. 11 Allright Auto Parks, Inc. v. Berry, 409 S.W.2d 361, 363 (Tenn.1966) (citations omitted) (emphasis added). 12 The experienced Tennessee district judge in this case carefully considered and weighed the various Tennessee cases in a fifteen page opinion which deals with the difficult issues of enforcement of anti-competitive agreements by employees who are not in supervisory or management positions. Judge Edgar cited and considered Central Adjustment Bureau, Inc. v. Ingram, 678 S.W.2d 28 (Tenn.1984); Selox, Inc. v. Ford, 675 S.W.2d 474 (Tenn.1984); Hasty v. Rent-A-Driver, Inc., 671 S.W.2d 471 (Tenn.1984); Kaset v. Combs, 434 S.W.2d 838 (Tenn.Ct.App.1968); and, Arkansas Dailies, Inc. v. Dan, 260 S.W.2d 200 (Tenn.Ct.App.1953) among many other authorities in reaching his decision. We find his rationale to be persuasive and affirm based generally on the district court's opinion. The district court took into account the circumstances of the required signing of the agreement in dispute and the circumstances of the discharge. 13 Tennessee law on this subject seems to emphasize consideration of each case on the particular facts involved, and in appropriate circumstances will enforce reasonable terms and provisions of such non-competition arrangements. We find no error in the considered exercise of discretion in this case to decline extraordinary relief without prejudice to plaintiff's rights to seek other relief and damages. 14 We accordingly AFFIRM. * The Honorable James Harvey, Senior United States District Judge for the Eastern District of Michigan, sitting by designation

129 F.3d 1254 Nelson Fernandesv.U.S., I.R.S. NO. 97-5192 United States Court of Appeals,Third Circuit. Sept 08, 1997 Appeal From: D.N.J. ,No.9603246 , Politan, J. 1 Affirmed.

680 F.2d 1387 *Calzadillasv.Pat O'Brien's Bar 81-3410 UNITED STATES COURT OF APPEALS Fifth Circuit 6/7/82 1 E.D.La. AFFIRMED 2 --------------- * Fed.R.App.P. 34(a); 5th Cir. R. 18.

574 F.2d 1043 Federico F. MARTINEZ, Petitioner-Appellant,v.Palemon CHAVEZ, Mora County Sheriff, Respondent-Appellee. No. 77-1469. United States Court of Appeals,Tenth Circuit. Submitted Nov. 13, 1977.Decided April 26, 1978. Federico F. Martinez, pro se. Toney Anaya, Atty. Gen., Ralph W. Muxlow, II, Asst. Atty. Gen., Santa Fe, N. M., for respondent-appellee. Before SETH, PICKETT and McWILLIAMS, Circuit Judges. PER CURIAM. 1 Martinez is appealing dismissal of his civil rights action submitted to the district court pursuant to 42 U.S.C. § 1983. The action is related to events surrounding Martinez' incarceration in the Mora County, New Mexico, jail, and names as defendants a New Mexico state trial judge (Angel), two county prosecutors (Armijo and Vaughn), and the sheriff of Mora County (Chavez). Martinez sought both injunctive and monetary relief but, since he is no longer an inmate in the Mora County jail and makes no allegations regarding the likelihood of future confinement in the jail, we view only the monetary damages claim as viable. 2 Martinez' civil rights complaint included three separate counts, only two of which are relevant to this appeal. We first consider Martinez' contentions regarding an arrest which Martinez alleges was based on an unfounded escape charge. All four named defendants are alleged to be co-conspirators in this count. The district court concluded that the trial judge and two prosecutors were immune and dismissed the action as to them. Martinez then sought reinstatement of the action as to the judge and two prosecutors as well as to amend his complaint as to them. The district court denied reinstatement as to the three and neither granted nor denied the proposed amendment. Martinez now contends that the district court erred in failing to grant his motion to amend his complaint and to grant his motion to vacate the judgment dismissing the action as to the judge and two prosecutors. 3 We see no error in the district court's action regarding defendants Angel, Armijo and Vaughn. We have reviewed both Martinez' original and proposed amended complaints and find no allegations of fact which would support a finding that any of the three acted outside the scope of their judicial or prosecutorial duties. Defendant Angel was accordingly cloaked with judicial immunity, see Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); and defendants Armijo and Vaughn with prosecutorial immunity, see, Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Atkins v. Lanning, 556 F.2d 485 (10th Cir. 1977). Dismissal as to each was proper. Following further proceedings discussed below, the district court also dismissed on this count as to defendant Chavez, stating that Martinez' allegations regarding false charges of escape relate to the state court, not Chavez. The record supports this conclusion. 4 We view as far more substantial Martinez' allegations that he was subjected over a four month period of time to cruel and unusual punishment, in the form of suffocating conditions, as a result of Sheriff Chavez' inactions regarding ventilation of the Mora County jail. Only Chavez is named as a defendant in this count. Review of the procedure employed by the district court in disposing of this count is warranted. 5 The district court granted Martinez leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) and service of process issued. Chavez answered, represented by the Attorney General for the State of New Mexico, arguing that Martinez' claims regarding ventilation of the jail fail to allege violation of a federal constitutional right; and, that Sheriff Chavez was not the responsible individual for overseeing proper ventilation of the jail. The district court ordered that the parties submit affidavits and counter-affidavits, including those of witnesses, and that "trial of the cause will be entirely upon the affidavits submitted in support of, and in opposition to, the complaint and Findings of Fact and Conclusions of Law and Judgment will be entered thereon." 6 Chavez submitted affidavits executed by himself and the County Planner for Mora County stating that: Martinez was a resident in the jail for approximately four months during which time he complained everyday about the ventilation system; the ventilation system was inspected at that time and found to be operating properly (even if inadequately); the Board of County Commissioners has ultimate responsibility for the jail, including the ventilation system; Martinez' complaints about the ventilation system were referred by the sheriff to the Board and the County Planner; the ventilation system has always worked and repair was never required; Martinez was never treated medically, while a resident in the jail, for a respiratory disease; and, Martinez was the sole complainant regarding the ventilation system. 7 Martinez responded, with affidavits executed by himself and another inmate, that: Martinez complained frequently and directly to Chavez regarding inadequate ventilation of the jail and his consequent respiratory complications; Chavez has direct responsibility for operation and maintenance of the jail; Chavez personally informed Martinez on numerous occasions that the ventilation system was out of order; Chavez, in Martinez' presence, informed the public defender and a law student that the system was out of order; Martinez was treated during the period in question for a respiratory disorder; numerous other inmates made the same complaint to Chavez regarding ventilation of the jail; and, medical records would show that Martinez was in fact suffering a respiratory disease as a result of incarceration in the Mora County jail. 8 Rather than conducting "trial by affidavit" as it initially proposed,1 the district court implemented a procedure similar to that approved in our recently filed opinion, Martinez et al, v. Aaron (Malley, Warden), 570 F.2d 317 (10th Cir. No. 77-1395, filed January 23, 1978). Based on the pleadings and foregoing affidavits, the district court found Martinez' action to be frivolous and dismissed pursuant to 28 U.S.C. § 1915(d).2 9 Whether or not a complaint states a cognizable legal claim,3 the accuracy of facts alleged therein is always a point of contention. As recognized in Martinez, supra, the burden is on the United States district courts to develop effective and legally permissible methods of dealing with the ever increasing numbers of prisoner civil rights actions. It was in order to aid in determining which facts alleged in the complaint were relevant, accurate, and subject to bona fide dispute, that we approved the procedure employed by the district court in Martinez.4 10 Having reviewed the Martinez type procedure employed by the district court in this case, we find no impropriety in the procedure itself and turn now to application of that procedure to the specific facts at hand. The questions presented in this case were whether Martinez was in fact subjected to conditions sufficiently onerous that they violated the Eighth Amendment to the United States Constitution, and, if so, whether Sheriff Chavez may be held monetarily liable. Without question suffocating jail conditions may indeed offend "the evolving standards of decency that mark the progress of a maturing society" and thus constitute cruel and unusual punishment. See, Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976); Battle v. Anderson, 564 F.2d 388 (10th Cir. 1977); Gregory v. Wyse, 512 F.2d 378 (10th Cir. 1975). The record developed by the district court is clearly not dispositive of questions regarding adequacy of the ventilation system and we express no opinion regarding the existence or non-existence of oppressive jail conditions. The record does, however, establish that, if this case were to proceed to trial, Martinez could prove no facts which would entitle him to the requested relief from Sheriff Chavez. 11 The undisputed, crucial facts of this case, as established by the pleadings and affidavits submitted by each of the parties, are these: Martinez did complain to Sheriff Chavez regarding ventilation of the jail; Chavez did report these complaints to both the County Board of Commissioners and the County Planner; the County Planner and Board have ultimate responsibility for maintenance of the jail; pursuant to these reports the ventilation system was investigated and found to be operating, even if inadequately. Based upon these undisputed facts, it is clear that Sheriff Chavez was not deliberately indifferent to Martinez' complaints. To the contrary, Sheriff Chavez reported Martinez' complaints to the appropriate authorities (the County Planner and the Board of County Commissioners). Even accepting all Martinez' allegations of fact as true, including those contained in his affidavits, it is clear that Martinez could not establish through proof at trial that he is entitled to recover from Chavez. Martinez could make no rational argument on the law or facts in support of his claim and the action was accordingly properly dismissed as frivolous under § 1915(d). The procedure employed by the district court in reaching its § 1915(d) frivolity finding was entirely proper under the circumstances of this case. 12 When this appeal was docketed the parties were notified that it was assigned to Calendar D and would be considered by a panel of judges, without oral argument, on the record of proceedings before the district court. Although each was afforded the opportunity to submit a memorandum in support of their respective positions, only Martinez has done so. Having reviewed this memorandum and the record of proceedings before the district court, we are convinced, for the reasons set forth above, that the district court's judgment of dismissal is correct and should be affirmed. 13 Affirmed. 1 We, of course, cannot condone "trial by affidavit" as initially proposed, if such "trial" were to resolve bona fide issues of fact. See, Taylor v. Gibson, 529 F.2d 709 (5th Cir. 1976) 2 The procedure approved in Martinez, supra, and ultimately employed by the district court in this case, involves initial grant of pauper status pursuant to § 1915(a), and subsequent dismissal pursuant to § 1915(d) after finding that the action is frivolous. In this circuit ". . . the test for frivolousness is whether the plaintiff can make a rational argument on the law or facts in support of his claim." Bennett v. Passic, 545 F.2d 1260 at 1261 (10th Cir. 1976) 3 The district court may have viewed Martinez' complaint as facially sufficient since, as stated, it ordered initially that its determinations regarding factual questions would be by affidavit and counter affidavit and that trial would be by affidavit. Given the increasing sophistication of today's civil rights litigants, we recognize that it is no great legal achievement to allege facts which state a claim under § 1983. Most often a district court is faced with a civil rights complaint which is deficient pursuant to Rule 8, F.R.Civ.P.; fails to allege facts which state a claim upon which relief can be granted; or both. In keeping with Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), pro se complaints are construed liberally and every opportunity is extended to the pro se litigant to make an adequate complaint 4 That procedure involved an "investigation" to be conducted by prison authorities, the purpose being to make a record for the benefit of the trial court by which it could determine preliminary issues, including those of jurisdiction and frivolity pursuant to § 1915(d). Similar procedures approved by the Fifth Circuit have included use of both a "special report" to be prepared by the state attorney general, and "questionnaires" to be propounded by the district court itself. See, Bruce v. Wade, 537 F.2d 850, 853, n.5 (5th Cir. 1976); Taylor v. Gibson, supra at 717; Watson v. Ault, 525 F.2d 886, 892 (5th Cir. 1976); Hardwick v. Ault, 517 F.2d 295, 298 (5th Cir. 1975)

213 Cal.App.2d 78 (1963) CONTINENTAL CASUALTY COMPANY, Plaintiff and Appellant, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY et al., Defendants and Respondents. Civ. No. 20211. California Court of Appeals. First Dist., Div. One. Feb. 18, 1963. Carroll, Davis, Burdick & McDonough and J. D. Burdick for Plaintiff and Appellant. Hadsell, Murman & Bishop, Bacon, Mundhenk, Stone & O'Brien, Herbert Chamberlin, Bishop, Murray & Barry and Michael J. Murray for Defendants and Respondents. *80 SULLIVAN, J. We are presented with a question of liability deriving from conflicting "other insurance" clauses in three separately issued policies of automobile liability insurance. Briefly stated, our inquiry is as to whether in the instance at hand the policies provided for primary or excess insurance. We have concluded that the matter before us is governed by our decision in Athey v. Netherlands Ins. Co. (1962) 200 Cal.App.2d 10 [19 Cal.Rptr. 89], that all three policies provide for excess insurance and that the judgment appealed from should be reversed. The parties have agreed upon the facts. One James R. Corcoran, Jr. rented an automobile from Paul J. Muldoon, doing business as the Peninsula Lease Company. Corcoran, a resident of Massachusetts, was an executive of Fenwal, Inc., a firm located in that state, and was reimbursed by Fenwal for the rental charge which included a charge for insurance. While driving the rented automobile in the scope of his employment by Fenwal, Corcoran became involved in an accident as a result of which one Victoria Pucci suffered personal injuries and property damage. The latter commenced an action against Corcoran, Peninsula Lease Company and others. At the time of the accident the following policies of automobile liability insurance were in effect: so-called driverless car liability policy issued by Continental Casualty Company (hereafter called Continental) to Paul J. Muldoon, dba Peninsula Lease Co. as named insured; a Massachusetts motor vehicle liability policy issued by Hartford Accident and Indemnity Company (hereafter called Hartford) to Corcoran as named insured; and a schedule automobile liability policy issued by Lumbermens Mutual Casualty Company (hereafter called Lumbermens) to Fenwal as named insured. Continental appeared and defended the above legal action and eventually settled the Pucci claim for $3,276.15. The parties before us have agreed that such settlement was fair and reasonable. Continental demanded of both Hartford and Lumbermens that they appear for and defend Corcoran and contribute to any judgment or settlement. Continental thereupon brought the instant action in declaratory relief against Hartford and Lumbermens seeking an adjudication of the liabilities of all three parties. The case was submitted to the court below on an agreed statement of facts, the parties further stipulating that whatever proration was ordered by the court in respect to the above payment of *81 $3,276.15 to the injured party would be applicable to an outstanding property damage claim of $618.94. The court adopted the agreed statement of facts as its findings of fact and rendered judgment denying all recovery to Continental. From such judgment Continental has taken this appeal on the judgment roll with copies of the policies and the automobile rental agreement as appended exhibits. [1] Since no extrinsic evidence was introduced in the court below in aid of construction, the construction of the instant policies presents a question of law. We are not bound by the trial court's interpretation of them and we therefore proceed to make our own determination of their meaning from an examination of their applicable provisions. (Continental Cas. Co. v. Phoenix Constr. Co. (1956) 46 Cal.2d 423, 430 [296 P.2d 801, 57 A.L.R.2d 914]; Estate of Platt (1942) 21 Cal.2d 343, 352 [131 P.2d 825].) The Continental policy, under its insuring agreements, provides coverage to the insured for bodily injury liability arising out of defined hazards which include, inter alia, "[t]he ownership, maintenance or use of (a) any automobile of the private passenger or commercial type while rented without chauffeurs to others from locations in the United States of America. ..." It defines the word "insured" to include the named insured and also "any person, firm, association, partnership or corporation to whom an automobile has been rented without a chauffeur. ..." Continental concedes that its policy extended coverage to Corcoran, the driver, for the accident in question. Pertinent to the problem at hand is the following provision which is found among the "conditions" of the above policy: "17. Other Insurance. The insurance under this policy shall be excess insurance over any other valid and collectible insurance available to the insured, either as an insured under another policy or otherwise." We observe at this point that the above provision contained in the lessor's policy in the instant case is identical in language with the provision contained in the policy issued by Netherlands Insurance Company to the lessor of the automobile in the Athey case. (Athey v. Netherlands Ins. Co., supra, 200 Cal.App.2d 10.) The Hartford policy, issued to Corcoran in Massachusetts, provided under its insuring agreements coverage to him for statutory bodily injury liability in accordance with and arising out of the Massachusetts Compulsory Automobile Liability *82 Security Act (Coverage A) and in addition coverage for bodily injury liability other than statutory "arising out of the ownership, maintenance or use of the motor vehicle." (Coverage B.) Paragraph V of the insuring agreements provides as follows: "V. Use of Other Motor Vehicles--Coverages B, C and D: If the named insured is an individual or husband and wife and if during the policy period such named insured, or the spouse of such individual if a resident of the same household, owns a private passenger motor vehicle covered by this policy, such insurance as is afforded by this policy under coverages B, C and division 2 of coverage D with respect to said motor vehicle applies with respect to any other motor vehicle, subject to the following provisions: (a) With respect to the insurance under coverages B and C the unqualified word 'insured' includes (1) such named insured and spouse; and (2) any other person or organization legally responsible for the use by such named insured or spouse of a motor vehicle not owned or hired by such other person or organization." Important to the issues before us is the following "other insurance" clause included among the conditions of the policy: "11. Other Insurance--Coverages A, B and C: If the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to temporary substitute motor vehicles under Insuring Agreement IV or other motor vehicles under Insuring Agreement V shall be excess insurance over any other valid and collectible insurance." (Italics added.) [2a] The Lumbermens policy, issued in Massachusetts to Fenwal, Corcoran's employer, under its insuring agreements provides coverage to the insured for bodily injury liability arising out of defined hazards which along with hazards relating to owned automobiles and hired automobiles, [fn. 1] included the following provision relating to nonowned automobiles: *83 "Division C. Non-Owned Automobiles--The use, by any person other than the named insured, of any non-owned automobile of the private passenger type in the business of the named insured as stated in the declarations, and the use in such business, by any employee of the named insured, of any non-owned automobile of the commercial type if such use of such automobile is occasional and infrequent." By definition under the insuring agreements the word "insured" includes the named insured (Fenwal) and "also includes ... under division C of the Definition of Hazards, any executive officer of the named insured." However, the declarations and the declarations schedule of the Lumbermens policy make clear that it does not insure for the hazards of owned automobiles or hired automobiles (Divisions A and B of Hazards--see footnote 1) but only for the hazards of nonowned automobiles (Division C--ante). Finally, among its conditions, the policy includes the following "other insurance" clause pertinent here: "13. Other Insurance. If the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declaration bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance under division B of the Definition of Hazards with respect to a hired automobile insured on a cost of hire basis and under division C of the Definition of Hazards and Insuring Agreement IV (e) shall be excess insurance over any other valid and collectible insurance." (Italics added.) A comparison of the "other insurance" clauses contained in the Hartford and Lumbermens' policies shows that, except for particular paragraph and division references, they are practically the same and that the operative language of each is identical. We also note at this point, that subject to the same exceptions, such clauses are practically the same as the "other insurance" clause contained in the policy issued by the National Grange Mutual Liability Fire Insurance Co. to the driver-renter of the automobile in the Athey case. [fn. 2]*84 It is the position of Continental here that the coverage provided by all of the policies is excess coverage and should therefore be prorated. It is Hartford's position that the coverage afforded by the Continental policy is the primary coverage and that although the Hartford policy extended "incidental coverage" to Corcoran in respect to the accident in question, such coverage was "excess." It is Lumbermens' position that in the first place, its policy did not extend coverage to the Pucci accident since the automobile rented by Corcoran from Muldoon was a "hired automobile" which, as we have pointed out, is a hazard not insured against, and, secondly, that if the policy does cover the accident, such coverage was excess, Continental's coverage to its named insured (Muldoon) and additional insured (Corcoran and Fenwal) being primary. We consider first the effect of the three "other insurance" clauses. We will then take up Lumbermens' additional contention that its policy does not cover the accident in any event. All three policies provide excess insurance. On the first issue we are presented with the same question as that presented to this court in Athey v. Netherlands Ins. Co., supra, 200 Cal.App.2d 10. [fn. 3] In that case, the plaintiff Athey rented an automobile from the Hertz Co. and thereafter became involved in a collision. There, as here, the injured party commenced an action against both the driver-renter (Athey) and the owner-lessor (Hertz). There, as here, the policy furnished the driver provided primary insurance for loss arising out of his operation of his own automobile, provided that if he had other insurance while operating his own car, the liability of the carrier under the policy should be prorated, but that if he were driving a nonowned automobile, the driver's policy would be excess insurance over other valid and collectible insurance. We have already pointed out that the "other insurance" clause in the driver's policy in *85 Athey is practically the same as that contained in the policy of the driver (Corcoran) and his employer (Fenwal) in the instant case. (See footnote 2--ante.) [3a] In the Athey case, as here, the policy issued to the owner-lessor provided primary insurance coverage for the use of the owner's automobiles by the owner, his employees or any permissive user, provided no coverage in respect to nonowned automobiles and provided further that in the event of any other valid and collectible insurance, all coverage under the policy no matter who the driver was, would be excess insurance. Under such circumstances, as we stated in Athey "there no longer was any primary coverage." (200 Cal.App.2d 12.) We have also pointed out that the above clause in the owner-lessor's policy in Athey is identical with that in the policy of the owner- lessor here (Muldoon). All crucial clauses are the same in each case, the only difference being that Athey involved two policies while the instant case involves three. We held in Athey that each policy was "other insurance" as to the other, providing excess coverage only and, in order to protect the insured, that the loss be apportioned between the policies. Mr. Justice Bray wrote: "In a situation like this, where both policies provide excess coverage only, there is no justification for choosing one as providing 'other insurance' and the other as not so providing" (200 Cal.App.2d 13), analyzing and distinguishing a number of cases some of which are again cited by respondents herein. We are therefore not persuaded by Hartford's argument that the present problem should be governed by American Automobile Ins. Co. v. Republic Indemnity Co. (1959) 52 Cal.2d 507 [341 P.2d 675]. That case was analyzed and distinguished in Athey and our observations in that respect need not be restated here. (See Athey case, supra, 200 Cal.App.2d pp. 13-14.) It is sufficient to note that in the American Automobile case, the accident occurred while the driver was operating a borrowed car. The "other insurance" clauses contained in the policies of both the driver and the owner were substantially the same, providing for a prorating where other insurance covered the loss and also providing that, in respect to the operation of a nonowned car by the named insured, the insurance would be excess over all other insurance. Under such circumstances, American Automobile gave effect to the excess clause in the driver's policy and refused to give effect to *86 the pro rata clause in the owner's policy, holding that the owner should bear the entire loss. The conflict in that case was between an excess clause and a pro rata clause. In the case at bench, as in Athey, the conflict is between two excess clauses. Hartford also relies heavily upon Citizens Mutual Auto. Ins. Co. v. Liberty Mutual Ins. Co. (6th Cir. 1959) 273 F.2d 189. However this case presents the same situation as in American Automobile with the policies of both the driver and the owner providing in almost identical language for pro rata coverage as to owned automobiles and excess insurance as to nonowned automobiles. Such case therefore falls into the same category as American Automobile and indeed cites and relies upon the latter case. As in American Automobile, the conflict was between an excess clause in the driver's policy and a pro rata clause in the owner's policy with the former clause only being given effect. The case therefore is distinguishable from both Athey and the case at bench. Nevertheless Hartford has attempted to construct upon it the following critique of our decision in Athey. In the latter case we cited, inter alia, Continental Casualty Co. v. New Amsterdam Casualty Co. (Ill. App. 1960) 21 Automobile Cases (2d) 1343, which also involved a driverless car liability policy, presented the same question as in the Athey case and resulted in a proration of liability. Continental in turn cited Oregon Auto. Ins. Co. v. United States Fidelity & Guar. Co. (9th Cir. 1952) 195 F.2d 958, referring to such case as the leading case on the subject. Hartford here directs no attack at the Continental case and apparently ignores its factual similarity noted above. Instead Hartford points out that in the Citizens Mutual case, upon which Hartford relies, Oregon Auto is characterized as a case representing a minority view. The gist of Hartford's criticism then seems to be that we in effect rested our decision in the Athey case on the lesser authority of Oregon Auto to the exclusion of such cases as American Automobile. This attack on the Athey case is completely ineffective. Oregon Auto, like American Automobile and Citizens Mutual, arose from a collision involving a driver of a borrowed car. The driver's policy contained an "other insurance" clause similar to those in the last two cases, that is a pro rata clause as to owned automobiles and an excess clause as to nonowned automobiles. The owner's policy, however, contained *87 a pro rata clause as to owned automobiles but a so- called "escape clause" to the effect that a person other than the named insured having other insurance would not be indemnified under the policy. The court concluded that the two clauses were mutually repugnant, that if literally applied neither insurer would be liable and that the conflicting provisions should be disregarded and the liability prorated. Admittedly this rationale of proration was applied at least in part by the Continental case in resolving the problem of two excess clauses. Nevertheless basic distinctions remain: The clauses in Oregon Auto were not the same as in American Automobile as the Supreme Court observes in the latter case (see American Automobile Ins. Co. v. Republic Indemnity Co., supra, 52 Cal.2d 507, 512, fn.5) or as in Citizens Mutual, as we have pointed out above. Nor are the clauses in any of the foregoing three cases the same as those in Athey where two excess clauses were involved. Thus, when we dealt in Athey with two excess clauses, we did not of necessity ignore the rule of American Automobile in respect to the conflicting excess and pro rata clauses there appearing or wholly espouse the technique of Oregon Auto in respect to the conflicting excess and escape clauses involved in that case. [fn. 4] In our view, Athey rests upon the sound analysis of its own clauses. [4] The inherent nature of the problem of "other insurance" requires a case by case treatment. (See 13 Hastings L.J. 183, 191.) As we said in American Auto. Ins. Co. v. Transport Indem. Co. (1962) 200 Cal.App.2d 543, 544 [19 Cal.Rptr. 558], "each case apparently presents a particularistic and unique problem." Valid reasons exist in the instant case to apply the solution of proration. (See generally 69 A.L.R.2d 1122.) Both respondents have directed our attention to several recent cases allegedly supporting their position but, with apparent reluctance to enter this wilderness of single instances, have refrained from furnishing us with any analysis of the policy provisions involved or comparison of them with those *88 in the case before us. Our views on two of these cases [fn. 5] were given in Athey and need not be reiterated here. In Fireman's Fund Indemnity Co. v. Prudential Assurance Co. (1961) 192 Cal.App.2d 492 [13 Cal.Rptr. 629], decided by this court, not only were the clauses dissimilar to those here but, in addition, the owner's policy did not contain an effective excess insurance clause. McConnell v. Underwriters at Lloyds (1961) 56 Cal.2d 637 [16 Cal.Rptr. 362, 365 P.2d 418] is not in point and did not involve conflicting excess clauses. In McConnell three policies were issued to the same insured; two of them covered the accident and contained effective pro rata clauses; the third policy provided excess insurance which did not become operative until the limits of the first two policies had been exhausted. Finally, Lumbermens claims that the problem presented in the instant case is different from that presented in Athey because in that case "the primary insurance was inadequate to absorb the loss and it was necessary to resort to excess insurance. ..." Such was not our holding in Athey as we think our opinion there makes plain. We held there, irrespective of the adequacy of the policy limits involved, that both policies provided excess coverage. [3b] We therefore hold that the instant case is controlled by our opinion in Athey and that the loss here involved must be apportioned among the three insurers herein. Lumbermens policy covers the accident. As we have pointed out and as Continental concedes, the Lumbermens policy provides coverage for the hazards of "non-owned automobiles" only. It does not provide coverage for the hazard of "hired automobiles." (See footnote 1, ante.) But it is clear that, within the coverage provided, Corcoran was an insured since he was an executive officer of the named insured Fenwal. However, Lumbermens contends that the automobile which Corcoran rented falls within the definition of "hired automobile" in the policy and therefore the policy did not cover the Pucci accident. Paragraph IV of the insuring agreements upon which any such claim must rest provides as follows: "(a) Automobile. Except where stated to the contrary, the word 'automobile' means a land motor vehicle or *89 trailer as follows: (1) Owned Automobile--an automobile owned by the named insured; (2) Hired Automobile--an automobile used under contract in behalf of, or loaned to, the named insured provided such automobile is not owned by or registered in the name of (a) the named insured or (b) an executive officer thereof or a partner therein or (c) an employee or agent of the named insured who is granted an operating allowance of any sort for the use of such automobile; (3) Non-Owned Automobile--any other automobile." For Lumbermens to prevail in the above contention, it must therefore appear that the automobile involved in the Pucci accident was either "used under contract in behalf of" the named insured Fenwal or "loaned to" Fenwal. It is clear under the agreed facts that the car was not loaned to Fenwal. Was it then used under contract in behalf of Fenwal? We think not. [5] The following principles were announced in Continental Cas. Co. v. Phoenix Constr. Co. (1956) 46 Cal.2d 423, 437- 438 [296 P.2d 801, 57 A.L.R.2d 914] as governing the construction of insurance policies: "[A]ny ambiguity or uncertainty in an insurance policy is to be resolved against the insurer. [Citations.] [6] If semantically permissible, the contract will be given such construction as will fairly achieve its object of securing indemnity to the insured for the losses to which the insurance relates. [Citation.] [7] If the insurer uses language which is uncertain any reasonable doubt will be resolved against it; if the doubt relates to extent or fact of coverage, whether as to peril insured against [citations], the amount of liability [citations] or the person or persons protected [citations], the language will be understood in its most inclusive sense, for the benefit of the insured." [2b] The agreed statement of facts which was adopted by the court below as its findings discloses that "James R. Corcoran, Jr. rented from one Paul J. Muldoon, dba Peninsula Lease Company, a certain Lincoln Automobile." Although the parties stipulate therein that at the time of the accident Corcoran was acting within the scope of his employment, there is no agreed statement that the rental contract itself was "in behalf of" Fenwal. On the contrary, the contract which is before us is consistent with the agreed statement and finding that Corcoran rented the car. On the first page of the contract in the space designated "Renter," the name James R. Corcoran, Jr. is printed. Following spaces are *90 completed to give his home address, firm name and address of firm. The contract is signed J. R. Corcoran, Jr. and spaces immediately under such signature are completed so as to indicate that the rental is to be charged and the invoice mailed to Mr. Corcoran at his home address. In an adjoining space designated "charge authorization" appear Corcoran's name, business address and presumably a charge plate number. Thus it appears that Corcoran rented the automobile involved in his own name. There is no basis in the facts that when he did so he was acting for or with the consent of Fenwal. (Cf. Continental Cas. Co. v. Zurich Ins. Co. (1961) 57 Cal.2d 27, 32 [17 Cal.Rptr. 12, 366 P.2d 455].) It would be consistent with the facts here stipulated to that Corcoran was to obtain transportation on his own account and personal responsibility and that his employer would not be responsible therefor, even though it might subsequently reimburse the employee for travel expenses. Lumbermens has referred us to no authorities holding that an automobile rented by the employee in his own name is a "hired automobile" as that term is defined in the policy under examination. In the light of the applicable principles of construction stated above and under the above facts found by the trial court, we therefore conclude that the automobile in question was not a hired automobile but a nonowned automobile, the use of which was a hazard insured by the policy. The judgment is reversed and the cause is remanded with directions to the trial court to amend its conclusions of law and to enter a judgment declaring the relative and respective rights and obligations of the parties to this action in accordance with the views herein expressed. Each party shall bear its own costs on appeal. Bray, P. J., and Molinari, J., concurred. "Division B. Hired Automobiles--The maintenance or use, for the purposes stated in the declaration, of any hired automobile. The definitions in this policy of 'pleasure and business' and 'commercial' apply respectively to private passenger automobiles and to automobiles of the commercial type, except as otherwise provided." NOTES [fn. 1] 1. The policy defined these first two hazards as follows: "Division A. Owned Automobiles--The ownership, maintenance or use, for the purposes stated as applicable thereto in the declarations, of the owned automobile described therein. [fn. 2] 2. According to the opinion in the Athey case, the National policy provided: " 'If the insured has other insurance against a loss covered by Part I of this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute automobile or nonowned automobile shall be excess insurance over any other valid and collectible insurance.' (Emphasis added.)" (Athey v. Netherlands Ins. Co., supra, 200 Cal.App.2d 10, 11.) [fn. 3] 3. Our opinion in Athey was filed on February 6, 1962, and after the entry of the instant judgment on July 5, 1961. [fn. 4] 4. One legal writer explains the solution employed in Oregon Auto and cases following it as emerging from a "disenchantment" with the technique of matching or pairing the clauses, i.e. requiring proration where either two pro rata clauses or two excess clauses are opposed. The author also comments upon the reluctance of some courts to emulate Oregon Auto in the disregarding of conflicting clauses and, as in American Automobile "to continue fixing responsibility on one insurer or the other." (The Double Insurance Problem--A Proposal, 13 Hastings L.J. 183.) [fn. 5] 5. Specifically: Truck Ins. Exchange v. Torres (1961) 193 Cal.App.2d 483 [14 Cal.Rptr. 408]; Continental Cas. Co. v. Zurich Ins. Co. (1961) 57 Cal.2d 27 [17 Cal.Rptr. 12, 366 P.2d 455]; see Athey v. Netherlands Ins. Co., supra, 200 Cal.App.2d 10, 14-15.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-6610 VERNON LAMONT HENLEY, Plaintiff - Appellant, versus DAVID BARNES, Doctor, Defendant - Appellee. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Jackson L. Kiser, Senior District Judge. (7:05-cv-00663-jlk) Submitted: September 29, 2006 Decided: October 18, 2006 Before WILLIAMS, TRAXLER, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Vernon Lamont Henley, Appellant Pro Se. Rosalie Pemberton Fessier, TIMBERLAKE, SMITH, THOMAS & MOSES, PC, Staunton, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Vernon Lamont Henley appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2000) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Henley v. Barnes, No. 7:05-cv-00663-jlk (W.D. Va. Mar. 24, 2006). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED - 2 - 

Slip Op. 08 - 35 UNITED STATES COURT OF INTERNATIONAL TRADE : THE UNITED STATES : : Plaintiff, : : v. : Before: MUSGRAVE, Senior Judge : Court No. 07-00263 WORLD COMMODITIES EQUIPMENT : CORP., and HARTFORD FIRE : INSURANCE COMPANY : : Defendants. : ____________________________________ : : HARTFORD FIRE INSURANCE : COMPANY, : : Plaintiff, : : v. : : WORLD COMMODITIES EQUIPMENT : CORPORATION, : : Cross-Defendant. : ____________________________________ : [Denying Customs’ out-of-time motion for out-of-time service of process upon defendant World Commodities Equipment Corp. and dismissing action as to that defendant; denying motion to dismiss as to Hartford Fire Insurance Co.] Dated: March 21, 2008 Court No. 07-00263 Page 2 OPINION AND ORDER Jefferey S. Bucholtz, Acting Assistant Attorney General; Jeanne E. Davidson, Director, Franklin E. White, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Sean M. Dunn) for the plaintiff; Barnes, Richardson & Colburn (Frederick D. Van Arnam) for defendant Hartford Fire Insurance Company; Defendant World Commodities Equipment Corp. did not participate in this action. On July 16, 2007 the United States Department of Homeland Security, Customs and Border Protection (“CBP” or “Customs”) filed with the Court a summons and complaint to enforce civil penalties and recover unpaid duties pursuant to 19 U.S.C. § 1592 (2000) for an entry of fresh garlic imported into the United States on July 16, 2002.1 Customs alleges that Defendant importer World Commodities Equipment Co. (“WCE”) attempted to enter the fresh garlic into the commerce of the United States by means of documents containing “material false statements” showing that the garlic originated from Mexico, when the actual country of origin was the People’s Republic of China. Compl. at ¶ ¶ 5, 7. However, Customs has apparently failed to effect service of process on WCE within the 120-day time period required by CIT Rule 4; currently before the court is Customs’ out-of -time motion to serve the summons and complaint on WCE approximately one month beyond the 120-day deadline. Co-defendant surety Hartford Fire Insurance Co., (“Hartford”) asserts that Customs’ failure to effectuate service of process on WCE within the 120-day deadline requires dismissal as to WCE. Hartford asserts further that if dismissal is granted as to WCE, the court must grant its motion to 1 Pursuant to the five-year statute of limitations provided in 19 U.S.C. § 1621, July 16, 2007 was the last date in which the action could be filed. Court No. 07-00263 Page 3 dismiss the action against Hartford as well (pursuant to Rule 12(b)(5)) or, alternatively, “to convert this matter to summary judgment” or decide the action in Hartford’s favor based on the pleadings. Hartford’s Mot. In Opp. at 13. For the reasons set forth below, the court will (1) deny plaintiff’s out- of-time motion and dismiss the matter as to WCE, and (2) deny Hartford’s motion to dismiss. Background On July 16, 2007 Customs sent to Hartford and WCE a notice of the commencement of the current action with a request that each of the defendants waive formal service of a summons. See CIT Rule 4(d). Defendant Hartford signed and returned the waiver on August 28, 2007; defendant WCE apparently never acknowledged receipt of those documents. Because WCE did not waive formal service of process, Customs was required, pursuant to CIT Rule 4(m), to formally serve the summons and complaint on WCE within 120 days after the July 16, 2007 filing of the complaint. Day 120 fell on November 13, 2007, but Customs had not served WCE. On November 30, 2007, Customs filed with the Court a pleading entitled “Plaintiff’s Out of Time Motion for Leave to Serve Summons and Complaint Out of Time on Defendant [WCE].” In that motion, Customs states that the summons and complaint had not been served on WCE, but that service was expected to occur “on or about December 3, 2007.” Pl.’s Out of Time Mot. at 1. Customs eventually served WCE on December 10, 2007. Pl.’s Resp. to Hartford’s Mot. in Opp. at 8. Discussion I. Dismissal as to WCE Rule 4(m) of the Court’s Rules provides (m) TIME LIMIT FOR SERVICE. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the Court No. 07-00263 Page 4 court upon motion or its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. This subdivision does not apply to service in a foreign country pursuant to subdivision (f) or (j)(1). CIT R. 4(m). Subsequent to the passage of the 1993 Amendments to the Federal Rules of Civil Procedure, most jurisdictions require that the consideration of whether to extend the time for service of process under Rule 4(m) requires a district judge to engage in what is essentially a two-part inquiry.2 First, the court must determine whether “good cause” exists for an extension of time; if the court finds that good cause exists, it must extend time for service “and the inquiry is ended.” Petrucelli v. Bohringer and Ratzinger GMBH, 46 F.3d 1298, 1305 (3d Cir. 1995). Second, “even if there is no good cause shown,” the court must then consider whether the circumstances of the case warrant the grant of a discretionary extension of time. See Fed. R. Civ. P. 4(m) and Fed. R. Civ. P. advisory committee notes, 28 U.S.C. App., p. 654 (authorizing courts discretion to grant an extension of time “even if there is no good cause shown,” noting that “[r]elief may be justified, for example, if the applicable statute of limitations would bar the refiled action, or if the defendant is evading service or conceals a defect in attempted service.”); Henderson v. United States, 517 U.S. 654, 662 (1996) (recognizing that the 1993 amendments to the rules accorded courts the discretion to enlarge the 120-day service period even without a showing of good cause). Prior to the 1993 Amendments, this Court established a standard for demonstrating “good 2 Prior to December 1, 1993, CIT Rule 4(m) was designated as 4(h) and the comparable Federal Rule of Civil Procedure was 4(j). After December 1, 1993 (and the 1993 Amendments) the letter designations were harmonized so that CIT Rule 4(m) and Federal Rule 4(m) are the same rule. Court No. 07-00263 Page 5 cause” pursuant to Rule 4 in United States v. Gen. Int’l Mktg. Group, 14 CIT 545, 742 F.Supp. 1173 (1990). In that case, Judge Watson concluded that a fair standard of good cause is one which requires people to show behavior consistent with the recognition that a 120 day deadline exists. It is worth noting that the word “deadline” originated in prisons to describe a line or boundary, the crossing of which subjected prisoners to the penalty of death. It would seem reasonable therefore to require plaintiffs to make such efforts at service as are consistent with a recognition that 120 days may otherwise mark the death of the action. 14 CIT at 548, 742 F.Supp. at 1176. In Gen. Int’l, the Court found that the plaintiff failed to demonstrate good cause because the plaintiff’s efforts at service were essentially limited to simply mailing the summons and complaint to the defendant’s last known address. Although Gen. Int’l preceded the 1993 amendments to Rule 4, the court sees no reason to deviate from the “good cause” standard established therein to address the first part of the inquiry. In the current matter, Customs asserts that “good cause” exists for an extension of time because the principal attorney on the case suffered “a broken arm, which required surgery upon two occasions and significant time out of the office for recovery and medical appointments.” Pl.’s Out of Time Mot. at 2. Customs contends that the court’s standard of “good cause” should include an attorney’s illness, as noted in LeMaster v. City of Winnemucca, 113 F.R.D. 37 (D. Nev 1986) (finding “good cause” for 17-day delay in service where plaintiff’s sole attorney was being treated for terminal cancer). Additionally, Customs notes that “WCE would not have good arguments based upon the delay,” because “it appears that WCE attempted to evade service.” Customs bases this allegation on its contention that (1) service of process was delayed by a week because WCE’s registered agent was not found at the address listed by the Texas Secretary of State; and (2) “it took Court No. 07-00263 Page 6 the process server numerous attempts” to serve additional documents on WCE. Pl.’s Resp. to Hartford’s Mot. in Opp. at 8. Customs argues further that even if no good cause exists, the court should exercise its discretion to grant an extension of time for service. Customs urges the court to consider (1) the fact that the running of the statute of limitations would bar refiling of the claim; (2) that WCE was served “less than one month beyond the statutory deadline” and would suffer no prejudice from the delay; and (3) that Hartford has suffered “no prejudice whatever” as a result of the delayed service to WCE. Id. at 10. Finally, Customs asserts that Hartford “lacks standing to assert the legal rights of WCE as to the delayed service,” because Hartford was timely served with the complaint. Id. at 11. The court cannot find that good cause exists for the delay in service here. Given that Customs agreed to accept the waiver of service within 60 days of July 16, 2007, Customs would have been aware on September 15, 2007 that WCE refused to waive service, yet it took no further action in the matter until November 30, 2007, almost two weeks after the expiration of the 120-day service period. Except for the initial request for waiver of service, Customs apparently made no attempt whatsoever to serve WCE within the 120-day period. Such complete inaction cannot plausibly be interpreted as “behavior consistent with the recognition that a 120-day deadline exists.” Further, even if the court were to adopt the “good cause” standard from LeMaster, it is unlikely that that standard would affect the court’s decision here. In LeMaster, the only attorney serving the plaintiff underwent weekly treatments of chemotherapy and radiation to treat what eventually became terminal cancer. LeMaster, 113 F.R.D. at 38. In this case, the plaintiff is represented by the United States Department of Justice, and the individual attorney assigned to the case broke his arm Court No. 07-00263 Page 7 on September 22, 2007. Although the court is sympathetic to counsel’s injury, a broken arm cannot realistically be compared to terminal cancer. More importantly, counsel for the plaintiff is hardly a solo practitioner with limited resources: counsel is an attorney for the Department of Justice. The plaintiff has provided no reason why counsel could not have obtained assistance on this matter after his injury, or why counsel’s supervisor could not have the matter reassigned to another attorney. Finally, although a defendant’s attempt to evade service of process is generally a compelling reason to find good cause, Customs’ vague allegations as to a single address change and difficulty in serving other pleadings (which, pursuant to CIT Rule 5(b), may be served by “[m]ailing a copy to the last known address of the person served”) cannot reasonably be viewed as evasion of service. Moreover, because the difficulties resulting from the address change or in serving other pleadings took place well after the 120-day service period, Customs cannot realistically expect the court to find that those occurrences were a cause of the belated service. However – as noted above – even without a showing of good cause, the court must still consider whether the totality of the circumstances warrant a permissive extension of time. Paneras, 94 F.3d at 341. Unfortunately, other than noting that relief “may be justified” in situations where the statute of limitations has expired or where the defendant is evading service, neither the caselaw nor the Advisory Committee notes provide clear guidelines as to what other circumstances may warrant a discretionary extension of time. Moreover, even the passage of the statute of limitations is far from a guarantee of discretionary extension, as Courts in most jurisdictions routinely dismiss actions where other factors are more compelling. See Tuke v. United States, 76 F.3d 155, 156 (7th Cir. 1996) (upholding dismissal and observing that “an attorney who files suit when the statute of Court No. 07-00263 Page 8 limitations is about to expire must take special care to achieve timely service of process, because a slip-up is fatal”)3; Coleman v. Milwaukee Bd. of School Dir., 290 F.3d 932, 934 (7th Cir. 2002) (upholding dismissal where statute of limitations had run, noting that “the judge understandably was troubled by the fact that the plaintiff had delayed till almost the last minute in attempting service.”); Zapata v. City of New York, 502 F.3d 192, 199 (2nd Cir. 2007) (upholding dismissal in spite of passage of the statute of limitations where plaintiff “made no effort to effect service within the service period, neglected to ask for an extension within a reasonable period of time, and has advanced no cognizable excuse for the delay”). With no concrete factors, district judges have essentially determined each case on an individual basis while taking care not to “overlook any of the factors urged . . . by the plaintiff for exercising discretion in [its] favor.” Coleman, 290 F.3d at 934. In this case, the court is unconvinced that a discretionary extension of time is appropriate. Customs waited until the last day of the five-year statute of limitations to file the action, but instead of “taking special care to achieve timely service of process” Customs sat on its hands until two weeks after the passing of the 120-day service period. Even in cases deemed worthy of a discretionary extension because the plaintiff was pro se or because the method of service was unusual or complicated, the plaintiffs made some (albeit botched) attempt at service that oftentimes had the effect of providing actual notice of the claim to the defendant. See Coleman, 290 F.3d at 935-36. However, nothing indicates that such is the case here: the plaintiff is not pro se, the rules 3 The court notes that Zapata v. City of New York, 502 F.3d 192 (2nd Cir. 2007) and other cases support the notion that the filing of an action actually “tolls” the statute of limitations until service of process is completed or the 120-day period expires. Hence, a plaintiff who had 60 days left in the statute of limitations when he filed would have that 60 days tacked onto the end of the 120 day period in order to refile. Court No. 07-00263 Page 9 of service are no more complex than any other customs case, and there is no clear indication that the defendant had actual notice of the claim. Accordingly, the court will deny the plaintiff’s out-of-time motion and dismiss the action as to WCE. Although the court’s dismissal is technically without prejudice to refiling, the expiration of the statute of limitations essentially ends the action as to WCE because Customs appears to be time-barred by the statute of limitations from refiling the claim. II. Dismissal as to Hartford The court must now determine whether Custom’s action against Hartford must be dismissed if WCE is no longer a party to the case. Hartford argues that the court must dismiss the case against it because, without WCE as a party to the case, “the government cannot establish at court the elements proving that WCE violated 19 U.S.C. § 1592(a).” Def.’s Reply to Pl.’s Resp. to Mot. to Dismiss at 10. Hartford essentially contends that the government must establish the elements of the section 1592(a) violation in an action “against the importer as a predicate to prosecuting a claim for duties against the surety under section 1592(d).” Def.’s Reply to Pl.’s Resp. at 7 (emphasis added). The court does not agree. Nothing in section 1592(d) indicates that the only manner by which the government may prove a violation of section 1592(a) is via successful suit against the importer. 19 U.S.C. § 1592(d) provides: (d) Deprivation of lawful duties, taxes, or fees Notwithstanding section 1514 of this title, if the United States has been deprived of lawful duties, taxes, or fees as a result of a violation of subsection (a) of this section, the Customs Service shall require that such lawful duties, taxes, and fees be restored, whether or not a monetary penalty is assessed. 19 U.S.C. § 1592(d) (2000). Although section 1592(d) requires a “violation of subsection (a)” as Court No. 07-00263 Page 10 a prerequisite for an award pursuant to section (d), nothing in the plain language of section 1592(d) indicates that such a violation can only be established in a suit against the importer. This Court has discussed this concept in a number of cases involving sureties. In United States v. XL Specialty Ins. Co., the Court addressed this very issue: Of course, such violation must be established for there to be any such collection, but it does not necessarily follow that that predicate be established in an action between the government and the importer. That is, Blum held there to be a direct cause of action against a surety for recovery of lost duties due to violation of section 1592(a), which is this matter at bar. The government is not foreclosed from commencing this kind of action first. To be sure, when it does so, it bears the burden of proving such violation of the statute, just as it does in any action brought by it against an importer pursuant to 19 U.S.C. § 1592. 462 F.Supp.2d 1364, 1366-67 (2006) (emphasis added) (discussing United States v. Blum, 858 F.2d 1566 (Fed. Cir. 1988). See also United States v. Washington Int’l Ins. Co., 28 CIT__ , 374 F.Supp. 2d 1265 (2005) (surety successfully defended against Customs’ suit for duties by showing importer had committed no violation under section 1592(a), even though the importer was not a party to the case). The only difference between XL Specialty and the current matter is that instead of bringing an action against the surety first, Customs is now maintaining an action only against the surety. However, the court sees no reason to bar such a lawsuit: pursuant to the concept of joint and several liability that is the mainstay of the surety-principal relationship, as well as the language of the bond, Customs has the option to sue either party for duties. See 19 C.F.R. § 113.62 (“Basic importation and entry bond conditions”); Washington Int’l Ins. Co. v. United States, 25 CIT 207, 225, 138 F.Supp. 2d 1314, 1331 (2001) (holding that the joint and several liability stemming from the Court No. 07-00263 Page 11 language of the bond “grants the United States the discretionary authority to seek payment from [the bond surety] independently of any action that may be brought against the principal.”); Blum, 858 F.2d at 1570 (holding that § 1592(d) “provides the United States with a cause of action to recover duties from those parties traditionally liable for such duties, e.g., the importer of record and its surety.”); Balboa Ins. Co. v. United States, 775 F.2d 1158, 1160 (Fed. Cir. 1985) (holding that a surety bond “creates a three-party relationship, in which the surety becomes liable for the principal's debt or duty to the third party obligee (here, the government).”). As the United States Court of Appeals for the Federal Circuit observed: The surety's obligation to pay does not wait for completion of legal contests between the principal and the creditor. If a surety's obligation to pay only arose upon conclusion of lawsuits, the creditor would lose a significant part of the protection it bargained to obtain. Ins. Co. of North America v. United States, 951 F.2d 1244, 1246 (Fed. Cir. 1991). Hence, the court finds no support for Hartford’s contention that Customs cannot establish a violation of section 1592(a) without WCE as a party to the suit, and can see no reason why Customs inability to bring an action under section 1592(a) would otherwise preclude it from suing a surety under section 1592(d), see United States v. Jac Natori Co., Ltd., 108 F.3d 295 (1997) (permitting recovery of duties under section 1592(d) even where the statute of limitations under former 19 U.S.C. § 1621 barred an action for recovery of penalties under section 1592(a)). The court recognizes that Hartford may have several defenses against the current action pursuant to its status as a surety and relating to whether its obligations as a surety have been Court No. 07-00263 Page 12 discharged.4 However, Hartford has asserted no defenses in this regard and it is not within the purview of the court to do so on its behalf. Accordingly, the court will deny Hartford’s motion to dismiss and allow the suit against Hartford to proceed. If Hartford wishes to submit a proper motion for summary judgment to this effect, it must do so in accordance with CIT Rule 56. Conclusion Upon consideration of the foregoing, Customs’ out-of-time motion for out-of-time service of process upon the defendant WCE is denied, and the matter dismissed as to WCE. Hartford’s motion to dismiss is denied. SO ORDERED. /s/ R. Kenton Musgrave R. KENTON MUSGRAVE, Senior Judge Dated: March 21, 2008 New York, New York 4 See Restatement (Third) of Suretyship and Guaranty, § 43. 

375 F.2d 1012 Inez Tyler Bellinger MUTCHERSON, Appellant,v.UNITED STATES of america, Appellee. No. 23954. United States Court of Appeals Fifth Circuit. April 21, 1967, Rehearing Denied July 3, 1967. B. Clarence Mayfield, Savannah, Ga., for appellant. Allen L. Chancey, Jr., Atlanta, Ga., Charles L. Goodson, U.S. Atty., for appellee. Before BROWN and BELL, Circuit Judges, and BREWSTER, District Judge. PER CURIAM: 1 The appellant was convicted upon three counts charging wagering tax violations under 26 U.S.C.A. 7203. She argues that her convictions should be reversed because of insufficiency of the evidence, illegality of the search of her house, and prejudice of the judge. A consideration of each of these contentions shows them to be entirely without merit. 2 Affirmed.

NO. 04-14-00746-CV FILED IN IN THE TEXAS COURT OF APPEALS FOR THE FOURTH DISTRICT 4th COURT OF APPEALS SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS 3/6/2015 1:44:55 PM * * * * * KEITH E. HOTTLE ALAMO HEIGHTS INDEPENDENT SCHOOL DISTRICT, Clerk Appellant v. CATHERINE CLARK, Appellee * * * * * On Accelerated Interlocutory Appeal from the 285th Judicial District Court Bexar County, Texas Cause No. 2009-CI-19821 * * * * * APPENDIX TO BRIEF OF APPELLEE, CATHERINE CLARK * * * * * Respectfully submitted, Brendan K. McBride Matthew R. Pearson State Bar No. 24008900 State Bar No. 00788173 [email protected] [email protected] MCBRIDE LAW FIRM, of Counsel Tracie Gee Conner to GRAVELY & PEARSON, LLP State Bar No. 24074066 425 Soledad, Suite 620 [email protected] San Antonio, Texas 78205 GRAVELY & PEARSON, L.L.P. (210) 227-1200 Telephone 425 Soledad, Suite 600 (210) 881-6752 Facsimile San Antonio, TX 78205 (210) 472-1111 Telephone (210) 472-1110 Facsimile ATTORNEYS FOR APPELLEE, CATHERINE CLARK  TABLE OF CONTENTS Page May 14, 2008 Complaint letter from Catherine Clark 1-14 Page 21 of New Employee Handbook 15 328 329 330 331 332 333 334 335 336 337 338 339 340 341 250 

811 F.Supp.2d 523 (2011) John Thomas BERRY, Plaintiff, v. WORLDWIDE LANGUAGE RESOURCES, INC., Defendant. No. 1:08-cv-00438-JAW. United States District Court, D. Maine. September 15, 2011. *524 David J. Van Dyke, Hornblower, Lynch, Rabasco & Van Dyke, Lewiston, ME, for Plaintiff. Christopher D. Hawkins, Nelson, Kinder, Mosseau & Saturley, P.C., Manchester, NH, Christopher T. Vrountas, Nelson, Kinder, Mosseau & Saturley, P.C., Manchester, NH, for Defendant. ORDER ON RENEWED MOTION TO SANCTION PLAINTIFF JOHN A. WOODCOCK, JR., Chief Judge. Consistent with the jury verdict, the Court concludes that WorldWide Language Resources, Inc. (WorldWide) failed to demonstrate that John Thomas Berry committed perjury and tampered with a witness. The Court denies WorldWide's renewed motion for sanctions. I. STATEMENT OF FACTS A. An Overview John Thomas Berry's lawsuit against his former employer, WorldWide Language Resources, Inc., has been especially contentious. After a period of discovery marked by acrimony and after a three-day trial, on March 9, 2011, a federal jury found that Mr. Berry had proven his promissory estoppel claim against World-Wide and awarded him Twenty-Five Thousand Dollars in damages. Verdict Form (Docket #138) (Verdict). On March 10, 2011, the Court reduced the verdict to judgment.[1]J. (Docket # 140). On April 11, 2011, WorldWide renewed an earlier motion to sanction Mr. Berry. Def.'s Renewed Mot. to Sanction Pl. for his Perjury and Witness Tampering Concerning a Relevant Trial Issue (Docket #144) (Def.'s Mot). On April 25, 2011, Mr. Berry responded. Pl.'s Opp'n to Def.'s [Renewed] Mot. for Sanctions (Docket # 145) (Pl.'s Opp'n). *525 The primary focus of WorldWide's motion is the assertion that Mr. Berry committed perjury when he testified about his relationship with Marianna Chachkova. Def.'s Mot. at 1-20. WorldWide emphatically believes that Mr. Berry and Ms. Chachkova were married and WorldWide says that, in his employment application to WorldWide, Mr. Berry lied when he swore under oath that he had never been married. Id. at 2. WorldWide goes on to say that "Plaintiff's lie in his security application about his prior marriage, the truthful completion of which was a condition precedent to entering into employment with WorldWide, was a falsehood that allowed Plaintiff to obtain his security clearance through the Department of Security Services and therefore induced WorldWide to hire Plaintiff for his job overseas." Id. To prove its charge, WorldWide says that in an interview with United States immigration officials and in a tax return filed with the Internal Revenue Service, Mr. Berry represented that he and Ms. Chachkova were, in fact, married. Def.'s Mot. at 1-10. Furthermore, WorldWide claims that directly after his deposition, Mr. Berry engaged in witness tampering when he contacted Marianna Chachkova's current husband, Paul Russo, to tell him what he had said in his deposition concerning the Chachkova marriage in an effort to "make sure we're [Berry, Chachkova and Russo] on the same page." Id. at 11 (quoting Aff. of Christopher T. Vrountas Attach. 8, Dep. of Paul Russo 20:4-6 (Docket #43)) (Russo Dep.). Because of what it contends is his disrespect for the judicial system and to deter his future misconduct, WorldWide demands that the Court sanction Mr. Berry. Id. at 19-20. Mr. Berry responds that the exact nature of his relationship with Ms. Chachkova remains "murky," that he did not tamper with the anticipated testimony of Mr. Russo, and that the jury rejected the essence of WorldWide's allegations. Pl.'s Opp'n at 1-6. B. Factual Background 1. A Complicated Man By Complaint dated December 2, 2008. John Thomas Berry filed suit, alleging— under a variety of legal theories—that WorldWide, his former employer, improperly terminated his employment.[2] Central to this dispute is who John Thomas Berry is. By any measure, this is not a simple question: Mr. Berry is a complicated man. Born to a military family in Bangor, Maine in 1971, he grew up in Bangor and started college in Rhode Island. Tr. of Proceedings 23:3-11; 24:3-5 (Docket # 156) (Tr. I). He went to Russia, where he enrolled as a student at the University of Moscow; after he graduated from the University of Moscow, he attended Bates College in Maine and graduated in 1995. Id. 23:24-24:19; 27:1-2. In the fall of 1997, Mr. Berry enlisted in the United States Army. Id. 25:3-4, 20-25. His first tour of duty ended in 1998 and he left the active Army then. Id. 26:1-19. After his first tour of duty, he returned to Russia, where he worked as a linguist, taught English, and held a number of jobs from 1998 to 2000. Id. 26:20-27:25. He then returned to Maine, but not alone. Id. 28:1-24. With him, he brought Marianna Chachkova, a woman he had met in Russia. Id. 28:18-24. After a time in Maine, they moved to Florida, where they stayed for two and a half to three years. Id. 28:1-29-6. In late 2003 to early 2004, Mr. Berry received a call from the Army, asking if he *526 would re-enlist. Id. 30:17-31-12. Mr. Berry agreed to do so, rejoined the Army, and was placed in the reserve component until he could complete Officer Candidate School (OCS); he graduated from OCS on May 5, 2006 and in 2007 was commissioned as an officer in the Army. Id. 31:12-24. Unfortunately, however, during OCS, he sustained an injury and after he completed the course, he was diagnosed with a collapsed vertebra. Id. 32:14-33:25. He returned to Maine for medical treatment and the Army assigned him to the University of Maine ROTC battalion; he was serving there when he contacted the president of WorldWide, Larry Costa. Id. 34:1-4; 37:12-38:7. Mr. Berry is highly intelligent. He has a facility with language; in addition to English, he speaks Serbian, Croatian, Russian, French, German, Arabic, English, Spanish, and some Italian. Tr. I 25:11-19. Despite this obvious intelligence, Mr. Berry's testimony periodically wandered and lapsed into confusion. For example, at trial, he was asked about re-enlisting in the Army and attending OCS: Q. So tell us what—how is it that you end up signing a contract with WorldWide in November 2007? A. Counselor, that has—begs the kind of question we have to go back to 2004 or so when I received a phone call from the military at that juncture. Then remember, anybody remembers we were heavily involved in Iraq. It wasn't going well, and they—the military, the Army, needed officers, soldiers, badly. And I received a phone call from essentially a recruiting command asking me if I would consider coming back. Q. In 2004? A. In 2003 or—late '3 to '4. Q. And what do you do? A. I went back. And so in November 2000—October or November—I have the papers in my briefcase, I can pull them out—I rejoined the United States Army and was put into the reserve component until I could attend [OCS], which I did in late 2000—well, 27-week—26-week course all together so in—the fall of 2007—excuse me, fall of 2005 to the summer, I graduated May 5th, 2006. Id. 30:17-31:12. Mr. Berry explained that he was taking medication for his physical injuries and it was causing memory problems. Id. 29:4-6. As in many cases, the jury was presented with the difficult task of making credibility determinations. Here, Mr. Berry's unusual presentation and WorldWide's forceful accusation that he was dissembling made those determinations even more onerous. 2. WorldWide and John Berry WorldWide is a business that provides language services primarily to the military. Trial Tr. II 141:22-42:4. When Mr. Berry was at the University of Maine, he learned about WorldWide, then headquartered in western Maine. Id. 36:1-13. His ROTC assignment at the University was time-limited and he was concerned that he would "come off orders." Tr I. 38:2-12. Thinking that his military background and linguistic ability would make him an attractive hire, Mr. Berry contacted Larry Costa, the President of WorldWide, and, on November 20, 2007, he signed on with WorldWide and shortly thereafter was flown to Afghanistan. Id. 36:18-38:17; 55:24-58:6; Joint Ex. 4. 3. A Question of Marriage The WorldWide—Berry contract stipulated, among other things: Possession of at least an interim secret clearance from DSS shall be a precondition for employment with the company under this agreement. Joint Ex. 4 at 1. To secure or maintain this security clearance, Mr. Berry completed a Standard Form 86, a security clearance *527 application. Tr. I 115:6-14; Joint Ex. 3. Standard Form 86 asks in Section 15 about the citizenship of former spouses: Section 15: Citizenship of Your Relatives and Associates If your current spouse is a U.S. citizen by other than birth, or an alien residing in the U.S., provide a Proof of Citizenship Status entry below. Proof of Citizenship Status (No Entry Provided) Former Spouse(s) (Not Applicable: (x)) (No Entry Provided) Joint Ex. 3 at 195. WorldWide has maintained that Mr. Berry's representation in Standard Form 86 that he did not have a former spouse was a lie and he was, in fact, previously married to Ms. Chachkova. To prove its contention, WorldWide pointed to photographs of Mr. Berry wearing a wedding ring, a wedding license, the deposition testimony of Ms. Chachkova, the deposition testimony of Abigail Stoddart (Mr. Berry's current wife), a Florida divorce judgment, and Mr. Berry's 2002 tax return. Def.'s Mot. at 5-11. WorldWide also points to Mr. Berry's repeated sworn denials of marriage to Ms. Chachkova, including his deposition testimony, his answers to interrogatories, and his trial testimony as well as his reluctant production of copies of his tax returns. Id. 4. Witness Tampering WorldWide deposed Mr. Berry for three days. Id. at 6. WorldWide claims that after the first day, Mr. Berry telephoned Ms. Chachkova's husband, Paul Russo, informed Mr. Russo about his lawsuit against WorldWide, confessed that he lied during his deposition when he said that he never married Ms. Chachkova, commented that he had called Mr. Russo to make sure they were all on the same page, and observed that WorldWide could cause trouble for Ms. Chachkova in light of her immigration status. Id. at 11. 5. John Berry's Response In the face of WorldWide's allegations, Mr. Berry characterizes his relationship with Ms. Chachkova as "murky" and maintains that he never married her. Pl.'s Resp. at 3-4. As evidence he observes: that the Russian wedding license does not contain his signature; that there were no photographs or video of the Russian wedding or reception; that only three photographs were admitted into evidence of Mr. Berry wearing a wedding ring; that Mr. Berry was wearing the wedding ring on his right, not left hand; that other than 2002, Mr. Berry did not file a joint/married tax return with Ms. Chachkova and that he filed the 2002 tax return on the advice of his tax attorney; that while supposedly married to Mr. Berry, Ms. Chachkova entered the United States on a tourist visa instead of as Mr. Berry's spouse; that in his cover letter to Ms. Chachkova conveying his final "divorce" financial statement (filled out entirely with zeros), he noted to Ms. Chachkova that he was terminating any bond "either real or imagined"; and that Ms. Chachkova said that she returned her wedding band to Mr. Berry immediately after the INS hearing. Id. at 3-4. 6. Heads Up Mr. Berry dismisses the "nefarious picture" that WorldWide paints about his telephone call to Mr. Russo. Id. at 6. He insists that he called Mr. Russo only to "give him a `head's up'" about the lawsuit and the fact that WorldWide might be contacting him, and to provide some context. Id. Mr. Berry also points out that Mr. Russo's deposition was not admitted into evidence and that Mr. Russo himself never appeared in court. Id. He concludes that the factual disagreement between deposition testimonies is "not sufficient for the Court to find any witness tampering on the part of Lt. Berry." Id. *528 II. DISCUSSION A. The Jury Verdict In evaluating WorldWide's motion, the Court does not begin with a blank slate. The jury has rendered a verdict and the court must accept the jury determinations in this case. U.S. CONST. amend. 7 ("[T]he right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law"); Harding v. Cianbro Corp., 473 F.Supp.2d 89, 95 (D.Me.2007). In its verdict, the jury found in favor of Mr. Berry on the breach of contract and promissory estoppel theories. Verdict at 1-2. Specifically, the jury found that WorldWide had not proven that it had been fraudulently induced to enter into the contract with Mr. Berry. Id. at 1. Since WorldWide's fraud defense was premised on the contention that Mr. Berry had lied about his marriage to Ms. Chachkova and had fraudulently induced WorldWide to hire him, Def.'s Mot. at 2, the jury's rejection of WorldWide's fraud defense must mean that it concluded that WorldWide had not proven that Mr. Berry lied on the security application about his marriage to Ms. Chachkova. B. The Trial Evidence Whether Mr. Berry was in fact married to Ms. Chachkova was squarely before the jury. The security questionnaire—Standard Form 86—was admitted into evidence, Tr. I 52:25-53:4. WorldWide extensively cross-examined Mr. Berry on whether he lied about his marriage to Ms. Chachkova, including specifically the assertions it is now making in its motion for sanctions: the 2002 tax return, Mr. Berry's deposition testimony, the divorce documents, his email to Paul Russo, and photographs of Mr. Berry with a ring on his right hand. Id. 140:20-162:24; Tr. III 99:11-103:12. WorldWide also introduced by deposition the testimony of Ms. Chachkova in which she testified that she married Mr. Berry. Ct. Ex. 102 (Dep. of Marianna Chachkova). Mr. Berry testified at length about his relationship with Ms. Chachkova. He explained that he liked her very much, that she had led a tough life in Russia, that Russian law stipulates that there must be a ninety-day waiting period between a marriage application and a marriage, that he did not want to wait the ninety-day period, that when she came to the United States, she came on a tourist visa, not as his wife, that he wore a wedding ring on his right hand in order to make her feel loved, and that they were not married under Russian law. Tr. III 89:10-97:5. Mr. Berry also explained that his reluctance to marry Ms. Chachkova stemmed from her continual abuse of alcohol and from the legal requirement that if she came to the United States as his wife, he would have been obligated to support her financially. Id. 90:17-91:16. He explained his 2002 tax filing as consistent with legal advice he had received. Tr. I 147:10-22. The Court agrees with Mr. Berry that whether he was in fact married to Ms. Chachkova is indeed murky. Weighing the evidence, the jury concluded that WorldWide had not demonstrated that Mr. Berry had fraudulently induced it to enter into the employment contract and consistent with the jury verdict, the Court applies the jury finding to WorldWide's motion. C. Jones v. Clinton Citing Jones v. Clinton, 57 F.Supp.2d 719 (E.D.Ark.1999), WorldWide contends that the jury outcome is "irrelevant to the issue of sanctions." Id. at 2. WorldWide says that sanctions may be awarded even though the party who engaged in the sanctionable conduct was successful in the underlying *529 lawsuit and it further argues that it is more important that the Court impose a sanction when the offending party is victorious because otherwise "Plaintiff would pay absolutely no consequence for his perjury and witness tampering." Def.'s Mot. at 2. In Clinton, however, the district court previously had determined that the President William Clinton had "violated this Court's discovery Orders by giving false, misleading and evasive answers that were designed to obstruct the judicial process, and that sanctions must be imposed." Jones, 57 F.Supp.2d at 720. Here, unlike Jones, the Court has not already determined that Mr. Berry committed perjury or tampered with a witness. Although the Court agrees with WorldWide that the judicial authority to impose sanctions is not contingent upon the outcome of a lawsuit, a preliminary question is whether Mr. Berry engaged in sanctionable conduct to begin with. On this issue, Jones and the other cited caselaw is of no assistance.[3] D. Discovery WorldWide has another arrow in its quiver. It says that evidence not before the jury confirms Mr. Berry's perjury on the question of his marriage to Ms. Chachkova. Specifically, WorldWide refers to the deposition testimony of Abigail Stoddart, Mr. Berry's wife, and the deposition testimony of Paul Russo, Ms. Chachkova's husband. Def.'s Mot. at 7-8. Regarding Ms. Stoddart, citing her deposition testimony, WorldWide asserts that Berry's second wife, Abigail Berry, testified that "Berry told her he was previously married to Chachkova." Def.'s Mot. at 8. During her deposition on September 24, 2009, however, Ms. Stoddart's testimony on this point was much more equivocal than WorldWide allows: Q. Before you were married, were you ever advised by anyone that Mr. Berry had previously married? A. I was advised by Jack that he had been married. Q. What did he tell you in that regard? A. When he told me—because he denied it once. He told me that there was a woman that he married who was Russian, and I had already known he had been in Russia and the period of time and that sort of thing, and that she was involved in some things in Russia that made her life very difficult. She was in a lot of danger, and so he married her in order to get her out of the country, and it wasn't a real marriage in the sense that he didn't feel married to her and it wasn't really a situation where he like regarded her as his wife than it was to get her out of the country. Aff. of Christopher Vrountas, Ex. 3 Dep. of Abigail Stoddart 26:7-27:1 (Docket # 55). Ms. Stoddart's testimony only adds to the confusion; Mr. Berry's admission that he was "married" and his assertion that it "wasn't a real marriage" is generally consistent with his testimony at trial. Furthermore, when she testified at trial, Ms. Stoddart was separated from Mr. Berry and in the middle of a divorce with him. Tr. III. 111:7-12. *530 Turning to Paul Russo, in his deposition, Mr. Russo testified that he knew Ms. Chachkova and Mr. Berry were married because they "represented themselves as being married when I met them." Aff. of Christopher Vrountas, Ex. 1 Dep. of Paul Russo 7:3-11 (Docket #55). Mr. Russo was not asked what he meant by "represented themselves as being married." Mr. Russo testified that they both wore wedding rings, which is cumulative evidence. Id. 7:12-13. From the Court's perspective, none of this additional evidence establishes that Mr. Berry committed perjury when he described his relationship with Ms. Chachkova. First, the combined testimony is too vague to sustain WorldWide's accusation. Second, only Ms. Stoddart testified before the Court and she was not asked about her husband's alleged marriage to Ms. Chachkova. Furthermore, although Ms. Stoddart was generally straightforward during her testimony, she was not nearly as forthcoming on cross-examination by Mr. Berry's attorney as on direct examination by WorldWide's attorney and may have been influenced by the fact she was divorcing Mr. Berry. Third, Mr. Russo's phrase— "represented themselves as married"—is unclear. It could mean that Mr. Berry and Ms. Chachkova told Mr. Russo they were married; it could also mean that they acted like they were married. Fourth, neither Ms. Chachkova nor Mr. Russo was called as a live witness. WorldWide elected not to videotape the depositions of Ms. Chachkova and Mr. Russo and, therefore, the Court has been presented only with transcripts of their deposition testimony. Where credibility evaluations run to the heart of WorldWide's claims, the presentation of written transcripts and not live witnesses does not enhance WorldWide's position. Finally, the Court's evaluation of this additional evidence must be evaluated in light of the jury verdict in this case, which—as discussed—does not support WorldWide's contentions. E. Witness Tampering Based on a telephone call Mr. Berry made to Mr. Russo on August 15, 2009, WorldWide accuses Mr. Berry of witness tampering. Def.'s Mot. at 11-12. To support this accusation, WorldWide refers to the deposition testimony of Paul Russo. Aff. of Christopher Vrountas Ex. G Dep. of Paul Russo 19:4-22:20. (Docket #43). Mr. Russo testified that he received a six to seven minute phone call from Mr. Berry on August 15, 2009, that Mr. Berry told him that he was involved in a lawsuit against a company, that he had told the company that Ms. Chachkova and he were never married, that the company was very powerful, that he was trying to keep Ms. Chachkova out of the lawsuit, that he was working undercover investigating the company, and that the company could make problems for Ms. Chachkova's immigration status. Id. Mr. Russo also said that Mr. Berry gave him his attorney's name and urged him to call his lawyer. Id. Mr. Russo testified that Mr. Berry said that he wanted them to be on the same page. Id. During trial, WorldWide asked Mr. Berry about the call. Tr. II 70:2-8. Mr. Berry admitted making the call but denied that he was trying to get Mr. Russo and Ms. Chachkova on the same page. Id. He said he contacted Mr. Russo to let him know of the upcoming trial. Id. 71:12-14. After some quibbling, Mr. Berry admitted that he had told Mr. Russo that he wanted them to be on the same page, but he denied any negative implication from that phrase. Id. 71:15-20. The substance of WorldWide's allegation about witness tampering was before the jury. The jury had the opportunity to evaluate Mr. Berry's credibility and concluded that WorldWide had not demonstrated *531 that he had defrauded WorldWide. To the extent the jury verdict represented an evaluation of Mr. Berry's credibility and WorldWide's position is inconsistent with the verdict, the Court rejects WorldWide's witness tampering accusation. To the extent the Court is not bound by the verdict, the Court also rejects WorldWide's accusation. The Court has never had an opportunity to assess Mr. Russo's credibility as a live witness. The telephone call was not recorded and its content was not otherwise corroborated. At bottom, the Court is faced with a standoff between two witnesses with markedly different recollections and a scant basis to favor one version over the other. Based on this evidence, the Court is not convinced that Mr. Berry engaged in witness tampering. III. CONCLUSION The Court DENIES WorldWide Language Resources, Inc.'s Renewed Motion to Sanction Plaintiff for his Perjury and Witness Tampering Concerning a Relevant Trial Issue (Docket # 144). SO ORDERED. NOTES [1] Following a motion to correct clerical error, the Court issued an amended judgment on March 28, 2011. Am. J. (Docket # 143). [2] Mr. Berry filed suit in Waldo County Superior Court and WorldWide removed the lawsuit to this Court under this Court's diversity jurisdiction. Notice of Removal (Docket #1); id. Attach. 2, Compl. [3] WorldWide also cites Quela v. Payco-General American Credits, Inc., No. 99 C 1904, 2000 WL 656681, 2000 U.S. Dist. LEXIS 6932 (May 18, 2000). But like Jones, the Court in Quela found that two persons had "intentionally coerced fraudulent written statements and false deposition testimony." Id. at *5, 2000 U.S. Dist. LEXIS 6932, at *16. Similarly in Burrell v. AT & T Corp., No. 03 Civ. 2490(SAS), 2006 WL 3802224, 2006 U.S. Dist. LEXIS 93393 (Dec. 21, 2006), the district court dismissed the plaintiff's lawsuit after finding that he "perverted the very system of justice he sought to use to redress what he claimed was a grievous wrong." Id. at *7, 2006 U.S. Dist. LEXIS 93393, at *28.

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e . NO. COA13-1433 NORTH CAROLINA COURT OF APPEALS Filed: 1 July 2014 STATE OF NORTH CAROLINA Iredell County v. Nos. 08 CRS 59811-15, 59892- 96; 09 CRS 7498-99, 7500; 12 CRS 51941-43 MARSHALL LEE ELLER Appeal by Defendant from Judgments entered 22 March 2013 by Judge Joe Crosswhite in Iredell County Superior Court. Heard in the Court of Appeals 21 May 2014. Attorney General Roy Cooper, by Assistant Attorney General Alexandra Gruber, for the State. Glover & Petersen, P.A., by James R. Glover and Ann B. Petersen, for Defendant. STEPHENS, Judge. Factual Background and Procedural History On 12 October 2009, Defendant Marshall Lee Eller was indicted on sixteen counts of indecent liberties with a child  -2- and one count of first-degree sex offense.1 Prior to the trial, the State moved for joinder of all charges. The trial court granted the motion and found that the charges constituted a single scheme or plan, noting that the same attorney represented Defendant on all charges, the facts surrounding each charge were similar in scheme or plan, joinder would not impair Defendant’s ability to present a defense, and the charges were “not so separate in time and place or so distinct in circumstance as to render their consolidation unjust or prejudicial to . . . Defendant.” The case came on for trial on 18 March 2013, and verdicts were rendered on 22 March 2013. The State’s evidence tended to show the following: Over the span of twenty-two years, Defendant engaged in indecent liberties with three children: Defendant’s stepdaughter, “Mary”; Mary’s childhood friend, “Brenda”; and Defendant’s stepgranddaughter, “Alison.”2 The incidents involving Mary took place between 1985 and 1992, beginning when she was nine years old. The incidents involving Brenda took place 1 Neither the indictment nor the verdict for the charge of first- degree sex offense appears in the record. However, both the record and transcript indicate that Defendant was charged with and found not guilty of this offense. 2 Pseudonyms are used to protect the juveniles’ identities.  -3- between August of 1987 and April of 1988, beginning when she was eleven years old. The incidents involving Alison took place between 2004 and 2008, beginning when she was eleven years old. A. Mary (1985 to 1992) Mary testified to two specific incidents between her and Defendant as well as a series of reoccurring incidents that took place from when she was nine years old until she was eighteen. In addition, Mary testified to two other types of reoccurring incidents, the first of which took place beginning when she was ten years old until she was thirteen and the second of which went on as she grew older. The first specific incident between Defendant and Mary occurred when Mary was about nine years old. Defendant took Mary, who lived with Defendant until she was eighteen, into his bedroom, wrestled with her, lifted her shirt, and kissed her on the stomach and chest. The second specific incident occurred when Mary was approximately twelve years old. Defendant instructed Mary to lie on the floor in his bedroom, where he rubbed her back and bottom through her nightgown, reached his hand underneath her underwear, and placed his finger in her vagina. The series of reoccurring incidents took place from the time Mary was ten until she was eighteen. Defendant would  -4- regularly instruct her to sit on his lap, raise her shirt, fondle her, and put his mouth on her breasts for roughly fifteen minutes at a time. About once a week, Defendant would also place Mary’s hand “on the outside of his pants at his crotch area” where she could feel his erect penis. About three times a week, Defendant would come to Mary’s room at night and, as she lay on her stomach, lift her nightgown, rub her back, pull down her underwear slightly, and rub her bottom. During these bedtime visits, Defendant would also attempt to roll Mary over or put his hands underneath her in an attempt to touch her breasts. These visits occurred “pretty often” and would last “[thirty] minutes to an hour at times.” The first other reoccurring incident took place when Mary was between the ages of ten and thirteen. While staying at a house he owned and rented to his sister, Defendant took Mary for motorcycle rides and, in a secluded area, “would turn around and . . . feel [Mary’s] breasts.” Second, as Mary got older, Defendant “[attempted] to come into the bathroom whenever [Mary] was in the shower.” Defendant would open the shower curtain, peek at Mary, and touch her breasts. Mary testified that “most of the time,” the incidents occurred in the mobile home that Defendant shared with Mary’s  -5- mother. Other times, the incidents occurred when Defendant and Mary were in a car or in the house Defendant owned and rented to his sister. B. Brenda (1987 to 1988) Brenda came to know Defendant through his stepdaughter, Mary. The first incident between Defendant and Brenda occurred when Defendant entered Mary’s room to tuck in both Mary and Brenda during a sleepover. As Defendant tucked in the two girls, he “went up [Brenda’s] shirt and [rubbed her] breasts.” He then put “his hand . . . under [her] panties . . . [and rubbed] the outside of [her] vagina.” A second incident occurred in spring 1988 when Defendant invited Brenda on a motorcycle ride with him. Defendant stopped his motorcycle in the woods and “took his hand and put it on [Brenda’s] . . . vagina outside of [her] clothes and started rubbing [her].” C. Alison (2004 to 2008) In 1995, Defendant sold his rental property and purchased a house. In 2004, Defendant installed a pool at that residence.  -6- Alison and her family3 spent almost every weekend at Defendant’s house between 2004 and 2008. Defendant also visited Alison at her home. According to Alison, the first incident with Defendant occurred in August of 2004 when Alison was about eleven years old. In his garage, Defendant “put his hands up [Alison’s] skirt on the outside of [her] panties, and [Defendant] rubbed [her] butt.” A second incident occurred when Alison was about twelve. Defendant gave her a piggyback ride in the pool at his residence. During the piggyback ride, Defendant rubbed and squeezed Alison’s buttocks and thighs. He then “told [her] that he was sorry that he made [her] feel uncomfortable and that if he ever made [her] feel uncomfortable again that [she] should tell [Defendant], and he wouldn’t do it anymore.” A third incident occurred in 2008 when Alison was about fifteen. Defendant and Alison were alone in Defendant’s basement when he “put his hand on [her] thigh and was rubbing it and then moved [his hand] down towards [her] vagina” and touched Alison’s vagina through her clothing. Although Alison did not cite specific dates, she testified 3 Alison’s father, Michael, is Mary’s brother.  -7- to two additional incidents involving Defendant. First, she testified that Defendant visited her and her brother at her home. After sending Alison’s brother to take a shower, Defendant approached Alison and rubbed and squeezed her breasts through her shirt as she sat at her computer. Second, after Defendant’s wife went to bed, Defendant attempted to kiss Alison on the mouth. Alison also testified to reoccurring incidents of misconduct. “There were several times that [Alison] would be in the basement, and [Defendant] would come down and just rub [her] on the butt from behind, and he would take [her] hands and put them on his penis.” Additionally, “[a] few times in the car, [Defendant] would . . . rub [Alison’s] leg while he was driving.” Besides these few times in the car, the touching occurred “[n]owhere else besides [Alison’s and Defendant’s] houses.” At the close of the State’s evidence, Defendant moved to dismiss the charges against him. The trial court denied the motion. Thereafter, Defendant testified, denied all the allegations, and again moved to dismiss the charges. Again, the trial court denied the motion. The jury returned guilty verdicts on sixteen counts of  -8- indecent liberties with a child. The jury found Defendant not guilty on one count of first-degree sex offense. Defendant gave notice of appeal in open court. Discussion On appeal, Defendant contends the trial court erred by (1) joining the charges arising from the incidents occurring between 1985 and 1992 with those arising from the incidents occurring between 2004 and 2008 and (2) denying Defendant’s motion to dismiss one of the three charges of indecent liberties with Brenda. We hold that the trial court committed harmless error in joining all the charges for trial. We vacate one of the three convictions of indecent liberties with Brenda and remand for resentencing. I. Joinder of Charges A. Transactional Relationship As noted above, the trial court joined the 1985–1992 charges with the 2004–2008 charges on the grounds that “the transactions are connected together and . . . constitute a single scheme or plan.” On appeal, Defendant argues that joinder of all the charges was improper. According to Defendant, the fact that all the charges may have been committed “under the same general modus  -9- operandi is not enough to supply the required transactional connection [and, therefore, is] not enough to make [the charges] a series of connected acts which constitute a single plan or scheme.” Defendant further argues that “sexually abus[ing] adolescent girls that were in . . . [D]efendant’s home or to whom [Defendant] had access” does not constitute a common scheme or plan. In addition, Defendant points out that the twelve years separating the 2004–2008 charges from the 1985–1992 charges is a far greater gap in time than in previous cases where this Court has found joinder of charges to be proper. When determining whether offenses should be joined for trial, N.C. Gen. Stat. § 15A-926(a) “requires a two-step analysis: (1) a determination of whether the offenses have a transactional connection, and (2) if there is such a connection, consideration then must be given as to whether the accused can receive a fair hearing on more than one charge at the same trial.” State v. Perry, 142 N.C. App. 177, 180-81, 541 S.E.2d 746, 748–49 (2001) (citation and internal quotation marks omitted). “The [legal] determination of whether a group of offenses are [sic] transactionally related so that they may be joined for trial is a question of law fully reviewable on appeal.” State v. Guarascio, 205 N.C. App. 548, 553, 696 S.E.2d  -10- 704, 709 (2010) (citation and internal quotation marks omitted). However, the decision regarding whether to join offenses pursuant to that relationship is within the sound discretion of the trial court. State v. Miller, 61 N.C. App. 1, 5, 300 S.E.2d 431, 435 (1983) (citations omitted). Therefore, the determination of whether the offenses have a transactional connection is reviewed de novo, and the determination of whether the defendant can receive a fear hearing if the offenses are joined is reviewed for abuse of discretion. See Perry, 142 N.C. App. at 180-81, 541 S.E.2d at 748–49. Joinder of charges in a criminal case is proper when the charges are “based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan.” N.C. Gen. Stat. § 15A-926(a) (2013). Joinder is improper when “the offenses are so separate in time and place and so distinct in circumstances as to render consolidation unjust and prejudicial [to the defendant].” State v. Chandler, 324 N.C. 172, 188, 376 S.E.2d 728, 738 (1989) (citation and internal quotation marks omitted). “[O]ffenses that are committed on separate dates cannot be joined for trial, even when they are of like character, unless the circumstances of each offense are so distinctly similar that they serve almost  -11- as a fingerprint.” State v. Williams, 74 N.C. App. 695, 697, 329 S.E.2d 705, 707 (1985). This Court has allowed joinder of charges involving the sexual abuse of minors when that abuse was separated by five months. State v. Street, 45 N.C. App. 1, 5-6, 262 S.E.2d 365, 368 (1980) (“[W]e think that even though the time period [of five months] between some of the acts was substantial, the acts were nonetheless so similar in circumstance and place as not to render the [joinder] of the offenses prejudicial to the defendant.”). We have declined, however, to join charges involving the sexual abuse of minors when that abuse was separated by as many as seven years. See generally State v. Bowen, 139 N.C. App. 18, 29, 533 S.E.2d 248, 255 (2000) (holding that the seven years between offenses and the non-uniform nature of the individual acts meant that the defendant did not have a single scheme or plan); State v. Owens, 135 N.C. App. 456, 459– 60, 520 S.E.2d 590, 593 (1999) (“[I]n light of (1) the extended interval of as much as [seven] years between some of these offenses and (2) the lack of a consistent pattern in [the] defendant’s molesting behavior, we hold that . . . all of the charged acts did not constitute part of a single scheme[.]”). In Owens, this Court determined that certain sex-based  -12- offenses separated by at least one year and at most seven years were not transactionally related. Id. According to the Court, the following actions were not sufficiently uniform: “[s]ome molestations took place when [the defendant] was alone in the house with a single child. On other occasions, he would isolate a child in his bedroom while others were in the house. [The d]efendant twice took indecent liberties while all three girls were present.” Id. Due to the separation of time and the lack of uniformity in the defendant’s conduct, this Court concluded that joinder was improper. See id. In Bowen, this Court was unwilling to permit joinder of charges of alleged sexual crimes against children when the charges occurred over twelve years, were separated by a maximum of seven years, involved three different victims, and the individual acts were of differing natures. Bowen, 139 N.C. App. at 30, 533 S.E.2d at 255. There, the first victim testified that in May of 1996, the defendant forced her onto a bed, pinned her down, and inserted his fingers into her vagina. Id. at 21, 533 S.E.2d at 250. She also testified that the defendant “had inappropriately touched her on a regular basis.” Id. at 21, 533 S.E.2d at 250–51. The second victim testified that “in the summer of 1996, [the] defendant forcibly touched her private  -13- parts[.]” Id. The third victim, nineteen years old at the time of trial, testified that the defendant had abused her since she was a young child, including forcing her to perform oral sex on the defendant multiple times. Id. at 21, 533 S.E.2d at 251. By contrast, in Street, this Court found joinder of alleged sexual crimes involving three victims to be proper when the incidents were separated by five months. 45 N.C. App. at 6, 262 S.E.2d at 368. There, each alleged incident “occurred at the same place and under the same circumstances.” Id. at 5-6, 262 S.E.2d at 368. In that case, the victims were siblings; all the incidents occurred for a long period of time; every time the defendant was given access, he abused his stepchildren; and, in each incident, the defendant used his authority as a parent to coerce his victims. Id. at 6, 262 S.E.2d at 368. Here, the offenses concerning Alison took place, at a minimum, twelve years after the offenses concerning Mary and Brenda. In addition, the incidents involving Alison were not sufficiently similar to the incidents involving Mary and Brenda. Alison testified that she was abused in Defendant’s home, in her home, and in Defendant’s car. Defendant gained access to Alison through family gatherings and his relationship with Alison’s brother. In contrast, Mary testified that the abuse occurred on  -14- a motorcycle, in her bedroom in Defendant’s house, in Defendant’s bedroom, and in Defendant’s bathroom when Mary would shower. Notably, Defendant would often visit Mary in her bedroom at night. Defendant had access to Mary because she lived in his home whereas Alison never lived with Defendant. Brenda’s abuse occurred in Mary’s bedroom and on a motorcycle. Because Defendant’s access to Mary was of a different character than his access to Alison, the crimes against Mary and Alison are no more uniform than the conduct in Owens. See 135 N.C. App. at 459-60, 520 S.E.2d at 593. As in Owens, the incidents in this case took place in a number of different ways and places. Defendant would isolate Alison by instructing her brother to take a shower, leaving Defendant alone with his victim; he would molest his victims when he was alone in the victim’s house; he would molest his victims when the victim was alone in Defendant’s house; and, once, he took indecent liberties with two victims while both were present. Moreover, the abuse occurred on a motorcycle, in several bedrooms, in a pool, and in a basement. “North Carolina appellate courts have been willing to find a transactional connection in cases involving sexual abuse of children.” Bowen, 139 N.C. App. at 29, 533 S.E.2d at 255 (citation and internal quotation marks omitted). However, we are  -15- not aware of any cases allowing joinder of offenses separated by a period of time longer than two years. See, e.g., State v. Estes, 99 N.C. App 312, 317, 393 S.E.2d 158, 161 (1990). Here, the incidents involving Alison took place twelve years after the incidents involving Mary and Brenda. The State cites Street, 45 N.C. App. at 1, 262 S.E.2d at 365, to support its position that the time between the 1985–1992 charges and the 2004–2008 charges is not too long to make joinder improper. That case, however, held only that incidents occurring “at the same place and under the same circumstances,” five months apart, may be joined. Street, 45 N.C. App. at 5–6, 262 S.E.2d at 368. Street is not controlling where the charges are separated by twelve years, as here. Therefore, because the incidents are separated by twelve years and the conduct is no more uniform than the conduct in Owens, we hold that the trial court erred in determining that the abuse concerning Alison from 2004 to 2008 was so transactionally linked to the abuse concerning Brenda and Mary from 1985 to 1992 that joinder of all the charges was proper. B. Unfair Prejudice Even though the charges were improperly joined, Defendant does not articulate any meaningful prejudice resulting from that joinder, nor do we perceive any. On appeal, Defendant merely  -16- asserts that “joinder would prejudice . . . [his] ability to receive a fair trial.” At trial, Defendant argued that joinder was improper because “any arguments made by the [d]efense would be clouded by these other allegations . . . hanging over [Defendant’s] head.” We note, however, that “evidence of other molestations would have been admissible pursuant to . . . Rule 404(b) [of the North Carolina Rules of Evidence] to show intent, plan, or design” even if the charges had not been joined. See Bowen, 139 N.C. App. at 29, 533 S.E.2d at 255 (“[S]hould the trial court allow joinder, and on appeal that joinder be deemed error, this Court should review any resulting prejudice with reference to Rule 404(b).”) (citation and internal quotation marks omitted). Under Rule 404(b), intent, plan, or design may be established using a “lower threshold of proof than that needed to establish the ‘series of acts or transactions connected together or constituting parts of a single scheme or plan,’ which must be shown for joinder of offenses for trial under section 15A-926(a).” Id. “The very terms used in section 15A- 926(a) requiring a ‘single scheme or plan,’ are more exacting than the term ‘plan’ used in Rule 404(b).” Owens, 135 N.C. App. at 460, 520 S.E.2d at 593. Therefore, even if joinder is  -17- improper, additional victims may still testify about similar incidents under Rule 404(b). As a result, the jury would still be aware of the existence of allegations from multiple victims and give that fact weight in their deliberations. See N.C. Gen. Stat. § 8C-1, Rule 404(b) (2013). In a criminal case, evidence of other crimes, wrongs, or acts is admissible under Rule 404(b) as long as it is relevant for some purpose other than to show that the defendant has a propensity for the type of conduct for which he is being tried and as long as it is not too remote. See, e.g., State v. Frazier, 344 N.C. 611, 616, 476 S.E.2d 297, 300 (1996) (holding that prior acts of sexual abuse alleged to have occurred over a time period of seven to twenty-seven years before trial were admissible to show a common plan or scheme); State v. DeLeonardo, 315 N.C. 762, 771, 340 S.E.2d 350, 357 (1986) (holding that testimony of the defendant’s three-year-old daughter regarding his sexual conduct toward her was admissible to establish a common plan or scheme in the defendant’s trial for molesting his two sons); State v. Goforth, 59 N.C. App. 504, 506, 297 S.E.2d 128, 129 (1982) (affirming the trial court’s admission of two sisters’ testimony regarding the defendant’s sexual abuse to show a pattern of conduct in the defendant’s  -18- trial for sexual abuse of his stepdaughter), reversed on other grounds, 307 N.C. 699, 307 S.E.2d 162 (1983). While the admissibility of evidence is not dispositive of the absence of prejudice, admissibility “may be considered in determining whether the consolidation [of charges for purposes of joinder] was unjust and prejudicial to the defendant.” State v. Corbett, 309 N.C. 382, 389, 307 S.E.2d 139, 144 (1983). When examining the prejudicial impact of joining offenses, this Court “must look to whether [the] defendant was hindered or deprived of his ability to defend one or more of the charges.” Id. at 389, 307 S.E.2d at 144. Although the trial court erred in joining the charges in this case, neither the record nor Defendant’s arguments support the conclusion that Defendant was prejudicially hindered or deprived of his ability to defend one or more of the charges. Accordingly, Defendant’s first argument is overruled. II. Motion to Dismiss “This Court reviews the trial court’s denial of a motion to dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted). Upon [the] defendant’s motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or  -19- of a lesser offense included therein, and (2) of [the] defendant’s being the perpetrator of such offense. If so, the motion is properly denied. State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (citation and internal quotation marks omitted), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192–93, 451 S.E.2d 211, 223 (1994) (citation omitted), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995). On appeal, Defendant argues that the trial court erred in denying his motion to dismiss one of the charges of indecent liberties concerning Brenda because “[t]ouching two parts of a child’s body in the course of a single incident is one crime, not two.” The State offers no objection and concedes that it “is unable to distinguish the cases cited by [D]efendant from the case at bar.” We find Defendant’s argument persuasive.  -20- When examining acts prosecuted under the statute governing the taking of indecent liberties with children under N.C. Gen Stat. § 14-202.1(a)(1), our Supreme Court has stated that the evil the legislature sought to prevent in this context was the defendant’s performance of any immoral, improper, or indecent act in the presence of a child for the purpose of arousing or gratifying sexual desire. [The d]efendant’s purpose for committing such act is the gravamen of this offense; the particular act performed is immaterial. State v. Jones, 172 N.C. App 308, 315, 616 S.E.2d 15, 20 (2005) (citation and internal quotation marks omitted). “[A]lthough [N.C. Gen. Stat § 14-202.1] sets out alternative acts that might establish an element of the offense, a single act can support only one conviction.” Id. As Defendant notes in his brief, this case is indistinguishable from State v. Laney, 178 N.C. App. 337, 631 S.E.2d 522 (2006). There we found that “[the] defendant’s acts of touching the victim’s breasts and putting his hands inside the waistband of her pants were part of one transaction that occurred the night [in question]. The sole act involved was touching — not two distinct sexual acts.” Id. at 341, 631 S.E.2d at 524. Here, Defendant was indicted for and convicted of three acts of indecent liberties against Brenda. However, Brenda’s  -21- testimony proved only two occasions on which Defendant touched her inappropriately. The first occasion occurred when Brenda spent the night with Mary in her bed. The second occasion occurred when Defendant took Brenda on a motorcycle ride. The three indictments concerning indecent liberties against Brenda lay out no specifics other than a date range, and all three indictments are identical. Accordingly, we conclude that the trial court erred in denying the motion to dismiss one of the three indecent liberties charges concerning Brenda, and we vacate the corresponding conviction. Defendant’s three convictions for indecent liberties against Brenda were consolidated into one judgment. When one such conviction is vacated, “the better procedure is to remand for resentencing . . . .” State v. Wortham, 318 N.C. 669, 674, 351 S.E.2d 294, 297 (1987). Accordingly, we remand judgment number 12 CRS 51941 to the trial court for resentencing consistent with this opinion. NO PREJUDICIAL ERROR in part; VACATED AND REMANDED in part. Judges STROUD and MCCULLOUGH concur. Report per Rule 30(e). 

850 F.2d 694 271 U.S.App.D.C. 1 FEDERAL TRADE COMMISSION, Appellantv.OWENS-ILLINOIS, INC., et al. No. 88-5048. Civ. A. No. 88-00022. United States Court of Appeals,District of Columbia Circuit. April 8, 1988. Prior report: 681 F.Supp. 27. Before ROBINSON, D.H. GINSBURG and SENTELLE, Circuit Judges. ORDER PER CURIAM. 1 Upon consideration of Appellant's Suggestion of Mootness and Motion to Vacate Order of the District Court and to Remand With Instructions to Dismiss Complaint, and the Response thereto, it is 2 ORDERED by the court that the motion be granted. The present appeal, from an order of the district court denying appellant's motion for a preliminary injunction, has become moot as a result of the consummation of the merger sought to be enjoined. Accordingly, because the case has become moot, the judgment of the District court is vacated, and the case is remanded with instructions to dismiss the complaint. See United States v. Munsingwear, Inc, 340 U.S. 36, 39, 71 S.Ct. 104, 106, 95 L.Ed. 36 (1950). 3 The Clerk is directed to withhold the issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 15.

862 F.2d 305 U.S.v.Diaz NO. 88-1172 United States Court of Appeals,Second Circuit. SEP 14, 1988 1 Appeal From: S.D.N.Y. 2 AFFIRMED.

166 Cal.App.3d 428 (1985) 212 Cal. Rptr. 425 THE PEOPLE, Plaintiff and Respondent, v. JUAN TORRES SOTO, Defendant and Appellant. Docket No. F002935. Court of Appeals of California, Fifth District. March 29, 1985. *430 COUNSEL Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Robert D. Marshall, Eddie T. Keller, Eileen Ceranowski and Jane Lamborn, Deputy Attorneys General, for Plaintiff and Respondent. [Opinion certified for partial publication.[1]] *431 OPINION FRANSON, Acting P.J. — INTRODUCTION The primary issues in this appeal from a conviction of second degree murder and robbery are, first, whether the trial court erred in reimpaneling the jury to correct an ambiguity in the murder verdict after the jury had been discharged and the jurors had left the courtroom; second, if the court did so err, what is the result of the ambiguous verdict as originally returned — does it result in appellant's acquittal of the murder charge, a conviction of second degree murder, or a reversal and remand for a new trial? (1a) In answer to the first question, we hold that the trial court had no power to reimpanel the jury after its discharge and the jurors had left the courtroom; hence, the later verdict of second degree murder and its entry in the record were of no effect. (2a) In answer to the second question, we hold the original verdict returned by the jury may not be construed as a conviction of second degree murder but only as a general verdict of acquittal of murder. As a consequence, the double jeopardy clauses of the federal and state Constitutions forbid a remand for a new trial. Appellant is entitled to the entry of a judgment of acquittal on the murder charge. We do, however, affirm appellant's conviction of robbery, including the special allegation of a prior serious felony conviction under Penal Code section 667, subdivision (a). THE CASE BELOW A first amended information was filed against appellant Juan Torres Soto and Adolpho "Chino" Castaneda on August 31, 1982, charging them in count I with murder (Pen. Code, § 187). It was alleged as a special circumstance that the murder was committed during the commission of a robbery (Pen. Code, § 190.2, subd. (a)(17)(i)). There were also two special allegations that appellant had previously been convicted of a serious felony (Pen. Code, § 667), a special allegation that in the commission of the murder offense the appellant personally used a firearm (Pen. Code, §§ 12022.5, 1203.06, subd. (a)(1)) and a special allegation that a principal in the commission of the murder was armed with a firearm (Pen. Code, § 12022, subd. (a)). In count II, appellant and Castaneda were charged with robbery (Pen. Code, § 211). It was specially alleged that appellant personally used a firearm in the commission of the robbery (Pen. Code, §§ 12022.5, 1203.06, subd. (a)(1)), and that a principal in the commission of the offense was armed with a firearm (Pen. Code, § 12022, subd. (a)). Count III charged *432 appellant and Castaneda with conspiracy to commit robbery (Pen. Code, §§ 182, 211) with three overt acts. Appellant pleaded not guilty to all charges and denied the special circumstance and the enhancement allegations. A motion for separate trials for appellant and Castaneda was granted. On October 22, 1982, appellant's motion to have the identity of confidential informants revealed was denied by the trial court without an in camera hearing. The court found: "There is no indication that the informant was a percipient witness to any fact which would tend to exonerate the defendant." This court subsequently granted a peremptory writ of mandate ordering the trial court to hold an in camera hearing on this matter. Following the in camera hearing on January 5, 1983, the trial court ordered that the identity of informant Robert Renteria be disclosed. (The identity of a second informant, Leonard Ponce, was voluntarily disclosed at the hearing.) On May 27, 1983, appellant filed a motion to dismiss (a Mejia-Hitch[2] motion) based on the prosecutor's earlier failure to disclose the identity of the informants before they became unavailable to testify. This motion was denied as was a motion for sanctions for failure to preserve evidence. After a four-week trial, the jury returned one verdict form finding appellant not guilty of count I, murder, but also fixing the murder to be of the second degree. In another form, the jury found as true that appellant had been armed with a firearm in the commission of the murder. Another verdict form found appellant guilty of count II, robbery; appellant was also found to have been armed with a firearm in the commission of the robbery. Still another verdict form found that murder was committed in the course of the robbery. The jury found not true the allegations that appellant used a firearm during the commission of the murder within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1), and not true that appellant personally used a firearm during the commission of the robbery. Appellant admitted one of his prior convictions. (The other prior conviction allegation had been stricken earlier.) After the verdicts were read to the jury, the trial judge asked the jurors if those were their verdicts, and they unanimously affirmed they were. The parties waived a formal polling of the jury. At this point, a colloquy ensued *433 between the court and counsel to the effect that the verdict was of second degree murder,[3] and the jury was then discharged. The following day, the trial judge noticed the ambiguity in the verdict forms noted above. He ordered the jury reimpaneled to clear up the ambiguity; the jury then found appellant guilty of second degree murder. Appellant was sentenced on count I to fifteen years to life for second degree murder with one year for the Penal Code section 12022, subdivision (a) special allegation and five years for the Penal Code section 667 special allegation. Appellant's total determinate sentence was six years to be followed by the indeterminate fifteen-year sentence. Appellant was sentenced on count II, robbery, to the upper term of five years to be served concurrent with the indeterminate fifteen-year term for murder because of Penal Code section 654, the robbery term to be stayed pending completion of the murder sentence. THE FACTS The victim was found shot to death on the front seat of an automobile in the parking lot of a Visalia market on the evening of June 17, 1982. The palm print of appellant's codefendant Castaneda was found on the roof of the car. Earlier that evening at 7:30 p.m., a Mr. and Mrs. Lewis had driven by the parking lot and reported seeing a man sitting in a car with two men standing alongside it. One of the two men was tall and thin, the other, shorter and stockier. Mr. Lewis had about a six-and-a-half second look at the men. He could only say that the taller man had shoulder length hair and a moustache. Mrs. Lewis had a three second look at the men. She described the short man as having short black hair and a cream-colored complexion and the taller man as having long black hair, a moustache, a thin face, dark circles under his eyes, thick eyebrows and sharp features. In a photo lineup on June 21, 1982, Mrs. Lewis tentatively identified one Juan "Big John" Vasquez as the shorter, stockier man. She did not identify *434 Castaneda, however, in this or a second photo lineup even though his picture was present in both. Both Mr. and Mrs. Lewis identified appellant in a photo lineup on June 25, 1982, although Mr. Lewis thought appellant had been the taller, thinner man while Mrs. Lewis apparently thought he had been the shorter, stockier man. Margie Vasquez, sister of Juan Vasquez whom Mrs. Lewis had tentatively identified at one photo lineup, testified at the preliminary hearing[4] that she was a heroin addict and had knowledge of the incident in question. She testified that she, her boyfriend Castaneda and appellant were together on the day of the murder and had discussed buying heroin. Ms. Vasquez claimed she gave Castaneda the name of a heroin dealer and that Castaneda and appellant arranged to meet him in the parking lot in question. Appellant had a gun when he left with Castaneda to meet the dealer, she claimed. Ms. Vasquez testified she saw Castaneda and appellant one and a half hours later; appellant had blood on his hands and stated his hands were bloody because he had to move the man he had killed to get the man's wallet. Castaneda showed Margie $80 and some heroin; the heroin was then divided and used by Castaneda, appellant and Margie. The chief investigating officer testified that he had spoken with two informants after the crime. The first informant told him Castaneda and "Big John" (Juan) Vasquez committed the crime, and the second informant said "Big John" Vasquez did the shooting. One of the informants told the officer he had gotten his information from Catalino Carranza who was reported to be the "connection" who put Castaneda (and appellant) in touch with the victim on the day of the crime. Several witnesses testified appellant was having dinner with them at the approximate time of the shooting. DISCUSSION (1b) I. The trial court had no power to reimpanel the jury after it had been discharged and had left the courtroom; hence, the second degree murder verdict after reimpanelment of the jury is a nullity. The seminal case of People v. Lee Yune Chong (1892) 94 Cal. 379 [29 P. 776] holds that a jury is powerless to reconsider or amend its verdict *435 once it has been formally discharged by the trial judge and the jury has left the courtroom. In Chong, the jury found the defendant guilty of murder and indicated a sentence of life in prison, but neglected to determine the degree of the murder. The verdict was declared and recorded. The jury was discharged and left the courtroom. About 10 minutes later, before the jurors had left the courthouse, the trial court reimpaneled the jury and instructed them to amend the verdict by fixing the degree of the crime. The jury retired and found the defendant guilty of first degree murder and again fixed the penalty as life imprisonment. Finding the trial court's actions improper, the Supreme Court stated: "... but it is clear that during that time [after discharge] they were beyond the control of the court, had thrown off their characters as jurors, and had mingled with their fellow citizens, free from any official obligation." (Id., at p. 384.) "It is quite clear that all the proceedings by which the court reassembled the persons who had constituted the jury, and instructed them to find another verdict, and the so-called second verdict itself, were nullities. `With the assent of the jury to the verdict as recorded, their functions with respect to the case cease, and the trial is closed'; and `after the verdict is received and the jury discharged, .... the control of the jury and of the court over such verdict is at an end. The court cannot alter it, nor can the jury be called to alter or amend it.... The office of a juror is discharged upon the acceptance of his verdict by the court.' [Citations.]" (Id., at pp. 384-385.) "The case stands, therefore, as though there had been no attempt to revive the defunct jury, or to change the real verdict." (Id., at pp. 385-386; see also People v. Grider (1966) 246 Cal. App.2d 149, 154 [54 Cal. Rptr. 497]; People v. Thornton (1984) 155 Cal. App.3d 845, 855-856 [202 Cal. Rptr. 448]).) In the present case, after the inconsistent verdicts were returned by the jury, read by the clerk and affirmed by the jury in open court, the jury was discharged and left the courtroom, the trial judge specifically giving them permission to discuss the case with others. Pursuant to Chong, all actions of the trial court and the jury pertaining to the murder verdict after the discharge and loss of control by the court were nullities. Thus, we must examine the original verdict forms "as though there had been no attempt to revive the defunct jury, or to change the... verdict." (People v. Lee Yune Chong, supra, 94 Cal. at pp. 385-386.) (2b) II. The first verdict rendered by the jury constitutes a general verdict of not guilty of murder; hence, appellant is entitled to a judgment of acquittal on the murder charge. Count I charged appellant specifically with "murder in violation of section 187 ... in that ... [the appellant] did willfully, unlawfully, and with malice aforethought murder ..., a human being." The jury returned a *436 verdict form of "not guilty of murder as charged in count I ... and fix[ed] the degree of the offense as murder in the second degree."[5] Appellant argues that the verdict "not guilty of murder as charged in count I" operates as a general verdict of acquittal of the murder charge as a matter of law. He cites Penal Code section 1151 which provides: "A general verdict upon a plea of not guilty is either `guilty' or `not guilty,' which imports a conviction or acquittal of the offense charged in the accusatory pleading...." Since the jury explicitly found appellant not guilty or murder, he is entitled to the entry of a judgment of acquittal of the offense of murder. Respondent counters by arguing that the clear import of the inconsistent verdict forms is that the jury intended to acquit appellant only of first degree murder and intended to find him guilty of second degree murder. The fact that in other verdict forms the jury found appellant had been armed with a firearm in the commission of the murder and that the murder occurred in the commission of the robbery, respondent argues, demonstrates beyond any question the jury's intent not to acquit appellant of murder. Respondent also points out that the jury had been instructed that the highest degree of homicide was to be considered first before considering lesser included degrees of homicide. (CALJIC No. 8.75 (4th ed. 1984 pocket pt.).) Respondent cites People v. Holmes (1897) 118 Cal. 444 [50 P. 675] for the proposition that we may affirm the conviction by construing the verdict as one of guilty of second degree murder. Looking at the verdicts as originally returned by the jury in open court, there is no room to hold that the verdicts were the result of a mere "clerical" error by the jury. (Cf. People v. Keating (1981) 118 Cal. App.3d 172 [173 Cal. Rptr. 286]; People v. Mestas (1967) 253 Cal. App.2d 780, 784-785 [61 Cal. Rptr. 731]; People v. Crawford (1953) 115 Cal. App.2d 838, 842 [252 P.2d 963].) Here, the jury had heard the verdicts read by the clerk and in answer to a question by the judge, unanimously affirmed them as read. The error, therefore, must be deemed to have been a "deliberative" error which produced a mistaken or erroneous verdict the result of which *437 "has almost invariably been to bar impeachment of the verdict." (People v. Romero (1982) 31 Cal.3d 685, 694 [183 Cal. Rptr. 663, 646 P.2d 824].) We recognize that some cases have held that uncertain verdicts will be liberally construed and their validity sustained if the intention of the jury can be clearly seen. (See Witkin, Cal. Criminal Procedure (1963) § 546, pp. 556-557 and cases cited.) However, none of these cases involve an explicit finding of "not guilty" of the crime charged. For example, in People v. Holmes, supra, 118 Cal. 444, the court was faced with interpreting a verdict in a murder case which found the defendants guilty of "involuntary manslaughter, not a felony." (Italics added.) Since involuntary manslaughter in the case before the jury was a felony, the defendants argued that the verdict was one of acquittal. The high court held the intention to convict of involuntary manslaughter was clear; it explained the jury's finding that it was not a felony by noting that the words "acts not amounting to a felony" as used in the statute defining one type of involuntary manslaughter had been read to the jury. It also noted that the jury had recommended the defendants "to the extreme mercy of the court" in its punishment thereby showing an intent to convict. The court concluded "whatever may have been the intention of the jury, by no possible construction could we reach the conclusion that the jury meant to acquit the defendants." (Id., at p. 448.) In People v. Tilley (1901) 135 Cal. 61, 62-63 [67 P. 42], the Supreme Court, after noting that the form of the verdict is to be regarded as immaterial if "the intention to convict of the crime charged be unmistakably expressed" (italics added), then noted Penal Code section 1162 which states "no judgment of conviction can be given unless the jury expressly finds against the defendant upon the issue, ..." (Italics added.) From this the court concluded "there is no room for inference outside the words of the verdict. These must express the intention unequivocally; otherwise, the verdict must be regarded as insufficient." (Italics added, citing People v. Ah Gow (1879) 53 Cal. 628.) Under these principles, the colloquy which occurred between the court and counsel in the jury's presence concerning second degree murder cannot be used to clarify the words of the verdict. (3) We also note a basic principle that where two findings of fact are in "irreconcilable conflict" the one most favorable to the defendant will be honored. (See People v. Novo (1936) 12 Cal. App.2d 525 [55 P.2d 915]; People v. Bales (1946) 74 Cal. App.2d 732 [169 P.2d 262].) Although other cases hold that a conviction may be upheld even though part of the verdict conflicts with that conviction (People v. Lopez (1982) 131 Cal. App.3d 565 [182 Cal. Rptr. 563]; People v. Federico (1981) 127 Cal. App.3d 20 [179 Cal. Rptr. 315]), these cases involved conflicts between a verdict on the *438 charged offense and an enhancement finding or conflicting verdicts on separate counts which is expressly authorized by Penal Code section 954. (People v. Amick (1942) 20 Cal.2d 247, 251-252 [125 P.2d 25].) (2c) The question thus remains as to how we should treat the jury's finding of not guilty of murder with the finding that it was of the second degree. Unlike the situation in People v. Holmes, supra, 118 Cal. 444 where the court said it could not possibly conclude that the jury meant to acquit the defendant, if we speculate as to the jury's intent in the present case, it is entirely conceivable that it first determined that the crime committed was second degree murder and that it occurred in the course of a robbery but that the prosecution did not prove beyond a reasonable doubt that appellant was the murderer. This would also explain the finding that the murder occurred in the course of the robbery. The fact that the jury found in other verdict forms that appellant was armed during the commission of the robbery and murder does not negate the effect of the not guilty of murder verdict. These findings made pursuant to the enhancement provision of Penal Code section 12022, subdivision (a), must yield to the jury's determination of the defendant's guilt of the crime charged. (People v. Federico, supra, 127 Cal. App.3d at p. 31.) We conclude that because the verdict form expressly found appellant "not guilty" of murder and did not expressly find him "guilty" of second degree murder, we may not construe the verdict to find appellant guilty of second degree murder. To do this would be an impermissible alteration of a verdict contrary to the defendant's right to an unequivocal verdict on the question of his guilt. If we cannot construe the verdict as one of guilt of second degree murder, the question remains as to how we should treat the verdict as rendered. Respondent argues that we may not construe the verdict as an acquittal of the murder charge because the verdict is "irregular" in form and therefore not entitled to recordation.[6] This being so, respondent argues, the only *439 solution is a remand for retrial, citing People v. Lee Yune Chong, supra, 94 Cal. 379. The defendant in Chong had argued that a new trial could not be ordered since he had not asked for a new trial; the Supreme Court, however, responded by citing Penal Code section 1260 which authorizes an appellate court to reverse, affirm, or modify a judgment appealed from and "may ... order a new trial." The court also quoted from People v. Travers (1888) 77 Cal. 176 [19 P. 268] that "`if a defendant in a criminal case is convicted and appeals, and the judgment is reversed, the appellate court may order a new trial, even though the defendant does not move for such new trial, and denies the power of the court to grant it.'" (Chong, supra, 94 Cal. at pp. 386-387.) The court concluded "Appellant's motion to be discharged was properly denied. While the failure of the jury to find the degree of the crime is an error for which the judgment must be reversed, it no more entitles appellant to a discharge than would any other reversible error committed during the progress of the trial." (Id., at p. 386.) The problem with applying the Chong analysis to the present case is that here, unlike the defendant in Chong, appellant was expressly found not guilty of the murder. This is more than simply a failure to fix the degree of the murder. The trial court in the present case could not have declared a mistrial and discharged the jury for purpose of retrial after the verdict was returned. There was no disagreement by the jury; they affirmed the "not guilty of murder" verdict as read. In addition, there was no consent by appellant nor was there any legal necessity which would have prevented the jury from continuing its deliberations. (Pen. Code, §§ 1140, 1141; Curry v. Superior Court (1970) 2 Cal.3d 707, 713-714 [87 Cal. Rptr. 361, 470 P.2d 345].) An "acquittal" for double jeopardy purposes has been defined as "`a resolution, correct or not, of some or all of the factual elements of the offense charged.'" (Lee v. United States (1977) 432 U.S. 23, 30, fn. 8 [53 L.Ed.2d 80, 87, 97 S.Ct. 2141], quoting United States v. Martin Linen Supply Co. (1977) 430 U.S. 564, 571 [51 L.Ed.2d 642, 650, 97 S.Ct. 1349].) In the present case, the jury's finding that appellant was not guilty of murder as charged in count I necessarily implied a finding that he did not "willfully, unlawfully and with malice aforethought murder ..., a human being" as alleged in count I. Taking this at face value, appellant was acquitted of the murder charge; the verdict was "regular" enough to be recorded under Penal Code sections 1161 and 1164. *440 Finally, as explained in Sanabria v. United States (1978) 437 U.S. 54 [57 L.Ed.2d 43, 98 S.Ct. 2170], a verdict of acquittal may not be reexamined without putting the defendant twice in jeopardy. This principle has been described as "`the most fundamental rule in the history of double jeopardy jurisprudence.' [Citation.] The fundamental nature of this rule is manifested by its explicit extension to situations where an acquittal is `based upon an egregiously erroneous foundation.' [Citations.]" (Id., at p. 64 [57 L.Ed.2d at pp. 53-54].) (4a) III. The prosecutor's failure to reveal the identity of a confidential informant until ordered to do so did not deprive appellant of a fair trial. Appellant's basic premise is that the prosecutor's failure to disclose the identity of Robert Renteria, a confidential informant, until ordered to do so by the trial court amounted to suppression of evidence by the prosecutor since Robert Renteria had information from Catalino Carranza — the person appellant's partner Castaneda allegedly contacted to arrange the drug buy — that "Big John" Vasquez, not appellant, was involved in the crimes. Specifically, appellant argues: "... this same individual [Carranza] and his exculpatory evidence were withheld from the defense by reason of the failure of the prosecutor to disclose Robert Renteria's identity, until compelled to do so, and by the failure of the prosecutor even to disclose the fact of Catalina [sic] Carranza's being in possession of the critical exculpatory information." (5) There is no question that the prosecutor has the duty to disclose the identity of an informant who has material information as to a defendant's guilt or innocence. (Theodor v. Superior Court (1972) 8 Cal.3d 77, 88 [104 Cal. Rptr. 226, 501 P.2d 234].) In addition, the court in People v. Goliday (1973) 8 Cal.3d 771 [106 Cal. Rptr. 113, 505 P.2d 537] holds that "`the police and the district attorney [must] undertake reasonable efforts in good faith to locate the informer so that either party or the court itself [citation] could, if it so desired, subpena him as a witness.' [Citation.]" (Id., at p. 778.) The problem with applying these authorities to the present case is that Carranza was not an informant. Further, the information held by Renteria regarding appellant's involvement or noninvolvement in the crimes was merely hearsay of what Carranza had told him. Nevertheless, following the in camera hearing, the court ordered that Renteria's identity be revealed, and the prosecutor complied. Carranza, however, had left the country by this time. Since the trial court had ruled prior to the in camera hearing that Renteria did not have evidence critical to the defense requiring that his identity be revealed, the prosecutor was entitled to rely on this finding at least until the in camera hearing resulted in a finding to the contrary. *441 Appellant cites other authorities in support of his real contention — that the prosecutor improperly withheld critical exculpatory evidence received from Carranza. People v. Ruthford (1975) 14 Cal.3d 399 [121 Cal. Rptr. 261, 534 P.2d 1341] holds that "either intentional or negligent prosecutorial suppression of substantial material evidence favorable to the accused denies to the defendant a fair trial and requires reversal. [Citations.]" (Id., at p. 406.) The court in People v. Shaparnis (1983) 147 Cal. App.3d 190 [195 Cal. Rptr. 39] expounded on this general principle as follows: "In Brady v. Maryland (1963) 373 U.S. 83 ..., the United States Supreme Court held `... the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' [Citation.] The California Supreme Court in In re Ferguson (1971) 5 Cal.3d 525 ... imposed a stricter duty upon prosecutors by requiring them to disclose substantial material evidence favorable to the accused without request. [Citation.] When the evidence bears on the credibility of a key prosecution witness, a defendant must show the evidence was substantial, material and favorable to him. A defendant need not show prejudice under People v. Watson. ... Instead, once substantial materiality is shown, the judgment must be reversed unless the People establish the failure to disclose the evidence was harmless beyond a reasonable doubt. [Citation.] In the context of this case substantial material evidence requiring reversal means `evidence of such significance that with reasonable probability it could have affected the outcome of the trial' or `might have caused a different verdict.' [Citation.]" (Id., at pp. 193-194.) (4b) Based on the record before us, we are not persuaded that there was a suppression of evidence. Catalino Carranza was identified in the police reports provided to appellant, and he was subpenaed and present at the preliminary hearing. Investigating Officer Jay Salazar testified that he disclosed all information he received from Carranza in the police reports and that he had unsuccessfully tried to recontact Carranza after the preliminary hearing for a followup interview. At appellant's first motion for disclosure of informants, Officer Salazar testified that one of the informants had gotten his information from a person involved in the drug connection which preceded the murder and robbery — a direct reference to Carranza. Significantly, appellant was able to present evidence to the jury that Carranza had identified "Big John" Vasquez, not appellant, as one of the perpetrators of these crimes. Also, "Big John" Vasquez was identified as a possible suspect in these crimes as early as June 24, 1982. In short, it does not appear that the prosecutor concealed critical evidence from the defense regarding Catalino Carranza and that the defense was as free to explore Carranza's knowledge of these crimes as was the prosecution. *442 The present case is distinguishable from People v. Shaparnis, supra, 147 Cal. App.3d 190 where a police report containing critical information from a previously undisclosed witness was withheld from the defense. Our situation is closer to that in People v. Rance (1980) 106 Cal. App.3d 245 [164 Cal. Rptr. 822] where the court pointed out: "Here, Officer Zerbe was not a confidential informant nor did the People in any way bring about his absence. His identity and (business) address were apparent to the defense from compliance with the original discovery request. From that time until the time of trial the defense was just as capable as the prosecution of keeping track of his whereabouts. Appellant was not entitled to a dismissal because of Zerbe's absence." (Id., at p. 254, fn. omitted.) We conclude there was no prosecutorial suppression of evidence. IV. The prosecutor's remarks to one of appellant's alibi witnesses during trial does not compel a reversal.[*] .... .... .... .... .... .... . V. Disposition The judgment is reversed as to the conviction of second degree murder. The trial court is directed to enter a judgment of acquittal on the murder charge. The judgment is affirmed as to count II, robbery. Since the concurrent sentence of the robbery term with the murder term was a nullity under Penal Code section 654 (People v. Miller (1977) 18 Cal.3d 873 [135 Cal. Rptr. 654, 558 P.2d 552]), the cause is remanded for resentencing on count II. If it so chooses, the trial court may impose a consecutive sentence enhancement pursuant to Penal Code section 667 for appellant's prior serious felony conviction. Martin, J., and Best, J., concurred. Respondent's petition for review by the Supreme Court was denied August 1, 1985. Kaus, J., and Lucas, J., were of the opinion that the petition should be granted. NOTES [1] Part IV is not certified for publication. (See Cal. Rules of Court, rules 976 and 976.1) [2] People v. Hitch (1974) 12 Cal.3d 641 [117 Cal. Rptr. 9, 527 P.2d 361]; People v. Mejia (1976) 57 Cal. App.3d 574 [129 Cal. Rptr. 192]. [3] The following discussion took place between court and counsel: "THE COURT: You understand that the verdict is a verdict of guilty, second degree? "MR. ALEXANDER [defense counsel]: Second degree, yes. ".... .... .... .... .... .... . "MR. WALTON [prosecuting attorney]: Get this correct, the verdict is second degree murder? "THE COURT: Yes. "MR. WALTON: From what I heard, I didn't understand. "THE COURT: Yes, second degree murder." [4] Ms. Vasquez committed suicide in jail prior to trial, apparently for reasons not connected to this matter. [5] In fairness to the jury, the inconsistency may have resulted from the trial court's failure to submit to the jury separate verdict forms for first and second degree murder. The court instructed the jury "If you unanimously agree that defendant is not guilty of murder in the first degree, you will have your foreman date and sign the not guilty verdict of the offense of murder in the first degree and you will determine whether defendant is guilty or not guilty of murder in the second degree. If you unanimously agree that defendant is guilty of the offense of murder in the second degree, you will have your foreman date and sign the guilty verdict of murder in the second degree and nothing further will be required of you as to the offense of murder...." (CALJIC No. 8.75 (4th ed. 1984 pocket pt.) pp. 98-100, in relevant part.) [6] Penal Code section 1161 reads: "In what cases court may direct a reconsideration of the verdict. When there is a verdict of conviction, in which it appears to the Court that the jury have mistaken the law, the Court may explain the reason for that opinion and direct the jury to reconsider their verdict, and if, after the reconsideration, they return the same verdict, it must be entered; but when there is a verdict of acquittal, the Court cannot require the jury to reconsider it. If the jury render a verdict which is neither general nor special, the Court may direct them to reconsider it, and it cannot be recorded until it is rendered in some form from which it can be clearly understood that the intent of the jury is either to render a general verdict or to find the facts specially and to leave the judgment to the Court." (Italics added.) Penal Code section 1164 reads: "When the verdict given is such as the court may receive, the clerk, or if there is no clerk, the judge or justice, must record it in full upon the minutes, and if requested by any party must read it to the jury, and inquire of them whether it is their verdict. If any juror disagrees, the fact must be entered upon the minutes and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury must be discharged from the case." (Italics added.) [*] See footnote 1, ante, page 428.

113 B.R. 44 (1989) In re Robert Lee JOHNSON, a/k/a Robert L. Johnson, a/k/a R.L. Johnson, a/k/a Bob Johnson, a/k/a Robert Johnson, and Dorothy Marie Johnson, a/k/a Dorothy M. Johnson, a/k/a Dorothy Johnson, Debtors. Nos. CIV 89-1396-R, BK-89-00716-BH. United States District Court, W.D. Oklahoma. December 21, 1989. *45 Jeffrey C. Trent, Yukon, Okl., for debtors. Michael C. Bigheart, D. Benham Kirk, Jr., McKnight & Gasaway, Enid, Okl., for creditors. ORDER DAVID L. RUSSELL, District Judge. Appellant, Beneficial Oklahoma, Inc. ("Beneficial") appeals from the Bankruptcy Court's June 21, 1989 order granting Debtors' April 21, 1989 motion to avoid Beneficial's non-purchase money lien on exempt property, 101 B.R. 280. Beneficial also seeks to certify to the Oklahoma Supreme Court, pursuant to the Oklahoma Uniform Certification of Questions of Law Act, Okla.Stat. title 20, § 1601 et seq., the question of whether a motor vehicle can be exempt as a tool of the trade under Okla. Stat. title 31, § 1(A)(6). The Court has reviewed the parties' briefs and the responses and replies thereto, and is prepared to render its decision resolving these matters. Debtor Robert Lee Johnson is a contract bulk mail carrier for the United States Postal Service. Debtors own a 1972 Ford one (1) ton box truck which Mr. Johnson uses in performing one of his bulk mail delivery routes for the Postal Service. Pursuant to a promissory note and chattel mortgage, Beneficial holds a non-possessory, non-purchase money lien against Debtors' truck. On January 31, 1989, Debtors, Robert Lee Johnson and Dorothy Marie Johnson, filed their Joint Voluntary Petition for Chapter 7 bankruptcy in the Western District of Oklahoma. BK-89-716-BH. The Bankruptcy Court, Richard L. Bohanon, Chief Judge, granted Debtors' motion to avoid Beneficial's lien on their truck, finding that Debtors' truck was exempt as a tool of the trade under Okla.Stat. title 31, § 1(A)(6) to the extent of $5,000, and that Debtors were entitled to avoidance of the lien pursuant to 11 U.S.C. § 522(f)(2)(B). The Court relied principally on In re Siegmann, 757 P.2d 820, 822 (Okla.1988), as support for its holding. Beneficial timely perfected an appeal to this Court from the Bankruptcy Court's order. The District Court's standards of review of the findings of the Bankruptcy Court differ according to whether a finding is of law or of fact. Findings of law are subject to de novo review. In re Robinson Bros. Drilling, Inc., 97 B.R. 77 (W.D.Okla.1988); In re Mullett, 817 F.2d 677 (10th Cir.1987). Findings of fact, on the other hand, are to be upheld unless they are found to be clearly erroneous. In re Mullett, 817 F.2d 677 (10th Cir.1987); In re Reid, 757 F.2d 230 (10th Cir.1985). The Bankruptcy Court's determination that Debtors' truck falls within the scope of property described by Okla.Stat. title 31, § 1(A)(6), Oklahoma's statutory exemption for "tools of the trade," was a finding of law, and we review this finding de novo. The Oklahoma Supreme Court was recently asked the certified question: "Does the term `tools, apparatus . . . used in any trade . . .' as used in Okla. Stat.Ann. tit. 31, § 1(A)(6) include all types of equipment, regardless of size, source of power, mobility, value or mode of operation, needed by a person in pursuit of a trade?" In re Siegmann, supra at 821. This question was broad enough to include, not only the farm tractor at issue in Siegmann, but also the one-ton commercial truck at issue in the present case. The Court answered the question by holding that "the tools of the trade exemption of Okla.Stat.Ann. tit. 31, § 1(A)(6) applies to any property which comes within the scope of the terms tools, apparatus or books, is used in the trade or profession of the debtor, . . . and is reasonably necessary, convenient, or suitable for production of work in that trade or profession, *46 regardless of size, source of power, mobility, or mode of operation." Id. at 824. The Court also stated that, in cases of doubt, statutes exempting property from forced sale for the payment of debts are to be resolved in favor of the debtor. Id. at 822. In view of the broad and inclusive definition given tools of the trade in Siegmann, together with the Court's stated policy of liberally construing exemptions in favor of the debtor, it is the opinion of this Court that the Bankruptcy Court did not err in finding that Debtors' truck could qualify as a tool of Debtors' trade under Okla.Stat. title 31, § 1(A)(6). Furthermore, it is unnecessary to certify Appellant's question to the Oklahoma Supreme Court because the question was adequately answered in Siegmann. Beneficial's primary argument is that a truck should not be considered a tool of the trade because, as a motor vehicle, it falls within a separate statutory exemption for motor vehicles. Okla.Stat. title 31, § 1(A)(13). However, the Court finds no authority for the proposition that property may not qualify for more than one statutory exemption. The Bankruptcy Court also made a factual finding that Debtors' truck was reasonably necessary for the production of Debtors' work or trade, as required by Siegmann, supra. Beneficial's primary argument against this finding is that the truck was not used in Mr. Johnson's principal occupation as a laborer at Temtrol Corporation. Beneficial contends that Mr. Johnson's mail delivery business is a secondary business which merely supplements his primary income from Temtrol. However, Oklahoma does not limit a debtors' exemption for tools of the trade to tools used in his principal occupation only. This argument is therefore unpersuasive. Beneficial has failed to carry its burden of proof that the factual finding of the Bankruptcy Court was clearly erroneous. For the above stated reasons, the June 21, 1989 order of the Bankruptcy Court is hereby AFFIRMED. IT IS SO ORDERED.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-2376 BEN HOWARD SMITH, Plaintiff – Appellant, v. BOB ATKINSON; LINDA G. WALTERS, Defendants – Appellees, and PERCY B. HARVIN; L. KEITH JOSEY, JR.; RONNIE STEWART, all in their individual and official capacity; JOSEPH K. COFFY, Defendants. Appeal from the United States District Court for the District of South Carolina, at Charleston. Richard Mark Gergel, District Judge. (2:08-cv-00201-RMG-BM) Submitted: May 19, 2011 Decided: May 23, 2011 Before TRAXLER, Chief Judge, and AGEE and KEENAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Ben Howard Smith, Appellant Pro Se. Kelly M. Jolley, MCNAIR LAW FIRM, PA, Hilton Head, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Ben Howard Smith appeals the district court’s order dismissing two defendants in his civil rights action. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46 (1949). The order Smith seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3 

                                                                                                                                                                                                                          NUMBER 13-06-340-CR                            COURT OF APPEALS                        THIRTEENTH DISTRICT OF TEXAS                            CORPUS CHRISTI - EDINBURG                                                                                                                          IN RE: BEVY LEE WILSON                                                                                                                          On Petition for Writ of Mandamus                                                                                                                                                         MEMORANDUM OPINION                                                            Before Justices Rodriguez, Castillo, and Garza                                  Memorandum Opinion Per Curiam   Relator, Bevy Lee Wilson, filed a petition for writ of mandamus in the above cause on June 12, 2006 in which he alleges that the Respondent, the Honorable Patrick McGuire, counsel appointed by the 117th District Court of Nueces County, Texas to represent relator in his appeal, abused his discretion by failing to perform his ministerial duties by not providing the appellate record to the relator.  The relator=s petition asks this Court to compel the respondent to provide the relator with the appeals record, clerk=s record, and court reporter=s record in cause numbers 13-05-279-CR and 13-05-280-CR, free of charge due to his indigence.  The Court, having examined and fully considered the documents on file and petition for writ of mandamus, is of the opinion that relator has not shown himself entitled to the relief sought and the petition for writ of mandamus should be denied.  See Tex. R. App. P. 52.8.  Accordingly, the petition for writ of mandamus is DENIED.   PER CURIAM     Memorandum Opinion delivered and filed this the 13th day of June, 2006.    

714 F.2d 135 Walkerv.Allsbrook 83-6222 UNITED STATES COURT OF APPEALS Fourth Circuit 7/18/83 1 E.D.N.C. DISMISSED

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BETTY DUKES; PATRICIA SURGESON;  CLEO PAGE; DEBORAH GUNTER; KAREN WILLIAMSON; CHRISTINE KWAPNOSKI; EDITH ARANA, No. 04-16688 Plaintiffs-Appellees,  D.C. No. v. CV-01-02252-MJJ WAL-MART, INC., Defendant-Appellant.  BETTY DUKES; PATRICIA SURGESON;  CLEO PAGE; DEBORAH GUNTER; KAREN WILLIAMSON; CHRISTINE No. 04-16720 KWAPNOSKI; EDITH ARANA, Plaintiffs-Appellants,  D.C. No. CV-01-02252-MJJ v. ORDER WAL-MART, INC., Defendant-Appellee.  Filed February 13, 2009 ORDER KOZINSKI, Chief Judge: Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit. 1935 1936 DUKES v. WAL-MART, INC. Judges McKeown, Rawlinson and Bybee did not participate in the deliberations or vote in this case.  PRINTED FOR ADMINISTRATIVE OFFICE—U.S. COURTS BY THOMSON REUTERS/WEST—SAN FRANCISCO The summary, which does not constitute a part of the opinion of the court, is copyrighted © 2009 Thomson Reuters/West. 

493 S.E.2d 288 (1997) Charles Everette SHARPE, Jr., Plaintiff, v. Sylvia G. NOBLES, Defendant. No. COA96-1366. Court of Appeals of North Carolina. November 18, 1997. *289 Paul T. Cleavenger, Kinston, for plaintiff-appellant. Gerrans, Foster & Sargeant, P.A. by William W. Gerrans, Kinston, for defendant-appellee. WYNN, Judge. When calculating the child support obligation owed by a parent, a showing of bad faith income depression by the parent is a mandatory prerequisite for imputing income to that parent. In this case, because we hold that the trial court's finding that the father did not look for a job that would pay him what he was earning in his previous position was insufficient to show bad faith income depression, we remand this matter to the trial court for redetermination of the father's child support obligation. However, we uphold the trial court's order of contempt against the father for failure to obey a previous order of the court because there was sufficient competent evidence of his willful failure to comply with the earlier order. The father, Charles Everette Sharpe, Jr. and the mother, Sylvia G. Nobles, parented one child born on 21 November 1984. Following their separation and divorce, the mother obtained primary custody of their child. In their separation agreement of 13 December 1988, which was incorporated into their divorce decree, the father agreed to invest $50 per month for the child's college education. After their divorce, the father and mother signed a Consent Judgment dated 2 August 1990 that, in part, directed the father to pay $500 per month towards the support of his child and to provide the mother evidence with where the father was making the investments for the child's college education. In 1990, the father began to work for North Star of North Carolina, Inc. By 1995, the father was a district director, and made a salary of $56,439 per year. On 30 September 1995, the company abolished his position. The next day, the father started working at another job with North Star as manager of a nursing home which paid a salary of $46,540 per year. On 12 October 1995, after a hearing on modification of his child support and for contempt, the trial court ordered the father to pay $596 per month in child support based on a finding that projected the father would earn $61,368 per year. Furthermore, the trial court found that the father had failed to invest $50 per month for the child's college education and therefore ordered the father to invest $4,100 to make up for the deficiency, and to certify to the mother where the money was invested. The trial court also ordered the father to provide medical and dental insurance to the child, as was set forth in the 2 August 1990 Consent Judgment. On 2 April 1996, the father moved for a modification of his child support obligation. Prior to a hearing on that motion, the father took a job with a new division of North Star that paid a reduced salary of $40,000 per year. In response to the father's motion for modification of child support, the mother counter-moved for contempt contending that the father had failed to comply with the court's order of 12 October 1995 by: (1) failing to send certification of the deposit of the $4,100 to her, and (2) failing to send her any new claim forms, insurance cards, or informational brochures for the medical insurance that the father was required to maintain for the child. After hearing evidence, the district court found that although a substantial change of circumstances had occurred since the time of its last child support order, the father had *290 voluntarily depressed his income. The court therefore applied the earning capacity rule in calculating the father's child support obligation. Additionally, the trial court found the father in willful civil contempt of the 12 October 1995 order for failing to provide the mother with certification of where he deposited the college investment funds and for failing to provide the mother with identification cards, claim forms, and information about the health insurance carried on the minor child. From this order, the father appeals. I. The father first contends that the trial court's findings were insufficient to support the use of the earning capacity rule in calculating his child support obligation. We agree. Child support obligations are ordinarily determined by a party's actual income at the time the order is made or modified. Askew v. Askew, 119 N.C.App. 242, 244-245, 458 S.E.2d 217, 219 (1995). A party's earning capacity may be used to calculate the award if he deliberately depressed his income or deliberately acted in disregard of his obligation to provide support. Id. However, before using the earnings capacity rule there must be a showing that the actions which reduced a party's income were not taken in good faith. Id. at 245, 458 S.E.2d at 219. In the present case, the father worked as a district director of North Star, at a salary of $56,439 per year, until the company abolished the position on 30 September 1995. On 1 October 1995, the company moved the father to the position of manager of a nursing home, at a salary of $46,540 per year. On 1 May 1996, the father took a position with a new division of North Star, where his pay was $40,000 per year. The trial court found: 14. That since the pay of the plaintiff was reduced to some $56,000.00 down to $46,000.00 and then down to $40,000.00 as he contends, that the plaintiff has not made any application for employment at some other location and that he has not sought the assistance or the services of a private employment agency in order to obtain employment compared to what he was earning prior to the two (2) recent reductions and the Court finds that the reduction to the $40,000.00 is voluntary on the part of the plaintiff in that he has taken no action to find employment that would be comparable to the pay that he was earning through the year 1995 and the Court finds that the plaintiff has an ability to earn a gross pay of at least $55,729.00 as shown on his 1995 United States individual income tax returns. 15. That the plaintiff has moved into a home that occupies one and one-half (1 ½) acres on Kerr Lake and that he owns two (2) motor vehicles, a 1995 Jeep and a 1996 Accura. That the plaintiff has the ability to at least earn $55,729.00 that he earned in 1995. These findings were insufficient to support a conclusion of deliberate depression of income or other bad faith action on the part of the father. Essentially, the findings are that the father's reductions in income were voluntary because he had not looked for work that would pay him what he made before changing jobs. This is not a showing of a deliberate depression of income or other bad faith. Accordingly, the trial court's order is reversed and remanded for an appropriate determination of the father's child support obligation. II. The father next argues that the trial court erred in finding him in willful civil contempt because the evidence was insufficient to show that he willfully violated the 12 October 1995 order to deposit $4,100 and send confirmation of the deposit to the mother. We disagree. Although the statutes governing civil contempt do not expressly require willful conduct, see N.C. Gen.Stat. §§ 5A-21 to 5A-25 (1986), case law has interpreted the statutes to require an element of willfulness. Smith v. Smith, 121 N.C.App. 334, 336, 465 S.E.2d 52, 53-54 (1996). In the context of a failure to comply with a court order, the evidence must show that the person was guilty of "knowledge and stubborn resistance" *291 in order to support a finding of willful disobedience. Hancock v. Hancock, 122 N.C. App. 518, 525, 471 S.E.2d 415, 419 (1996). The standard of review for contempt proceedings is limited to determining whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law. Koufman v. Koufman, 97 N.C.App. 227, 230, 388 S.E.2d 207, 209 (1990), rev'd on other grounds, 330 N.C. 93, 408 S.E.2d 729 (1991). In this case, the trial court's order included the following finding of fact: 18. That with regard to the contempt matter, the Court finds that in its Order of October 12, 1995, the plaintiff had not deposited the $4,100.00 which was to begin in August of 1990 at the rate of $50.00 per month and that the plaintiff was found in wilful contempt on October 12, 1995, and ordered to pay the sum of $4,100.00 being due into some type of income producing plan with a certified copy of this investment to be furnished to the defendant. That the Court stayed the incarceration allowing the plaintiff until November 10, 1995, to invest the money and to allow him until November 15, 1995, to get the certification as to where these funds are being held in an income producing plan to the defendant and that the reports of these earnings of this investment shall be forwarded to both the plaintiff and the defendant. That the plaintiff failed to furnish the certified copies as to where these funds were invested to the defendant. That the evidence tends to show that the plaintiff furnished of [sic] this investment to his former lawyer, Mr. Worthington, but that no notification was given to the defendant as the Court ordered. The record contains competent evidence to support this finding of fact. Furthermore, this finding sufficiently supports the conclusion that the father acted with a bad faith disregard for the law. The father was given ample time to comply with the court's order. There does not appear to be any reason why the father could not have complied with the court's order, especially when considering that he was able to give the notice to his former attorney. The father's continuing failure to comply with the court's order supports the trial court's conclusion that the father was in willful civil contempt. III. The father next argues that the trial court committed error by finding that he was in contempt of the 12 October 1995 order to provide the mother with an insurance card and claim forms. We do not address this issue because the father failed to properly present the issue to this Court for review. The 12 October 1995 court order provided: 9. That the plaintiff shall provide medical and dental insurance on behalf of the minor child as previously ordered by this Court in August 2, 1990 Order. (emphasis added). The father did not include the 2 August 1990 order in the record. Under N.C.R.App. P. 9(a)(1)(d) the record on appeal must contain "copies of the pleadings, and of any pre-trial order on which the case or any part thereof was tried." Here, without the 2 August 1990 order this Court is left to guess at what that order required the father to do, and in its absence we decline to consider the father's arguments that he had complied with its requirements. Having carefully considered appellant's other arguments, we find them to be meritless and do not discuss them further. Affirmed in part, reversed in part, and remanded. GREENE and MARK D. MARTIN, JJ., concur.

201 P.3d 293 (2009) 225 Or. App. 417 TRI-COUNTY CENTER TRUST, successor in interest to Gordon R. Martin, Sr., Plaintiff-Respondent, v. Stephen B. MARTIN, personal representative of the Estate of Gordon S. Martin, Jr., Deceased, and Tigard Triangle Development, LLC, Defendants-Appellants. C000763CV, A125278. Court of Appeals of Oregon. Argued and Submitted July 3, 2008. Decided January 28, 2009. *294 Robert J. Custis argued the cause and filed the briefs for appellants. Gregory J. Miner, Portland, argued the cause for respondent. With him on the briefs were Travis W. Hall and Bateman Seidel Miner Blomgren Chellis & Gram, P.C. Before EDMONDS, Presiding Judge, and ARMSTRONG, Judge, and WOLLHEIM, Judge. ARMSTRONG, J. Defendants appeal from a judgment directing the partition by division of real property that the original parties held as tenants in common.[1] The issue presented on appeal is whether real property that was owned by one of the original cotenants and his wife and that adjoined the partitioned property could be considered in assessing the potential use and value of the partitioned property in order to divide the property between the cotenants equally. Defendants contend that the adjoining property should have been considered in making the division by assigning a plottage value to the portion of the partitioned property that was distributed to the party who owned the adjoining property with his wife, which would reflect the fact that that party could combine his portion and the adjoining property to allow a more intensive and, hence, valuable use of the combined property. We review de novo. ORS 19.415(3); Maupin v. Opie, 156 Or.App. 52, 55, 964 P.2d 1117, rev. den., 328 Or. 194, 977 P.2d 1172 (1998). For the reasons explained below, we reject the use of plottage value in this case and affirm. The original parties to this action were a father, Gordon R. Martin, Senior (Senior), and his son, Gordon S. Martin, Junior (Junior), who owned land in Tigard as tenants in common. The property consisted of four parcels of development property totaling approximately 16 acres.[2] It was largely landlocked from major streets, except for portions lining SW 72nd Avenue to the east and a small portion that had access to Hermoso Way, a smaller street to the south. The property also adjoined approximately 10 acres of property to the southeast, part of which had access to SW 72nd Avenue and all of which Senior and his wife owned. Those characteristics of the property are depicted in the following map. *295 The entire 26-acre plot was subject to a vested development plan approved by the City of Tigard. However, Senior and Junior could not agree on how to develop the 16-acre plot, making the sale or lease of either the 26-acre plot or the 16-acre plot impossible. In light of that stalemate, Senior brought an action in equity in 2000, seeking, among other things, to partition the land by public sale. Junior, in response, sought partition in kind. The court appointed three referees—Liebow, Wapnick, and Wood—to make recommendations regarding partition of the property. The referees first concluded that the parties' development of the full 26 acres under the approved development plan would achieve the highest value to the parties. Barring that, the referees determined that a public sale of the entire 26 acres, rather than a partition in kind, would result in the highest value to the parties. Absent the parties' ability to agree on the development or sale of the entire 26 acres, the referees focused on the 16 acres subject to the partition proceeding. They concluded that a public sale of the 16-acre plot would realize the highest value to the parties, at an average of approximately $8 per square foot. In contrast, the referees concluded that, if the court were to order partition in kind and each party developed his portion independently, the average value of the property would drop to $6.40 per square foot due to "access challenges" and other considerations. The referees also noted that, in the event of an in-kind partition, an equal partition should be based on value, not pro rata on an acreage or square-foot basis, because the portion fronting SW 72nd Avenue had visibility and access from that street, whereas the interior portion, which adjoined the 10-acre plot owned by Senior and had limited access only to Hermoso Way, was "access and site challenged." They calculated the value of the property fronting SW 72nd Avenue at $16 per square foot and the interior portion at approximately $4 per square foot. Accordingly, the referees recommended that, *296 if the court were inclined to order an equal partition in kind between the parties, it award Junior 3.134 acres of the higher-value land fronting SW 72nd Avenue (East partition) and Senior the remaining 12.536 acres making up the lower-value interior portion (West partition). After reviewing the report and testimony by two of the referees at a hearing, Judge Bonebrake concluded that the value that each party would realize from a partition in kind would "not be materially less than that party's share of money that could be obtained for the whole by public sale" for several reasons. He first noted that the referees' conclusions about the development of the full 26 acres were "not particularly relevant" to the proceeding, given that the parties were unable to agree on development, and, hence, that he was "dealing only with the 16-acre plot." He then opined that the access challenges to the West partition—a factor in the referees' conclusion that the land's average value declined from $8 per square foot at public sale to $6.40 per square foot if partitioned in kind—would be mitigated by granting a nonexclusive easement across the East partition, and by incorporating the fact that Senior owned the adjoining 10 acres "over which access exists." Finally, he observed that, even if the 16-acre plot was worth $8 per square foot in an arm's-length transaction, the land was unlikely to fetch that price at public sale. Accordingly, Judge Bonebrake directed the referees to partition the 16-acre plot, awarding Junior the East partition, "subject to a non-exclusive easement of appropriate width across that property" to benefit the West partition, which was to be awarded to Senior. The judge further directed: "In dividing the property so that each party is awarded property of equal value, the referees, in addition to the foregoing, will take into account the fact that [Senior] and his wife own the adjoining ten acres over which access to [the West partition from SW 72nd Avenue] may occur." That opinion issued in December 2001. In February 2004, the referees subsequently submitted a revised report to Judge McElligott.[3] In that report, the referees observed that the plot measured approximately 15.67 acres and recommended that the court award Junior 4.67 acres of the East partition (up from the 3.134 acres recommended in 2001) and Senior 11.00 acres (down from the 12.536 acres originally recommended). The referees outlined their methodology for reaching those results. First, the referees determined the value of the full plot, in light of Judge Bonebrake's instructions to assume no access problems for the West partition, to average $12.50 per square foot, for a total value of $8,532,315. Accordingly, the referees began with the assumption that an equal partition required each party to receive land valued at $4,266,157.50. From that initial value, the referees adjusted the value attributable to each party based on (1) a $100,000 mortgage that encumbered a tax lot entirely within the West partition and (2) a $300,000 payment that Senior had made to the City of Tigard in 2003 to pay the interest due on a Local Improvement District (LID) assessment on a tax lot that made up the majority of the 16-acre plot.[4] The referees recommended increasing Senior's share by $200,000 (the sum of one-half of the mortgage and one-half of the LID interest payment) and reducing Junior's share by the same. The referees maintained their opinion that the East partition had higher value than the West partition, and assigned the East partition a value of $20 per square foot based on "current pad transactions in the region." Hence, they recommended that the court award Junior 4.67 acres[5] valued at $20 per square foot, for a *297 full value of $4,066,157.50. The referees did not assign an independent value to the land in the West partition; rather, based on the value attributable to the land in the East partition and the average land value of $12.50 per square foot for all of the land in the 16-acre plot, they determined that an award of the remaining 11 acres was worth $4,466,157.50. The referees also considered the court-ordered easement in the East partition and determined that it had no material value to either party. Because Senior could create access through the adjoining 10-acre plot, he did not need the easement through the East partition. Further, the referees agreed that, even if there were such an easement, it would not affect the value of the East partition. In April 2004, Judge McElligott held a hearing to review the referees' report. Two of the referees, Liebow and Wood, testified at the hearing. They each stated that they had understood Judge Bonebrake's instruction to consider Senior's adjoining property "over which access may occur" to mean that the referees were to assume, for valuation purposes, that the proposed partition awarded to Senior would have adequate access to SW 72nd Avenue through his adjoining 10-acre plot. Furthermore, Wood explained that they decided to incorporate an adjustment for the LID interest payment because it was a mandatory payment that, normally, partners in the property would share equally. In this case, Wood explained, Senior had paid the entire amount of interest due—in other words, both his and Junior's share—to avoid foreclosure on the property, and, accordingly, the referees adjusted the amount of land awarded to each party to account for that debt. Junior presented the report and expert testimony of Jensen, a real property appraiser, whom Junior had retained to review the referees' opinion and to appraise the proposed partitions independently. Jensen agreed with the referees that the East partition had a higher value than the West partition; however, he initially valued the partitions at $15 and $10 per square foot, respectively, based on the value of roughly comparable land in the Portland metropolitan area that, like the East partition, required some improvements before the property could be developed. Jensen then adjusted the value of the West partition based in large part on "plottage value," a figure that takes into account Senior's 10-acre plot adjacent to the West partition and the possibility that Senior could unify both properties to attract a large retailer and, accordingly, command a higher value. Jensen calculated the plottage to add $5 per square foot to the West partition's value (for a total value of $15 per square foot). Rather than reflect that value by adjusting the division of the land, which Jensen believed would destroy Senior's ability to develop the West partition for a large retail use, Jensen recommended that the court award an equalizing payment of $910,642.50 from Senior to Junior. In findings of fact, Judge McElligott largely adopted the referees' recommendations. He found that the entire parcel had a value of $8,532,315 (based on the referees' conclusion that the average value was $12.50 per square foot), and that, before any adjustments, each party was to receive a partition valued at $4,266,157.50. He also found that the East partition was worth $20 per square foot, resulting in an award to Junior, before adjustments, of 213,307.87 square feet (or 4.8969 acres) as his equal value share. He then allocated the remainder of the property to Senior (469,277.33 square feet or 10.7731 acres) and found, by dividing the full value Senior was to receive ($4,266,157.50) by 469,277.33 square feet, that that property was valued at $9.09 per square foot. The court also adopted the referees' recommendation that Junior should forfeit land worth $200,000 to reflect his share of the mortgage and the LID interest expense. However, the court set aside the referees' determination that those adjustments be calculated at $20 per square foot; rather, the court determined that the adjustments should be calculated at $14.545, which was the average between *298 $20 per square foot, the value of the East partition, and $9.09 per square foot, the value of the West partition. The court allowed Junior to pay Senior the LID interest owed before the judgment to avoid any adjustment for the debt. In the event that Junior did not elect that option, which he ultimately did not, the court calculated Junior's net allocated share of property to be 4.5835 acres, with Senior receiving the remaining 11.0865. The court also rejected Junior's request to adjust the partition based on various topographical improvements that the East partition required before it could be developed. That judgment was entered in June 2004; the court subsequently issued a supplemental judgment, corrected general judgment, corrected findings of fact, and corrected supplemental judgment by August 2004.[6] Junior appealed the June 2004 judgment as well as the subsequent judgments but did not file a supersedeas undertaking. After Junior filed his appeal, several events occurred. In June 2005, Senior sold the West partition and the adjacent 10-acre plot to Pacific Realty Associates and transferred the proceeds to the current plaintiff, Tri-County Center Trust. Following that sale, Senior moved to dismiss the appeal on the ground that that sale of the West partition rendered the appeal moot because there was no practical relief that we could award on appeal. Junior opposed Senior's motion to dismiss on the ground that we would have authority to award compensation in lieu of adjusting the size of partitions awarded. The motions panel of this court deferred to the merits panel a ruling on the motion because it appeared to be inextricably bound up with the merits of the appeal. In December 2006, Junior transferred the East partition to one of the current defendants, Tigard Triangle Development, LLC. In January 2007, Junior died. Senior subsequently renewed his motion to dismiss the appeal for mootness because the judgment partitioning the property was entirely in-kind, both parties had transferred the property, and, accordingly, we could not alter the partition. Alternatively, Senior moved for the court (1) to substitute Tri-County Center Trust in his place as plaintiff, and (2) to substitute Tigard Triangle Development in place of Junior as defendant. Junior's estate, meanwhile, moved to substitute Stephen B. Martin, personal representative of Junior's estate, as defendant. Because it was unclear whether Junior had assigned his interest in the litigation to Tigard Triangle Development or whether, upon Junior's death, Junior's interest inured to his estate and whether those events rendered the appeal moot, the motions panel allowed all of the motions to substitute parties and deferred to the merits panel a decision on Senior's motion to dismiss for mootness. On appeal, defendants make two assignments of error. First, defendants argue that the trial court erred in relying on the referees' report rather than Jensen's appraisal to make its findings of fact. Second, they argue that the trial court erred by accepting the referees' recommendation to split the LID interest expense between the parties equally. Defendants assert that the LID interest expense should have been divided on a square-foot basis, the manner in which the city assesses that expense. In response, plaintiff reasserts its argument that defendants' appeal is moot based on the subsequent transfers of the partitions and defendants' failure to file a supersedeas bond. Alternatively, it responds that the trial court did not err in relying on the referees' report, and that the court properly split the LID expense as past debt jointly owed by the parties as tenants in common. We begin by addressing plaintiff's motion to dismiss the appeal as moot. A case is moot when "a court's decision no longer will have a practical effect on or concerning the rights of the parties." Brumnett v. PSRB, 315 Or. 402, 406, 848 P.2d 1194 (1993). Our case law does not directly address what a "practical effect" entails in situations in which parties subsequently transfer land subject to an in-kind partition proceeding, nor whether we may make a monetary adjustment on appeal to correct an entirely in-kind partition. However, on de novo review, *299 the record supports a partition based either on the referees' report, which recommended a land partition based on relative values of land and adjusted for debts attributable to that land, or the Jensen appraisal, which advocated the same allocation of land but with a $910,642.50 equalizing payment to correct alleged errors in the referees' recommendations. Thus framed, the relief at issue on appeal is solely monetary, and we cannot identify a principle that would foreclose our ability to give defendants the monetary award that they seek. Hence, we conclude that the appeal is not moot. Thus, the central issue here is whether the trial court properly relied on the referees' report rather than the Jensen appraisal in awarding the parties an equitable partition in kind. The primary difference between the referees' conclusions and Jensen's conclusions was the additional $5 per square foot that Jensen attributed to the West partition due to "plottage value." Accordingly, for defendants to prevail, we would necessarily need to agree, first, that plottage value is an appropriate consideration in evaluating the fair market value of real property for purposes of making an in-kind partition, and, second, that Jensen's proposed $910,642.50 equalizing judgment reflects such plottage value. We need not reach the second question, however, because we do not believe that plottage value based on adjoining property is a proper consideration in determining the fair market value of land subject to an equitable partition in kind. As an initial matter, we do not understand Judge Bonebrake's order to require the referees to incorporate plottage value in their valuations. The text of Judge Bonebrake's instructions, where he directed the referees to "take into account the fact that [Senior] and his wife own the adjoining ten acres over which access to that parcel being awarded to [Senior] may occur," simply directs the referees to consider the land adjoining the West partition inasmuch as it could eliminate the West partition's access problems, not inasmuch as it would enhance the value of land in the West partition. Indeed, our reading of the instruction in the context of Judge Bonebrake's entire order supports that conclusion. He referred in the instruction to two aspects of the referees' first report: (1) the referees' recommendations that the highest and best use of the land was to develop the entire 26-acre plot according to the development plan in place, and (2) the referees' conclusion that, in the event of a partition in kind, the West partition had a much lower fair market value due to its "access challenges" to 72nd Avenue. Judge Bonebrake first explained that the loss of the development plan for the 26-acre plot was not relevant to the proceeding, observing that it was clear that the parties were never going to agree on developing the 26 acres as a whole, and, as such, they were "dealing with only the 16-acre plot," which cuts against any suggestion that the judge wanted plottage value factored into the valuation. He further noted that any access challenges to the West partition could be mitigated by granting a nonexclusive easement across the East partition, "and also by reason of the fact that [Senior] owns, either individually or with his wife, the remaining ten acres, over which access exists," which further bolsters the conclusion that consideration of the adjoining 10-acre plot is only to mitigate access problems with the West partition. Even if we were to assume that Judge Bonebrake had instructed the referees to factor plottage value into their valuation, we conclude that plottage value is an improper consideration in the context of determining value for a partition in kind. Plottage, or "assemblage," value is a doctrine that some jurisdictions[7] use in valuing land in eminent domain proceedings. See Plottage or Assemblage, 26 Am. Jur. 2d Eminent Domain 688 § 303 (2004); see, e.g., City of Lafayette v. Richard, 549 So.2d 909, 911 (La.Ct.App. 3d *300 Cir.1989); Clarmar Realty v. Redevelopment Authority, 129 Wis.2d 81, 383 N.W.2d 890, 895 (1986). We are aware of no case in Oregon or in other jurisdictions holding that, in the context of a partition proceeding, a court may consider ownership of adjacent property as a factor in determining the fair market value of land subject to an in-kind partition.[8] Nor are we persuaded by defendants' argument that plottage is an appropriate valuation factor here. The fact that one party owns (or partly owns) property adjoining the parcel subject to the partition proceeding is a mere fortuity. If courts were to incorporate plottage to set a higher value of land awarded to a cotenant—and either award that cotenant less land or impose an equalizing payment to the other cotenant— the end result would have the other cotenant benefit from his or her former cotenant's ownership of adjacent land. We can identify no legal principle that supports that result. Accordingly, we reject defendants' argument that plottage value of the type advanced here is a valid factor in valuing the property in this partition proceeding. Based on our limited posture, as explained above, we consequently reject defendants' argument that the trial court should have relied on the Jensen appraisal and imposed an equalizing judgment, and conclude that the trial court properly relied on the referees' report. Likewise, we reject defendants' second assignment of error, in which they argue that the trial court should have apportioned the LID interest payment on a square-foot basis, rather than a 50-50 basis between the former tenants in common. A cotenant, or tenant in common, is obliged to contribute his or her pro rata share toward expenses such as property taxes, encumbrances on the land, and necessary insurance. See Palmer v. Protrka, 257 Or. 23, 31, 476 P.2d 185 (1970). Although it is true that the City of Tigard assesses the LID on a square-foot basis, at the time that the LID interest payment became due, Junior and Senior were tenants in common and thus, were jointly responsible for that debt. Senior paid the entirety of that $300,000 debt; accordingly, Junior, as a cotenant, owed Senior $150,000 as his share. Given that, defendants' argument that we should transform that past obligation for half of the LID debt into a lower number based on the square footage of real property awarded to defendants is unfounded, and we reject it. In summary, we conclude that the referees' report comported with Judge Bonebrake's instructions and proposed an equitable partition in kind of the 16 acres at issue in this case. The trial court's judgment adopting the referees' valuation of the property and assessing the LID debt on a 50-50 basis between the parties also was equitable. Hence, we affirm. Affirmed. NOTES [1] Due to events that occurred after the trial court directed the partition of the property, see 225 Or.App. at 424-26, 201 P.3d 297-98, both the original plaintiff and defendant have been substituted by the current plaintiff and defendants, respectively, after the original parties submitted their briefs on appeal. [2] The exact acreage was found to be 15.67 acres. For simplicity, however, we use the term "16-acre plot" when referring generally to the property subject to the partition proceeding. [3] In the interim, Judge Bonebrake had retired. [4] The parties had other claims for contribution and reimbursement that the referees recommended that the court resolve in other proceedings independent of the partition proceeding. The referees determined that the claims for the LID interest payment and the mortgage were, however, of a different nature and should be valued as part of the partition. [5] We note that the report appears to have a minor inconsistency in its recommendations. On page one, the referees summarize their ultimate conclusion that the court should award Junior 4.65 acres to Senior's 11.02 acres. The remainder of the report describes the referees' methodology and the recommended adjustments, at the end of which the referees recommend that the court award Junior 4.67 acres to Senior's 11.00 acres. We assume that the latter set of numbers, which accords with the referees' calculations, is the correct set. [6] In the subsequent judgments, the court made minor adjustments to the award based on land surveys and determined other matters that are not relevant to the issues presented on appeal. [7] Oregon does not appear to consider plottage to determine the fair market value of land in its condemnation proceedings, although our courts have applied a similar concept called "severance damages" in the case of a partial taking of property. See State ex rel. Dept. of Trans. v. Lundberg, 312 Or. 568, 574, 825 P.2d 641 (1992) ("In the case of a partial taking of property, the measure of damages is the fair market value of the property acquired plus any depreciation in the fair market value of the remaining property caused by the taking."). [8] At least one other jurisdiction has discussed plottage value in the context of a partition proceeding. See Hegewald v. Neal, 20 Wash.App. 517, 582 P.2d 529, rev. den., 91 Wash.2d 1007 (1978). In that case, the court heard evidence of the plottage value of real property, if it were to be used as a unified whole, as part of its evaluation of whether a partition in kind of particular real property would greatly prejudice the owners, not as a factor in its calculation of the property's fair market value. Id. at 526, 582 P.2d at 534.

KHA"* LAWYERS DEC 14 2015 KETTERMAN HEDLESTEN & AMANN, PLLC , CHfHSTOPHca . , www.khalawyers.com JULIE A. KETTERMAN Cert/fed fa(nfy/ CPSMecforor julie@khalawyers. com JAMES R. HEDLESTEN [email protected] COLIN B. AMANN [email protected] December 10,2015 »Se/f/ via email: bmeverGbcbvlaw.com First Court of Appeals Attn: Christopher A. Prine, Clerk of the Court 301 Fannin Street Houston, Texas 77002 RE: Cause No. 01-15-0.0755-CV; Brandy M Weido v. Don Weido Mr. Prine: Wedo not represent DonWeido inthis appeal. As a courtesy to our former client in the initial matter, please be advised that Don Weido will not be filing a Motion for Extension of Time nor a Brief. This matter may be considered by the Court without any further action from Mr. Weido. If you have any questions, you may contact DonWeido directly. Sincerely, James R. Hedlesten JRH/cdw 1004 Prairie, Suite 300 I Houston, TX 77002 I Phone: 713.652.2003 I Fax: 713.652.2002  The Isis Building MOflTH HOUSTON Ta 773^ 1004 Prairie, Suite 300 KHA LAWYERS Houston, TX 77002 11. &EC 2SMS PM 9 1 nt-uc J !FIRST CO!'PT | DEC 1 4 Z0I5 I I CHRISTOPHER A. pRjf.jp KLERK •HOUSTON ,1€XAS ^fROOZ- /7002SS0&S CO1& ,||„|l.».||l.„.|JjHI|.|..f||llllH"'»«l'l"»'ll»Ill'% 

192 F.3d 1246 (9th Cir. 1999) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,V.FRANCISCO ALONSO PORTILLO-CANO, DEFENDANT-APPELLANT. No. 98-10189 U.S. Court of Appeals, Ninth Circuit Argued and Submitted March 12, 1999September 20, 1999Amended December 6, 1999 [Copyrighted Material Omitted] Francisco Leon, Law Office of Francisco Leon, Tucson, Arizona, for the defendant-appellant. Anne E. Mosher, Assistant United States Attorney, Tucson, Arizona, for the plaintiff-appellee. Appeal from the United States District Court for the District of Arizona; John M. Roll, District Judge, Presiding. D.C. No. CR-96-00375-JMR Before: John T. Noonan and A. Wallace Tashima, Circuit Judges, and Jane A. Restani,* Judge, United States Court of International Trade. Restani, Judge: 1 Francisco Alonso Portillo-Cano ("Portillo-Cano" or "defendant") appeals his guilty plea entered before the district court on the ground that his plea did not conform to the requirements of Rule 11(c) of the Federal Rules of Criminal Procedure. The government asserts that defendant is barred from appealing his sentence because his plea agreement included a waiver of his right to appeal. We hold that we may hear defendant's appeal in order to determine whether his guilty plea failed to comply with the requirements of Rule 11 because the trial Judge did not explain the nature of the charges. We also hold that the plea colloquy at issue did not conform to Rule 11. We have jurisdiction under 28 U.S.C. S 1291 (1994) and we vacate and remand for further proceedings. I. BACKGROUND 2 In June 1996, Portillo-Cano was indicted by a grand jury on four counts: Count 1 that he conspired to possess with intent to distribute marijuana, in violation of 21 U.S.C.S 841(a)(1) (1994); Count 2 that he possessed with intent to distribute, and aided, abetted... or induced... others to possess with intent to distribute marijuana, in violation of 21 U.S.C. S 841(a)(1) and 18 U.S.C. S 2 (1994); and, Counts 3 and 4, that he used and carried a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C.S 924(c) (1994). 3 In 1995, Portillo-Cano negotiated with a confidential informant ("CI") who worked for the U.S. Customs Service. On March 28, 1995, Portillo-Cano gave the CI a two-ounce sample of marijuana. One week later, Portillo-Cano told the CI that a large quantity of marijuana was available right away. Portillo-Cano brought the CI to a residence in Tucson, Arizona where the CI observed a large quantity of marijuana at the premises. Two men wereguarding the marijuana, one of whom was holding a handgun. A federal search of the residence led to the seizure of 1,160 pounds of marijuana and two firearms. 4 Pursuant to a Rule 11(e)(1)(C) plea agreement, Portillo-Cano entered a change of plea and pled guilty to Counts 1 and 4 of the indictment on May 28, 1997. Upon entering into an enforceable Rule 11(e)(1)(C) agreement, Portillo-Cano would have waived his right to appeal a sentence called for by the agreement.1 The plea agreement included a provision that Portillo-Cano understood he was giving up his right to appeal the sentence. Portillo-Cano also was to forfeit all right and title to the two firearms. The district court sentenced defendant on March 31, 1998 to 60 months for Count 1, and 11 months for Count 4, to run consecutively.2 5 Defendant appealed his conviction and sentence to this court on April 8, 1998. Portillo-Cano claims that in the plea allocution of May 28, 1997 the district court Judge failed to comply with the requirement of Fed. R. Crim. P. 11(c)(1) that the Judge explain, in open court, the nature of the charges brought against the defendant. II. STANDARD OF REVIEW 6 We review the validity of a defendant's waiver of the right to appeal de novo. United States v. Buchanan, 59 F.3d 914, 916 (9th Cir. 1995). We also review de novo whether a trial court's colloquy with a defendant satisfies the requirements of Rule 11(c)(1) of the Federal Rules of Criminal Procedure. United States v. Smith, 60 F.3d 595, 597 n.1 (9th Cir. 1995). III. DEFENDANT'S RIGHT TO APPEAL 7 The government's only argument on appeal is that Portillo-Cano waived his right to appeal his sentence in his plea agreement. A defendant has a statutory right to appeal his criminal sentence. See 18 U.S.C. S 3742(a)(1). This right, however, may be waived if the defendant knowingly and voluntarily agrees to the waiver. United States v. NavarroBotello, 912 F.2d 318, 321 (9th Cir. 1990) (holding that waiver of right to appeal as part of negotiated plea agreement does not violate due process or public policy). Nevertheless, in Navarro-Botello we also looked at the quality of the Rule 11(c) colloquy to ascertain that the defendant's waiver was knowingly and voluntarily made. See id. (prior to addressing waiver of right to appeal, court reviewed record and found Rule 11 requirements satisfied). 8 We recognize that a defendant who has waived the right to appeal may still appeal a criminal sentence under certain circumstances. See United States v. Schuman, 127 F.3d 815, 818 n.* (9th Cir. 1997) (Kozinski, J., Concurring) (reviewing cases in which defendant may appeal sentence in spite of waiver). For instance, a waiver of a right to appeal if the sentence violates the law or is based on "an incorrect application of the sentencing guidelines." United States v. Littlefield, 105 F.3d 527, 528 (9th Cir.)(per curiam) (interpreting waiver of right to appeal pursuant to a Rule 11(e)(1)(C) agreement), cert. Denied 520 U.S. 1258, 117 S.Ct. 2423, 138 L.Ed.2d 186 (1997). 9 The cases cited by the Government in support of its argument that the right to appeal was waived validly do not involve situations where the defendant challenged compliance with the Rule 11(c) procedure. In Schuman, the court dismissed the appeal on the grounds that the waiver in the plea agreement was expressly stated, and that statements by the district court judgethat the defendant may still have had some rights to appeal did not give rise to a contrary result because the prosecution objected to this advisement by the court. Schuman, 127 F.3d at 817. The court also rejected Schuman's contention that the Government had failed to comply with the plea agreement. Id. Buchanan, also cited by the Government, stands for the proposition that, generally, when the district court Judge tells the defendant he may have a right to appeal, that "oral pronouncement must control," because the defendant "could have a reasonable expectation" that he could appeal his sentence. Buchanan, 59 F.3d at 917. In neither of these cases was the defendant denied the right to appeal a sentence even though compliance with the procedural requirements of Rule 11(c) was at issue. 10 As stated by the Seventh Circuit, waivers of appeal must "stand or fall with the agreement of which they are a part." United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995). "If the agreement is voluntary, and taken in compliance with Rule 11, then the waiver of appeal must be honored. If the agreement is involuntary or otherwise unenforceable, then the defendant is entitled to appeal. " Id. 11 Portillo-Cano is challenging the soundness of his plea allocution under Rule 11, which goes to the heart of whether his guilty plea, including the waiver of appeal, is enforceable. Thus, we must determine whether the plea was valid in order to determine if appeal is permitted. 12 Our holding in United States v. Vences, 169 F.3d 611 (9th Cir. 1999), is not to the contrary. In Vences, we held that we lacked jurisdiction on appeal where the defendant waived the right to appeal in his plea agreement, even though the trial Judge failed to explain the reasons for imposing the sentence, as required by 18 U.S.C. S 3553 (1994). The trial Judge's failure to comply with 18 U.S.C. S 3553 did not make the sentence illegal, 169 F.2d at 613, and did not implicate the voluntariness of the defendant's plea. By contrast, compliance with Rule 11 is the means by which the court is assured that the defendant's guilty plea is voluntarily and knowingly made. IV. COMPLIANCE WITH RULE 11(C)(1) 13 Rule 11(c)(1) of the Federal Rules of Criminal Procedure requires that before accepting a plea of guilty, the "court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following: (1) the nature of the charge to which the plea is offered [and the mandatory minimum penalty and maximum possible penalty]." The purpose of Rule 11 is to "ensure that guilty pleas are knowing and voluntary." United States v. Longoria, 113 F.3d 975, 977 (9th Cir. 1997) ("defendant's right to be informed of the charges against him is at the core of Rule 11."). 14 In reviewing the compliance of a plea with Rule 11(c), we review only the record of the plea proceeding. United States v. Jaramillo-Suarez, 857 F.2d 1368, 1372-73 (9th Cir. 1988) (quoting United States v. Kamer, 781 F.2d 1380, 1383 (9th Cir. 1986)). We are therefore confined to analyzing the transcript of the Discussion between the trial Judge and Portillo-Cano on May 28, 1997. Upon review we conclude that the trial Judge failed in only one respect with regard to the requirements of Rule 11. He did not explain the nature of the charges for which Portillo-Cano was indicted. 15 As stated in Smith, failure to explain the nature of the charge "requires the vacation of a plea of guilty." 60 F.3d at 597 (citing United States v. Bruce, 976 F.2d 552, 559-60 (9th Cir. 1992)).3 Theplea colloquy in Smith was similar to, and clearly no more deficient than, the one at issue in this case. In Smith the defense attorney waived the reading of the indictment, but this waiver did not "excuse the omission" by the trial court. Id. at 597.4 16 In Smith the Government argued that other events at the plea hearing showed that the defendant understood the nature of the charges brought against him, and that the district court had complied with all of the remaining requirements of Rule 11(c). Id. The prosecutor in Smith established the factual basis for the plea, and the defendant admitted all of those facts. We held that "[w]hile these recitations may satisfy other requirements of Rule 11(c), they do not convey to Smith the nature of the charges against him.... [A]n admission of the facts does not speak to the nature of the charge." Id. at 597. We held that a guilty plea cannot be truly voluntary unless the defendant "possesses an understanding of the law in relation to the facts." Id. (quoting McCarthy v. United States, 394 U.S. 459, 466 (1969)). 17 A statement by the defendant and his attorney that they discussed the nature of the charge is also insufficient to satisfy Rule 11(c), because "vague references to Discussion of `the charges' and `the nature of the charges' does not provide a complete record showing compliance with Rule 11(c)." Smith, 60 F.3d at 598.5 Smith also held that a provision in the plea agreement stating the acts the defendant must have committed in order to be found guilty of the crime charged cannot cure the failure to describe the nature of the charges in open court where that provision of the plea agreement was not "recited or even referred to in the plea proceeding." Smith, 60 F.3d at 599. Likewise, in Portillo-Cano's plea proceeding no mention was made of what acts he must have committed in order to be found guilty of either charge, and the plea agreement also did not contain such statements. Furthermore, assurances that at some point outside of the plea agreement the defendant was informed of the nature of the charge cannot cure the Judge's failure to do so in open court. Smith, 60 F.3d at 599 (quoting United States v. Kennell, 15 F.3d 134, 136 (9th Cir. 1994) ("reading of the plea agreement is no substitute for rigid observance of Rule 11.")). 18 Smith also establishes that the failure to identify the nature of the charges is not harmless error pursuant to Rule 11(h). The omission to identify and explain the crime is "fundamental." Smith, 60 F.3d at 599. We recently held that "[a]ny deviation from the requirements of Rule 11 is reversible unless the government demonstrates that it was `harmless.' " United States v. Odedo, 154 F.3d 937, 940 (9th Cir. 1998) (quoting United States v. Lyons, 53 F.3d 1321, 1322 n.1 (D.C. Cir. 1995)).6 In the absence of "anyreference at the plea hearing to the charge or its nature, we can assume nothing more than total ignorance of the charge on the part of [the defendant]." Smith, 60 F.3d at 600. 19 The trial Judge in this case did identify the two crimes: conspiracy and use of a firearm during a drug trafficking crime. 20 The Judge did not, however, discuss the elements of these crimes in order to demonstrate on the record that the defendant understood the nature of the charges. See Kamer, 781 F.2d at 1384 (failure to read indictment and explain nature of offense violated Rule 11) (citing Irizarry v. United States, 508 F.2d 960, 965-66 (2d Cir. 1974) ("trial Judge should at least set out the bare bones elements of the offense.")). V. CONCLUSION 21 Because Portillo-Cano's plea allocution did not include a description of the nature of the charges, including an application of the law to the facts, we find that this plea did not conform to the requirements of Fed. R. Crim. P. 11(c)(1) and that defendant's right to appeal was not waived. Accordingly, we VACATE the conviction and REMAND for further proceedings consistent with this opinion. VACATED and REMANDED NOTES: * The Honorable Jane A. Restani, Judge of the United States Court of International Trade, sitting by designation. 1 Pursuant to 18 U.S.C. S 3742(c)(1) (1994) the defendant waives his right to challenge on appeal a sentence imposed pursuant to a plea agreement that "includes a specific sentence under rule 11(e)(1)(C)." 2 The district court appears unintentionally to have reversed the sentences for Counts 1 and 4. Count 4 is the count under which the statute requires that a consecutive 60-month sentence be imposed. See 18 U.S.C. S 924(c). 3 In Bruce, we found that a statement that defendant was pleading guilty to "conspiracy to manufacture methamphetamine " was a "brief, vague explanation [that] in no way satisfied the requirements of Rule 11(c)(1)." Bruce, 976 F.2d at 559. 4 The prosecutor, instead of the Judge, may explain the nature of the charges, Smith, 60 F.3d at 597 (citing United States v. Sharp, 941 F.2d 811, 816 (9th Cir. 1991)), but in both Smith and Portillo-Cano's case, there was no explanation of the charges by either the Judge or the prosecutor. There was also no mention of the indictment, or a waiver of the reading of the indictment, during Portillo-Cano's Rule 11 colloquy. 5 In Smith we recognized that under an earlier version of Rule 11(c), it was sufficient for the Judge to ascertain that the defendant and his attorney had discussed the nature of the charges, because the pre-1974 version of the rule did not require that the trial Judge inform the defendant in open court of the nature of the charge. See Smith 60 F.3d at 598 (citing United States v. O'Donnell, 539 F.2d 1233, 1236 (9th Cir. 1976); Guthrie v. United States, 517 F.2d 416, 418 (9th Cir. 1975)). 6 Prior to the 1975 amendments to Rule 11, any noncompliance with the rule was reversible error. See McCarthy, 394 U.S. at 468-69; Odedo, 154 F.3d at 940 (discussing McCarthy and amendments to Rule 11 in 1975). Rule 11(h) "makes no change in the responsibilities of the Judge at Rule 11 proceedings, but instead merely rejects the extreme sanction of automatic reversal." Odedo, 154 F.3d at 940 (quoting Advisory Comm. Notes to Fed. R. Crim. P. 11(h), 1983 Amendment).

772 F.2d 906 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.REGINALD HARRIS, PLAINTIFF-APPELLANT,v.ELTON SCOTT; DANIEL TRUDELL; LARRY STANLEY; LEE CLARK ANDJOHN WIREMAN, DEFENDANTS-APPELLEES. NO. 85-1044 United States Court of Appeals, Sixth Circuit. 8/6/85 E.D.Mich. APPEAL DISMISSED ORDER BEFORE: ENGEL, JONES and KRUPANSKY, Circuit Judges. 1 This matter is before the Court upon consideration of the appellant's motion for appointment of counsel. 2 A review of the record indicates that the district court entered an order on December 3, 1984. That order granted leave to amend the complaint, denied two motions for summary judgment, and granted the motion to dismiss as to all the claims except the claim of denial of religious practice. Appellant appealed. The December 10, 1984, order disposed of fewer than all the claims involved in the action. The district court did not expressly determine that there is no just reason for the delay and did not direct entry of a final judgment pursuant to Rule 54(b), Federal Rules of Civil Procedure. Therefore, the December 10, 1984, order appealed is not final and appealable. McIntyre v. First National Bank of Cincinnati, 585 F.2d 190 (6th Cir. 1978); Moody v. Kapica, 548 F.2d 133 (6th Cir. 1976); Oak Construction Company v. Huron Cement Company, 475 F.2d 1220 (6th Cir. 1973). The final decision of the district court has not been entered during the pendency of this appeal; therefore, this Court lacks jurisdiction. Gillis v. Department of Health and Human Services, 759 F.2d 565 (6th Cir. 1985). 3 It is ORDERED that the motion for appointment of counsel be and hereby is denied. 4 It is further ORDERED that the appeal be and it hereby is dismissed for lack of jurisdiction. Rule 9(d)(1), Rules of the Sixth Circuit.

199 F.3d 1224 (10th Cir. 2000) WYOMING FARM BUREAU FEDERATION; MONTANA FARM BUREAU FEDERATION; AMERICAN FARM BUREAU FEDERATION; MOUNTAIN STATES LEGAL FOUNDATION; IDAHO FARM BUREAU FEDERATION; NATIONAL AUDUBON SOCIETY, a nonprofit corporation; PREDATORPROJECT, a nonprofit corporation; SINAPU, a nonprofit corporation; GRAY WOLF COMMITTEE, a conservation group, Plaintiffs-Appellees,CAT D. URBIGKIT; JAMES R. URBIGKIT, Plaintiffs-Appellees and Cross-Appellants,v.BRUCE BABBITT, Secretary of Department of Interior; GEORGE T. FRAMPTON, Assistant Secretary of Fish and Wildlife and Parks, Department of Interior; JAMIE CLARK, Director of United States Fish and Wildlife Service; RALPH O. MORGENWECK, Regional Director of United States Fish and Wildlife Service; EDWARD E. BANGS, Project Leader of Gray Wolf EIS; ROGER KENNEDY, Director of National Park Service; DANIEL GLICKMAN, Secretary of Department of Agriculture; MICHAEL DOMBECK, Chief Forester of United States Forest Service, in their official capacities; DEPARTMENT OF INTERIOR; UNITED STATES FISH ANDWILDLIFE SERVICE; NATIONAL PARK SERVICE; DEPARTMENT OF AGRICULTURE; UNITED STATES FOREST SERVICE; UNITED STATES OF AMERICA, Defendants-Appellants and Cross-Appellees,NATIONAL WILDLIFE FEDERATION; WYOMING WILDLIFE FEDERATION; IDAHO WILDLIFE FEDERATION; WOLF EDUCATION AND RESEARCH CENTER; DEFENDERS OF WILDLIFE, Intervenors-Appellants,NEZ PERCE TRIBE, Intervenors. Nos. 97-8127, 98-8000, 98-8007, 98-8008, 98-8009, 98-8011 UNITED STATES COURT OF APPEALS TENTH CIRCUIT January 13, 2000 Appeals from the United States District Court for the District of Wyoming. D.C. No. 94-CV-286[Copyrighted Material Omitted] Timothy S. Bishop (Todd S. Welch and William Perry Pendley of Mountain States Legal Foundation, Denver, Colorado; John J. Rademacher and Richard L. Krause of American Farm Bureau Federation, Park Ridge, Illinois, on the briefs), Chicago, Illinois, for Plaintiffs-Appellees. James R. Urbigkit, pro se, for Plaintiffs-Appellees and Cross-Appellants. M. Alice Thurston (Lois J. Schiffer, Assistant Attorney General, James C. Kilbourne, Ellen Durkee, and Christiana P. Perry, Department of Justice, Washington, D.C.; Margot Zallen, Denver, Colorado, and David Gayer, Washington, D.C., of counsel, Department of Interior, with her on the briefs) of Department of Justice, Washington, D.C., for Defendants-Appellants and Cross-Appellees. Brian B. O'Neill (Richard A. Duncan and Jonathan W. Dettmann of Faegre & Benson LLP, Minneapolis, Minnesota; Russell O. Stewart and Colin C. Deihl of Faegre & Benson LLP, Denver, Colorado, with him on the briefs for Defenders of Wildlife; Thomas France and Thomas Lustig of National Wildlife Federation, Missoula, Montana, with him on the briefs for National Wildlife Federation, Wyoming Wildlife Federation, Idaho Wildlife Federation, and Wolf Education and Research Center) of Faegre & Benson LLP, Minneapolis, Minnesota, for Intervenors-Appellants. Douglas L. Honnold (James S. Angell with him on the briefs) of Earthjustice Legal Defense Fund, Bozeman, Montana, for Predator Project, Sinapu, and Gray Wolf Committee. 1 Louis R. Cohen, James R. Wrathall, Matthew A. Brill, and Susan A. MacIntyre, of Wilmer, Cutler & Pickering, and Elizabeth Fayad, of Counsel, National Parks and Conservation Association, Washington, D.C., filed an amicus curiae brief on behalf of National Parks and Conservation Association, in support of the Department of the Interior. 2 Michael J. Bean, Environmental Defense Fund, Washington, D.C., and James B. Martin, Boulder, Colorado, Environmental Defense Fund, filed an amici curiae brief on behalf of Environmental Defense Fund, World Wildlife Fund, Wildlife Conservation Society, Izaak Walton League of America, Idaho Conservation League, Wolf Recovery Foundation, and Center for Marine Conservation. 3 Herman Kaufman, Old Greenwich, Connecticut, filed an amicus curiae brief on behalf of Friends of Animals, Inc. 4 David J. Cummings, Lapwai, Idaho, filed an amicus curiae brief on behalf of Nez Perce Tribe. 5 James C. Hill, Washington, D.C., filed an amicus curiae brief, pro se, in support of Plaintiffs-Appellees. 6 Before BRORBY, HOLLOWAY and HENRY, Circuit Judges. 7 BRORBY, Circuit Judge. 8 These consolidated appeals stem from three separate challenges to the Department of Interior's ("Department") final rules governing the reintroduction of a nonessential experimental population of gray wolves in Yellowstone National Park ("Yellowstone") and central Idaho. The district court consolidated the challenges and struck down the wolf reintroduction rules, concluding they (1) are contrary to Congress' clear intent under section 10(j) of the Endangered Species Act, 16 U.S.C. 1539(j), to prevent lessening the protection afforded to naturally occurring, individual members of the same species; (2) are contrary to the Department's own regulations extending Endangered Species Act protections to all individual animals within an area where experimental and nonexperimental populations may overlap; and (3) conflict with section 4 of the Endangered Species Act, 16 U.S.C. 1533, by operating as a de facto "delisting" of naturally occurring wolves. Wyoming Farm Bureau Fed'n v. Babbitt, 987 F. Supp. 1349, 1372-76 (D. Wyo. 1997). The district court ordered the reintroduced non-native wolves and their offspring removed from the identified experimental population areas, but stayed its own judgment pending this appeal. Id. at 1376. Discerning no conflict between the challenged experimental population rules and the Endangered Species Act, we reverse the district court's order and judgment. I. Background A. Factual Summary 9 Detailed facts underlying this appeal are set forth in Wyoming Farm Bureau Fed'n v. Babbitt, 987 F. Supp. 1349 (D. Wyo. 1997); hence, we provide only a summary of salient facts. 10 The Secretary of Interior ("Secretary") listed the Northern Rocky Mountain Wolf, an alleged subspecies of the gray wolf, as an endangered species under the Endangered Species Act of 1973. 43 Fed. Reg. 9607 (March 9, 1978) ("Reclassification of the Gray Wolf in the United States and Mexico, with Determination of Critical Habitat in Michigan and Minnesota"). In 1978, the Secretary listed the entire gray wolf species as endangered in the lower forty-eight states, except Minnesota.1 Id. at 9610, 9612. In 1980, a team organized by the Department of Interior completed its Northern Rocky Mountain Wolf Recovery Plan ("Recovery Plan"), pursuant to the Endangered Species Act. The Department updated the Recovery Plan in 1987 to recommend the introduction of at least ten breeding pairs of wolves for three consecutive years in each of three identified recovery areas (Yellowstone National Park, central Idaho and northwestern Montana). 11 Based on the 1987 recommendation, and at Congress' direction, the Fish and Wildlife Service, in cooperation with the National Park Service and the United States Forest Service ("Forest Service"), prepared an environmental impact statement in accordance with the National Environmental Policy Act, 43 U.S.C. 4332(2)(C). The final environmental impact statement analyzed the environmental effects of five wolf recovery alternatives. The proposed action alternative the Fish and Wildlife Service adopted called for the annual reintroduction of fifteen wolves in two nonessential experimental population areas Yellowstone National Park and central Idaho beginning in 1994. Section 10(j) of the Endangered Species Act, 16 U.S.C. 1539(j), expressly authorizes the establishment of such nonessential experimental populations. 12 In June 1994, Secretary Bruce Babbitt adopted the proposed action alternative subject to certain conditions intended to "minimize or avoid the environmental impacts and public concerns identified during the environmental review process." One condition was the promulgation of nonessential experimental population rules to implement a wolf management program under section 10(j). The Department published its final experimental population rules in November 1994. 59 Fed. Reg. 60252 (Nov. 22, 1994). The Recovery Plan and final rules prescribe the release of 90-150 wolves from Canada into designated areas of Yellowstone and central Idaho over a three- to five-year period, id. at 60254-255, 60266, 60269, notwithstanding the Department's acknowledgment (1) a colony of naturally occurring wolves exists in Montana which, as the number of wolves increases, eventually will recolonize areas of Yellowstone and Idaho; and (2) lone wolves have been confirmed to exist in or near the designated experimental population areas in Yellowstone and Idaho. The final experimental population rules expressly authorize persons coming into contact with wolves to take actions otherwise prohibited under the Endangered Species Act. For example, a livestock producer can "take" any wolf caught in the act of killing, wounding or biting livestock on his land so long as the incident is reported within twenty-four hours. Id. at 60264, 60279. The rules also provide a framework within which the Fish and Wildlife Service can manage "problem" wolves. Id. at 60265, 60279. B. The Parties 13 Appearing as Defendants/Appellants in this matter are the various governmental departments, agencies and their officials responsible for wolf and wolf habitat management, including the Department of Interior, its agencies the Fish and Wildlife Service and National Park Service, and the Department of Agriculture and its agency the Forest Service (hereafter the "Agencies"). On appeal, the National Audubon Society, which originally appeared as a plaintiff, realigns itself and joins in the Agencies' briefs. The National Wildlife Federation, Defenders of Wildlife, Wyoming Wildlife Federation, Idaho Wildlife Federation, and the Wolf Education and Research Center appear as Intervenors on behalf of the Agencies. Collectively, these parties advocate the legal validity of the wolf reintroduction rules, and any reference to the Agencies' arguments or contentions generally reflects those of the Intervenors. 14 Plaintiffs/Appellees include: the Wyoming Farm Bureau Federation, the Montana Farm Bureau Federation, the Idaho Farm Bureau Federation, the American Farm Bureau Federation, James R. and Cat D. Urbigkit, the Predator Project, Sinapu, and the Gray Wolf Committee. The Urbigkits and the Predator Project also raise issues on cross-appeal. Collectively, these parties represent the educational, economic, and social interests of individuals who reside, recreate, farm, and/or ranch in or near the designated experimental population areas. All participated in the administrative proceedings related to the wolf recovery/reintroduction program. For different reasons, all dispute the legal validity of the wolf reintroduction rules. 15 The following individuals and entities filed amicus briefs: the Environmental Defense Fund, World Wildlife Fund, Wildlife Conservation Society, Izaak Walton League, Idaho Conservation League, Wolf Recovery Foundation, and the Center for Marine Conservation (collectively referred to as "Environmental Defense Fund and others"); the National Parks and Conservation Association; James C. Hill; the Friends of Animals, Inc.; and the Nez Perce Tribe. With the exception of Mr. Hill and the Friends of Animals, Inc., all amicus parties support the Agencies' position. The Friends of Animals, Inc. and Mr. Hill assert issues and arguments against the wolf recovery program not previously raised or addressed by the named parties or the district court.2 C. Pending Motions 16 The parties filed a number of preliminary motions, which were referred to this panel for resolution. We conclude none is dispositive and rule as follows: All motions to dismiss are denied. The Agencies' motion to file missing administrative record documents is granted. The National Audubon Society's motions to dismiss, realign, and join defendants' and amici briefs are granted. The Wyoming Farm Bureau's Second Motion to Strike is denied. The Farm Bureaus' motion to expedite is denied as moot. D. The Issues Standing 17 At the outset of litigation, the Defendant Agencies challenged the Audubon Society's and the Urbigkits' standing to bring any claims. The Agencies also challenged the Farm Bureaus' standing to assert their Endangered Species Act and National Environmental Policy Act claims. The district court held both the Audubon Society and the Urbigkits have standing. Wyoming Farm Bureau Fed'n, 987 F. Supp. at 1361. The court further held the Farm Bureaus lack standing to assert a National Environmental Policy Act claim. Id. The court determined, sua sponte, that Mountain States Legal Foundation lacks standing to pursue its action altogether. Id. at 1355 n.10. Mountain States Legal Foundation did not submit briefs on appeal. The remaining parties do not raise the standing issue in their briefs. Accordingly, we do not address this issue, and the district court's rulings pertaining to standing remain unaffected. Statutory Notice and Procedural Rights 18 The Agencies unsuccessfully sought dismissal of the first two counts of the Farm Bureaus' complaint for failure to provide sufficiently specific notice pursuant to the Endangered Species Act, 16 U.S.C. 1540(g). Id. at 1362-63. They do not challenge the district court's ruling on appeal; therefore, we do not address it and the district court's ruling on this issue stands. 19 The Farm Bureaus' contention the Agencies did not afford them certain Endangered Species Act procedural rights provided under 50 C.F.R. 17.81(d) was similarly unsuccessful in district court. Id. at 1365-66. Because the Farm Bureaus do not pursue this claim on appeal, the district court's ruling stands. The Wolf Reintroduction Rules 20 The crux of this case, and hence this opinion, is the validity of the final rules governing the introduction of a nonessential experimental population of gray wolves in the entirety of Yellowstone and in central Idaho. The district court struck down the challenged rules as violative of section 4(f) and section 10(j) of the Endangered Species Act, 16 U.S.C. 1533(f), 1539(j). Id. at 1373-76. However, the district court found no violation of the National Environmental Policy Act. Id. at 1369. We afford the district court's decision no particular deference, but rather, review the rules and administrative record independently. See City of Albuquerque v. Browner, 97 F.3d 415, 424 (10th Cir. 1996), cert. denied, 522 U.S. 965 (1997); Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir. 1994). II. Legal Analysis A. Standard of Review 21 Our review of the rules and record is governed by the Administrative Procedure Act, 5 U.S.C. 706. Essentially, we must determine whether the Agencies: (1) acted within the scope of their authority, (2) complied with prescribed procedures, and (3) took action that was neither arbitrary and capricious, nor an abuse of discretion. Olenhouse, 42 F.3d at 1574. Within this context, we will set aside the Agencies' factual determinations only if they are unsupported by substantial evidence. "The substantial-evidence standard does not allow a court to displace the [Agencies'] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Trimmer v. United States Dep't of Labor, 174 F.3d 1098, 1102 (10th Cir. 1999) (quotation marks and citations omitted). 22 We review matters of law de novo. Id. at 1102. When reviewing the Agencies' interpretation and implementation of the Endangered Species Act, we give strict effect to the unambiguous intent of Congress if Congress has clearly spoken to the issue before us. However, if Congress is silent on the issue and has delegated authority over the subject matter to the Agencies, we defer to the Agencies' construction, unless, in context of the Act, the Department's construction is unreasonable or impermissible. Hoyl v. Babbitt, 129 F.3d 1377, 1385 (10th Cir. 1997) (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 845 (1984)). "[W]e must consider the language of the relevant statutory scheme as illuminated by 'the provisions of the whole law, and ... its object and policy.'" Arco Oil & Gas Co. v. EPA, 14 F.3d 1431 (10th Cir. 1993) (quoting Aulston v. United States, 915 F.2d 584, 589 (10th Cir. 1990), cert. denied, 500 U.S. 916 (1991)). B. Statutory Context 23 Congress enacted the Endangered Species Act in 1973 to "provide for the conservation, protection, restoration, and propagation of species of fish, wildlife, and plants facing extinction." S. Rep. No. 93-307, at 1 (1973), reprinted in 1982 U.S.C.C.A.N. 2989 (emphasis added); see also 16 U.S.C. 1531(b). Toward that end, the Endangered Species Act authorizes the Secretary of the Interior to list domestic or foreign species as endangered or threatened. 16 U.S.C. 1533(a) - (b). Once a species is so listed, it is afforded certain protections, and federal agencies assume special obligations to conserve, recover and protect that species. For example, section 4(f), 16 U.S.C. 1533(f), directs the Secretary to develop and implement recovery plans for the "conservation and survival" of listed species "unless he finds that such a plan will not promote the conservation of the species." In addition, section 7(a)(1) authorizes the Secretary to "live" trap and "transplant" (reintroduce) rare species, if necessary, to bring an endangered or threatened species to the point at which the protective measures of the Endangered Species Act are no longer necessary. See 16 U.S.C. 1536(a)(1) and 1532(3) (definition of "conservation"). 24 Congress added section 10(j) to the Endangered Species Act in 1982 to address the Fish and Wildlife Service's and other affected agencies' frustration over political opposition to reintroduction efforts perceived to conflict with human activity. Although the Secretary already had authority to conserve a species by introducing it in areas outside its current range, Congress hoped the provisions of section 10(j) would mitigate industry's fears experimental populations would halt development projects, and, with the clarification of the legal responsibilities incumbent with the experimental populations, actually encourage private parties to host such populations on their lands. H.R. Rep. No. 97-567, at 8 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2808, 2817; see also 16 U.S.C. 1539(j). 25 Section 10(j), 16 U.S.C. 1539(j), provides: Experimental populations 26 (1) For purposes of this subsection, the term "experimental population" means any population (including any offspring arising solely therefrom) authorized by the Secretary for release under paragraph (2), but only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species. 27 (2)(A) The Secretary may authorize the release (and the related transportation) of any population (including eggs, propagules, or individuals) of an endangered species or a threatened species outside the current range of such species if the Secretary determines that such release will further the conservation of such species. 28 (B) Before authorizing the release of any population under subparagraph (A), the Secretary shall by regulation identify the population and determine, on the basis of the best available information, whether or not such population is essential to the continued existence of an endangered species or a threatened species. 29 (C) For the purposes of this chapter, each member of an experimental population shall be treated as a threatened species; except that 30 (i) solely for purposes of [section 7, 16 U.S.C. 1536] (other than subsection (a)(1) thereof), an experimental population determined under subparagraph (B) to be not essential to the continued existence of a species shall be treated, except when it occurs in an area within the National Wildlife Refuge System or the National Park System, as a species proposed to be listed under [section 4, 16 U.S.C. 1533]; and 31 (ii) critical habitat shall not be designated under this chapter for any experimental population determined under subparagraph (B) to be not essential to the continued existence of a species. 32 (3) The Secretary, with respect to populations of endangered species or threatened species that the Secretary authorized, before October 13, 1982 [the date of the enactment of this subsection], for release in geographical areas separate from the other populations of such species, shall determine by regulation which of such populations are an experimental population for the purposes of this subsection and whether or not each is essential to the continued existence of an endangered species or a threatened species. 33 (Emphasis added). 34 As the language of this provision makes clear, Congress contemplated the Secretary would promulgate special rules to identify each experimental population. As Congress explained: 35 The purpose of requiring the Secretary to proceed by regulation, apart from ensuring that he will receive the benefit of public comment on such determinations, is to provide a vehicle for the development of special regulations for each experimental population that will address the particular needs of that population. Among the regulations that must be promulgated are regulations to provide for the identification of experimental populations. Such regulations may identify a population on the basis of location, migration pattern, or any other criteria that would provide notice as to which populations of endangered or threatened species are experimental. 36 H.R. Conf. Rep. No. 97-835 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2875. In other words, Congress purposely designed section 10(j) to provide the Secretary flexibility and discretion in managing the reintroduction of endangered species. By regulation, the Secretary can identify experimental populations, determine whether such populations are essential or nonessential, and, consistent with that determination, provide control mechanisms (i.e., controlled takings) where the Act would not otherwise permit the exercise of such control measures against listed species. C. Alleged Violations 1. Geographic Separation 37 The Agencies do not dispute individual wolves may leave (and, from time to time, have left) Canada and Montana and enter the experimental population areas in central Idaho and Yellowstone. The Farm Bureaus and the Urbigkits argue, and the district court agreed, that this possibility establishes an overlap of wolf "populations," or the overlap of the experimental areas and the "current range" of naturally occurring wolf populations in contravention of the requirement in section 10(j)(1) that experimental populations of an endangered species must be wholly separate geographically from nonexperimental populations of the same species. We do not accept that contention. 38 Plaintiffs base their argument on a single piece of legislative history they claim demonstrates Congress never intended section 10(j) to lessen the Endangered Species Act protections afforded individual members of a natural population of a listed species, or to create law enforcement problems. See Wyoming Farm Bureau Fed'n, 987 F. Supp. at 1372-73. The 1982 House Report they rely on states the House Committee: 39 carefully considered how to treat introduced populations that overlap, in whole or in part, natural populations of the same species. To protect natural populations and to avoid potentially complicated problems of law enforcement, the definition [of "experimental population"] is limited to those introduced populations that are wholly separate geographically from nonexperimental populations of the same species. Thus, for example, in the case of the introduction of individuals of a listed fish species into a portion of a stream where the same species already occurs, the introduced specimens would not be treated as an "experimental population" separate from the non-introduced specimens.... If an introduced population overlaps with natural populations of the same species during a portion of the year, but is wholly separate at other times, the introduced population is to be treated as an experimental population at such time as it is wholly separate. The Committee intends, however, that such a population be treated as experimental only when the times of geographic separation are reasonably predictable and not when separation occurs as a result of random and unpredictable events. 40 H.R. Rep. No. 97-567, at 33 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2833. According to the Farm Bureaus, this passage "specifically prohibits the overlap of 'individuals' and/or 'specimens' of a species, not just the overlap of entire populations of a species," and demonstrates Congress' intent that an "experimental population" should exist "only when there is no possibility that members of the 'experimental population' could overlap with members of naturally occurring populations." They claim the Agencies erroneously fail to recognize that populations are necessarily made up of individuals; thus, the wolf reintroduction rules reflect an impermissible construction of section 10(j). 41 The Farm Bureaus further argue the reintroduction program creates law enforcement problems by characterizing naturally occurring individual wolves that wander into the experimental population as "experimental" rather than "endangered." According to the Farm Bureaus, naturally occurring individual wolves are entitled to full Endangered Species Act protection regardless of location, and because it is virtually impossible to differentiate between a naturally occurring wolf and a reintroduced wolf, officials will not be able to enforce those protections as Congress intended. 42 We begin our analysis by reviewing the statute itself, the extent to which Congress expressly defined relevant terms or otherwise clearly spoke to this issue, and conversely, the degree to which Congress delegated authority over the matter to the Agencies, in particular the Department of Interior. See Chevron U.S.A., 467 U.S. at 842-43; see also United States v. McKittrick, 142 F.3d 1170, 1173 (9th Cir. 1998), cert. denied, 119 S. Ct. 806 (1999). As the district court recognized, the Endangered Species Act does not define the relevant terms or otherwise address the precise question at issue whether the phrase "wholly separate geographically from nonexperimental populations" means that a reintroduced population of animals must be separate from every naturally occurring individual animal. Wyoming Farm Bureau Fed'n, 987 F. Supp. at 1371-74. Instead, as the statutory language and legislative history make clear, Congress deliberately left the resolution of this type management/conservation issue to the Department. See McKittrick, 142 F.3d at 1174 ("Congress' specific purpose in enacting section 10(j) was to give greater flexibility to the Secretary. Thus, each experimental population has its own set of special rules so that the Secretary has more managerial discretion. This flexibility allows the Secretary to better conserve and recover endangered species." (Quotation marks and citations omitted.)); see also H.R. Rep. No. 97-567 at 33 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2833. We therefore defer to the Department's interpretation of the phrase "wholly separate geographically from nonexperimental populations," so long as its interpretation does not conflict with the plain language of the Endangered Species Act. See Hoyl, 129 F.3d at 1385. We perceive no conflict. 43 The Department defines "population" as a potentially self-sustaining group "in common spatial arrangement,"3 and thus determined a "geographic separation" is any area outside the area in which a particular population sustains itself. See Wyoming Farm Bureau Fed'n, 987 F. Supp. at 1373; 59 Fed. Reg. at 60256. These definitions preclude the possibility of population overlap as a result of the presence of individual dispersing wolves by definition lone dispersers do not constitute a population or even part of a population, since they are not in "common spatial arrangement" sufficient to interbreed with other members of a population. Moreover, since it is highly unlikely a lone wolf will encounter another solitary wolf of the opposite sex and reproduce for two years running, the populations left behind by the lone wolves do not expand simply because they travel away. 44 This interpretation of the "geographic separation" requirement of section 10(j) is consistent with the language and objectives of the Endangered Species Act as a whole. Congress defined "species," as used throughout the Act, to represent subspecies or "any distinct population segment" of an interbreeding species. 16 U.S.C. 1532(16). This reference to species vis vis populations or population segments, as opposed to individual specimens, is repeated throughout the text of section 10(j), thus reflecting the paramount objective of the Endangered Species Act to conserve and recover species, not just individual animals. See McKittrick, 142 F.3d at 1174 (citing H.R. Conf. Rep. No. 97-835 at 30 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2871). This broader objective is further evidenced by the well-established fact individual animals can and do lose Endangered Species Act protection simply by moving about the landscape.4 Moreover, we find nothing in the Endangered Species Act that precludes steps to conserve a species in order to protect isolated individuals.5 Nor are we convinced the challenged rules present complicated law enforcement obstacles. The Department specifically determined "the experimental population area does not currently support any reproducing pairs of wolves;"6 thus, the legal protection afforded any particular wolf is clearly known, depending entirely on where the wolf is, not where it might once have been. For these reasons, we hold the Department's interpretation of the "geographic separation" provision reflects the goals of the Endangered Species Act "to protect natural populations" and "to avoid potentially complicated problems of law enforcement," H. Rep. No. 97-567, 97th Cong., 2d Sess. at 33 (1982), reprinted in 1982 U.S.C.C.A.N. at 2833, and is well within the scope of agency discretion granted by Congress and licensed by the Supreme Court. See McKittrick, 142 F.3d at 1174-75. 45 Plaintiffs' argument the Agencies failed to release the Canadian wolves outside the "current range" of naturally occurring wolves is similarly flawed since Plaintiffs rigidly define "current range" as it is used in section 10(j) to be that territory occupied by an individual wolf. The plain language of the statute does not support their interpretation. Although the statute does not define "current range," section 10(j)(2)(A) requires that an "experimental population" must be established "outside the current range of such species." 16 U.S.C. 1539(j)(2)(A) (emphasis added). As discussed above, Congress defined "species," consistent with its broad conservation and recovery goals, to constitute distinct, interbreeding population segments or subspecies, not individual animals. By definition, then, an individual animal does not a species, population or population segment make. Therefore, the Department, exercising its discretion under section 10(j), reasonably interpreted the phrase "current range" to be the combined scope of territories defended by the breeding pairs of an identifiable wolf pack or population. 2. Protection of Naturally Occurring Wolves 46 The district court determined, at the behest of the Farm Bureaus and the Predator Project, that the Department must accord full endangered species protections to any naturally occurring wolf found within the experimental areas.7 Accordingly, the district court held the final reintroduction rules, which provide that "[a]ll wolves found in the wild within the boundaries of [the experimental areas] after the first releases will be considered nonessential experimental animals,"8 (1) constitute a "de facto 'delisting'" of naturally occurring lone dispersers, and (2) illegally deny full Endangered Species Act protections to offspring of naturally dispersing wolves, and to offspring of naturally dispersing and introduced wolves, within the designated experimental areas. Wyoming Farm Bureau Fed'n, 987 F. Supp. at 1374-76. We believe this holding unnecessarily limits the administrative discretion and flexibility Congress intentionally incorporated into section 10(j), ignores biological reality, and misconstrues the larger purpose of the Endangered Species Act. 47 Pursuant to section 10(j)(2)(B), 16 U.S.C. 1539(j)(2)(B), the Secretary must, prior to authorizing a release, identify by regulation the population to be deemed experimental. As discussed above, this statutory requirement confers broad discretion to the Secretary to manage populations to better conserve and recover endangered species. Based on the facts (1) there were no reproducing wolf pairs and no pack activity within the designated experimental areas, (2) wolves can and do roam for hundreds of miles, and (3) it would be virtually impossible to preclude naturally occurring individual gray wolves from intermingling with the experimental population, 59 Fed. Reg. at 60256, 60261, the Secretary intentionally identified the experimental population as all wolves found within the experimental areas, including imported wolves and any lone dispersers and their offspring. The Department determined it could best manage the wolf reintroduction program to achieve species recovery in this manner. Id. at 60261. We find nothing in the Act that invalidates this approach by requiring the protection of individuals to the exclusion or detriment of overall species recovery, or otherwise limiting the Department's flexibility and discretion to define and manage an experimental population pursuant to section 10(j). 48 In particular, we do not read section 10(j)(1) to restrict the Secretary's authority to identify an experimental population solely on the basis of animal origin as opposed to geographic location. While the language of section 10(j)(1), read in isolation, might suggest an experimental population can only be comprised of those particular animals physically relocated (and any offspring arising solely therefrom), such a narrow interpretation is not supported by the provision, or the Endangered Species Act, read as a whole. Indeed, section 10(j)(1) expressly references the Secretary's broad discretion to identify and authorize the release of an experimental population under section 10(j)(2). Moreover, as illustrated above, when drafting section 10(j) Congress deliberately provided the Secretary with the flexibility to address the specific circumstances of any given endangered population, including the authority to identify an experimental population "on the basis of location, migration pattern, or any other criteria that would provide notice as to which populations of endangered or threatened species are experimental." H.R. Conf. Rep. No. 97-835, 97th Cong., 2d Sess. at 34 (1982), reprinted in 1982 U.S.C.C.A.N. at 2875 (emphasis added). For these reasons, we interpret the plain language of section 10(j)(1) as an expression of Congress' intent to protect the Secretary's authority to designate when and where an experimental population may be established, not as a limitation on the Secretary's flexibility. 49 The restrictive interpretation the Predator Project and Farm Bureaus advocate could actually undermine the Department's ability to address biological reality (i.e., wolves can and do roam for hundreds of miles and cannot be precluded from intermingling with the released experimental population), and thus handicap its ability to effectuate species recovery. The Endangered Species Act simply does not countenance that result. To the contrary, Congress' overriding goal in enacting the Endangered Species Act is to promote the protection and, ultimately, the recovery of endangered and threatened species.9 While the protection of individual animals is one obvious means of achieving that goal, it is not the only means. It is not difficult to imagine that sound population management practices tailored to the biological circumstances of a particular species could facilitate a more effective and efficient species-wide recovery, even if the process renders some individual animals more vulnerable. However, neither Congress nor this court are equipped to make that type of species management decision. Recognizing that fact, Congress left such decisions to the Department. We conclude the Department reasonably exercised its management authority under section 10(j) in defining the experimental wolf population by location.10 3. Protection of Distinct Subspecies 50 The Urbigkits claim on cross-appeal there exists a genetically distinct subspecies of wolf in Yellowstone and Wyoming, Canis lupus irremotus. They further claim the Agencies failed to adequately consider the impacts of the reintroduced "Canadian" wolves on that naturally occurring subspecies, in violation of section 7 of the Endangered Species Act, 16 U.S.C. 1536. According to the Urbigkits, the Agencies ignored their own expert, Dr. Ron Nowak, a Fish and Wildlife Service taxonomist, who commented that "[a] big part of the conservation of a full species is to insure that its component subspecies and populations remain intact and in place," that there is a "subspecific distinction" between the original Yellowstone wolf and the reintroduced wolves, and that "[i]f there were actually a surviving population of the original Yellowstone wolf, every effort should be made to maintain its purity and to avoid bringing in other wolves." The Urbigkits contend that because the subspecies irremotus was originally listed in 1973 and not specifically delisted or declared extinct in 1978 when Endangered Species Act protection was extended to all wolf subspecies, irremotus is still a legally listed endangered species entitled to full protection under the Act, like Canis lupus baileyi, the Mexican wolf subspecies.11 After careful analysis, we conclude these claims lack both factual and legal support. 51 The Agencies decided to reintroduce gray wolves from Canada without reference to subspecific differences. They based this decision on (1) the lack of evidence any wolf population existed in the reintroduction areas at the time of reintroduction; (2) scientific evidence that most of the historically recognized subspecies of Canis lupus (including irremotus) do not warrant recognition under modern taxonomic classification methods; and (3) the likelihood that even if there had been a distinct subspecies found in the middle to northern United States, as wolves are known to disperse and interbreed over hundreds of miles, its range would have overlapped with a more northern subspecies in southwestern Canada and the border states. Accordingly, the Agencies concluded: 52 The original genetic stock cannot be restored to the area, as it no longer exists. However, if taken from southwestern Canada, reintroduced wolves will be of the same genetic stock from which natural dispersers no doubt immigrated into the original Yellowstone population, the same stock as those currently recolonizing Montana and Idaho, and the same stock that likely will get to Yellowstone through natural dispersal .... In other words, since we can not bring back the Northern Rocky Mountain Wolf, regardless of whether it deserved to be a separate subspecies, we can do the next best thing and assist nature in restoring the wolf to the northern Rockies. 53 The factual, scientific determination that the subspecies irremotus no longer exists is supported by evidence in the record comparing older taxonomic studies to more recent and sophisticated studies. The more recent studies conclude there is very little differentiation between the many subspecies of gray wolf previously recognized. This determination is further supported by a lack of physical evidence demonstrating the presence of any wolf population, let alone a genetically distinct wolf population, in either the Yellowstone or central Idaho reintroduction areas. In rebuttal, the Urbigkits proffer the statements of Dr. Nowak, who opined there is "a subspecific distinction" between the original Yellowstone wolf and the reintroduced wolves that would be worthy of protection "[i]f there were actually a surviving population of the original Yellowstone wolf." While we appreciate the relevance of Dr. Nowak's opinion on the issue of genetic variation and the importance of subspecies conservation where an identifiable subspecies exists, we fail to see how it refutes the Agencies' conclusion the subspecies irremotus does not exist. Applying the arbitrary and capricious standard of review, we cannot displace the Defendants' choice between two fairly conflicting views, and must defer to the agencies' view on scientific matters within their realm of expertise. Trimmer, 174 F.3d at 1102; National Cattlemen's Ass'n v. EPA, 773 F.2d 268, 271 (10th Cir. 1985). Because this is a scientific matter within the Agencies' expertise, and because there is ample evidence in the administrative record to support the Defendants' position, we uphold their subspecies conclusions.12 4. National Environmental Policy Act 54 The Urbigkits further argue on cross-appeal the district court erred in rejecting their claim the Defendants violated the National Environmental Policy Act by failing to adequately analyze the impacts of wolf reintroduction on naturally occurring wolf populations, including distinct subspecies, or to investigate the need for additional research. Having studied the arguments and administrative record, we agree with the district court the Urbigkits' National Environmental Quality Act claims boil down to a disagreement over scientific opinions and conclusions. The fact the Urbigkits disagree with the Defendants concerning the existence of a distinct subspecies of wolf in Yellowstone National Park and the impacts of the reintroduction program on that subspecies and other naturally occurring wolves, and cite evidence in the record they believe supports their position, simply does not constitute a National Environmental Policy Act violation. 55 We have long acknowledged the National Environmental Policy Act "'prescribes the necessary process,'" but "'does not mandate particular results.'" Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1522 (10th Cir. 1992) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989)). In other words, the Act "prohibits uninformed rather than unwise agency action." Robertson, 490 U.S. at 351. Accordingly, so long as the record demonstrates the Agencies took a "hard look" at the environmental consequences of the wolf reintroduction program, we will not second-guess the wisdom of their ultimate decision or conclusions concerning the need for additional research or the impacts of wolf reintroduction on naturally occurring populations or subspecies. See Colorado Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1171-72 (10th Cir. 1999).13 56 The administrative record establishes that the Agencies analyzed the alleged existence of naturally occurring wolves in the experimental population areas, studied the arguments pertaining to subspecies identification and recognition, and catalogued the research studies and scientific sources on which they relied. Because of the lack of evidence of wolf populations (pack activity) in Yellowstone or central Idaho, and the scientific evidence supporting a reduction in the number of recognized subspecies, the Agencies determined to forego additional analysis of these specific issues in the Draft Environmental Impact Statement or Final Environmental Impact Statement. The Agencies further concluded that these issues, which were identified during the public scoping process, would not be impacted significantly by any of the wolf reintroduction alternatives being considered since none of the reintroduction alternatives would hinder ongoing efforts to monitor wolf activity, preclude further study of the number and distribution of wolf subspecies in North America, or otherwise negatively impact wolf research. It is apparent the Agencies based these conclusions on the reasoned opinions of and data gathered by Fish and Wildlife Service and National Park Service experts. "[A]gencies are entitled to rely on their own experts so long as their decisions are not arbitrary and capricious." Colorado Envtl. Coalition, 185 F.3d at 1173 n.12 (citing Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989)). 57 We appreciate that the Urbigkits patently disagree with the Agencies' conclusions concerning (1) the existence of naturally occurring wolf populations, (2) the existence of an alleged subspecies of wolf unique to Yellowstone National Park, and (3) the significance of any impact the wolf reintroduction program would have on naturally occurring wolves. We also recognize the Urbigkits cite evidence in the administrative record they believe supports their position. However, the mere presence of contradictory evidence does not invalidate the Agencies' actions or decisions. See Trimmer, 174 F.3d at 1102. The Urbigkits fail to show a lack of substantial evidence in the administrative record to support the Agencies' conclusions, or that the Final Environmental Impact Statement was otherwise inadequate to foster informed public participation or informed decision-making. Consequently, we hold the Agencies did not violate the National Environmental Policy Act. III. Conclusion 58 After setting aside the final wolf reintroduction rules as unlawful, the district court ordered Agencies to remove all Canadian wolves and their progeny from both experimental population areas. The Predator Project, Sinapu and the Gray Wolf Committee argue on appeal this remedy is inappropriate and represents an abuse of the district court's discretion. Because we uphold the challenged wolf reintroduction rules as lawful under the Endangered Species Act and the National Environmental Policy Act, we need not address the propriety of the district court's remedy. We REVERSE the order and judgment of the district court, VACATE the district court's stay order, and REMAND with instructions to the district court to enter an order upholding the challenged wolf reintroduction rules. Notes: 1 During this time the United States Fish and Wildlife Service ("Fish and Wildlife Service") considered the Northern Rocky Mountain Wolf a distinct subspecies of the gray wolf. As more fully discussed infra, taxonomists have since tended to recognize fewer subspecies of wolves. 2 We note the Friends of Animals, Inc. and Mr. Hill present issues and arguments in their amici briefs. We will not consider those arguments or resolve those issues here, as the parties did not adopt them by reference, they do not involve jurisdictional questions or touch on issues of federalism or comity we might consider sua sponte, and we perceive no other exceptional circumstance to justify our consideration of issues raised solely by amicus. See Tyler v. City of Manhattan, 118 F.3d 1400, 1403-04 (10th Cir. 1997) (court of appeals should exercise discretion to consider new issues and arguments advanced by amicus only in exceptional circumstances). 3 The Department generally defines "population" as "a group of fish or wildlife ... in common spatial arrangement that interbreed when mature." 50 C.F.R. 17.3. It refined that definition in the context of the wolf reintroduction regulations to mean "at least two breeding pairs of gray wolves that each successfully raise at least two young" yearly for two consecutive years. 59 Fed. Reg. at 60256. 4 As amici, Environmental Defense Fund and others aptly summarize: The line dividing protected and unprotected (or differently protected) populations is sometimes an international boundary (e.g., grizzly bears, which south of the US-Canada border are threatened, but north of the border are unlisted [40 Fed. Reg. 31376 (July 28, 1975), codified at 50 C.F.R. 17.11(h) (1977)]), a state boundary (e.g., brown pelicans, which west of the Mississippi-Alabama state line are listed as endangered, while east of that line are unlisted [50 Fed. Reg. 4938 (Feb. 4, 1985), codified at 50 C.F.R. 17.11(h) (1997)]), a county boundary (e.g., American alligators which were once listed as endangered everywhere other than in three Louisiana parishes [40 Fed. Reg. 44412 (Sept. 26, 1975)]), a measure of latitude (e.g., bald eagles, which until 1978 were listed as endangered south of 40 degrees north latitude, while those to the north were unlisted [50 C.F.R. 17.11(i)(1977), revised at 43 Fed. Reg. 6233 (Feb. 14, 1978)]), a point on the coast (e.g., coho salmon, which, if they spawn south of Cape Henry Blanco in Oregon are threatened, but which, if they spawn north of the cape are unlisted [62 Fed. Reg. 24588 (May 6, 1997)]), a distance from the coastline (e.g., western snowy plovers, which are threatened within 50 miles of the Pacific coast, but unlisted beyond that distance [58 Fed. Reg. 12864 (March 5, 1993)]), or even a point on a river (e.g., least terns, which are endangered along the Mississippi River and its tributaries north of Baton Rouge, but south of Baton Rouge lack any ... protection [50 Fed. Reg. 21784, 21789 (May 28, 1995)]). Indeed, the protection afforded the gray wolf itself depends on the geographic location (if an "endangered" wolf in Wisconsin crosses the border into Minnesota it becomes "threatened," and therefore has fewer Endangered Species Act protections, 43 Fed. Reg. at 9611-12, codified at 50 C.F.R. 17.11(h)(1997)). 5 This conclusion represents our major departure from the district court's reasoning, and eliminates the premise on which the district court held the Department had violated its own regulations. Wyoming Farm Bureau Fed'n, 987 F. Supp. at 1373-74. As explained more fully in section II.C.2 of this opinion, we hold the Department may, consistent with the plain language of section 10(j) and the context of the Endangered Species Act as a whole, treat all wolves found within the boundaries of the designated experimental population areas, including any lone dispersing wolves that may enter those areas, as nonessential experimental animals. Moreover, we hold the district court erred to the extent it suggested there is a temporal constraint on when and how long the Department may maintain an experimental population. While the regulations require an analysis of the degree to which experimental and natural populations might overlap at predictable periodic times in order to determine when an introduced population is experimental, they do not require experimental and natural populations be forever kept distinct. To hold otherwise would be to undermine the recovery objective of section 10(j) altogether. See 59 Fed. Reg. at 60261, 60276 (the Department designed the reintroduction program in part to expedite gray wolf recovery by encouraging interbreeding between experimental and native populations). 6 59 Fed. Reg. at 60256. We discuss and uphold this factual determination in section II.C.4. 7 We note the Predator Project largely supports the government's interpretation and implementation of the Endangered Species Act through the wolf reintroduction program. Its point of contention on appeal concerns "the management of Idaho's naturally occurring wolves, and ... not ... the status of the released wolves in Idaho, and still less the treatment of released wolves in Yellowstone." 8 59 Fed. Reg. at 60266 (50 C.F.R. 17.84(i)(7)(iii)); see also id. at 60261 (response to Comment 16). 9 See H.R. Conf. Rep. No. 97-835, 97th Cong., 2d Sess. at 30 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2871 ("In enacting the Endangered Species Act, Congress recognized that individual species should not be viewed in isolation, but must be viewed in terms of their relationship to the ecosystem of which they form a constituent element. Although the regulatory mechanisms of the Act focus on species that are formally listed as endangered or threatened, the purposes and policies of the Act are far broader than simply providing for the conservation of individual species or individual members of listed species." (Emphasis added.)). 10 As amici Environmental Defense Fund and others aptly point out: The wolf reintroduction is unusual only in that the source animals came from Canada, where the wolf is unprotected by the [Endangered Species Act]. In every other instance in which experimental populations have been established pursuant to section 10(j), the source animals were [Endangered Species Act]-protected individuals taken either directly from the wild or from captivity. [Delmarva fox squirrel, southern sea otter, yellowfin madtom, Colorado squawfish and woundfin, red wolf, whooping crane.] Moreover, in at least three instances, every last individual of an endangered species has been captured and placed in a captive breeding program, and some of them or their endangered progeny were later reintroduced into the wild as part of a "threatened" experimental population. [Guam rail, black-footed ferret, California condor.] Thus, in each case, the protection afforded some "endangered" individuals has been diminished. The absence of any non-endangered individuals of these (and most other) endangered species makes that a practical necessity, and one that Congress clearly understood. Moreover, that Congress intended that some individual animals could lose their former "endangered" status as a result of action taken under section 10(j) is also apparent from section 10(j)(3), 16 U.S.C. 1539(j)(3), which authorizes the Secretary retroactively to designate previously introduced populations as "experimental" and thus to change their status and the concomitant protection from "endangered" to "threatened." 11 The Northern Rocky Mountain Wolf, Canis lupus irremotus, was listed as an endangered subspecies of gray wolf, together with three other gray wolf subspecies, in June 1973. 43 Fed. Reg. at 9607. In 1977, the Fish and Wildlife Service proposed to combine those subspecies, and instead list the entire species, Canis lupus, as endangered in the lower forty-eight states, except Minnesota. The proposed reclassification became final in 1978. Id. at 9607-08, 9610-12. The Urbigkits reason that because the Canis lupus irremotus subspecies was originally listed and never formally delisted, it is entitled to full Endangered Species Act protection separate and apart from the broader gray wolf recovery program. Given that premise, they further reason the reintroduction of gray wolves from Canada amounts to a de facto delisting of the irremotus subspecies. The Mexican gray wolf was listed as an endangered subspecies in April 1976. (63 Fed. Reg. 1752 (January 12, 1998)). Like the irremotus listing, this listing was superceded by the 1978 reclassification designating the entire species of gray wolf as endangered. However, unlike irremotus, identifiable, captive populations of the Mexican gray wolf exist and are the subject of an independent reintroduction program in east-central Arizona and west-central New Mexico. See 63 Fed. Reg. 1752, 1753 (January 12, 1998); 50 C.F.R. 17.84(k). 12 In any event, we do not believe the Endangered Species Act mandates the protection of the irremotus subspecies to the exclusion of reintroducing the gray wolf species into Yellowstone and central Idaho. While the Urbigkits correctly point out the Act permits subspecific protection vis vis defining "species" broadly to include subspecies, see 16 U.S.C. 1532(16), they erroneously assert it mandates such protection. Nowhere does the Endangered Species Act require the Secretary to designate experimental populations at the subspecies level. To the contrary, section 10(j) expressly authorizes the Secretary to make experimental population determinations at the species level: (B) Before authorizing the release of any population under subparagraph (A), the Secretary shall by regulation identify the population and determine, on the basis of the best available information, whether or not such population is essential to the continued existence of an endangered species or a threatened species. 16 U.S.C. 1539(j)(2)(B). The only legal impediment this provision creates to the reintroduction of a listed species (or subspecies) is if there is an existing subspecies population within the experimental area. As discussed above, the Agencies reasonably determined there was no such existing population. For these same reasons, we do not believe the Agencies' actions operate as a de facto delisting of the subspecies irremotus. As discussed above, the 1978 ruling extending Endangered Species Act protections to all gray wolves does not diminish the protection afforded a subspecies, generally, or under a section 10(j) reintroduction program, if a subspecies population is present within the proposed reintroduction area. Indeed, the Fish and Wildlife Service expressly noted in the 1978 ruling it would continue to recognize "valid biological subspecies" for purposes of research and conservation. 43 Fed. Reg. at 9610. The fact remains, however, the Agencies reasonably determined there is no irremotus population within the designated reintroduction area. 13 The Urbigkits attempt to recharacterize their claim challenging the adequacy of the Final Environmental Impact Statement into one of statutory construction deserving of de novo, non-deferential review. To the extent they assert statutory construction arguments, we fully considered and addressed those arguments in the context of our discussion of the merits of their Endangered Species Act claims. As noted above, the standards under which we review National Environmental Policy Act issues are well established and embody deference to the administrative agency. Specifically, [i]n reviewing the adequacy of a final environmental impact statement we merely examine whether there is a reasonable, good faith, objective presentation of the topics the National Environmental Policy Act requires an environmental impact statement to cover. Our objective is not to "fly speck" the environmental impact statement, but rather, to make a pragmatic judgment whether the environmental impact statement's form, content and preparation foster both informed decision-making and informed public participation. Colorado Envtl. Coalition, 185 F.3d at 1172 (alterations, quotation marks and citations omitted).

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: [email protected]. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Rockingham No. 2014-024 GEORGE MAROUN, SR. & a. v. DEUTSCHE BANK NATIONAL TRUST COMPANY Argued: September 18, 2014 Opinion Issued: December 30, 2014 Paul A. Petrillo, of Salem, by brief and orally, for the plaintiffs. Hinshaw & Culbertson LLP, of Boston, Massachusetts (Marissa I. Delinks and Justin M. Fabella on the brief, and Ms. Delinks orally), for the defendant. CONBOY, J. The plaintiffs, George Maroun, Sr. (husband) and Edith Maroun (wife), filed a petition seeking to enjoin the defendant, Deutsche Bank National Trust Company (bank), from foreclosing on property owned by the wife. The Superior Court (McHugh, J.) denied the plaintiffs’ summary judgment motion and granted the bank’s cross-motion for summary judgment. The plaintiffs appeal, and we affirm. I. Background The following facts are drawn from the trial court’s order or are otherwise undisputed on the record before us. Prior to 1991, the plaintiffs owned property in Salem (the property) together. In 1991, the husband executed a deed (1991 deed) that conveyed his interest in the property to the wife. Ten years later, in 2001, the husband executed a notarized affidavit (2001 affidavit), which stated that at the time he executed the 1991 deed he was married to the wife and that, “through accident, inadvertence or mistake, the deed did not state that [he] released [his] homestead rights.” The husband purportedly made the 2001 affidavit “to correct said omission.” The affidavit referenced only the 1991 deed, and the correction did not purport to relate to any specific mortgage on the property. The affidavit was filed with the Rockingham County Registry of Deeds. Also in 2001, the husband and wife executed a mortgage on the property (2001 mortgage), which stated: “I, George C. Maroun, husband of mortgagor, hereby waive all rights of homestead and other interests herein.” In 2002, the husband and wife executed another mortgage on the property (2002 mortgage) that included the same language waiving the husband’s homestead right and other interests in the property. In 2006, the wife, alone, executed both a promissory note and a mortgage on the property (2006 mortgage), which are the subject of this litigation. The mortgage document erroneously states that the wife is a single woman. Although the mortgage document also states, “Borrower [wife], and Borrower’s spouse, if any, release all rights of homestead . . . and . . . other interests in the Property,” the husband did not sign the note or the mortgage document. In 2009, the mortgage was assigned to the bank. The bank took no action to address the status of the husband’s homestead right. In 2008, the wife filed an individual Chapter 13 bankruptcy petition that listed the property as an asset on the required schedule of real property. In 2010, the wife filed amended schedules of assets with the bankruptcy court in her bankruptcy case that asserted that the husband possessed a homestead right in the property and that the husband’s claim had a higher priority than the 2006 mortgage. When the wife ultimately emerged from bankruptcy protection, she was required to pay some prepetition arrearage amounts secured by the 2006 mortgage and to make certain ongoing payments on the debt. Following her discharge, the wife did not cure her arrears, and the bank sought to foreclose upon the property. The plaintiffs filed a petition for injunctive relief in the superior court, arguing that the husband’s homestead right has priority over the 2006 mortgage debt, and requesting a permanent injunction against the bank’s foreclosure sale of the property. The parties agreed that there were no disputed issues of material fact, and each moved for summary judgment. The trial court granted the bank’s motion for summary judgment and denied the plaintiffs’ motion. On appeal, the plaintiffs argue that the trial court erroneously concluded that the husband waived or released his homestead rights with respect to the 2 2006 mortgage. The plaintiffs also contend that the trial court erred by not finding that, pursuant to the doctrines of res judicata and collateral estoppel, the bank is estopped from foreclosing on the husband’s homestead rights based upon rulings in the wife’s bankruptcy case. Finally, despite the trial court’s finding that an erroneous reference to the wife’s status as a single woman in the 2006 mortgage document was probably a scrivener’s error, the plaintiffs assert that the erroneous reference “is not without relevance.” We address each argument in turn. II. Standard of Review In reviewing the trial court’s rulings on cross-motions for summary judgment, “we consider the evidence in the light most favorable to each party in its capacity as the nonmoving party and, if no genuine issue of material fact exists, we determine whether the moving party is entitled to judgment as a matter of law.” Granite State Mgmt. & Res. v. City of Concord, 165 N.H. 277, 282 (2013) (quotation omitted). “If our review of that evidence discloses no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law, then we will affirm the grant of summary judgment.” Id. (quotation omitted). III. Waiver of Homestead Right The trial court concluded that the husband’s notarized 2001 “affidavit explaining that his intent in giving the deed was to release his homestead rights” was “sufficient to validly waive his homestead rights” as to the 2006 mortgage. On appeal, the plaintiffs argue that the trial court erroneously “imputed” the husband’s prior waivers of his homestead right, including the waiver in the 2001 affidavit, to the 2006 mortgage because the homestead statute “does not contain conditional words or phrases regarding when or how frequently a written waiver or encumbrance of [the] homestead must occur to be valid.” Resolving this issue requires us to interpret and apply the statutory homestead exemption. See RSA 480:1, :3-a, :5-a (2013), :4 (Supp. 2014). The interpretation and application of statutes present questions of law, which we review de novo. Deyeso v. Cavadi, 165 N.H. 76, 79 (2013). In matters of statutory interpretation, we are the final arbiters of the legislature’s intent as expressed in the words of the statute considered as a whole. Chase v. Ameriquest Mortgage Co., 155 N.H. 19, 22 (2007). When examining the language of a statute, we ascribe the plain and ordinary meaning to the words used. Id. We do not construe statutes in isolation; instead, we attempt to do so in harmony with the overall statutory scheme. Id. When interpreting two or more statutes that deal with a similar subject matter, we construe them so that they do not contradict each other, and so that they will lead to reasonable results and effectuate the legislative purpose of the statutes. Id. Statutory 3 homestead protections are universally held to be liberally construed to achieve their public policy objective. See Deyeso, 165 N.H. at 80. In New Hampshire, “[e]very person is entitled to $100,000 worth of his or her homestead, or of his or her interest therein, as a homestead.” RSA 480:1. “The homestead right is generally exempt from attachment or encumbrance.” Stewart v. Bader, 154 N.H. 75, 88 (2006). “The purpose of the homestead exemption is to secure to debtors and their families the shelter of the homestead roof.” Deyeso, 165 N.H. at 79; see also Gunnison v. Twitchel, 38 N.H. 62, 69 (1859) (“[T]he great and paramount object of the homestead act [is] . . . to protect and preserve inviolate . . . a family home . . . .”). “The exemption protects the family from destitution, and protects society from the danger of its citizens becoming paupers.” Deyeso, 165 N.H. at 79-80 (quotation, brackets, and ellipsis omitted). “It also promotes the stability and welfare of the state by encouraging property ownership and independence on the part of the citizen.” Id. at 80 (quotation and brackets omitted). The statutory protection of the homestead right also extends to spouses who occupy the homestead but are not title owners of the property: “The owner and the husband or wife of the owner are entitled to occupy the homestead right during the owner’s lifetime,” and, after the owner’s death, the surviving spouse is entitled to the homestead right during his or her lifetime. RSA 480:3-a; see Bothell v. Sweet, 6 A. 646, 648 (N.H. 1886) (concluding that plaintiff’s homestead right was not affected by three mortgages in which she did not join because she “preserved her homestead right by occupation”). The statute, therefore, contemplates a homestead right in both spouses, even when only one spouse legally owns the homestead. See RSA 480:3-a. In accord with the statute’s purpose, RSA 480:4 states that “[t]he homestead right is exempt from attachment during its continuance from levy or sale on execution, and from liability to be encumbered or taken for the payment of debts.” The statute provides only four exceptions to the homestead right exemption: (1) “the collection of taxes”; (2) “the enforcement of liens of mechanics and others for debts created in the construction, repair or improvement of the homestead”; (3) “the enforcement of mortgages which are made a charge thereon according to law”; and (4) “the levy of executions as provided in this chapter.” RSA 480:4; see Deyeso, 165 N.H. at 79. Additionally, “[n]o deed shall convey or encumber the homestead right, except a mortgage made at the time of purchase to secure payment of the purchase money, unless it is executed by the owner and wife or husband, if any, with the formalities required for the conveyance of land.” RSA 480:5-a. Moreover, if a deed is signed by both spouses with the requisite formalities, there is no requirement that the text of the deed contain an express waiver of the homestead right. See Verdolino v. Anderson, 12 F. Supp. 2d 205, 206 (D.N.H. 1998) (rejecting argument that a mortgage document must contain an explicit waiver of the homestead exemption); Perley v. Woodbury, 76 N.H. 23, 25-26 4 (1911) (recognizing that if the statutory requirements are satisfied, an express waiver is unnecessary to encumber or convey the homestead right). Here, there is no dispute that the husband did not sign the 2006 mortgage. Therefore, the 2006 mortgage did not comply with RSA 480:5-a and did not convey or encumber any homestead right that the husband had in the property. See RSA 480:5-a. The bank does not challenge this proposition but argues, instead, that the husband did not have a homestead right to assert in 2006 because he had waived all his interest in the property, including his homestead right, by virtue of the waiver contained in his 2001 affidavit. We agree. The 2001 affidavit waiver is distinguishable from the 2001 and 2002 mortgage waivers executed in compliance with RSA 480:5-a. The two mortgage waivers cannot be interpreted to act upon any other conveyance or encumbrance. Cf. Chase, 155 N.H. at 22-23 (concluding mortgage could not constitute a charge on homestead according to law because it did not satisfy statutory requirements of RSA 477:3 and RSA 480:5-a). In contrast, by executing the 2001 affidavit, the husband purported to relinquish his homestead right, not with respect to a specific encumbrance, but with respect to the conveyance of his entire interest in the property to his wife. Thus, the issue before us is whether that waiver was effective as to the 2006 mortgage, notwithstanding the fact that the husband did not sign the mortgage document and continued to reside in the property with his wife. See RSA 480:3-a, :4. Waiver is the voluntary or intentional abandonment or relinquishment of a known right. See Debonis v. Warden, N.H. State Prison, 153 N.H. 603, 605 (2006). “[T]he general principle, recognized by repeated decisions and by common sense, is, that a provision, made by law for the benefit of particular individuals, may be waived by them.” Fletcher v. Neally, 20 N.H. 464, 466 (1846); see, e.g., Debonis, 153 N.H. at 605 (noting that petitioner waived his statutory right to a revocation hearing); Duke/Fluor Daniel v. Hawkeye Funding, 150 N.H. 581, 584 (2004) (recognizing that statutory mechanic’s lien can be waived by contract). Statutory exemptions, such as the homestead right, are generally considered personal privileges of the debtor. See Pappas v. Capps, 263 P. 411, 411 (Colo. 1928) (considering automobile exemption); Wyman v. Gay, 37 A. 325, 326 (Me. 1897) (addressing exemption of certain chattels); Currier v. Sutherland, 54 N.H. 475, 486 (1874) (recognizing that “[t]he exemption of a homestead from attachment or levy is a personal privilege which the law gives to the owner”). Other jurisdictions have concluded that “[o]ne has a right to waive an exemption in his own favor unless he also holds it for the benefit of others or unless such waiver is against public policy or some constitutional or statutory restriction.” In re Kline’s Estate, 24 N.W.2d 481, 483 (Iowa 1946) (concluding widow waived deceased husband’s exemption for automobile by selling vehicle and converting asset into nonexempt property); see also 31 Am. Jur. 2d Exemptions § 277 (2012) (noting that, “apart from an 5 attempt to do so by executory agreement,” a debtor “has the option to claim or waive or may be estopped to assert” an exemption unless “it would be contrary to public policy”). Although, generally, statutory rights may be waived, the legislature has the power to limit, or even prohibit such waivers. See, e.g., RSA 275:50 (2010) (prohibiting waiver of statutory right to payment of wages, except as provided elsewhere in the statute); RSA 540:28 (2007) (declaring any waiver by tenant of rights under RSA chapter 540 to “be null and void”). Nothing in RSA chapter 480, however, expressly prohibits a waiver of the homestead right. Further, limited waivers of the homestead right are specifically provided for under other statutory provisions. See RSA 477:44, IV (2013) (contemplating waiver of homestead right with respect to a security interest in manufactured housing); RSA 480:5-a (providing approach for conveying or encumbering the homestead right); RSA 560:14 (2007) (allowing waiver of homestead right after the right vests in surviving spouse upon the owner-spouse’s death); RSA 560:15, :16 (2007) (allowing waiver of homestead right before marriage). The language of the homestead right statute is also instructive. It provides that “[e]very person is entitled to $100,000 worth of his or her homestead, or of his or her interest therein, as a homestead.” RSA 480:1 (emphasis added). Thus, the statute casts the homestead right as a personal privilege, which the homeowner and spouse are entitled to exercise. See Reed v. Union Bank of Winchester, 70 Va. (29 Gratt.) 719, 724-27 (1878) (concluding that waiver of exemption was permitted under Virginia constitution). Therefore, we hold that homestead rights, like other statutory rights, may be waived by the holder of the right, unless such a waiver would be against public policy or some constitutional or statutory restriction. See Marine Credit Union v. Detlefson-Delano, 830 N.W.2d 859, 865 (Minn. 2013) (recognizing that the Minnesota Supreme Court has “said that homestead rights may be waived”). However, given the protective purpose of the homestead right, we further hold that there is a presumption against such a waiver, and a party may waive the homestead right broadly, as was the case here, “only by an act which evidences an unequivocal intention to do so.” Id. (quotation omitted). Of course, compliance with RSA 480:5-a, which allows for conveyance or encumbrance of the homestead right by deed, obviates the need for proof of such an unequivocal intention. See Verdolino, 12 F. Supp. 2d at 206; Perley, 76 N.H. at 25-26. Thus, if a mortgage document is signed by both spouses, “with the formalities required for the conveyance of land,” no further evidence of waiver is required. RSA 480:5-a. Whether the husband waived his homestead right here turns on the language of the 2001 affidavit and the circumstances surrounding its filing. In the 2001 affidavit, the husband states: “[T]hrough accident, inadvertence or mistake, the [1991] deed did not state that I released my homestead rights. This affidavit is given to correct said omission.” Thus, the document expressly 6 conveys the husband’s unequivocal intention to waive his homestead right with respect to the 1991 conveyance to his wife. Because we have concluded that a waiver is permissible under the homestead right statute, and the plaintiffs have not argued that this waiver violated any other statutory or constitutional provision, we next consider whether this waiver violates public policy. Historically, we have been protective of the homestead right when an owner-spouse has attempted to relinquish the right without the consent of the non-owner spouse. See, e.g., Atkinson v. Atkinson, 37 N.H. 434, 436 (1859) (recognizing wife’s homestead right over petitionee’s claim of ownership through deed executed only by the husband, notwithstanding wife’s absence from the homestead, because “she was compelled by ill treatment to abandon her husband”). Our solicitude reflects the fact that the homestead laws were primarily enacted for the protection of the non-owner spouse and dependent children. See Meyer Bros. Drug Co. v. Bybee, 78 S.W. 579, 584 (Mo. 1904). Here, the non-owner spouse expressly relinquished the statutory protections under circumstances that bear no indicia of coercion, fraud, economic abuse, or other misconduct by the wife. Thus, we do not conclude that the waiver, in and of itself, violates the policy underlying the homestead right. Further, although the trial court found that the 2001 affidavit was executed at the request of the mortgagee, the record is unclear as to which mortgagee requested the affidavit. Moreover, the plaintiffs do not allege that the 2001 affidavit was coerced or that the 2001 mortgage was conditioned upon the husband relinquishing all future claims to a homestead exemption. We, consequently, conclude that the affidavit waiver in this case did not violate the policy underlying the homestead right. Accordingly, we conclude that the husband effectively waived his homestead right by executing the 2001 affidavit, and that he no longer had a right that he could assert against future creditors. Because the husband did not have a homestead right in the property when the wife executed the 2006 mortgage, the mortgage deed was not required to be signed by the husband in order to comply with RSA 480:5-a and to be a “charge thereon according to law.” RSA 480:4; see Walbridge v. Estate of Beaudoin, 163 N.H. 804, 806 (2012). We, therefore, hold that the husband’s waiver of his homestead right was effective as to the 2006 mortgage, and that the trial court did not err by concluding “that any homestead rights possessed by [the husband are] subordinate to the mortgage held by [the bank].” IV. Res Judicata and Collateral Estoppel The plaintiffs next argue that res judicata and collateral estoppel prevent the bank from foreclosing on the property due to what they assert is the preclusive effect of the bankruptcy court’s order confirming the wife’s Chapter 7 13 plan. However, in their motion for summary judgment, the plaintiffs argued to the trial court that the bank should be “judicially estopped from asserting an alternate position from that taken by the [wife] in her earlier bankruptcy case.” (Emphasis added.) But see In re Zachary G., 159 N.H. 146, 152 (2009) (recognizing that judicial estoppel “protects judicial integrity by preventing a party from prevailing in one phase of a case using one argument and then relying upon a contradictory argument to prevail in another phase” (quotation and brackets omitted)). The plaintiffs made no argument based upon res judicata or collateral estoppel. Although the trial court observed that the bankruptcy court’s decision on the bank’s motion for relief from stay could have no preclusive effect, it rejected the plaintiffs’ judicial estoppel argument – the only argument asserted by the plaintiffs. The plaintiffs do not appeal the trial court’s ruling on their judicial estoppel argument. Because the plaintiffs did not argue res judicata or collateral estoppel before the trial court, and never filed a motion for reconsideration addressing the trial court’s observation regarding the lack of preclusive effect of the bankruptcy court’s decision, we conclude that this issue was not properly preserved for appeal. See Singer Asset Finance Co. v. Wyner, 156 N.H. 468, 472 (2007) (“It is a long-standing rule that parties may not have judicial review of matters not raised in the forum of trial.” (quotation omitted)); see also Gray v. Kelly, 161 N.H. 160, 164 (2010) (stating that both res judicata and collateral estoppel are affirmative defenses); Super. Ct. Civ. R. 9(d) (recognizing that failure to plead affirmative defenses constitutes waiver). Moreover, even assuming that the plaintiffs preserved this argument for appeal, they have not persuaded us that res judicata or collateral estoppel bars the bank’s challenge to the husband’s claimed homestead right. Both res judicata and collateral estoppel rest upon the principle that, in order for a prior decision to be given preclusive effect against a party as to a particular claim, that party must first have had a full and fair opportunity to litigate the claim. See Kremer v. Chemical Construction Corp., 456 U.S. 461, 480-81 & n.22 (1982); Gonzalez v. Banco Cent. Corp., 27 F.3d 751, 758 (1st Cir. 1994). When determining whether a party had a full and fair opportunity to litigate the claim in the first proceeding, courts consider the party’s incentive to litigate. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331-32 (1979) (noting, among other factors, that “petitioners had every incentive to litigate the SEC lawsuit fully and vigorously” and concluding that they “received a ‘full and fair’ opportunity to litigate their claims”); S.E.C. v. Monarch Funding Corp., 192 F.3d 295, 305 (2d Cir. 1999) (considering incentive to litigate with respect to collateral estoppel in sentencing hearings); Restatement (Second) of Judgments § 28 (1982) (recognizing that inadequate “opportunity or incentive to obtain a full and fair adjudication in the initial action” is an exception to issue preclusion). Here, the wife’s amended bankruptcy schedules listed as a “claim” the husband’s homestead right. This right, however, was based only upon an 8 “inchoate and imperfect right” in the property. Cross v. Weare, 62 N.H. 125, 126 (1882) (quotation omitted). Although the wife’s amended Chapter 13 plan included a plan to cure her home mortgage arrearage and stated that “[a]ll secured creditors shall retain the liens securing their claims unless otherwise stated,” the plan made no mention of the husband’s homestead right. Therefore, the husband’s homestead right would only emerge as an issue for the bank if the wife defaulted on the terms of her Chapter 13 plan and if the husband still resided with his wife in the property at the time of default. Under the circumstances, we cannot conclude that the mere possibility of a post- confirmation default provided the bank sufficient incentive to litigate the husband’s homestead claim in the wife’s bankruptcy proceeding. See In re Carvalho, 335 F.3d 45, 50 (1st Cir. 2003) (“A debtor’s post-confirmation default, like many other post-confirmation events, does not come within the preclusive reach of a confirmed plan.”); cf. Costanzo v. Harris, 427 P.2d 963, 967 (Wash. 1967) (declining to require judgment creditor to challenge validity of homestead claim before the end of the redemption period because the creditor “has no way to anticipate whether the judgment debtor will choose to redeem”). We, therefore, decline to apply res judicata or collateral estoppel to bar the bank’s challenge to the husband’s homestead right. V. Misstatement in 2006 Mortgage Document The plaintiffs also argue that the trial court erred by concluding that the misstatement in the 2006 mortgage, which referenced the wife as a single woman, was without independent legal significance. The trial court found that the reference to the wife as a single woman was an “erroneous representation” and concluded that “the probability is that there was a scrivener’s error with respect to her marital status,” which neither she nor the bank identified. The plaintiffs do not dispute these findings; rather, they argue that enforcing the 2006 mortgage with the error is inconsistent “with the statutory scheme requiring the mortgagor and his/her spouse, in order to properly encumber the homestead right, to execute the [encumbrance] of a homestead with the formalities of a land conveyance.” See RSA 480:5-a. They further assert that the description of the wife’s marital status in the 2006 mortgage document “is not without relevance” because “[r]eferencing the [wife] simply as ‘a single woman’ presumes that a bona fide purchaser or future mortgagees need look no further, perhaps to their peril.” We are not persuaded. RSA 480:5-a requires that, to convey or encumber the homestead right, a deed must be executed “with the formalities required for the conveyance of land.” The statutory formalities required for the conveyance of land include execution, acknowledgement, and recording, see RSA 477:1, :3, :3-a (2013), as well as compliance with various notification and disclosure requirements, see RSA 477:4-a to :4-h (2013). RSA chapter 477, which sets forth the requirements for conveyances of real estate, does not contain a provision invalidating deeds or mortgages that contain clerical errors, and we will not 9 read such a requirement into the statute. See Landry v. Landry, 154 N.H. 785, 788 (2007). Accordingly, we find no reason to conclude that the erroneous reference to the wife’s marital status has any legal significance with respect to whether the 2006 mortgage complied with RSA 480:5-a or to the bank’s ability to foreclose on the property. Affirmed. DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred. 10 

NO. 07-04-0534-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D JUNE 20, 2005 ______________________________ ADVANCED INDUSTRIES, INC., Appellant v. CACTUS OPERATING LTD. d/b/a CACTUS FEEDERS, and AMISTAD AVIATION, INC., Appellees _________________________________ FROM THE 69th DISTRICT COURT OF MOORE COUNTY; NO. 04-14; HON. RON ENNS, PRESIDING _______________________________ ON MOTION TO DISMISS _______________________________ Before QUINN, C.J., and REAVIS and CAMPBELL, JJ. Advanced Industries, Inc., appellant, and Cactus Operating Ltd. d/b/a Cactus Feeders, and Amistad Aviation, Inc., appellees, by and through their attorneys, have filed a motion to dismiss this appeal with prejudice because the parties have fully compromised and settled all issues in dispute and neither desire to pursue the appeal. Without passing on the merits of the case, we grant the motion to dismiss pursuant to Texas Rule of Appellate Procedure 42.1(a)(2) and dismiss the appeal. Having dismissed the appeal at the parties’ request, no motion for rehearing will be entertained, and our mandate will issue forthwith. Brian Quinn Chief Justice 2 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-7430 ROD TURNER, Plaintiff - Appellant, versus GENE JOHNSON, Director, Virginia Department of Corrections, Defendant - Appellee. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Samuel G. Wilson, District Judge. (CA-04-19) Submitted: March 30, 2005 Decided: April 8, 2005 Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Rod Turner, Appellant Pro Se. Donald Eldridge Jeffrey, III, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Rod Turner, a state prisoner, seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2254 (2000) petition. An appeal may not be taken from the final order in a § 2254 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not issue for claims addressed by a district court absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find both that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed the record and conclude that Turner has not made the requisite showing. Accordingly, we deny the motion for a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED - 2 - 

Case: 09-30697 Document: 00511028832 Page: 1 Date Filed: 02/17/2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED February 17, 2010 No. 09-30697 Summary Calendar Charles R. Fulbruge III Clerk PAUL RAY ROBBINS, Plaintiff-Appellant, versus CORRECTIONS CORPORATION OF AMERICA; TIM WILKINSON; TIM MORGAN; ANGEL MARTIN; VIRGIL LUCUS; BOBBY JINDAL; JAMES LEBLANC; MONA HEYSE; PAT THOMAS; LINDA RAMSY; A. PACHECO; DOCTOR ENGELSON, Defendants-Appellees. Appeal from the United States District Court for the Western District of Louisiana No. 1:08-CV-1054 Before DAVIS, SMITH, and DENNIS, Circuit Judges. JERRY E. SMITH, Circuit Judge:* * 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: 09-30697 Document: 00511028832 Page: 2 Date Filed: 02/17/2010 No. 09-30697 Paul Robbins, a Louisiana prisoner, appeals the dismissal of his pro se, in forma pauperis 42 U.S.C. § 1983 civil rights suit as frivolous and for failure to state a claim. We dismiss the appeal as frivolous. As the magistrate judge (“MJ”) references in his report, Robbins’s initial complaint was a sixty-one-page, typed screed outlining a host of alleged prob- lems with the way defendant Corrections Corporation of America (“CCA”) ran its facility. That identical complaint was submitted by eight prisoners, purport- edly as a class action, and appears to be a general form working its way around the prison yard. Indeed, the latest prisoner-plaintiff need only do as Robbins did: Obscure the typed-in name and write his in its place. The actual claims in the complaint were not at all of a personal nature, and Robbins included nothing to suggest that, or how, he personally suffered in- jury from the defendants’ alleged wrongful actions. The MJ ordered Robbins to amend his complaint to provide specific factual allegations to support the claim that his constitutional rights were violated,1 or his complaint would be dis- missed. The amended complaint was hardly better. In it, Robbins attempted to re- tain each claim in the original complaint just by stating that “thease fact’s do involve this inmate plantiff ‘personly’ and directly” [sic]. As the MJ put it, “[r]a- ther than provide specific facts regarding the eighteen claims, Plaintiff simply reiterated the allegations of the original complaint.” Nevertheless, the MJ tried 1 The MJ was precise about what information he needed: Specifically, Plaintiff should provide: (A) the name(s) of each per- son who allegedly violated Robbins’ constitutional rights; (B) a description of what each defendant did to violate Robbins’ rights (not the rights of other inmates); (C) the place and date(s) that each event/violation occurred; and (D) a description of the alleged injury Robbins sustained as a result of each alleged violation. (Emphasis omitted.) 2  Case: 09-30697 Document: 00511028832 Page: 3 Date Filed: 02/17/2010 No. 09-30697 to tease out just what injuries Robbins claimed he suffered, addressing his “com- plaints” relating to personal medical care, access to legal assistance, the pres- ence of female guards, and his desire for a transfer to a state-run prison facility. Ultimately, the MJ recommended dismissal under 28 U.S.C. § 1915(e)(2)(B). The district court agreed with the recommendation and dismissed the complaint both as frivolous and for failing to state a claim. We review dismissals under § 1915(e)(2)(B)(i) as frivolous for abuse of discretion. See, e.g., Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). And we review dismissals under § 1915(e)(2)(B)(ii) for failure to state a claim de novo. Because the district court did not state the subsection on which it relied, our review is de novo. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005) (per curiam). We have a “responsibility to construe pro se filings liberally.” Sossamon v. Texas, 560 F.3d 316, 322 n.3 (5th Cir. 2009), petition for cert. filed, 77 U.S.L.W. 3657 (U.S. May 22, 2009) (08-1438). Nonetheless, “litigants must still brief contentions in order to preserve them.” Longoria v. Dretke, 507 F.3d 898, 901 (5th Cir. 2007). To that end, the only claim from his amended complaint that Robbins appears still to be arguing in any detail relates to his medical care.2 And, based on the record, we agree with the MJ that Robbins “essentially com- plains that he suffers from a slew of illnesses, and that WCC [his facility] is not following the treatment prescribed by the doctors at the LSU Medical Center in Shreveport.” Robbins’s disagreement with WCC’s medical staff over his treat- ment regimen does not come close to meeting the “extremely high standard” for deliberate indifference claims. Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001); see also Varnado v. Lynaugh, 920 F.2d 320, 321 (5th 2 Robbins also raises, for the first time on appeal, a claim that the prison lost his prop- erty during a medical stay at LSU. “[I]ssues raised for the first time on appeal ‘are not review- able by this court unless they involve purely legal questions and failure to consider them would result in manifest injustice.’” United States. v. Garcia-Pillado, 898 F.2d 36, 39 (5th Cir. 1990) (quoting Self v. Blackburn, 751 F.2d 789, 793 (5th Cir. 1985)). 3  Case: 09-30697 Document: 00511028832 Page: 4 Date Filed: 02/17/2010 No. 09-30697 Cir. 1991). Thus, “even given the requisite liberal construction, [the prisoner] has failed to advance any arguments that suggest that the district court erred in dismissing his complaint.” Douglas v. Haynes, No. 09-20466, 2009 WL 3848670, at *2 (5th Cir. Nov. 18, 2009) (per curiam) (unpublished). We direct Robbins’s attention to the PLRA’s three-strikes provision, 28 U.S.C. § 1915(g). The district court’s dismissal and the dismissal of this appeal both count as strikes under § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.1996). If a prisoner accumulates three strikes, he is not allowed to bring another civil action in forma pauperis while incarcerated unless he is un- der imminent danger of serious physical injury. Robbins is so warned. The appeal is DISMISSED as frivolous. See 5 TH C IR. R. 42.2. All out- standing motions are DENIED. 4 

3 Wis.2d 196 (1958) GREEN COUNTY, Respondent, vs. CITY OF MONROE, Appellant. Supreme Court of Wisconsin. January 10, 1958. February 4, 1958. *197 For the appellant there was a brief by Cunningham & Buell of Janesville, and Arthur C. Benkert, city attorney, and oral argument by Mr. Robert J. Cunningham and Mr. Benkert. *198 For the respondent there was a brief and oral argument by Franz W. Brand, district attorney, and Howard H. Moss, special assistant district attorney. A brief amicus curiae was filed by Robert D. Sundby of Madison, legal counsel for the League of Wisconsin Municipalities. BROADFOOT, J. The sole issue in the case is whether the plaintiff county is subject to the terms, conditions, and provisions of the zoning ordinance of the defendant city in the location and construction of a county jail. There is little direct authority on the question presented. The reason therefor is apparent. Undoubtedly there have been many disputes between cities and counties as to the location of county courthouses and jails. They must have been settled in a spirit of compromise and comity. Such questions should be so settled. It is admitted by the city that its zoning ordinance could not apply to the federal government or to the state. However, it contends that a county is not a sovereign power and therefore the exemption does not apply to counties. In so far as the text writers lay down a general rule the following are typical examples: "Zoning restrictions cannot apply to the state or any of its agencies vested with the right of eminent domain in the use of land for public purposes." 8 McQuillin, Mun. Corp. (3d ed.), p. 43, sec. 25.15. In 2 Law of Zoning by James Metzenbaum (2d ed.), p. 1280, the author states: "When zoning had found itself firmly intrenched both in law and in practice, a rather novel question presented itself in the way of a challenge to the right of municipalities and other political subdivisions to use property for purposes other than those assigned under a zoning ordinance. "It was argued that if the political subdivisions were compelled to comply with zoning ordinance requirements, the *199 public welfare—intended to be one of the principal beneficiaries of zoning—might actually suffer and be injured because a denial of the right of a political subdivision to proceed with public buildings and public construction, might distinctly retard the public well-being. "Most of the courts to which the question has been submitted, appear to have decreed that unless a different intention is clearly manifested, states, municipalities, the federal government, and other public subdivisions, are not to be bound by the requirements of a zoning ordinance, especially where the proposed use is not within a `nuisance' classification and where the buildings are used for `governmental' and not merely for `proprietary' uses." At page 1289 the author states: "It may conservatively be said that where a municipality, state, or county is aiming construction of a building which will be used exclusively for governmental functions, as distinguished from a corporate or quasi-private service, a municipal zoning ordinance does not apply, unless such use be inherently a nuisance." Bassett in his book entitled "Zoning" on page 31, says: "The need of a public building in a certain location ought to be determined by the federal, state, or municipal authority, and its determination on the question of necessary or desirable location cannot be interfered with by a local zoning ordinance." The author further states on page 212: ". . . no zoning ordinance can prevent the municipal, state, or federal government from erecting buildings in the form and on the site needed by the public." The trial court held that a county is a governmental arm and agency of the state performing primarily the functions of the state locally. State ex rel. Bare v. Schinz, 194 Wis. 397, 216 N. W. 509; Crowley v. Clark County, 219 Wis. 76, 261 N. W. 221. In the erection and operation of a county *200 jail a county is engaged in a governmental function and one that is necessary in the general administration of justice and particularly in the enforcement of the state's criminal laws. The trial court further referred to the case of Milwaukee v. McGregor, 140 Wis. 35, 121 N. W. 642, wherein the city of Milwaukee attempted to enjoin the board of normalschool regents from erecting a normal-school building because the regents had not obtained a building permit pursuant to a city ordinance. An injunction was denied. It was held that the provisions of the local ordinance were not applicable to a state agency. The city contends that the legislature granted to cities the power to zone in the broadest possible language. The city presents a complete history of the state statutes delegating zoning powers to cities and contends that because of the broad language therein contained the legislature intended to give cities the power to control the location and erection of public buildings by a county. The city further contends that the best-reasoned cases in foreign jurisdictions sustain its position. It cites several cases from other jurisdictions dealing with the regulation of public buildings generally. The only case cited that involves the construction of a county jail is the case of Cook County v. Chicago, 311 Ill. 234, 142 N. E. 512. That case involved the applicability of a fire and building ordinance setting up construction standards. The case, however, cannot be a precedent because of a difference in the Illinois and Wisconsin statutes. The following quotations from the Illinois decision point out some of the differences: "The county is not required to build a courthouse within the limits of any city, but may build it elsewhere if directed so to do by the people, or may maintain or condemn land of its own volition without a vote of the people. County of Mercer v. Wolff, supra. When the county builds a courthouse within the limits of a city, it may be held that in so *201 doing it acts voluntarily. No good reason, therefore, is perceived why it should not be made amenable to the reasonable police regulations imposed by the city in the interest of the general welfare." (p. 246.) "It is the duty of the county to erect or otherwise provide, when necessary and finances will justify it, and to keep in repair, a suitable courthouse, jail, and other necessary county buildings. These, with a few other similar provisions, constitute the duties and powers delegated to the county and county boards by the legislature. There is no delegation of police power to the counties and townships of the state, and it would seem clear, therefore, that by the delegation of the police power to cities, villages, and incorporated towns the legislature intended that the exercise of that power over the property and inhabitants within the limits of the city or village should be by that municipality, subject, of course, to the right of the state, of which it is never divested, to exercise the police power." (p. 241.) The Illinois court commented at length upon the case of Pasadena School Dist. v. Pasadena, 166 Cal. 7, 134 Pac. 985, which involved the question of whether in the construction of a school building the school district was governed by the fire and building ordinance of the city and whether it was required to pay fees for inspection. The supreme court of California held that it was. In the case of Hall v. Taft, 47 Cal. (2d) 177, 302 Pac. (2d) 574, decided in 1956, the supreme court of California overruled its opinion in the Pasadena School Dist. Case. It is apparent from the above that our situation is entirely different. By statute the county board must construct the jail at the county seat. Under our statutes counties have extensive police powers. The state has its own building code governing the construction of public buildings. The state code is very comprehensive and covers safety in construction, sanitation, ventilation, and other details. The responsibility for the enforcement of the state building code *202 is not left to cities but is delegated to the state industrial commission and in the case of a county jail the plans are also subject to inspection and approval by the state department of public welfare. The general words of the statutes conferring zoning powers on cities cannot be construed to include the state, or in this instance the county, when in conflict with special statutes governing the location and construction of a county jail. The trial court in his memorandum decision analyzed other cases from foreign jurisdictions and held that they were not applicable. His analysis of the whole question was thorough and his decision was based on Wisconsin cases and Wisconsin statutes, and the result he arrived at is manifestly correct. By the Court.—Judgment affirmed.

601 F.2d 594 American Chemical Societyv.Dun-Donnelley Publishing Corp. No. 79-1099 United States Court of Appeals, Seventh Circuit 3/28/79 1 N.D.Ill. AFFIRMED

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-2492 _____________________________ JOSEPH L. MCDANIELS, Appellant, v. MARGARET A. MCDANIELS, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. W. Gregg McCaulie, Judge. August 30, 2019 PER CURIAM. DISMISSED. ROBERTS, WINOKUR, and M.K. THOMAS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Joseph L. McDaniels, pro se, Appellant. No appearance for Appellee. 2