                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

    NATIONAL VETERANS LEGAL
    SERVICES PROGRAM, et al.,
                   Plaintiffs,

                  v.                                        Civil Action No. 16-745 (ESH)

    UNITED STATES OF AMERICA,

                          Defendant.

                                   MEMORANDUM OPINION

        Plaintiffs, organizations and individuals who have paid fees to obtain records through the

Public Access to Court Electronic Records system (PACER), claim that PACER’s fee schedule

is higher than necessary to cover the costs of operating PACER and therefore violates the E-

Government Act of 2002, Pub. L. No. 107-347, § 205(e), 116 Stat. 2899, 2915 (codified as 28

U.S.C § 1913 note). (Compl. at 2, ECF No. 1.) They have brought this class action suit against

the United States under the Little Tucker Act, 28 U.S.C. § 1346(a), to recover the allegedly

excessive fees that they have paid over the last six years. (Id. at 14-15, ¶¶ 33-34.) Defendant has

moved to dismiss the suit under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), claiming

that it is barred by the first-to-file rule and does not state a claim within this Court’s jurisdiction

under the Little Tucker Act. (Def.’s Mot. Dismiss, ECF. No. 11; see also Pls.’ Opp., ECF No.

15; Def.’s Reply, ECF No. 20.) For the reasons herein, the Court will deny the motion.1

1
  Defendant has also moved for summary judgment, but it has not offered any grounds upon
which summary judgment should be granted if the motion to dismiss is denied. (See Def.’s Mot.
at 1, 19.) Therefore, the Court will deny defendant’s unsupported motion for summary
judgment.
                                        BACKGROUND

       According to plaintiffs, “PACER is a decentralized system of electronic judicial-records

databases” operated by the Administrative Office for the U.S. Courts (“AO”). (Compl. at 1, ¶ 7.)

“Any person may access records through PACER” but “must first agree to pay a specific fee.”

(Id. at ¶ 7.) Congress has authorized the Judicial Conference that it “may, only to the extent

necessary, prescribe reasonable fees . . . for access to information available through automatic

data processing equipment.” 28 U.S.C. § 1913 note. The fees “shall be deposited as offsetting

collections . . . to reimburse expenses incurred in providing these services.” Id.

       Plaintiffs allege that the fee was $.07 per page in 1998, with a maximum of $2.10 per

request introduced in 2002. (Compl. at ¶ 8.) The AO increased the fee to $.08 per page in 2005

and to $.10 per page in 2012. (Id. at ¶¶ 13, 19.) The current fee is $.10 per page, with a

maximum of $3.00 per record. (Id. at ¶ 7.) Plaintiffs claim that these fees are “far more than

necessary to recover the cost of providing access to electronic records.” (Id. at ¶ 9.) For

example, in 2012 the judiciary spent $12.1 million generated from public access receipts on the

public access system, while it spent more than $28.9 million of the receipts on courtroom

technology. (Id. at ¶ 20.) “In 2014 . . . the judiciary collected more than $145 million in fees,

much of which was earmarked for other purposes such as courtroom technology, websites for

jurors, and bankruptcy notification systems.” (Id. at ¶ 21.)

       Named plaintiffs are nonprofit organizations that have incurred fees for downloading

records from PACER. (Compl. at ¶¶ 1-3.) Plaintiff National Veterans Legal Services Program

(NVLSP) “has represented thousands of veterans in individual court cases, educated countless

people about veterans-benefits law, and brought numerous class-action lawsuits challenging the

legality of rules and policies of the U.S. Department of Veterans Affairs.” (Id. at ¶ 1.) Plaintiff

                                                 2
National Consumer Law Center (NCLC) conducts “policy analysis, advocacy, litigation, expert-

witness services, and training for consumer advocates.” (Id. at ¶ 2.) Plaintiff Alliance for Justice

(AFJ) “is a national association of over 100 public-interest organizations that focus on a broad

array of issues” and “works to ensure that the federal judiciary advances core constitutional

values, preserves unfettered access to the courts, and adheres to the even-handed administration

of justice for all Americans.” (Id. at ¶ 3.)

       Plaintiffs claim that the fees they have been charged violate the E-Government Act

because they exceed the cost of providing the records. (Compl. at 2.) Furthermore, they claim

that excessive fees have “inhibited public understanding of the courts and thwarted equal access

to justice.” (Id. at 2.) Based on the alleged violation of the E-Government Act, plaintiffs assert

that the Little Tucker Act entitles them to a “refund of the excessive PACER fees illegally

exacted.” (Id. at ¶¶ 33-34.) Plaintiffs seek to pursue this claim on behalf of a class of “all

individuals and entities who have paid fees for the use of PACER within the past six years,

excluding class counsel and agencies of the federal government.” (Id. at ¶ 27.) “Each plaintiff

and putative class member has multiple individual illegal-exaction claims against the United

States, none of which exceeds $10,000.” (Id. at ¶ 5.)

                                               ANALYSIS

       Defendant seeks dismissal of plaintiffs’ complaint on two grounds. First, defendant

argues that this suit is barred because a similar suit was filed first in the Court of Federal Claims.

Second, it argues that plaintiffs have failed to state a claim under the Little Tucker Act because

they did not first present their challenge to the PACER Service Center. The Court rejects both

arguments.

                                                  3
I.     LEGAL STANDARDS

       To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a

complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that

is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). In ruling on a 12(b)(6) motion, a court may consider the

complaint, documents incorporated in the complaint, and matters of which courts may take

judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). To

survive a motion to dismiss under Rule 12(b)(1), plaintiffs bear the burden of demonstrating that

the Court has subject-matter jurisdiction, and the Court may consider materials outside the

pleadings. Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992); Cedars-Sinai

Med. Ctr. v. Watkins, 11 F.3d 1573, 1583-84 (Fed. Cir. 1993).

II.    FIRST-TO-FILE RULE

       Under the “first-to-file rule,” “when two cases are the same or very similar, efficiency

concerns dictate that only one court decide both cases.” In re Telebrands Corp., 824 F.3d 982,

984 (Fed. Cir. 2016); see also UtahAmerican Energy, Inc. v. Dep’t of Labor, 685 F.3d 1118,

1124 (D.C. Cir. 2012) (“[W]here two cases between the same parties on the same cause of action

are commenced in two different Federal courts, the one which is commenced first is to be

allowed to proceed to its conclusion first.” (quoting Wash. Metro. Area Transit Auth. v.

Ragonese, 617 F.2d 828, 830 (D.C. Cir. 1980))).2 The rule reflects concerns that “district courts

2
 The Federal Circuit has exclusive jurisdiction over appeals from Little Tucker Act suits, and
therefore, the law of the Federal Circuit applies to both the merits of those cases and related
procedural issues. 28 U.S.C. § 1295(a)(2); Chrysler Motors Corp. v. Auto Body Panels of Ohio,
Inc., 908 F.2d 951, 952-53 (Fed. Cir. 1990); United States v. One (1) 1979 Cadillac Coupe De
Ville VIN 6D4799266999, 833 F.2d 994, 997 (Fed. Cir. 1987). Here, the Court would reach the
same result on the first-to-file issue under either the Federal Circuit’s or the D.C. Circuit’s law.
                                                  4
would be required to duplicate their efforts” and “twin claims could generate contradictory

results.” UtahAmerican, 685 F.3d at 1124. A judge considering a first-to-file challenge to a suit

that was filed second and that raises different claims from the first suit should determine

“whether the facts and issues ‘substantially overlap.’” Telebrands, 824 F.3d at 984-85.

       Defendant contends that this suit is barred by Fisher v. United States, No. 15-1575C,

2016 WL 5362927 (Fed. Cl. Sept. 26, 2016). According to defendant, both this case and Fisher

“involve allegations that the same entities utilized the PACER System and were charged more

for downloading information than is authorized by the same statutes and agreements.” (Def.’s

Mot. at 13.) Furthermore, defendant asserts that “[t]he class here would include nearly every

class member in Fisher.” (Id.) Plaintiffs respond that “plaintiff in Fisher challenges a particular

aspect of the formula that PACER uses to convert docket reports to billable pages” but he “does

not . . . challenge the PACER fee schedule itself, as our case does.” (Pls.’ Opp. at 2.)

       The Court agrees that the first-to-file rule does not apply here. According to the class

action complaint in Fisher, “PACER claims to charge users $0.10 for each page in a docket

report” and calculates pages by equating 4,320 extracted bytes to one page, thus “purporting to

charge users $0.10 per 4,320 bytes. But the PACER system actually miscalculates the number of

extracted bytes in a docket report, resulting in an overcharge to users.” First Am. Class Action

Compl. at ¶¶ 2, 37, Fisher v. United States, No. 15-1575C (Fed. Cl. May 12, 2016), ECF No. 8.

In their illegal exaction claim, the Fisher plaintiffs assert that “[t]he Electronic Public Access

Fee Schedule only authorizes fees of $0.10 per page,” but “[b]y miscalculating the number of

bytes in a page, the AO collected charges from Plaintiff and the Class in excess of $0.10 per

page . . . .” Id. at ¶¶ 73-74. In other words, Fisher claims an error in the application of the

PACER fee schedule to a particular type of request. In contrast, plaintiffs here challenge the

                                                  5
legality of the fee schedule. (Compl. at 2.) These are separate issues, and a finding of liability in

one case would have no impact on liability in the other case. Therefore, the Court will not

dismiss the suit based on the first-to-file rule.

III.    FAILURE TO STATE A LITTLE TUCKER ACT CLAIM

        The Little Tucker Act gives district courts jurisdiction over a “civil action or claim

against the United States, not exceeding $10,000 in amount, founded either upon the

Constitution, or any Act of Congress, or any regulation of an executive department, or upon any

express or implied contract with the United States.” 28 U.S.C. § 1346(a)(2). Interpreting the

identical wording of the Tucker Act, which applies to claims that exceed $10,000, the Federal

Circuit has held that a plaintiff can “recover an illegal exaction by government officials when the

exaction is based on an asserted statutory power” and “was improperly paid, exacted, or taken

from the claimant in contravention of the Constitution, a statute, or a regulation.” Aerolineas

Argentinas v. United States, 77 F.3d 1564, 1572-73 (Fed. Cir. 1996) (quoting Eastport S.S. Corp.

v. United States, 372 F.2d 1002, 1007 (Ct. Cl. 1967)); Norman v. United States, 429 F.3d 1081,

1095 (Fed. Cir. 2005). The statute causing the exaction must also provide “either expressly or by

‘necessary implication,’ that ‘the remedy for its violation entails a return of money unlawfully

exacted.’” Norman, 429 F.3d at 1095 (quoting Cyprus Amax Coal Co. v. United States, 205 F.3d

1369, 1373 (Fed.Cir.2000)); see also N. Cal. Power Agency v. United States, 122 Fed. Cl. 111,

116 (2015).

        According to defendant, plaintiffs have failed to state a claim under the Little Tucker Act

and that failure warrants dismissal under Federal Rules of Civil Procedure 12(b)(6) and also

12(b)(1), because the Little Tucker Act is the source of the Court’s jurisdiction. (Def.’s Mot. at

1, 16 n.6.) Defendant asks this Court to take judicial notice of the fact that users cannot obtain a

                                                    6
PACER account without agreeing to the PACER policies and procedures, which include a

statement that users “must alert the PACER Service Center to any errors in billing within 90 days

of the date of the bill.” (Id. at 10, 13.) On the basis of this policy, defendant argues that

(1) plaintiffs have not performed a condition precedent in the contract, which is akin to an

administrative exhaustion requirement, and (2) plaintiffs have no statutory remedy when they

have failed to fulfill the contractual condition. (Def.’s Mot. at 13-19.) Plaintiffs do not dispute

the PACER policy statement or object to this Court’s taking judicial notice of it, but they argue

that the statement is irrelevant because they are not claiming a billing error. (Pls.’ Opp. at 4-5.)

       The court in Fisher has already rejected defendant’s arguments that the PACER

notification requirement is a contractual condition or creates an administrative exhaustion

requirement. Fisher, 2016 WL 5362927, at *3, *5-*6 (reasoning that contractual conditions

must be expressly stated in conditional language and that there can be no administrative

exhaustion requirement unless the suggested administrative proceeding involves some

adversarial process). This Court need not reach those legal issues because, unlike Fisher,

plaintiffs here do not claim a billing error. Therefore, even if the notification requirement

constituted a contractual condition, it would not apply to the plaintiffs’ challenges to the legality

of the fee schedule. Likewise, even if users were required to exhaust their claims for billing

errors, that requirement would not apply to the claim in this case. In sum, the PACER policy

statement provides no basis for dismissing this suit.

                                          CONCLUSION

       For the reasons discussed above, defendant’s motion to dismiss or, in the alternative, for

summary judgment is denied. A separate Order accompanies this Memorandum Opinion.

                                                  7
                             /s/ Ellen Segal Huvelle
                             ELLEN SEGAL HUVELLE
                             United States District Judge

Date: December 5, 2016

                         8


565 S.E.2d 530 (2002)
255 Ga. App. 347
WORMLEY
v.
The STATE.
No. A02A0729.
Court of Appeals of Georgia.
May 10, 2002.
Joseph S. Rhymer, Loganville, for appellant.
W. Kendall Wynne, Jr., Dist. Atty., Alan A. Cook, Asst. Dist. Atty., for appellee.
MIKELL, Judge.
Neil Wormley was indicted for two counts of child molestation and one count of public indecency. After a bench trial, he was convicted of both child molestation counts and acquitted of public indecency. Wormley appeals from the denial of his motion for new trial, challenging only the sufficiency of the evidence. We affirm.
On appeal, we do not reweigh the evidence but view it in a light most favorable to the verdict. Cochran v. State, 248 Ga. App. 705, 548 S.E.2d 417 (2001). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Viewed most favorably to the verdict, the evidence shows that on July 4, 2000, the victims, two girls aged nine and ten, went swimming together in the lake at Matthews Park in Monroe while their families picnicked nearby. The girls were accompanied by a 13-year-old boy named Jacob, whose mother was a friend of the older girl's family. The girls testified that a stranger, subsequently identified as Wormley, approached them and asked for their names, addresses, telephone numbers, and whether they had websites. The children testified that they did not answer the man truthfully because they had been told not to talk to strangers.
During the conversation, the older child felt something like a single finger touch the front of her thigh at least five times. The younger girl testified that she felt the palm of a hand swipe her knees three or four *531 times. Wormley's arms were under the water, so the children could not see his hands. While this was happening, the younger child testified, Wormley would duck under the water, emerge, and say he was sorry.
The children testified that at Jacob's insistence, they tried to swim away from Wormley, but he followed them. The girls got out of the lake and went over to the older child's parents, but they did not mention Wormley at that time. Later, they went swimming again. The older girl testified that Wormley came up behind her, and she felt a hand "thumping" the lower part of her spine. The child left the water and told her mother.
The child's father went running down to the water and saw Wormley floating on his stomach in the shallow end. Wormley was naked, and his swim trunks were lying on shore approximately 30 feet away. The father got the trunks and told Wormley to get dressed, but when Wormley tried to stand up unclothed, the father hit him. Wormley did not resist; he put his trunks on in the water and exited the lake. The older girl's grandparents, who witnessed this incident, testified that Wormley had an erection.
Wormley testified that he had recently separated from his wife and was living out of his truck. He claimed that he enjoyed engaging in conversation with young girls and that he touched these girls accidentally. He offered no explanation for his erection, however. Moreover, when the prosecutor asked Wormley whether it was conceivable that he touched the girls for an inappropriate purpose, he replied, "I used to think that maybe I had a thing for younger women." Wormley claimed, however, that he found out after having a daughter that he had "no problems that way."
"A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person." OCGA § 16-6-4(a). Wormley argues that the state failed to prove that he engaged in any "immoral or indecent" act within the meaning of the statute because the girls did not know that he was naked or had an erection while he was touching them. We disagree.
The fact that the murky lake water obscured Wormley's state of sexual arousal is irrelevant. Immoral or indecent acts constituting child molestation refer to acts "generally viewed as morally indelicate or improper or offensive, ... [and] which offend against the public's sense of propriety." (Citation and punctuation omitted.) Chapman v. State, 170 Ga.App. 779, 780(1), 318 S.E.2d 213 (1984). "As explained in Chapman, the Georgia law against child molestation ... afford[s] protection to a child's body in those cases where the act or acts are more suggestive of sexually oriented misconduct than simply assaultive in nature." Smith v. State, 178 Ga.App. 300, 301(1), 342 S.E.2d 769 (1986). The testimony in the case at bar supports the conclusion beyond a reasonable doubt that Wormley's actions, including touching the girls, following them, and asking them personal questions, were "immoral or indecent" within the meaning of OCGA § 16-6-4(a). In addition, the evidence was more than sufficient for the trier of fact to conclude that Wormley touched the children with the intent to arouse his sexual desires. See, e.g., Arnold v. State, 249 Ga.App. 156, 158(1)(a), 545 S.E.2d 312 (2001) ("Intent, which is a mental attitude, is commonly detectable only inferentially, and the law accommodates this.").
Judgment affirmed.
ANDREWS, P.J., and PHIPPS, J., concur.


                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                            No. 96-7786

RICHARD GRIFFIN,

                                            Plaintiff - Appellant,

          versus

ELIZABETH D. SCHER, individually and in her
official capacity; STERLING HALE MOORE, indi-
vidually and in his official capacity,

                                           Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Chief
District Judge. (CA-96-1192-AM)

Submitted:   May 15, 1997                   Decided:   May 28, 1997

Before RUSSELL, HALL, and HAMILTON, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Richard Griffin, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Appellant, a Virginia inmate, appeals the district court's

order denying relief on his 42 U.S.C. § 1983 (1994) complaint under

28 U.S.C.A. § 1915A(b)(1) (West Supp. 1997). We have reviewed the

record and the district court's opinion and find that this appeal

is frivolous. Accordingly, we dismiss the appeal on the reasoning
of the district court. Griffin v. Scher, No. CA-96-1192-AM (E.D.
Va. Oct. 22, 1996). We deny Appellant's motion for the appointment

of counsel and 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


999 So.2d 816 (2008)
J. Cornelius RATHBORNE, III
v.
Carol Simmons RATHBORNE.
J. Cornelius Rathborne, III
v.
Carol Simmons Rathborne.
Nos. 2006-CA-1518, 2007-CA-0870.
Court of Appeal of Louisiana, Fourth Circuit.
December 3, 2008.
*818 Leslie A. Bonin, Kyle Schonekas, Patrick S. McGoey, Schonekas, Winsberg, Evans & McGoey, L.L.C., New Orleans, LA, for Plaintiff/Appellee (J. Cornelius Rathborne, III).
Daniel S. Mason, Zelle, Hofmann, Voelbel, Mason & Gette LLP, San Francisco, CA, Stephen B. Murray, Jr., Murray Law Firm, New Orleans, LA, for Defendant/Appellant (Carol Simmons Rathborne).
(Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
MICHAEL E. KIRBY, Judge.
Defendant/appellant, Carol Rathborne seeks review of two judgments, one dated June 27, 2006 and the other dated October 25, 2006.

STATEMENT OF THE FACTS
The parties were married on July 25, 1981 in East Hampton, New York. In 1989 they, moved to New Orleans. Two children were born of the marriage, John Campbell Rathborne ("Cam"), who reached the age of majority on November 25, 2001 and Alexis Simmons Rathborne ("Alexis"), who reached the age of majority on May 29, 2004.
On March 3, 1994, Mr. Rathborne filed for divorce in the matter entitled Rathborne v. Rathborne, No. 94-2523, Domestic Relations Section "1," Civil District Court for the Parish of Orleans, State of Louisiana. A Judgment of Divorce was entered on October 31, 1994. On May 3, 1995, the Civil District Court entered a Judgment ("1995 Child Support Judgment") reflecting the parties' agreements regarding alimony, custody, child support and community property.
After the divorce, Mrs. Rathborne became the domiciliary parent of the parties' children. Mrs. Rathborne remarried in 1998 and divorced again in 2002. Mrs. Rathborne alleges that her remarriage was an event that triggered a requirement that parties enter into subsequent negotiations. She further alleges that subsequent to her remarriage, there was yet another agreement involving alimony payments and additional expenses for the children. Mr. *819 Rathborne denies that any subsequent agreement exists.
The procedural history becomes convuluted at this point. In early March 2004, Mrs. Rathborne's counsel in California filed a Demand for Arbitration with the American Arbitration Association ("AAA"). On March 22, 2004, AAA responded noting that the Arbitration Clause contained in the 1995 Agreement did not designate AAA as the administering agency. While AAA was willing to perform this service, a waiver by both parties was required to circumvent the language of the 1995 Agreement. Mr. Rathborne declined to circumvent the 1995 Agreement and also argues that the alleged claims fell outside of the scope of the 1995 Agreement as Mrs. Rathborne was alleging arrears in activities and expenses and not the "reasonableness" of such expenses per the arbitration clause. Mrs. Rathborne dismissed the arbitration and did not seek to arbitrate again until after trial began.
Meanwhile, several times in various jurisdictions Mrs. Rathborne sued Mr. Rathborne regarding the May 3, 1995 Child Support Judgment alleging everything from breach of contract to contempt and seeking enforcement orders.
Thorough discovery was conducted, which produced records that Mr. Rathborne had made payments of his children's expenses for those years in excess of $857,771. After discovery, trial was conducted on January 25 and 27, and April 3, 4, and 5, 2006.
At trial Mrs. Rathborne offered an expert on social psychology and linguistics, Mr. Koenig, concerning a codicil to Mr. Rathborne's will.[1] After voir dire, the trial court ruled that it could interpret the codicil without his services.
Mrs. Rathborne testified at trial. She stated that she resides in Palm Beach, Florida, but also maintains an apartment in New York and a place in East Hampton, New York, Mrs. Rathborne is a graduate of Columbia University and also taught there. She was one of the first women in the corporate finance department at Solomon Brothers in New York and also worked at Citibank.
In 1980, while in California, she formed her own investment company, the Simmons Company, which specialized in investment banking and particularly asset-based transactions. In 1981, after her marriage to Mr. Rathborne, the family lived in Hillsborough, California. In 1988 they moved to New York until finally moving to New Orleans in 1989.
Mrs. Rathborne testified that she understood the 1995 Agreement to make a distinction between "expenses" and "activities." As regards the third paragraph of the 1995 Agreement's Section IV, concerning remarriage, she understood that the cash payments were structured as alimony payments so that Mr. Rathborne could get a tax deduction for them. Moreover, she stated that the corollary was that when she remarried:
... the cash component expenses for the children's expense would go away and there would be no cash. There would be no way to pay me their expenses.
Prior to remarriage, Mr. Rathborne paid alimony to Mrs. Rathborne in the amount of $21,000 per month, in addition to the tuition and medical expenses. In February of 1998, Mr. and Mrs. Rathborne met to discuss her possible marriage to Mr. *820 Ted Hamm. Mrs. Rathborne testified that those discussions led to a new agreement. Specifically she alleged that Mr. Rathborne agreed to pay for the children's summer "activities," such as culturally broadening trips to France, regattas in England, etc. Mrs. Rathborne testified that this alleged new agreement was reduced to writing and sent to her. She stated she signed it, but Mr. Rathborne never sent her a copy.
Mrs. Rathborne also testified that Mr. Rathborne failed to maintain a life insurance policy and did not notify her of its lapse. She also testified that Mr. Rathborne forgave a $150,000 note she owed him.
On cross examination, Mrs. Rathborne's high level of financial sophistication was evident and contrasted with the fact that she lost a contract worth $250,000 a year to her benefit. Also noted was the fact that Mrs. Rathborne kept a copy of the codicil document, but not the alleged new 1998 Agreement.
Mr. J. Cornelius Rathborne, III, testified that he was married to Mrs. Rathborne from approximately 1981 to 1995. Prior to marrying the appellant, he shad been married once before. Mr. Rathborne is engaged in commercial and some residential real estate development and he owns a substantial portion of the Rathborne Land Company.
Mr. Rathborne testified that he had forgotten to notify Mrs. Rathborne that the life insurance premiums had not been paid and that the insurance had lapsed in contravention of the 1995 Agreement. Nevertheless, he also stated he had directed the insurer to notify his former wife. On recross examination, Mr. Rathborne also denied that he ever told one of Mrs. Rathborne's attorneys that he forgave the $150,000 note.
After Mr. Rathborne's personal secretary testified, the trial court ruled orally that there was no agreement between the parties subsequent to the 1995 Consent Judgment. The trial court stated:
Mrs. Rathborne by her own testimony is a very well-educated woman. She has throughout these proceedings had the benefit of counsel in Louisiana, New York, Florida and California. There is no reason if there was a February/March, 1998 written agreement, Mrs. Rathborne or one of her attorneys would not have a copy.
Mrs. Rathborne has stated that the alleged 1998 agreement was not signed by Mr. Rathborne when she saw it. Therefore, there was never a written agreement consented [sic] by the parties. There has been no production of the 1998 agreement.
* * *
As stated, the Court finds that there was no agreement subsequent to the 1995 consent judgment.
Mrs. Rathborne filed a memorandum to clarify the June Judgment, and the trial court conducted a hearing on October 17, 2006. The October 25, 2006 Judgment denied Mrs. Rathborne's rale for contempt; ordered her to pay $24,157.50 ($26,157.50 minus $2,000 of expenses to which Mr. Rathborne admits owing); granted an extension of time to secure a $1 million life insurance policy, conditioned on the posting of a bond; ordered Mrs. Rathborne to execute the $150,000 promissory note; and ordered the parties to enter binding arbitration limited to expenses incurred subsequent to June 28, 2006.

ASSIGNMENT OF ERRORS
Mrs. Rathborne submits the that trial court erred as to the following:

*821 1. Denying Mrs. Rathborne's motion to stay the trial proceedings pending arbitration under the parties' 1995 Agreement;
2. Rejecting Mrs. Rathborne's claim for reimbursement of $288,770.88 in children's expenses on the basis of insufficient evidence;
3. Granting Mr. Rathborne reimbursement credit of one-half of the uninsured medical and dental expenses;
4. Granting Mr. Rathborne's motion to compel execution of the $150,000 promissory note on the basis of no admissible evidence of forgiveness.
Mrs. Rathborne submits that as to the second Judgment, the trial court erred in ordering Mrs. Rathborne to execute a promissory note drafted by counsel for Mr. Rathborne and limiting the scope of arbitration ordered by the trial court's first Judgment.

DISCUSSION
The appellate review of findings of fact is that of manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Harris v. Regional Transit Authority, 662 So.2d 134, 136 (La.App. 4 Cir.1995). Moreover, "where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable." Rosell, 549 at 844.
However, if a legal error interdicts the trial court's finding of fact, or forecloses the basis for factual findings, the appellate court must render a judgment on the trial record without remanding the case for a new trial. Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707 (La. 1980); Gonzales v. Xerox Corp., 254 La. 182, 320 So.2d 163 (La.1975).

ARBITRATION CLAUSE
First, as concerns the denial of the motion to stay proceedings pending arbitration, Section VII of the 1995 Agreement states:
Both parties do agree to submit any disputes arising hereunder concerning compliance with estimates or actual figures of gross income, sources of income, tax rates, reasonableness of school-related and college-related expenses and activities and reasonableness of medical and dental insurance premiums to binding arbitration by two independent accountants with each party choosing one accountant. If the two accountants so chosen cannot resolve any such disputes, then the two accountants shall mutually agree upon the selection of a third accountant, who is a partner of a "Big Six" accounting firm, to resolve the dispute(s).
* * *
This clause should be read in conjunction with Louisiana Revised Statute 9:4203, which states; in part:
The party aggrieved by the alleged failure or refusal of another to perform under a written agreement for arbitration, may petition any court of record having jurisdiction of the parties, or of the property, for an order directing that the arbitration proceed in the manner provided for in the agreement. Five days' written notice of the application shall be served upon the party in default. Service shall be made in the manner provided by law for the service of a summons.
* * *
A trial court has limited subject matter jurisdiction wherein a party seeks enforcement of an arbitration agreement while participating in an ongoing judicial *822 proceeding. Newlin v. Morris, XXXX-XXXX (La.App. 3 Cir. 1/5/2000), 758 So.2d 222 I.D.C., Inc. v. McCain-Winkler Partnership, 396 So.2d 590 (La.App. 3 Cir.1981). The determination of whether or not a party has waived its contractual right to arbitrate by its participation in the judicial process or by failing to timely request arbitration while participating in the judicial process is an issue properly considered by the trial court. I.D.C., Inc., supra; Sim v. Beauregard Elec. Co-op., Inc., 322 So.2d 410 (La.App. 3 Cir.1975).
In Matthews-McCracken Rutland Corp. v. City of Plaquemine, 414 So.2d 756 (La. 1982), the Louisiana Supreme Court discussed I.D.C., Inc. and Sim in its consideration of whether an arbitration agreement existing in that case had been waived. Although ultimately concluding that no waiver existed, the Supreme Court considered the waiver issue. See also Moore v. Automotive Protection Corp., 97-0623 (La. App. 4 Cir. 5/21/97), 695 So.2d 550; B & S. Equip. Co., Inc. v. Carl E. Woodard, Inc., 620 So.2d 347 (La.App. 5 Cir.1993); Newlin, supra, p. 5, at 226.
In Thomas v. Desire Community Housing Corp., 1998-2097 (La.App. 4 Cir. 7/19/00), 773 So.2d 755, we held that a right to arbitration can be waived by not seeking timely review of the trial court's overruling of the exception of prematurity. In that case, it was the defendant who was held to have waived its right to arbitration. Under these facts, we find no' error in the trial court considering these matters where plaintiff brought the suit, and after trial commenced, decided things were not going her way and then moved to stay the proceedings to seek arbitration. This is the very antithesis of the purpose of arbitration, which is to facilitate resolution of disputes, not multiply them.
Moreover, the trial court did order some issues to be arbitrated in both Judgments, while limiting their scope, just as the arbitration agreement does. The trial court properly limited the arbitrable issues to those that fell within the purview of the "reasonableness" of expenses. For these reasons, this first assignment of error has no merit.

REIMBURSEMENT CLAIMS
The next assignment of error is that the trial court improperly rejected some reimbursement claims of Mrs. Rathborne. The burden of proof in civil matters is that the plaintiff must prove her claims by a preponderance of the evidence. "Proof by a preponderance of the evidence means that the evidence, taken as a whole, shows that the fact or cause sought to be proven is more probable than not." Crowell v. City of Alexandria, 558 So.2d 216, 217 (La.1990).
In its Reasons for Judgment that denied this claim, the trial court noted that the 1995 Agreement stated the parties were supposed to negotiate the payment of expenses. Nevertheless, the testimony at trial revealed that in practice Mrs. Rathborne incurred expenses prior to consulting with Mr. Rathborne about them. At the same time, Mr. Rathborne would exercise a veto power by simply not paying certain expenses presented after they were accrued. The trial court's Reasons for Judgment deny the reimbursement claim because:
The amount allegedly owed by Mr. Rathborne changed numerous times during the course of these proceedings. The amount stated in Mrs. Rathborne's Post-Trial Memorandum is $288,770.88. Mrs. Rathborne submitted into evidence a binder of categorized expenses. However, there is no supporting documentation that indicates that the expenses were those of Cam and Alexis or that these amounts were actually paid by Mrs. Rathborne.
*823 Appellant correctly notes that Mrs. Rathborne's testimony corroborates the binder of expenses. Nevertheless, as discussed earlier, Ms. Rathborne also testified that she, or her nation-wide network of law firms, never bothered to keep a copy of the alleged 1998 Agreement worth around $250,000 per year to her. The trial court also found that Mr. Rathborne submitted evidence of payments of expenses he made for the children between 1998 and 2005, totaling $857,771.
As regards a trial court's findings of credibility, our review is that of manifest error. It was not manifestly erroneous or clearly wrong for the trial court to question the credibility of the testimony on the reimbursement claims. Rosell supra, 549 at 844. Thus, we find no error in the trial court's findings on this issue.

MEDICAL AND DENTAL EXPENSES CREDIT
The child support provision of the 1995 Agreement in Section IV, Part (2) includes a requirement that Mr. Rathborne provide health and dental insurance.
JOSEPH CORNELIUS RATHBORNE, III shall maintain medical and dental insurance on the minor children through his employer or some other business affiliation and be responsible for any uninsured medical or dental expenses incurred by the minor children except as limited below. He must approve in advance all elective treatment, but not regular visits or treatment necessitated by emergency. Should JOSEPH CORNELIUS RATHBORNE, III not have medical and dental insurance available to him through his employer or some other business affiliation, he shall make his best effort to obtain alternative insurance, at reasonable premiums, and pay all premiums due thereon. If he no longer has insurance available through his employer or some other business affiliation, or cannot provide alternative insurance, this issue must be renegotiated by the parties. If JOSEPH CORNELIUS RATHBORNE, III, has insurance, he will pay uninsured medical and dental expenses up to $5,000.00 per year. Any additional expenses shall be negotiated by the parties.
We have reviewed the record, and cannot find an instance where Mr. Rathborne requested reimbursement of medical and dental expenses outside of his appellate brief. Moreover, the language of the 1995 Agreement covering additional medical and dental expenses clearly states that they "shall be negotiated by the parties."
We find that the trial court erred in interpreting this part of the 1995 Agreement. The specific and mandatory language of Section IV Part (2) should be given more weight and prevail over the broader and more general "reasonableness of expenses" qualifier in Section VII, treating arbitration. This issue will be addressed when we discuss whether the second Judgment altered the substance of the first Judgment as regards the scope of arbitration.

EXECUTION OF PROMISSORY NOTE
Section V of the 1995 Agreement states that:
This Agreement shall not be modified or annulled by the parties hereto except by written instrument, executed in the same manner as this instrument. The failure of either party to insist upon a strict performance of any provision of this Agreement shall not be deemed a waiver of the right to insist upon a strict performance of such provision or of any other provision of this Agreement at any time.
Mrs. Rathborne offered a copy of a provision of Mr. Rathborne's will as evidence *824 of his forgiveness of her $150,000 debt to him. We note that Louisiana jurisprudence, unlike some jurisdictions, has not excluded evidence based upon federal tax implications. Nevertheless, in interpreting the 1995 Agreement of these two sophisticated parties, we would do an injustice if we did not take into account the motivations behind some of their actions. In the record Mrs. Rathborne admits that the motivation behind some of the structure of the 1995 Agreement was driven by tax implications.
Mrs. Rathborne cites Aqua Pool Renovations, Inc. v. Paradise Manor Comm. Club, Inc., 2004-119 (La.App. 5 Cir. 7/27/04), 880 So.2d 875, for the proposition that:
... written contracts may be modified by oral contracts and the conduct of the parties, even when the written contract contains a provision that change orders must be in writing.
Id., p. 880.
However, that case can be distinguished on the fact that it was a commercial case and this is a domestic one. Also, the cause or consideration and object of the obligation in a divorce settlement is much more personal than in a pool renovation/construction contract.
After conducting a review of the record, even if Mrs. Rathborne's settlement counsel's proffered testimony had been admitted, Mrs. Rathborne would not have met her burden of proving the forgiveness of a debt in writing. Thus, we find no merit in the argument that Mr. Rathborne forgave the $150,000 written debt.
As regards the note per se, we have conducted a thorough review of this lengthy record and exhibits, and have not been able to find either the note that was prepared by Mr. Rathborne's counsel nor the note prepared by Mrs. Rathborne's counsel. We note that our review is limited to the record on appeal. La. C.C.P. art. 2164. In theory, insofar as the note that Mrs. Rathborne signed does not conform with the 1995 Agreement, it is arguably void. Nevertheless, on the showing made we find no error in the outcome of Mrs. Rathborne signing a note for $150,000, as this is what the 1995 Agreement contemplated.
This leads us into the final two assignments of error which are interlinked, i.e., whether the second Judgment altered in substance the first Judgment as regards the promissory note to be signed and the scope of arbitration.
La. C.C.P. art.1951 states:
A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.
In Oreman v. Oreman, 05-955 (La.App. 5 Cir. 3/31/06), 926 So.2d 709, our brethren reemphasized that a judgment which has been signed cannot be altered, amended, or revised by the judge who rendered the same, except in the manner provided by law. La. C.C.P. art.1951.
On these two points, we find Mrs. Rathborne's arguments persuasive. The October 25, 2006 Judgment altered the substance of the June 27, 2006 Judgment in two ways. First, it arguably made the promissory note to be signed more onerous because of the additional terms inserted by Mr. Rathborne's counsel. Nevertheless, this argument must be dismissed, as the record is devoid of the note upon which review is sought. Second, the October Judgment limited the scope of the issues to be arbitrable to expenses incurred subsequent to June 28, 2006.
*825 Therefore, we reverse the finding on the issue of medical and dental expenses and include it within the arbitrable issues of the June Judgment. We affirm the Judgment of June 27, 2006, and reverse the Judgment of October 25, 2006, insofar as it alters the substance of the June 27, 2006 Judgment. We remand the remaining arbitrable issues and return jurisdiction to the trial court for any further potential disputes that may be raised during the arbitration.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
GORBATY, J., concurs.
BELSOME, J., concurs in part and dissents in part.
BELSOME, J., concurs in part and dissents in part.
I concur with the majority opinion insofar as it affirms the findings of the trial court. Additionally, I concur with respect to the majority's determination regarding the October 2006 judgment as impermissibly amending the substance of the June 2006 judgment pursuant to La.Code Civ. Proc. Art.1951.
I respectfully dissent, however, with the majority's inclusion of medical and dental expenses into arbitrable issues of the June 2006 judgment. I do not agree that the trial court erred in its interpretation of Section IV(2) of the 1995 Agreement, which provided that medical and dental expenses exceeding $5,000.00 per year shall be negotiated by the parties. The trial court found that despite this provision, the parties failed to negotiate any additional expenses, and divided the medical and dental expenses equally, less the $5,000.00 already paid by Mr. Rathborne.
With respect to arbitrable expenses, the trial court's original judgment ordered that reasonableness of expenses be submitted to binding arbitration. Section VII of the 1995 Agreement provides that the parties agree to submit to binding arbitration the "reasonableness of medical and dental insurance premiums". Notably, the trial court's judgment apportioned the medical and dental expenses between the parties, not premiums. Therefore, I respectfully dissent from the majority's reversal of the trial court's determinations regarding the medical and dental expenses.
NOTES
[1]  We note that in some jurisdictions, such as California, clauses in wills are not admissible under these circumstances because of the influence of tax consequences in drawing these documents.


129 F.3d 607
Hayesv.Western Weighing*
NO. 96-11563
United States Court of Appeals,Fifth Circuit.
Sept 24, 1997
Appeal From:  N.D.Tex. ,No.3:85CV904T

1
Affirmed.

*
 Fed.R.App.P. 34(a); 5th Cir.R. 34-2


732 F.2d 152
Watkinsv.Rice
84-8018
United States Court of Appeals,Fourth Circuit.
3/29/84

1
W.D.N.C.

DISMISSED


         NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                    File Name: 07a0434n.06
                      Filed: June 21, 2007

                                    No. 06-3452

                   UNITED STATES COURT OF APPEALS
                        FOR THE SIXTH CIRCUIT

RACHAEL COX                                      )
                                                 )
      Plaintiff- Appellant,                      )       ON APPEAL FROM THE
                                                 )       UNITED STATES
v.                                               )       DISTRICT COURT FOR
                                                 )       THE    SOUTHERN
JAMES DRAKE, OFFICER, ET AL.,                    )       DISTRICT OF OHIO
                                                 )
      Defendants-Appellees.                      )             OPINION

Before: GILMAN and SUTTON, Circuit Judges, and TARNOW, District Judge*

      ARTHUR J. TARNOW, District Judge. Plaintiff Rachael Cox brought suit

in the district court claiming that Defendants violated her Fourteenth Amendment
Due Process rights in connection with their involvement in an alleged eviction from
her rented residence. The district court determined that Plaintiff was not deprived of

her possessory interest in her rented property under Fourteenth Amendment due
process analysis. As a result, the district court granted Defendants’ motion for
summary judgment and dismissed the case. We AFFIRM the district court’s
determination that summary judgment is appropriate because Plaintiff was not

deprived of her possessory interest in her rented home by state action.
Factual History
      Since December 1, 2001, Plaintiff Rachael Cox rented a residence located at
4267 Redmont Avenue in the City of Deer Park from landlord Betty Nabors.
Plaintiff’s former husband Johnny Cox occasionally stayed at the residence with her
and her son. Rachael Cox admits that both she and Johnny Cox used crack cocaine
at the house at least a dozen times prior to the alleged eviction. Rachael Cox would
give money to Johnny Cox so that he could buy drugs for both her and her

acquaintances, who also used the drugs at her home. However, she denies that she
ever sold drugs or that she ever personally bought crack.

      On November 10, 2003, after using crack and becoming ill, Rachael Cox
telephoned her mother asking for help. After arriving at the Redmont residence, her

mother called 911. Soon thereafter, City of Deer Park police officers arrived at the
residence along with an ambulance and medical personnel. Officer James Drake was

one of the officers who arrived at the scene. The paramedics proceeded to transport
Rachael Cox to University Hospital for treatment for a cocaine overdose. No arrests

were made.
      The November 10 incident was the impetus for Rachael Cox to stop using

drugs. She began attending Alcoholics Anonymous meetings, and found herself a
sponsor within the group. Despite her change in lifestyle, Rachael Cox claims that
the Deer Park Police Department, in particular Officer Drake, began to harass her and
her acquaintances.

                                    Page 2 of 13
      Officer Drake admits that there was a departmental decision to “watch the
house, to make sure that… [the Police Department was] aware of what was going on

in the residence.” The City of Deer Park Police Chief approved of the decision to
watch Rachael Cox’s house. According to Officer Drake, this was not the first

instance where this method of surveillance had been used on a particular residence
by the City of Deer Park Police Department.

      During the first week of December 2003, Officer Drake pulled over Johnny
Cox, who was driving Rachael Cox’s car, because the license plate light was not

functional. Officer Drake asked to search the car, but Johnny Cox refused. Officer
Drake in turn radioed for search dogs from a neighboring city. The search dogs

arrived, but nothing illegal was discovered.
      On April 1, 2004, Officer Drake pulled over Rachael and Johnny Cox in order
to arrest Johnny Cox for his failure to pay the traffic ticket he had received from the
December 2003 traffic stop. Officer Drake approached the car with his gun drawn
and told Johnny Cox to step out of the car. Once out of the car, Officer Drake patted
him down, found a small pocket knife on his person and proceeded to handcuff him.
      After complying with the officers’ instruction to exit the car, Rachael Cox
agreed to an officer’s request to search her car. During the search, Rachael Cox

claims that Officer Drake remarked that she was in a lot of trouble and that the police
had an appointment to speak with her landlord at 3:00 p.m. to inform her about all the
trouble Rachael Cox was causing.
      Later that day, Rachael Cox called Officer Drake and requested a meeting to

                                     Page 3 of 13
discuss the situation. They agreed to meet at the police station. During the meeting,
Officer Drake informed Rachael Cox that a total of 16 separate 911 calls had been

placed by her neighbors concerning incidents at the residence. According to Rachael
Cox, Officer Drake also told her that “he didn’t want people like [her] in their

neighborhood, that [she] needed to leave, and that [she] needed to find a new
residence.” Officer Drake also mentioned that he was going to speak to her landlord

and tell the landlord that her house might be subject to abatement procedures if
Rachael Cox was not evicted. Officer Drake denies making these remarks.

      In response, Rachael Cox told Officer Drake that she was clean and sober. To
demonstrate her sincerity, she offered to take a urine test. Officer Drake refused the

offer and instead insisted that she “needed to find a new place to live,” and that she
“had to leave Deer Park” because she was going to be evicted. Again, Officer Drake
denies that he made these remarks.
      On March 30, 2004, Officer Drake contacted Rachael Cox’s landlord, Betty
Nabors, by telephone. He told her that he needed to talk to her in person about
problems concerning the 4267 Redmont Avenue residence. A meeting was scheduled
for April 1, 2004 in the late afternoon.
      During either the phone call or the April meeting, Officer Drake told Nabors

about the volume of phone calls the police had received related to 4267 Redmont
residence. This was the first time that Nabors had heard about such complaints.
Besides being late with rent and water bill payments, Nabors had few problems with
Rachael Cox. During the face-to-face meeting, Officer Drake informed Nabors that

                                     Page 4 of 13
she could not continue to rent to somebody who is known to be involved in drug
activity under Ohio’s abatement procedure law.1 Officer Drake asked Nabors whether

she “could do something about this,” which Nabors understood to be a suggestion
that she evict Rachael Cox. Officer Drake disputes that he requested or even

suggested that Nabors evict Rachael Cox. He claims that after reading the crime
blotter concerning the residence, Nabors stated that she was going to have to take care

of the problem.
       After the meeting, Nabors went to the 4267 Redmont residence. She knocked

on the door and Rachael Cox answered. Nabors then handed Rachael Cox a three-day
“Notice to Leave the Premises” that had been faxed to Nabors earlier by her attorney

that she subsequently completed. According to Nabors, Rachael Cox responded to
the notice by saying, “I’m leaving, I don’t want to cause you any trouble” and “I’m
sorry… you’re brought into this.” Nabors responded by telling Cox: “I don’t want
you to leave, I don’t know, I said the police said I had to. But I said—you know, after
the meeting and stuff, I have to Rachael.”
       Rachael Cox claims that a few days later Nabors called to tell her that she felt
that what the police were doing to Rachael was wrong. Nabors also expressed her
desire to not have Rachael Cox leave the 4267 Redmont residence.

       Officer Drake allegedly followed up Nabor’s three-day notice with a phone call

       1
        Ohio’s mandatory eviction statute requires landlords to evict tenants if they know or
have a reasonable suspicion that drug use or distribution is taking place in the residence or
possibly face misdemeanor charges and/or abatement pursuant to Ohio Rev. Code Ann. § 3767.

                                         Page 5 of 13
to Rachael Cox. He told Rachael Cox that she needed to leave the 4267 Redmont
residence “as soon as possible” and asked for a specific date. Officer Drake denies

that either the phone call or the conversation took place.
      Although the notice gave her until April 5 to vacate the premises, Rachael Cox

asked Nabors that she be given until April 15. Soon thereafter, Rachael Cox moved
out. As a result, Nabors did not follow through with a forcible entry and detainer

(statutory eviction) proceeding.

Procedural History
      Plaintiff filed a complaint in federal district court pursuant to 42 U.S.C. § 1983
against Officer Drake, alleging the he deprived her of her constitutional rights under

both the Ninth Amendment and the Due Process Clause of the Fourteenth
Amendment. Rachael Cox also claimed that Officer Drake defamed her. Apx. 5.

Both the Ninth Amendment and defamation claims were later abandoned. In terms
of her Fourteenth Amendment claim, Plaintiff argues that Officer Drake, acting under

the color of law, used his position to cause Betty Nabors to declare a violation of the
lease in order to effect her eviction. After discovery, the district court granted

Plaintiff’s motion for leave to amend the complaint to include Police Chief Guille and
the City of Deer Park as defendants.

      Defendants filed a joint motion for summary judgment. The district court later
granted the motion as to all Defendants. The court determined that even though
Plaintiff had a constitutionally protected possessory interest in the 4267 Redmont
residence and even though Officer Drake’s actions “were arguably reprehensible,”

                                     Page 6 of 13
“Cox was never deprived of physical access to her house by the police, or anyone
else, for that matter…” Because the actions did not amount to an eviction under Ohio

law, the district court concluded that Plaintiff’s alleged facts did not amount to a
“deprivation of Cox’s possessory property interest.” The district court did not reach

the questions of whether there was state action, whether Officer Drake was acting
pursuant to an official policy or custom, or whether Defendants would have been

entitled to qualified immunity.
      Plaintiff filed a timely notice of appeal, arguing that the district court erred in

its decision to grant summary judgment based on the lack of a constitutional
deprivation.

Standard of Review
      We review a district court’s decision to grant summary judgment de novo.

GMC v. Larned Toys, Inc., 468 F.3d 405, 412 (6th Cir. 2006)(citation omitted).
Summary judgment is only appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “In reviewing a summary
judgment motion, credibility judgments and weighing of the evidence are prohibited.

Rather, the evidence should be viewed in the light most favorable to the non-moving
party.” Id. at 412 (quotation and citations omitted). Thus for this appeal, all fact
disputes will be resolved in favor of the Plaintiff.

Due Process Analysis

                                      Page 7 of 13
      Plaintiff contends that Defendants violated her Fourteenth Amendment Due
Process rights by depriving her of the use and enjoyment of the 4267 Redmont

residence without a predeprivation hearing. To adequately plead a 42 U.S.C. § 1983
claim, Plaintiff must allege that a defendant, acting under state law, deprived her of

a right secured by the Constitution or laws of the United States- in this instance, the
Fourteenth Amendment right to due process. Thomas v. Cohen, 304 F.3d 563, 568

(6th Cir. 2002). The Due Process Clause of the Fourteenth Amendment guarantees
that “no State shall deprive ... any person of life, liberty, or property without due

process of law.” U.S. Const. amend. XIV. “It is well established that possessory
interests in property invoke procedural due process protections.” Thomas, 304 F.3d

at 576 (citing Fuentes v. Shevin, 407 U.S. 67, 82 (1972)). “In procedural due process
claims, the deprivation by state action of a constitutionally protected interest in ‘life,
liberty, or property’ is not in itself unconstitutional; what is unconstitutional is the
deprivation of such an interest without due process of law.” Zinermon v. Burch, 494
U.S. 113, 125 (U.S. 1990). The “root requirement” of the Due Process Clause is that
in most cases “an individual be given an opportunity for a hearing before he is
deprived of any significant property interest.” Cleveland Bd. of Ed. v. Loudermill,
470 U.S. 532, 542 (1985) (hereinafter “Loudermill”) (quoting Boddie v. Connecticut,

401 U.S. 371, 379 (1971)).
      Procedural due process claims are examined under a two-part analysis.
      First, the court must determine whether the interest at stake is a
      protected liberty or property right under the Fourteenth Amendment.
      Only after identifying such a right do we continue to consider whether
      the deprivation of that interest contravened notions of due process.

                                      Page 8 of 13
Thomas, 304 F.3d at 576.
      In terms of the first part of the procedural due process analysis, it is settled that

under Ohio law, Plaintiff, as a leasehold tenant, had a recognized property interest in
the 4267 Redmont residence for Fourteenth Amendment purposes. See Ohio Rev.

Code Ann. § 5321.01; Thomas, 304 F.3d at 576.
      After identifying the protected right, we next turn to whether the deprivation

contravened the notions of due process. “It is well settled that a temporary, nonfinal
deprivation of property is ‘nonetheless’ a deprivation in terms of the Fourteenth

Amendment, and must be preceded by a fair hearing.” Fuentes v. Shevin, 407 U.S.
67, 84-85 (1972). “In Feuntes v. Shevin, the Supreme Court held that due process

requires notice and a hearing prior to eviction.” Flatford v. City of Monroe, 17 F.3d
162, 167 (6th Cir. 1994). When a state actor is actively involved in an unlawful
eviction, a deprivation occurs which triggers procedural due process rights even if
post-deprivation proceedings are available that may be used as a remedy. See Soldal
v. Cook County, 506 U.S. 56 (1992) (illegal removalof trailer home by private mobile
home park owner with county deputy sheriffs present to prevent interference was not
only held to be a “seizure” of property for the purposes of the Fourth Amendment, but
also actionable separately under the Fourteenth Amendment for lack of procedural

due process); Thomas, 304 F.3d 563 (a majority upheld district court’s determination
that qualified immunity and summary judgment was not appropriate for officers who
helped transitional shelter unlawfully evict residents without prior notice and hearing
in violation of the Fourteenth Amendment); Flatford, 17 F.3d 162 (affirming the

                                      Page 9 of 13
district court’s denial of qualified immunity to building inspector when he along with
police officers evicted tenants from apartment building because of unsafe conditions

without prior notice or hearing because he did not act reasonably when he deprived
plaintiffs of right to their leasehold property interest, but reversing the district court’s

denial of qualified immunity to police officers, holding that they acted reasonably
under the exigent circumstances of unsafe conditions).

       It is undisputed that Plaintiff was not afforded a hearing. However, the Thomas
analysis does not end there because we must determine whether a deprivation

occurred. The district court tried to answer this question by examining whether
Plaintiff was “evicted” as defined by Ohio statute and Ohio case law.2 The district

court determined that the undisputed facts failed to amount to either an actual or
constructive eviction under Ohio law because Rachael Cox voluntarily left the
premises after receiving the “Notice to Vacate the premises” from her landlord. As
a result, the district court granted Defendants’ motion for summary judgment
determining that Plaintiff failed to present evidence of a deprivation.
       We agree with the district court, many of the critical facts are undisputed. The

       2
        An eviction is either actual or constructive under Ohio law. McAlpin v. Woodruff, 11
Ohio St. 120 (1860). To constitute an actual eviction under Ohio law, there must be some act of
the landlord that compels the abandonment of the property. The mere notice to vacate or demand
for possession is not an eviction, since it is a precatory step to instituting an action for forcible
and entry and detainer pursuant to Ohio Rev. Code Ann. § 1923.04. Greenberg v. Murphy, 16
Ohio C.D. 359 (Ohio Cir. Ct. 1904). However, a notice to vacate by the property owner that the
tenancy is being terminated, combined with a demand for possession, is not an actual eviction for
which damages may be covered. Greenberg, 16 Ohio C.D. at 3. Constructive eviction is the
surrender of possession because some act of interference compels the tenant to leave. Liberal
Sav. & Loan Co. v. Frankel Reality Co., 137 Ohio St. 489, 499 (1940).

                                           Page 10 of 13
landlord gave Rachael Cox notice that is both required by law and prerequisite to a
forcible entry and detainer (statutory eviction) action. However, Rachael Cox vacated

the premises before such an action was required and prior to a hearing. Moreover,
Defendants did not physically seize the property nor were they present when Plaintiff

vacated her premises. In spite of these facts, Plaintiff contends that Officer Drake’s
alleged intimidating actions and not-so-subtle threats to both her and her landlord

amounted to a constructive eviction similar to the one effectuated in Thomas. 304
F.3d 563. Rachael Cox relies on the part of Judge Clay’s dissent in Thomas, where

he noted “the lack of physical force is not terribly germane inasmuch as the police
effectuated the eviction by the very apparent and not too subtle threat… of dire legal

consequences should the tenants not comply with the officers’ instructions to vacate
the property.” 304 F.3d at 572.      Even if this portion had been adopted by the
majority, which it was not, the facts of Thomas are still inapposite since in Thomas
the state actors were physically present when they unquestionably ordered and
escorted tenants from their rooms. In contrast, it was Nabors, the private landlord,
who asked Rachael Cox to leave the premises by way of the “Notice to Vacate the
Premises” form without any state actors present.
      In response, Plaintiff claims that Nabors was coerced to initiate the eviction

process through Officer Drake’s actions, his statements, and the Deer Park Police
Department policy. A state actor under some circumstances can be held responsible
for a private decision
      when [the State actor] has exercised coercive power or has provided
      such a significant encouragement, either overt or covert, that the choice

                                    Page 11 of 13
      must in law to be that of the State... Mere approval or acquiescence in
      the initiatives of a private party is not sufficient for those initiatives
      under the terms of the Fourteenth Amendment...

Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)(citations omitted).
      We nonetheless do not find this argument persuasive. Had Defendants been

forcibly removed or barred Plaintiff from entering the premises without following
Ohio’s forcible detainer procedures, Plaintiff would have an actionable claim because

she was deprived of her leasehold interest. Additionally, had Defendants entered the
premises and actively participated in a constructive eviction, such as ordering and
escorting Plaintiff out of the premises, without following the statutory eviction
procedures, this too would amount to an actionable claim. But that is not what
transpired. Plaintiff was given notice to vacate through her landlord, which she later
complied with by voluntarily vacating the premises outside the presence of state
actors. Although Officer Drake may have encouraged Rachael Cox to vacate the
premises, it was ultimately her decision to comply with the notice. In contrast, the
officers in Thomas entered into the tenants’ rooms, announced that the tenants had
to leave, refused to listen to the tenants’ position, and then escorted them out of the

shelter all the while without the necessary eviction papers. Here, Rachael Cox had
a choice to vacate the premises or challenge an eventual eviction, unlike the tenants

in Thomas who themselves attempted to challenge the eviction while the officers
were present but were not allowed to do so. Although there may be cases where an

officer’s mere psychological coercion of a tenant to vacate or a landlord to evict a
tenant from the premises may constitute a deprivation of property, such as a case that

                                     Page 12 of 13
includes threats of violence, this is not such a case. As a result, we determine that
Plaintiff was not deprived of the use of her rented premises due to state action.

Accordingly, the district court’s order dismissing the case is AFFIRMED.3

       3
       This opinion does not address the lawfulness and constitutionality of either the
mandatory eviction statute or the City of Deer Park’s surveillance policy.

                                         Page 13 of 13


150 S.W.3d 762 (2004)
Wesley Lanier RICHARDS, Appellant
v.
The STATE of Texas, Appellee.
No. 14-03-00194-CR.
Court of Appeals of Texas, Houston (14th Dist.).
September 28, 2004.
Rehearing Overruled December 23, 2004.
*764 Lewis Dickson, Houston, for appellant.
Carol M. Cameron, Houston, for appellee.
En Banc Court consists of Chief Justice HEDGES, Justices YATES, ANDERSON, HUDSON, FOWLER, FROST, SEYMORE and GUZMAN. Justice EDELMAN concurring in result only.

EN BANC OPINION
WANDA McKEE FOWLER, Justice.
Appellant pleaded no contest to misdemeanor possession of a controlled substance and the trial court assessed punishment at six months' deferred adjudication. In six issues, appellant contends the trial court erred in denying his motion to suppress evidence because (1) he should have been given alternatives to having his car impounded, (2) the applicable written guidelines of the Houston Police Department are unconstitutionally vague, (3) the police officers unconstitutionally acted in bad faith by impounding his car, and (4) the search of his car was unconstitutional because it was not conducted pursuant to any established inventory guidelines. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND
On November 10, 2001, Houston Police Department Officers Terry Shane Seagler and David Myers were working on a special assignment of guarding the mayor's house on Potomac. The officers were in plain clothes and in an unmarked pickup truck. Officer Seagler observed appellant's car approaching and saw a passenger, Steve Douglas, throw a pumpkin at a parked car. The pumpkin damaged the parked car's trunk and left tail light.
The officers pursued appellant and observed him run a stop sign, fail to signal a turn, speed, and run a stop light. The officers caught up with appellant and Officer Seagler identified himself as a police officer. Appellant then stopped his car on *765 Russet, a dead-end street. The officers requested backup and interviewed appellant, Douglas, and two additional juvenile passengers.
Officers David Giannavola and Joseph Antonio Mora, Jr. independently arrived in response to the request for backup. The officers determined that Officers Seagler and Myers would complete the report and file charges, and Officers Giannavola and Mora would transport appellant and Douglas to jail. Officers Seagler and Myers returned to the scene on Potomac.
Officer Mora arrested appellant for traffic violations, arrested Douglas for criminal mischief, and took the juveniles into custody for curfew violations. Officer Mora observed that appellant's car was illegally parked because it was not within eighteen inches of the curb. He decided to impound and tow the car and called a wrecker to the scene.
Before appellant's car was towed, Officer Mora conducted an inventory. He unlocked the car's trunk with the key and found a closed red backpack. He opened the backpack and found marijuana and what was later determined to be peyote. Appellant indicated the backpack was his and Officer Mora arrested him for possession of marijuana.
Appellant was initially charged with misdemeanor possession of marijuana. He moved to suppress the evidence obtained through the inventory of his car and a suppression hearing was conducted. The State dropped the misdemeanor charge in favor of proceeding on a felony charge of possession of peyote.
Appellant again moved to suppress the evidence obtained through the inventory of his car. Because the relevant facts had not changed, the parties agreed to have the motion decided on the basis of the transcript from the prior misdemeanor hearing. The trial court denied appellant's motion to suppress.

ANALYSIS
In six issues, appellant contends the trial court erred in denying his motion to suppress because (1) he should have been given alternatives to having his car impounded, (2) the applicable written guidelines of the Houston Police Department are unconstitutionally vague, (3) the officers unconstitutionally acted in bad faith by impounding his car, and (4) the search of his car was unconstitutional because it was not conducted pursuant to any established inventory guidelines.

I. Standard of Review
We reverse a trial court's ruling on a motion to suppress only if it abused its discretion.[1]Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id. We view the evidence in the light most favorable to the trial court's ruling, and must sustain the ruling if it is reasonably supported by *766 the record and correct on any theory of law applicable to the case.

II. Absence of a Warrant
The State first argues that it had no burden of proving the legality of the search because appellant did not meet his burden of proving the search was performed without a warrant. The only direct indication that the search was performed without a warrant was the misdemeanor hearing judge's statement that, "It's a warrantless arrest. The State's going to go forward."
When a defendant seeks to suppress evidence on the basis that a search was performed in violation of the Fourth Amendment, the initial burden is on the defendant to rebut the presumption of proper police conduct. Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App.1986). A defendant must meet that burden by demonstrating the search was performed without a warrant. Id. Once the defendant rebuts this presumption, the burden of proof shifts to the State to either produce evidence of a warrant or prove the reasonableness of the search. Id. at 9-10.
We have previously held that a defendant must meet his burden by producing affirmative evidence showing there was no warrant; circumstantial evidence will not suffice. See, e.g., Telshow v. State, 964 S.W.2d 303, 307 (Tex.App.-Houston [14th Dist.] 1998, no pet.); White v. State, 871 S.W.2d 833, 836-37 (Tex.App.-Houston [14th Dist.] 1994, no pet.).[2] In the case most factually similar to this one, we held that the defendant did not meet his burden even though the trial court impliedly found he did so and the prosecutor stated during argument that the arrest was warrantless. See Highwarden v. State, 846 S.W.2d 479, 481 & n. 2 (Tex.App.-Houston [14th Dist.] 1993), pet. dism'd as improvidently granted, 871 S.W.2d 726 (Tex.Crim.App.1994). Under this line of authority, appellant would not have met his burden even though the trial court impliedly found he did so and the trial court stated the arrest was warrantless. However, this line of authority is not without criticism. See Gulley v. State, No. 14-00-00310-CR, 2001 WL 1103248, at *1-2 (Tex.App.-Houston [14th Dist.] Sept. 20, 2001, pet. ref'd) (Murphy, J., dissenting) (not designated for publication); Sims v. State, 980 S.W.2d 538, 541 (Tex.App.-Beaumont 1998, no pet.) (Burgess, J., concurring) ("Only the Houston courts have adopted this rule that the absence of a warrant must be established by direct evidence."). In light of this criticism and the Court of Criminal Appeals' recent decision in Bishop v. State, 85 S.W.3d 819 (Tex.Crim.App.2002), we will revisit the issue.
In Russell, the key Court of Criminal Appeals case on this issue, it appears the defendant met his burden without producing affirmative evidence showing there was no warrant. See Russell, 717 S.W.2d at 10-13. The Court wrote, "From Officer Graves' testimony it is obvious that no warrant was obtained." Id. at 10. However, at no point in the officer's testimony did the officer state the arrest was warrantless, nor was the officer asked whether *767 it was warrantless.[3]Id. at 11-13. Further, it appears the Court's decision was based on circumstantial evidence from its statement that the lack of a warrant was obvious based on the testimony. See id. at 10; see also Sims, 980 S.W.2d at 541 (Burgess, J., concurring). Thus, our requirement that the showing be based on affirmative evidence appears to be more stringent than the requirement of the Court of Criminal Appeals.
In Bishop, the Court of Criminal Appeals reversed this court's decision that the defendant failed to meet her burden because she failed to produce affirmative evidence showing there was no warrant. Bishop, 85 S.W.3d at 822. The appellant only claimed that the arrest was warrantless in her unsworn motion to suppress; her affidavit contained no such statement. Bishop v. State, No. 14-00-00792-CR, 2001 WL 893309, at *2 (Tex.App.-Houston [14th Dist.] Aug. 9, 2001) (not designated for publication), rev'd, 85 S.W.3d 819. Relying on Telshow, this court held that she failed to produce any affirmative evidence because an unsworn motion is not evidence. Id. The Court of Criminal Appeals reversed, holding that the trial court should have considered the allegation in the motion to suppress. Bishop, 85 S.W.3d at 822. The Bishop case is not directly on point, because it turned on the issue of whether an unsworn motion to suppress should be considered in addition to the affidavits when determining whether the defendant had shown the arrest was without a warrant. See id. However, it is an indication that a defendant can meet the burden of showing there was no warrant with less than affirmative evidence.
Based on Russell and Bishop, we hold that a defendant can meet his burden of demonstrating that an arrest was performed without a warrant with circumstantial evidence. To the extent that Telshow and similar cases hold to the contrary, they are overruled. See Telshow, 964 S.W.2d at 307; White v. State, 871 S.W.2d 833, 836 (Tex.App.-Houston [14th Dist.] 1994, no pet.); Highwarden, 846 S.W.2d at 481 & n. 2; Johnson v. State, 834 S.W.2d 121, 123-24 (Tex.App.-Houston [14th Dist.] 1992, pet. ref'd). We therefore turn to the record to determine if it demonstrates the arrest was performed without a warrant.
To begin with, the misdemeanor hearing judge stated that the case involved a warrantless arrest and she impliedly found so when she placed the burden of proceeding on the State. The State accepted this burden without objection. Although not evidence, this is a rather significant indication that the search was performed without a warrant. When the judge has already impliedly found that police searched a car without a warrant, requiring the defendant to produce additional evidence that the search was performed without a warrant would accomplish little other than setting a procedural trap for the unwary. See Allen v. State, 552 S.W.2d 843, 846 (Tex.Crim.App.1977) ("The law does not require a useless thing to be done.").
The evidence in the record also demonstrates the search was performed without a warrant. Officers Seagler and Myers pursued appellant because they saw an occupant in the car appellant was driving throw a pumpkin at a parked car. Officer Seagler testified that neither he nor Officer Myers noted the license plate *768 of the car until after appellant had been stopped and that he only "quickly glanced" at appellant's driver's license to make sure it was valid. He also testified that appellant was not free to leave at that time, indicating that appellant was already under arrest. See Kunkel v. State, 46 S.W.3d 328, 330 (Tex.App.-Houston [14 Dist.] 2001, pet. ref'd) ("An arrest is complete when a person's liberty of movement is restricted or restrained."). From this evidence it is obvious that the arresting officers did not arrest appellant pursuant to a warrant.[4] We therefore hold appellant met his burden of showing the arrest was performed without a warrant and address his complaints.

III. Alternatives to Impoundment
In his first three issues, appellant contends the trial court erred in denying his motion to suppress because he was not given alternatives to having his car impounded. The three specific alternatives appellant argues he was not given were (1) leaving his car legally parked at the scene, (2) releasing his car to one of the passengers, and (3) leaving the car at the nearby home of one of the passengers.
To ensure the validity of its impoundments, the Houston Police Department has established a written policy for its officers to follow when the owner is taken into custody. That policy provides the following:
Prisoners are responsible for the disposition of their vehicles unless such vehicles are subject to seizure or needed as evidence. Prisoners will choose one of the following alternatives for the disposition of their vehicles:
a. Release to Another Party. The vehicle may be released to a third person. Officers must ensure the third person has a valid driver's license and insurance before being allowed to operate the vehicle.
b. Leave Vehicle Parked. Vehicles may be left at the scene if they are legally parked. If the vehicle is to be left on private property, permission should be obtained from the property's owner or manager.
c. Prisoner-Requested Tow. The vehicle may be towed at the prisoner's expense.
HOUSTON POLICE DEPARTMENT, GENERAL ORDER no. 600-10, § 7 (Nov. 19, 1999). The first two alternatives are also required by common law. See, e.g., Stephen v. State, 677 S.W.2d 42, 44 n. 1 (Tex.Crim.App.1984) (stating the police should respect a prisoner's wish to leave his car with a companion who had a valid driver's license); Josey v. State, 981 S.W.2d 831, 842-43 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd) (examining the availability of both options); Smith v. State, 759 S.W.2d 163, 167 (Tex.App.-Houston [14th Dist.] 1988, pet. ref'd) (holding that the prisoner should have been allowed to choose whether to leave his car parked in a public parking lot). Appellant was thus entitled to either of them regardless of police procedure. See Stephen, 677 S.W.2d at 44 n. 1 (holding that a policy that only allowed release to relatives was "much too narrow"). The third alternative, a prisoner-requested tow, was not argued to the attention of the trial court, so we will not consider it here. See Tex.R.App. P. 33.1(a).
The policy states that a police-authorized tow is permissible when "the prisoner is not present or is medically incapable of or unwilling to select from [these] alternatives." *769 GENERAL ORDER no. 600-10, § 7. The policy does not address a situation when none of the alternatives are available, presumably because whenever a police-authorized tow is possible a prisoner-requested tow will also be possible. However, we hold that a police-authorized tow is also permissible when a prisoner is incapable, for other than medical reasons, of selecting from these alternatives.
First, appellant argues he should have been permitted to leave his car legally parked at the scene. Two officers testified that the car was not legally parked because it was more than eighteen inches from the curb. Although appellant contends the car could have been moved several inches closer to the curb and thus legally parked, the police were not required to offer this option. See Josey v. State, 981 S.W.2d 831, 843 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd). In Josey, the defendant's car could have been moved so that it was safely parked on the grass by the side of the road, but at the time of the impoundment the officers did not know who owned the car and thus could not determine if the owner would have preferred to leave the car parked there as an alternative to impoundment. Id. Similarly, the officers here did not know who owned the car driven by appellant. The evidence in the record indicates that the car had been rented, but there is no evidence that the officers knew at the time of impoundment that the car had been rented to appellant, or even whether it was in fact rented to appellant. Therefore, there was no "objectively demonstrable evidence that [the alternative], did, in fact, exist." Id. (quoting Mayberry v. State, 830 S.W.2d 176, 180 (Tex.App.-Dallas 1992, pet ref'd)).
Second, appellant argues he should have been allowed to release the car to one of his passengers. The two passengers other than appellant and Douglas, who was under arrest for criminal mischief, were both juveniles. Although there was conflicting testimony as to whether appellant was pulled over after midnight or shortly before midnight, the judge was to determine the weight to give conflicting testimony. We cannot say that it was an abuse of discretion for the trial court to determine that the impoundment occurred after midnight and that the juvenile passengers were unable to take possession of the car due to the midnight curfew. Additionally, there is again no evidence that the officers knew at the time of impoundment that the car had been rented to appellant.[5]Josey, 981 S.W.2d at 843.
Third, appellant argues that he should have been allowed to leave the car at the nearby home of one of the passengers. However, parking the car at a nearby home is neither an option under the police policy or the common law. See GENERAL ORDER no. 600-10, § 7; Mayberry v. State, 830 S.W.2d 176, 180 (Tex.App.-Dallas 1992, pet. ref'd) ("It was not incumbent upon the officers to locate the occupant of the house to determine whether appellant's car could remain in the driveway."). Further, the police were not required to allow either appellant or the passenger to move the car to the nearby home for the same reasons the first two alternatives were not available.
Because none of the alternatives argued at the trial court by appellant were available, the impoundment of his car was permissible. We overrule appellant's first three issues.

*770 IV. Vagueness
In his fourth issue, appellant contends that the police guideline that "[v]ehicles may be left at the scene if they are legally parked" is impermissibly vague. Appellant raises the question of whether this guideline requires that the car already be legally parked at the time of the impoundment or whether the guideline permits a car be moved so that it is legally parked. However, we do not need to resolve this question.
The common law already recognizes the possibility that a car may be moved in order to be left legally parked if it is reasonable to do so. See Josey, 981 S.W.2d at 843. In Josey, the impoundment was upheld because the officers were unaware of the owner of the vehicle, not because it would have been unreasonable to move the car from the road to the grass next to the road. Id. Because the common law recognizes that a car may be moved in order to be left legally parked, it is of no consequence whether the police guideline purports to limit that right. See Benavides v. State, 600 S.W.2d 809, 812 (Tex.Crim.App.1980) ("[T]he Fourth Amendment protection against seizures cannot be whittled away by a police regulation.").
Although we agree with appellant that a car may be moved in order to be left legally parked if it is reasonable to do so, for the reason stated in section III, supra, that alternative was not available to appellant. We overrule appellant's fourth issue.

V. Bad Faith
In his fifth issue, appellant contends the officers impounded his car in bad faith.[6] Appellant alleges the arresting officers demonstrated bad behavior in (1) directing appellant to stop the car, (2) instructing appellant to move the car to the opposite side of the street, (3) blocking the car and forcing appellant to stop when he was moving it to the opposite side of the street, (4) criticizing appellant's parking as not being "technically legal," (5) failing to present appellant with the alternatives provided by the department policy, (6) ignoring the alternative of leaving the car at the passenger's house, (7) refusing to allow the car to be moved in order to be legally parked, (8) holding the passengers during the investigation and thereby denying appellant the opportunity to release the car to one of them, and (9) towing the car to the scene of the incident.
As we have already held, however, the alternatives of releasing the car to a passenger and allowing the car to be left legally parked were unavailable. The officers could not have acted in bad faith in failing to offer unavailable options. Although there is some evidence the officers did not offer the alternatives because they were unaware of the policy, such ignorance would not rise to the level of bad faith. We overrule appellant's fifth issue.

VI. Guidelines
In his sixth issue, appellant contends the inventory search of the car's trunk and the backpack were not conducted pursuant to any established department guidelines. The department policy provides,
Whenever a prisoner authorizes a nonconsent tow, the officer will personally *771 conduct an inventory of the vehicle and will complete the Towed Vehicle Disposition Record form. A detailed inventory list will be written on the form. Officers must be specific in identifying inventoried items. General terms such as miscellaneous property will not be used.
GENERAL ORDER no. 600-10, § 7. The policy does not specifically provide whether officers are authorized to search locked trunks or closed backpacks.
Either standardized criteria or established routine must regulate the opening of closed containers during an inventory search. Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990); Moberg v. State, 810 S.W.2d 190, 195 (Tex.Crim.App.1991) (quoting Wells). The criteria or routine regulating inventory searches must be designed to produce an inventory and not serve as "a ruse for a general rummaging in order to discover incriminating evidence." Wells, 495 U.S. at 4, 110 S.Ct. 1632; see also Moberg, 810 S.W.2d at 196.
The officer performing the inventory testified that, although there was no written guideline, he was trained to inventory any container he had access to, including a locked trunk if he has the key for it.[7] Thus, although there is apparently no written policy governing inventory searches of closed containers, there is evidence of an established routine governing the opening of closed containers. The trial court therefore did not abuse its discretion in finding that the inventory search was permissible.
Further, there is no evidence that the search was a ruse to discover incriminating evidence; searching the locked trunk and backpack furthered the purpose of allowing inventory searches. "[I]nventory procedures serve to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger." Colorado v. Bertine, 479 U.S. 367, 372, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). The opening and inventory of easily-accessible containers serves both to protect the owner's property and to insure against false claims. See Illinois v. Lafayette, 462 U.S. 640, 647-48, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983) (holding the opening and inventory of a shoulder bag was reasonable despite the possible alternative of securing the bag as a whole). We overrule appellant's sixth issue.
We affirm the judgment of the trial court.
Justice EDELMAN concurred in result only.
NOTES
[1]  Appellant argued that de novo review would be appropriate because the trial court ruled based on the transcript of the misdemeanor hearing, and the trial court was therefore in no better position than we are to judge the credibility of the witnesses. Appellant relied on a case in which de novo review was held to be appropriate for a similar reason when the hearing was held based on affidavits. SeeState v. West, 20 S.W.3d 867, 870-71 (Tex.App.-Dallas 2000, pet. ref'd); see also Guzman v. State, 955 S.W.2d 85, 87-89 (Tex.Crim.App.1997). The Court of Criminal Appeals has clarified its position in Guzman, however, and held that a deferential standard of review is appropriate when the trial court makes its decision based solely on affidavits. Manzi v. State, 88 S.W.3d 240, 243-44 (Tex.Crim.App.2002). In light of this ruling we will apply a deferential standard of review.
[2]  It appears that we relaxed this requirement in at least one recent opinion. See McGee v. State, 23 S.W.3d 156, 162 (Tex.App.-Houston [14th Dist.] 2000), rev'd on other grounds, 105 S.W.3d 609 (Tex.Crim.App.2003) ("[I]t is clear from the record that appellant's arrest was warrantless."). The McGee case dealt with the issue only in passing, however, and did not detail what evidence demonstrated the arrest was warrantless. See id. Nor did the McGee case discuss our holdings in cases such as Telshow; it relied solely on the Court of Criminal Appeals' opinion in Russell. See id. at 161.
[3]  The Court states that the appendix contains "[t]he only testimony concerning the return of appellant to the police station." Russell, 717 S.W.2d at 9 n. 3. Thus, while the appendix does not contain the full testimony of the officer, it apparently contains all of the evidence relevant to whether the arrest was warrantless.
[4]  We also note that the question is only whether the officers arrested appellant pursuant to a warrant, not whether there were any outstanding warrants for appellant. See Johnson v. State, 834 S.W.2d 121, 124 n. 3 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd).
[5]  Nor is there any evidence that the rental agreement would have permitted the car being released to one of the juvenile passengers.
[6]  The authority cited by appellant states that an inventory search, not an impoundment, may be invalidated by bad faith. See Colorado v. Bertine, 479 U.S. 367, 372-73, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); Trujillo v. State, 952 S.W.2d 879 (Tex.App.-Dallas 1997, no pet.). Because the evidence does not indicate that the officers acted in bad faith, we do not need to address the issue of whether an impoundment may also be invalidated by bad faith.
[7]  The officer's testimony was,

Q: Do you have any guidelines for the trunk?
A: Yes. If the ignition key goes with the vehicle, if it opens the trunk, I inventory that. Any access I inventory.
Q: Excuse me
Court: Hold on. I get to talk. And you don't get the interrupt me. That's a guideline?
A: That's how I was trained.