684 F.Supp. 793 (1988)
FIRST CITY FEDERAL SAVINGS BANK, Plaintiff,
v.
Anant BHOGAONKER and Asha Bhogaonker, Shahab Moghul and Ghulam Moghul, Admed Khan, Mirza Ahmad and Yasmin Ahmad, Hare Patnaik, Ghaiyur Alam, Tahzibul Rizvi, Gautam Pandhi and Chandrika Pandhi, Khurshed Kasad and Zinobia Kasad, Bharat Shah and Bina Shah, Gunvant Shah and Sulochana Shah, Surya Misra and Mishnupriya Misra, Defendants.
Nos. 87 Civ. 5308 (RWS), 87 Civ. 5323 (RWS), 87 Civ. 5331 (RWS) to 87 Civ. 5334 (RWS), 87 Civ. 5337 (RWS), 87 Civ. 5339 (RWS), 87 Civ. 5341 (RWS) to 87 Civ. 5343 (RWS) and 87 Civ. 5390 (RWS).
United States District Court, S.D. New York.
March 31, 1988.
*794 Bizar D'Alessandro Shustak & Martin, New York City (Gayle S. Sanders, Susan C. Stanley, of counsel), for plaintiff.
Richard Simon, Hauppauge, N.Y., for defendants.

OPINION
SWEET, District Judge.
Plaintiff First City Federal Savings Bank ("First City") has moved for an order pursuant to Fed.R.Civ.P. 56 granting summary judgment in its favor on its consolidated actions against twelve defendants for amounts due on promissory notes in unpaid principal and interest accrued thereon, together with the costs of collection, including reasonable attorneys' fees. Upon the facts and conclusions set forth below, the motion is denied.

Facts
The material facts surrounding the making of the promissory notes are not in dispute and are set forth in First City's unrebutted statement pursuant to Rule 3(g) of the Civil Rules for the United States District Courts for the Southern and Eastern Districts of New York. First City is a National Banking Association with its principal office in New York City. The defendants *795 are individual investors from Michigan, New Jersey and Illinois.
Each of the defendants executed a promissory note (the "Note") in favor of First City to obtain a loan for investment in a tax advantaged limited partnership known as Boston Place Associates, Ltd. ("Boston Place"), a real estate syndication of an office building in Tulsa, Oklahoma. In connection with their investments in Boston Place, each defendant also executed a loan application form, a security agreement ("Security Agreement") and a borrower's letter ("Borrower's Letter"). The Security Agreement grants First City a security interest in the borrower's interest in Boston Place and requires the borrower to reimburse First City for all costs and expenses, including attorneys' fees and disbursements, incurred in connection with First City's enforcement of its rights thereunder. The Borrower's Letter authorizes First City to date the Note and pay the proceeds of the loan directly to Boston Place. In addition, the Borrower's Letter contains an acknowledgment by the borrower that First City was acting solely as a lender and not as an investment advisor, had made no attempt to analyze or evaluate the borrower's intended investment in Boston Place, and had made no representation to the borrower to induce him to request the loan.
By the terms of the Notes, each defendant agreed to pay First City the principal sum of the Note in equal, quarterly installments from approximately late 1986 through the end of 1991, together with interest on the unpaid principal sum at an annual rate equal to 2% above First City's reference rate of interest as publicly announced by First City in New York from time to time.[1] The defendants agreed that upon default in payment of any amount due under the Note, the entire amount of the Note would become due and payable without notice or demand. The defendants also agreed to waive the right to interpose any set-off or counter-claim in any action brought under the Note. The Notes provide that they shall be governed by and construed in accordance with the laws of New York State. The Notes also provide that the defendants shall reimburse First City for all costs and expenses, including reasonable attorneys' fees and disbursements, incurred by First City in connection with the enforcement of the defendants' obligations thereunder.
All of the defendants have defaulted in payment of the principal and interest due on their Notes, and First City has declared the entire unpaid balance of the debt due and immediately payable to First City together with all accrued interest to the date of payment, as provided in the Notes.
In opposition to the motion for summary judgment, the defendants have submitted an affidavit by their counsel (the "Simon Affidavit") to which are attached copies of certain documents related to the defendants' investments in Boston Place. According to the affidavit and accompanying documents, Boston Place was sponsored by Forum Companies, Inc. ("Forum"), a corporation that formerly owned a host of subsidiary corporations who acted as general partners and managing agents of various limited partnerships that invested in such ventures as real estate, marinas and oil drilling. Ronald G. Williams ("Williams") was the president of Forum and actively participated in the structuring and solicitation of Forum's limited partnerships. Forum Investment Corporation ("FIC"), a Forum subsidiary, was the general partner of Boston Place. A representative of FIC, Sarah Tovar, coordinated the defendants' subscriptions to Boston Place and applications for loans from First City. Copies of cover letters from Tovar to some of the defendants (the "Tovar Letters") forwarding subscription and finance documents from FIC and First City are attached to the Simon Affidavit.
*796 Also attached to the Simon affidavit are excerpts from the private placement memorandum ("PPM") pursuant to which units in Boston Place were marketed. The PPM provided, in part:
The Partnership has made arrangements through National Capital Corporation, for each prospective Limited Partner to obtain a loan from First City ... for $27,000 per unit acquired, which loan shall be evidenced by a ... Note bearing interest at the rate of 2% per annum above the prime rate of interest charged from time to time by Chase Manhattan and payable in quarterly installments of principal and interest beginning September 30, 1986 and continuing each quarter thereafter until June 30, 1991, in accordance with the amortization schedule set forth herein.
The PPM provided that all funds contributed by investors would be placed in a special non-interest bearing escrow account with Republic Bank Dallas, N.A. in Dallas, Texas ("Escrow Account") and would be held in trust pending full subscription of the offering. The PPM also provided that, in connection with the purchase of a partnership unit, each financing investor would be required to execute an "Authorization" whereby he authorized (i) Boston Place to present his Note to First City for payment and (ii) First City to deposit the proceeds of the Note in the Escrow Account. If the offering were not fully subscribed by a specified date, the PPM provided that all subscription payments would be returned.
According to the Simon Affidavit and supporting documents, Boston Place was never fully subscribed, but contrary to the terms of the PPM, the investors' subscription funds were never returned. Instead, the defendants' investments were transferred without their consent to The Learning ExperienceBoca Raton Associates, Ltd. (the "Learning Experience"), a separate Forum limited partnership which also, it appears, is in financial difficulty. The Simon Affidavit also states that 10% of the proceeds of each investor's loan was paid directly by First City to National Capital Corporation ("NCC"), the entity named in the PPM as responsible for arranging loans for each investor from First City. A letter dated July 31, 1986 from Thomas Easley, secretary and treasurer of FIC, to First City (the "Easley Letter") contains an authorization from Boston Place for these transfers. It does not appear from the record at this time that these payments to NCC were either disclosed in the PPM or provided for in the Note, Borrower's Letter, Authorization or Security Agreement signed by each investor.

Summary Judgment on the Notes
In order to grant summary judgment, this court must determine that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). The court's responsibility is not to resolve disputed issues of fact, Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, ___ U.S. ___, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987), but to determine whether there are any factual issues to be tried, while resolving ambiguities and drawing inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2509-11, 91 L.Ed.2d 202 (1986); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985). Summary judgment enables a court to "streamline the process for terminating frivolous claims and to concentrate its resources on meritorious litigation." Knight v. U.S. Fire, 804 F.2d at 12.
These actions were brought for judgment upon instruments for the payment of money only. Under New York law, proof of the Note and defendants' failure to make payment thereon establishes a prima facie case for recovery on the Notes. Gateway State Bank v. Shangri-La Private Club for Women, Inc., 113 A.D.2d 791, 493 N.Y.S.2d 226, 227 (2d Dep't 1985), aff'd, 67 N.Y.2d 627, 499 N.Y.S.2d 679, 490 N.E.2d 546 (1986); Mills v. Ryan, 41 A.D.2d 689, 342 N.Y.S.2d 889 (4th Dep't 1973), aff'd, 33 N.Y.2d 948, 353 N.Y.S.2d 730, 309 N.E.2d 130 (1974). Here, each defendant signed a Note pursuant to which he agreed to pay First City equal installments of principal and interest as provided. The defendants defaulted in payment of *797 principal and interest due, and First City declared the entire unpaid balance of the debt due and immediately payable together with all accrued interest to the date of payment. Therefore, First City has established a prima facie claim on the Notes.
The defendants do not deny the allegations in First City's motion, nor do they deny having executed the Notes. They do not dispute that, as authorized by the Borrower's Letter signed by each defendant, First City disbursed the proceeds of the loans to Boston Place's account. Finally, the defendants do not deny their default in payments of principal and interest under the terms of the Notes.

Holder in Due Course
Defendants oppose summary judgment on the grounds that genuine issues of material fact exist as to whether First City is a holder of the Notes in due course.[2] Under the Uniform Commercial Code ("UCC"), a holder in due course is a holder who takes an instrument (1) for value, (2) in good faith, and (3) without notice that it is overdue or has been dishonored or of any other defense or claim against it on the part of another. N.Y.U.C.C. § 3-302(1). As payee under the Notes, First City may be a holder in due course. N.Y.U.C.C. § 3-302(2). There is no dispute that First City gave value for the Notes. Therefore, defendants' challenge to First City's status as a holder in due course turns on First City's lack of good faith or knowledge of a defense to the Notes. Cf. Chemical Bank v. Haskell, 51 N.Y.2d 85, 432 N.Y.S.2d 478, 480, 411 N.E.2d 1339, 1340-41 (1980).
Good faith under U.C.C. § 3-302 is defined by the U.C.C. as "honesty in fact in the conduct or transaction concerned." N.Y.U.C.C. § 1-201(19). In an action brought by a bank to recover amounts due on an outstanding promissory note, the New York Court of Appeals, noting that this language was intended as a subjective standard, stated:
the inquiry is not whether a reasonable banker in Chemical's position would have known, or would have inquired concerning the alleged breach by Stanndco of its partnership duties, but rather, the inquiry is what Chemical itself actually knew. If Chemical did not have actual knowledge of some fact which would have prevented a commercially honest individual from taking up the instruments, then its good faith was sufficiently shown.
Chemical Bank v. Haskell, 432 N.Y.S.2d at 480, 411 N.E.2d at 1341. Under this subjective standard, the existence of bad faith turns on whether the holder of the note knew that the transaction was suspect. Sundsvallsbanken v. Fondmetal, Inc., 624 F.Supp. 811, 817 (S.D.N.Y.1985). As the Court ruled in Scarsdale Nat. Bank & Trust Co. v. Toronto-Dominion Bank, 533 F.Supp. 378, 386 (S.D.N.Y.1982),
Bad faith, then, represents more than a failure to observe reasonable commercial standards.... [T]he circumstances of which the holder is aware must be such that the failure to inquire signals a desire to evade knowledge because of a belief or fear that the inquiry would reveal a defense. (citation omitted).
Where well-pleaded allegations of bad faith place the subjective knowledge of the holder at issue, summary judgment is rarely appropriate before the opposing party has been given the opportunity to discover what the holder knew at the time it took possession of the note. See A. David Schwartz, M.D., P.C. Pension Trust v. Mastercraft Indus., Inc., 114 A.D.2d 946, 495 N.Y.S.2d 211, 213 (2d Dep't 1985).

*798 The Simon Affidavit

Defendants' claim of bad faith rests largely on the Simon Affidavit's allegations with respect to First City's involvement as a lending source for limited partnerships sponsored by Forum and Williams, whose allegedly sharp practices have resulted, according to the Simon Affidavit, in bankruptcy for Forum and a criminal indictment for Williams. Unsupported by affidavits from the defendants or others having personal knowledge of their investment in Boston Place, the Simon Affidavit presents an issue as to the utility of an attorney's affidavit as a vehicle for opposing a motion for summary judgment.
Fed.R.Civ.P. 56(e) provides that "opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Unsupported assertions in an affidavit sworn by an opposing party's attorney who lacks personal knowledge of the facts do not create genuine issues of material fact to preclude summary judgment. United States v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir.1982). This Circuit has held that "[o]nce a moving party has made a showing that no material issues of fact are in dispute, mere conjecture or speculation by the party resisting summary judgment does not provide a basis upon which to deny the motion," Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir.1985), and that "disputes over irrelevant facts must not be allowed to obscure the lack of a material dispute (citations omitted), and the party opposing the motion may not stand mute in reliance solely upon its allegations when facing a substantial evidentiary submission refuting its claim." Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 923 (2d Cir.1985). Thus, a litigant opposing summary judgment must give some affirmative indication that his version of the facts is not fanciful; a party may not rely on hearsay. See Schwimmer v. Sony Corp. of America, 637 F.2d 41, 45 n. 9 (2d Cir.1980); Ronald Litoff, Ltd. v. American Express Co., 621 F.Supp. 981, 984 (S.D.N.Y.1985).
First City objects to the Simon Affidavit on the grounds that it is based largely on hearsay and that its allegations are directed primarily at Williams and his Forum companies. The Simon Affidavit charges Williams with fraud for (1) falsely promising to purchase a Tennessee marina in which defendants had previously invested and thereby to save defendants from deficiency judgments if the defendants invested in Boston Place, (2) failing to return to defendants monies paid and proceeds of the Notes when Boston Place did not close, and (3) transferring defendants' subscriptions to the Learning Experience without defendants' consent. See Simon Affidavit ¶s 13-14. First City contends, correctly, that the affidavit fails to set forth any facts that evince either First City's participation in or knowledge of these alleged acts of fraud by Williams.
On the other hand, the Simon Affidavit contains certain assertions for which factual support is found in the Boston Place PPM, the Notes, the Borrower's Letter, the Easley Letter and the Tovar Letters. Therefore, to the extent that such assertions are supported by the record, they will be examined to determine whether they present triable issues of fact that preclude summary judgment at this stage of the litigation.

Good Faith on the part of First City
In his affidavit in further support of First City's motion, Richard M. Greenberg, First City's president, contends that the "[d]efendants are in no different position than anyone who takes out a personal loan with any bank, and signs a promissory note." Greenberg Affidavit ¶ 9. The record reveals, however, that these loans arose from a limited partnership offering for which the PPM named First City as a pre-arranged financing source. Moreover, as the Tovar Letters indicate, First City's loan application packages were forwarded to investors together with Boston Place's subscription documents by FIC representatives, who, in turn, assumed the responsibility for returning the executed documents *799 to First City. As the Security Agreement establishes, First City obtained an interest in each borrower's interest in Boston Place as security for the loans. Finally, as the Borrower's Letter reveals, First City was authorized to pay the proceeds of the loans directly into Boston Place's account, which was held at First City. Thus, despite its attempt to disclaim any involvement in the preparation of the PPM or the structuring of Boston Place, First City has not claimed that it was unaware of the terms of the offering as set forth in the PPM.
The documents submitted in support of and against the instant motion indicate that the actual sales of the Boston Place units and the loans to each investor did not take place in accordance with the terms of the PPM. First, although the PPM provided that the Notes would accrue interest at a rate of 2% per annum above the prime rate charged by Chase Manhattan Bank, the Notes provided that interest would accrue at a rate of 2% per annum above the reference rate publicly announced by First City in New York from time to time. Second, while the PPM provided that loan proceeds would be paid by First City directly into the Escrow Account pending full subscription of the offering, the Borrower's Letter authorized First City to pay the loan proceeds directly to Boston Place. It appears that in fact First City paid the loan proceeds into a Boston Place account at First City and then wired funds from that account to a Boston Place account at Republic Bank which was not the Escrow Account described in the PPM. Third, although neither the PPM nor the Notes, Borrower's Letter or Security Agreement provide for payment of 10% of the loan proceeds to NCC, upon FIC's written instruction First City regularly transferred 10% of each investor's loan proceeds to NCC's account at First City prior to wiring the remaining funds to Boston Place's Dallas bank account.
As to the first two departures from the terms of the offering, First City contends that it never represented to any party that it would charge the interest rate set forth in the PPM or that it would place the loan proceeds in the Escrow Account until the offering had closed. First City points out that the Borrower's Letter contains an express acknowledgment by each investor that First City "has not participated in the preparation of [the PPM] or similar document and therefore is not responsible for any statement contained in or the completeness of such document." There are no facts in the record so far that would permit the inference that the defendants did not know the nature of the instruments they signed. Finally, the defendants have offered no authority for the proposition that First City's knowledge of the PPM and its willingness to act as a pre-arranged provider of loans permit the inference that it did not receive the Notes in good faith.
However, the apparent absence of any provision in the PPM, the Note, the Borrower's Letter or the Security Agreement for payment of 10% of the proceeds from each investor's loan to NCC does raise an issue concerning First City's good faith. As to this issue, the court takes judicial notice of a sworn statement that has been submitted in a separate group of lawsuits now before the court in which First City seeks payment on promissory notes issued in connection with an unrelated limited partnership, see Certification of Richard Gipe, filed in connection with Defendants' Motion to Dismiss in First City Federal Savings Bank v. Burk Dennis, et al., No. 87 Civ. 2959 (RWS), in which it has been asserted that NCC is the loan broker and "alter ego" of First City and that the two companies share office space and employees. Although not presented in the course of submissions on the instant motion, this factual assertion may permit the inference that the 10% payment to NCC was, in effect, an undisclosed increase in the interest rate charged to the defendants rather than a selling commission as described in the PPM.
First City's moving papers do not address either the relationship between itself and NCC or the transfer of funds to NCC, understandably since these issues were not raised by these defendants. Therefore, a genuine issue of fact remains unresolved as to the extent, if any, of First City's "actual knowledge of some fact which *800 would prevent a commercially honest individual from" accepting the Notes. See Chemical Bank v. Haskell, 432 N.Y.S.2d at 480, 411 N.E.2d at 1340-41.
Based on the findings and conclusions set forth above, an issue of material facts exists as to whether First City is a holder of the Notes in due course. Therefore, the motion for summary judgment is denied at this time with leave granted to renew the motion after the parties have been given the opportunity to conduct additional discovery to address the issues discussed above.
IT IS SO ORDERED.
NOTES
[1]  Defendants Bhogaonker, Moghul, Misra, Rizvi, Khan, Bharat Shah and Kasad each executed a Note for the principal amount of $27,000. Defendants Patnaik and Alam each executed a Note for the principal amount of $24,000. Defendants Pandhi and Ahmad each executed a Note for the principal amount of $12,000, and defendant Gunvant Shah executed a Note for the principal amount of $48,000.
[2]  If defendants can establish that First City is not a holder of the Notes in due course, the bank will be subject to all claims and defenses against payment on the Notes available pursuant to N.Y.U.C.C. § 3-306, which provides in relevant part:

Unless he has the rights of a holder in due course any person takes the instrument subject to
(a) all valid claims to it on the part of any person; and
(b) all defenses of any party which would be available in an action on a simple contract; and
(c) the defenses of want or failure of consideration, non-performance of any condition precedent, nondelivery, or delivery for a special purpose ....


                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                            No. 12-4429

UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MELVIN ERALDO RAMIREZ, a/k/a Benigno A. Medrano Centano,
a/k/a Benigo Medrano-Centeno, a/k/a Benigo Amilcar Centeno-
Meddrano, a/k/a Benigno Medrano, a/k/a Carlos Alberto
Samayoa, a/k/a Melvin Ramirez, a/k/a Melvin E. Ramirez,

                Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:11-cr-00584-JCC-1)

Submitted:   December 21, 2012            Decided:   January 7, 2013

Before SHEDD, AGEE, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, W. Todd Watson,
Assistant Federal Public Defender, Caroline S. Platt, Appellate
Attorney, Alexandria, Virginia, for Appellant.         Neil H.
MacBride, United States Attorney, Stacy M. Chaffin, Special
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Melvin        Eraldo          Ramirez      pleaded      guilty      to       illegal

reentry after removal following his conviction of an aggravated

felony,    in     violation           of    8   U.S.C.    § 1326(b)(2)          (2006).          The

district court sentenced him to eighty-four months’ imprisonment

and   a   term    of       three      years’     supervised         release.         On    appeal,

Ramirez       challenges           the       procedural        reasonableness             of     the

sentence,        contending            that      the     district      court         failed       to

adequately       explain         the       imposition     of     a    three-year          term   of

supervised release when he was to be deported after serving his

term of imprisonment.                      See U.S. Sentencing Guidelines Manual

(“USSG”) § 5D1.1(c) & cmt. n.5 (2011); see USSG app. C., amend.

756 (effective Nov. 1, 2011).                    We affirm.

              When rendering a sentence, the district court “must

adequately explain the chosen sentence to allow for meaningful

appellate       review          and    to       promote    the       perception           of   fair

sentencing.”          Gall v. United States, 552 U.S. 38, 50 (2007).

However, a district court is not required to discuss the 18

U.S.C.    §     3553(a)         (2006)       sentencing     factors        in    a     checklist

fashion.      United States v. Johnson, 445 F.3d 339, 345 (4th Cir.

2006).        Furthermore,            “[w]hen     imposing      a    sentence        within      the

Guidelines,       .    .    .    the       explanation     need      not   be   elaborate         or

lengthy.”        United States v. Hernandez, 603 F.3d 267, 271 (4th

Cir. 2010).

                                                  2
            On appeal, we review a sentence, “whether inside, just

outside, or significantly outside the Guidelines range[,] under

a deferential abuse-of-discretion standard.”                    Gall, 552 U.S. at

41.   Because Ramirez did not object below to the adequacy of the

district court’s explanation for the sentence it imposed, our

review is for plain error.            United States v. Lynn, 592 F.3d 572,

577–78 (4th Cir. 2010); see United States v. Olano, 507 U.S.

725, 731–32 (1993) (detailing plain error standard).

            After     review   of     the        sentencing    transcript     and   the

parties’ briefs, we conclude that the district court adequately

explained    its     imposition     of   a       three-year    term   of    supervised

release.     The court considered Ramirez’s significant criminal

history and multiple prior unauthorized entries into the United

States as well as the § 3553(a) factors.                      Taking the facts and

circumstances of Ramirez’s case into consideration, the court

created a special condition of release, a prohibition against

unauthorized reentry.          Although the court did not specifically

tie the § 3553(a) factors to the term of supervised release in a

checklist manner, it is apparent that the court considered the

specific facts and circumstances of Ramirez’s case and found

that an added measure of deterrence was needed.                            Because the

district     court       thoroughly      explained       its    reasons      for    the

imposition    of     a    three-year     term       of   supervised    release,      we

                                             3
conclude that the district court committed no procedural error. ∗

Accordingly, we affirm the district court’s judgment.

            We dispense with oral argument because the facts and

legal    contentions    are   adequately   presented    in   the   materials

before   this   court   and   argument   would   not   aid   the   decisional

process.

                                                                     AFFIRMED

     ∗
       Ramirez also asserts that the district court should have
explained why it imposed the maximum term of supervised release,
as opposed to a lesser amount of time.     We conclude that the
same explanation that supported imposing a term of supervised
release in the first instance is similarly adequate to explain
the length of the term of supervised release deemed appropriate
by the district court.

                                     4


346 P.2d 173 (1959)
COLE SPURGEON DRILLING COMPANY and Mid-Continent Casualty Company, Petitioners,
v.
Jess B. PARRIS and the State Industrial Commission, Respondents.
No. 38569.
Supreme Court of Oklahoma.
November 3, 1959.
A.M. Covington, Tulsa, Marshall Huser, Wewoka, R.D. Cox, Wewoka, on the brief, for petitioners.
Mac Q. Williamson, Atty. Gen., for respondents.
*174 WELCH, Justice.
On June 27, 1958, Jess B. Parris, hereinafter referred to as claimant, filed a claim for compensation against his employer, Cole Spurgeon Drilling Company and its insurance carrier, Mid-Continent Casualty Company, hereinafter referred to as petitioners, stating that on the 18th day of May, 1958, while in the employ of petitioner, Cole Spurgeon Drilling Company, he sustained an accidental injury consisting of an injury to his back resulting in some permanent disability to his person. The injury occurred while he was engaged in lifting joint pipe and the pipe sprung throwing him to the ground jerking his body and back.
On August 28, 1958, claimant was awarded compensation for permanent partial disability to his body as a whole in the sum of $2,625, based on 17.5 per cent permanent partial disability to his body as a whole. The award was directed to be paid at the rate of $30 per week. Installments were paid on the award in the amount of $270. On the 25th day of September, 1958, claimant filed a motion to commute the remaining installments to a lump sum payment, and in his motion alleged:
"That the Temporary Total that was paid to said Claimant was not sufficient to sustain him and his family and he became indebted to numerous persons during said period and is now heavily in debt on account thereof.
"That the lump sum of $270.00 was paid out immediately on receipt of same but he is still in debt and his creditors are calling upon him for their money. That he has no income at present that is steady and unless said award is commuted to a lump sum he will steadily get deeper in debt.
"That he has two children that are enrolled in School and he needs to buy food, clothing and books for them also.
"That the needs are great and the award weekly income is small and believes it to be the best interest that said award be commuted to a lump sum."
Claimant at the hearing of said motion testified that after he sustained his injury for which he was awarded compensation he kept on working. He worked at intervals at his occupation as a truck driver; that he worked at such occupation for some time and kept trying to work, but during all the *175 time he was working he suffered pain in his back. He has become indebted since the time he sustained his injury. He is behind in his rent; he owes on his grocery bill the sum of $180; he owes to a doctor at Seminole the sum of $170; and owes a bank at Wewoka, Oklahoma, the sum of $250. He has in mind a five acre tract of land which he desires to purchase. He could purchase this tract by making a down payment of $1,200, and the owner would then carry him for the balance of the purchase price on his individual promissory note. He testified that the tract is improved. There is erected thereon a three room house, a barn and a chicken house; that if he could obtain the tract he could make a living for himself and family by raising chickens and other products off the tract.
The trial judge, under the above evidence, after finding that it would be to claimant's best interest to commute the balance due under the Commission order of August 28, 1958, to a lump sum and pay to claimant at this time, entered an award in favor of claimant commuting the remainder of the installments to a lump sum payment.
Petitioners bring the case here for review and rely for its vacation on the following proposition:
"The State Industrial Commission cannot commute an award to a lump sum in the absence of a determination that such is in the interest of substantial justice."
It is contended by petitioners that since the Commission did not find that it would be in the interest of justice to commute the periodical compensation payments into a lump sum the findings were insufficient to authorize it to enter an order commuting the periodical payments to a lump sum payment, and that the order for this reason should be vacated. In support of this contention they cite Parkhill Truck Co. v. Emery, 166 Okl. 280, 27 P.2d 333. In that case we held:
"While the State Industrial Commission is vested with a wide discretion in the matter of commuting periodical payments of an award into a lump sum payment in the interest of justice, an order commuting such payments will not be sustained where the record affirmatively shows that such order was made in view of the impending death of the claimant and does not promote substantial justice to all the parties involved."
We do not think that case applicable here. The court based the above holding on Section 13365, O.S. 1931. This section in part provides:
"Compensation under the provisions of this Act shall be payable periodically, in accordance with the method of payment of the wages of the employee at the time of his injury and shall be so provided for in any award; but the Commission may determine that all payment or payments may be made monthly or at any other period, as it may deem advisable. The Commission, whenever it shall so deem advisable, may commute such periodical payments to one or more lump sum payments, provided the same shall be in the interest of justice. * * *"
This statute has since been amended and the statute as amended now appears 85 O.S. 1951 § 41, which provides in part as follows:
"* * * The Commission may determine that payment of said award may be made in monthly or any other periodical installments as it may deem advisable, and may thereafter, on application made or upon its own motion, modify or change the said order as to manner, time and amounts of periodical payments or may direct the payment of the entire balance thereof. * * *"
It will be noted that in the amendment of the above section of the 1931 statute the language contained therein that the Commission may commute periodical monthly payments into a lump sum "provided the same shall be in the interest of justice" has been deleted by the amendment.
*176 This does not mean that the interest of justice may be ignored, but leaves it to the Commission to determine what order, under the circumstances, should be entered in furtherance of justice, without the necessity of any stated finding that the order "is in the interest of justice."
Claimant in support of the order cites Aggas Drilling Co. v. Williams, 200 Okl. 277, 192 P.2d 995, 997. In that case, after referring to Section 13365, O.S. 1931, this court says in 1941 this section was amended to read as follows; 85 O.S. § 41, and after quoting this section the court further said:
"Under the 1931 statute the commission was expressly required to make its award payable in periodical or monthly payments with discretionary power vested in it to thereafter commute such monthly payments to a lump sum payment or payments when deemed advisable and in the interest of justice.
"Under the 1941 statute, supra, the Commission may in its discretion in the first instance require and order that the award be paid in a lump sum or it may direct the same to be paid in periodical or monthly installments. Since the Commission has plenary power under the statute, as amended, in entering an award to require it to be paid in a lump sum, the authorities cited and relied upon by petitioner are not applicable.
"* * * In the case of Manhattan Long Construction Co. v. Bruton, 192 Okl. 639, 138 P.2d 814, 816, after discussing the amended sections of the 1931 Law as above indicated, we said: `It will be observed that the effect of the foregoing amendments is to place an award for permanent partial disability under the "other cases" provision in the same category as other awards for permanent disability and to invest the State Industrial Commission with authority to commute such an award in the same manner as if it were one for a specific injury. We hold that under the statute as now amended the commission was vested with plenary authority to commute the award.'"
The record further discloses that at the close of the hearing of claimant's motion to commute, counsel for petitioners objected to the court making the order of commutation for the reason that they would be prejudiced thereby in that they might be deprived of their right to reopen and to diminish periodical monthly payments on the ground that claimant's condition is better than it was at the time the original award was entered. In this connection counsel state that claimant's evidence shows that his condition is better than it was at the time the original award was entered; that he kept on working and continued to work at his usual employment as a truck driver. Claimant, however, in this respect testified that after the original award was entered he obtained employment at intervals as a truck driver and that he drove a truck for some time, and is still trying to do so, but that he suffered pain all the time he was working.
It must be remembered that in the original award the Commission awarded claimant compensation on the basis of 17.5 permanent partial disability to his body as a whole. It will be presumed that one with only 17.5 disability may still continue to do some work. There is nothing in claimant's testimony tending to show, or from which the reasonable inference might be drawn, that his disability is now less than 17.5 permanent partial to the body as a whole. There is very little, if any, merit to this contention of petitioners.
Petitioners further contend that claimant's main reason for asking that periodical payments be commuted to a lump sum was in order that he might obtain funds to make a down payment on a tract of land, and that such reason is insufficient to authorize the Commission to make such commutation. We have held to the contrary in Manhattan Long Const. Co. v. Bruton, 192 Okl. 639, 138 P.2d 814. This, however, was not the sole reason which prompted claimant to make his application for commutation of *177 periodical payments into a lump sum payment. He assigned other reasons, as above set forth, for filing such motion, and stated in his testimony that if the periodical payments were commuted to a lump sum payment he would first discharge his indebtedness and would use the balance to make the down payment on the purchase of the tract of land above referred to.
We conclude that the findings of the Commission are sufficient to authorize it to make the order of commutation, and that the evidence is sufficient to sustain the order. The State Industrial Commission under 85 O.S. 1951 § 41, is vested with wide discretion in commuting periodical compensation payments into a lump sum payment, and its order in commuting such payments into a lump sum payment will not be disturbed on review in the absence of a showing of an abuse of discretion. No abuse of discretion is here shown. Petroleum Maintenance Co. v. Herron, 201 Okl. 393, 206 P.2d 182.
Order sustained.


467 U.S. 246 (1984)
NEW YORK
v.
UPLINGER ET AL.
No. 82-1724.
Supreme Court of United States.
Argued January 18, 1984
Decided May 30, 1984
CERTIORARI TO THE COURT OF APPEALS OF NEW YORK
Richard J. Arcara argued the cause for petitioner. With him on the briefs were John J. DeFranks and Louis A. Haremski.
William H. Gardner argued the cause for respondents. With him on the brief for respondent Uplinger was Thomas F. Coleman. Rose H. Sconiers and Joseph B. Mistrett filed a brief for respondent Butler.[*]
Briefs of amici curiae were filed for the Attorney General of the State of New York by Robert Abrams, Attorney General, pro se, and Rosemarie Rhodes, Lawrence S. Kahn, and Jane Levine, Assistant Attorneys General; for the Center for Constitutional Rights et al. by Rhonda Copelon and Anne E. Simon; and for the National Association of Business Councils et al. by Laurence R. Sperber and Jay M. Kohorn.
*247 PER CURIAM.
We granted certiorari, 464 U. S. 812 (1983), to review a decision of the New York Court of Appeals concerning N. Y. Penal Law § 240.35(3) (McKinney 1980), which prohibits loitering "in a public place for the purpose of engaging, or soliciting another person to engage, in deviate sexual intercourse or other sexual behavior of a deviate nature." Respondents, charged with violating the statute, challenged its constitutionality and the Court of Appeals sustained their claim. 58 N. Y. 2d 936, 447 N. E. 2d 62 (1983). The court concluded that § 240.35(3) is "a companion statute to the consensual sodomy statute . . . which criminalized acts of deviate sexual intercourse between consenting adults" and noted that it had previously held the latter statute unconstitutional in People v. Onofre, 51 N. Y. 2d 476, 415 N. E. 2d 936 (1980), which we declined to review, see 451 U. S. 987 (1981). 58 N. Y. 2d, at 937-938, 447 N. E. 2d, at 62-63. Construing the loitering statute as intended "to punish conduct anticipatory to the act of consensual sodomy," the Court of Appeals reasoned that "[i]nasmuch as the conduct ultimately contemplated by the loitering statute may not be deemed criminal, we perceive no basis upon which the State may continue to punish loitering for that purpose." Id., at 938, 447 N. E. 2d, at 63.
Petitioner challenges the decision of the Court of Appeals on the ground that the loitering statute is a valid exercise of the State's power to control public order.[1] Respondents, on *248 the other hand, defend the decision by arguing that the statute is unconstitutionally vague and overboard on its face and that, as applied, it violates their First Amendment, equal protection, and due process rights. We decline to address these arguments, however, because examination of the case, after full briefing and oral argument, has convinced us that the writ of certiorari was improvidently granted. See The Monrosa v. Carbon Black Export, Inc., 359 U. S. 180, 184 (1959).
As the diverse arguments presented in the briefs have demonstrated, the opinion of the Court of Appeals is fairly subject to varying interpretations, leaving us uncertain as to the precise federal constitutional issue the court decided.[2] Moreover, whatever the constitutional basis of the Court of *249 Appeals' decision, it was clearly premised on the court's earlier decision in People v. Onofre, supra, and for that reason a meaningful evaluation of the decision below would entail consideration of the questions decided in that case. Petitioner does not, however, challenge the decision of the New York Court of Appeals in that case. See Brief for Petitioner 2. Cf. Pet. for Cert. 6, n. 1.
Under these circumstances, we are persuaded that this case provides an inappropriate vehicle for resolving the important constitutional issues raised by the parties. We therefore dismiss the writ of certiorari as improvidently granted.
It is so ordered.
JUSTICE STEVENS, concurring.
Although the origins of the Rule of Four are somewhat obscure,[1] its administration during the past 60 years has undergone a number of changes.[2] Even though our decision today makes no change in the Rule, I regard it as sufficiently significant to warrant these additional comments.
I first note that I agree with the reasons set forth in the per curiam opinion for not deciding this case. I would add (1) that the major reasons were apparent when the certiorari petition was filed, and (2) that our jurisdiction over this case is problematic at best because the most straightforward interpretation of the New York Court of Appeals' opinion is that the statutory provision at issue in this case is not severable, as a matter of state law, from the provision invalidated in People v. Onofre, 51 N. Y. 2d 476, 415 N. E. 2d 936 (1980), cert. denied, 451 U. S. 987 (1981). The Court, quite correctly in my opinion, therefore declines to address the merits.
Four Members of the Court believe, however, that the merits "should be addressed." Post, at 252. They do not, *250 however, address the merits themselves. Cf. Colorado v. Nunez, 465 U. S. 324 (1984) (concurring opinion). Nor do they attempt to refute the sound reasons offered by the majority for dismissing the writ as improvidently granted. As long as we adhere to the Rule of Four, four Justices have the power to require that a case be briefed, argued, and considered at a postargument conference. Why, then, should they not also have the power to command that its merits be decided by the Court?
The difference in the character of the decision to hear a case and the decision to decide it justifies a difference in the way the decision should be made. As long as we act prudently in selecting cases for review,[3] there is relatively little to be lost, and a great deal to be gained, by permitting four Justices who are convinced that a case should be heard to have it placed on the calendar for argument. It might be suggested that the case must be decided unless there has been an intervening development that justifies a dismissal. See generally Rice v. Sioux City Cemetery, 349 U. S. 70 (1955). I am now persuaded, however, that there is always an important intervening development that may be decisive. The Members of the Court have always considered a case more carefully after full briefing and argument on the merits than they could at the time of the certiorari conference, when almost 100 petitions must be considered each week.[4] Nevertheless, once a case has been briefed, argued, and studied in chambers, sound principles of judicial economy normally *251 outweigh most reasons advanced for dismissing a case. Indeed, in many cases, the majority may remain convinced that the case does not present a question of general significance warranting this Court's review, but nevertheless proceed to decide the case on the merits because there is no strong countervailing reason to dismiss after the large investment of resources by the parties and the Court.
A decision on the merits does, of course, have serious consequences, particularly when a constitutional issue is raised, and most especially when the constitutional issue presents questions of first impression. The decision to decide a constitutional question may be the most momentous decision that can be made in a case. Fundamental principles of constitutional adjudication counsel against premature consideration of constitutional questions and demand that such questions be presented in a context conducive to the most searching analysis possible. See generally Ashwander v. TVA, 297 U. S. 288, 341 (1936) (Brandeis, J., concurring). The policy of judicial restraint is most salient in this Court, given its role as the ultimate expositor of the meaning of the Constitution, and "perhaps the most effective implement for making the policy effective has been the certiorari jurisdiction conferred upon this Court by Congress." Rescue Army v. Municipal Court, 331 U. S. 549, 568 (1947). If a majority is convinced after studying the case that its posture, record, or presentation of issues makes it an unwise vehicle for exercising the "gravest and most delicate" function that this Court is called upon to perform, the Rule of Four should not reach so far as to compel the majority to decide the case.
In conclusion, the Rule of Four is a valuable, though not immutable, device for deciding when a case must be argued, but its force is largely spent once the case has been heard. At that point, a more fully informed majority of the Court must decide whether some countervailing principle outweighs the interest in judicial economy in deciding the case.
*252 JUSTICE WHITE, with whom THE CHIEF JUSTICE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR join, dissenting.
As I see it, the New York statute was invalidated on federal constitutional grounds, and the merits of that decision are properly before us and should be addressed. Dismissing this case as improvidently granted is not the proper course.
NOTES
[*]  Briefs of amici curiae urging affirmance were filed for the American Association for Personal Privacy et al. by Melvin L. Wulf and David A. J. Richards; for the American Civil Liberties Union et al. by Steven R. Shapiro, Burt Neuborne, and Charles S. Sims; for the American Psychological Association et al. by Margaret Farrell Ewing, Bruce J. Ennis, and Donald N. Bersoff; for the Committee on Sex and Law of the Association of the Bar of the City of New York et al. by Mark H. Leeds, Michael A. Bamberger, John H. Doyle III, and Edward M. Shaw; and for the Lambda Legal Defense and Education Fund, Inc., by Mary C. Dunlap, Abby R. Rubenfeld, and Nan D. Hunter.
[1]  Petitioner, the State of New York, is represented in this Court by the District Attorney for Erie County, N. Y., the prosecutor who brought the criminal charges against respondents. After certiorari was granted, however, the Attorney General of the State of New York filed a brief as amicus curiae, urging us to conclude that the loitering statute as applied in this case violates respondents' federal constitutional rights to freedom of speech and privacy but suggesting that the court below erred in striking down the statute on its face.

The allocation of authority among state officers to represent the State before this Court is, of course, wholly a matter of state concern. As our Rule 36.4 indicates, however, in addressing the constitutionality of a statute with statewide application we consider highly relevant the views of the State's chief law enforcement official. The fundamental conflict in the positions taken by petitioner and the New York Attorney General, a circumstance which was "not manifest or fully apprehended at the time certiorari was granted," Ferguson v. Moore-McCormack Lines, 352 U. S. 521, 559 (1957) (Harlan, J., concurring and dissenting), provides a strong additional reason for our conclusion that the grant of certiorari was improvident. See The Monrosa v. Carbon Black Export, Inc., 359 U. S. 180, 184 (1959).
[2]  Under one fair reading of the opinion below, we may not even have jurisdiction to review the Court of Appeals' decision. See Dorchy v. Kansas, 264 U. S. 286, 290 (1924). The New York court determined, as a matter of state law, that the statute prohibits speech, whether harassing or not, anticipatory to consensual sodomy. Accordingly, the court's holding might be based on a conclusion that as a matter of state law, the statute at issue here was intended only to provide an additional means of enforcing the statute struck down in Onofre and therefore was not severable from that statute. See 58 N. Y. 2d, at 937-938, 447 N. E. 2d, at 62-63 ("[I]t is apparent from the wording of this statute that it was aimed at proscribing overtures, not necessarily bothersome to the recipient, leading to what was, at the time the law was enacted, an illegal act").
[1]  See Leiman, The Rule of Four, 57 Colum. L. Rev. 975, 981-982 (1957).
[2]  See Stevens, The Life Span of a Judge-Made Rule, 58 N. Y. U. L. Rev. 1, 11-14 (1983).
[3]  We have granted review in approximately 50 fewer cases thus far this Term than we had at the corresponding point in the October 1981 Term.
[4]  A particularly dramatic example of the contrast between the quality of decisionmaking after argument as compared with that prior to studying the merits is provided by the contrast between the virtually unanimous decision to deny the application for a stay in Palmore v. Sidoti, 460 U. S. 1018 (1983), and the unanimous decision to reverse the decision below on the merits, 466 U. S. 429 (1984).


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411 F.2d 850
6 UCC Rep.Serv. 641
VAL DECKER PACKING COMPANY, a Corporation, Plaintiff-Appellant,v.CORN PRODUCTS SALES COMPANY, a Corporation, Defendant-Appellee.
No. 18915.
United States Court of Appeals Sixth Circuit.
June 9, 1969.

Robert P. Bartlett, Jr., Dayton, Ohio, for appellant, Estabrook, Finn & McKee, by John O. Henry, Thomas A. Holton, Dayton, Ohio, on the brief.
F. Thomas Green, Dayton, Ohio, for appellee, Pickrel, Schaeffer & Ebeling, Dayton, Ohio, on the brief.
Before WEICK, Chief Judge, and O'SULLIVAN and EDWARDS, Circuit Judges.
WEICK, Chief Judge.

1
We are called upon in this diversity case to determine the applicable Ohio statute of limitations in an action for damages for breach of an implied warranty in the sale of goods by written contract.

2
In the District Court the defendant contended that the two-year statute of limitations1 applied, and filed a motion for summary judgment.  Plaintiff contended that since the contract of sale was in writing, the fifteen-year statute2 was applicable.

3
The District Judge, relying on Andrianos v. Community Traction Co., 155 Ohio St. 47, 97 N.E.2d 549 (1951), applied the two-year statute.  He granted defendant's motion for summary judgment and dismissed the complaint.  During oral argument of the appeal the Court inquired of counsel as to the applicability of the four-year statute of limitations contained in the Ohio Uniform Commercial Code.3  This statute had not been brought to the attention of the District Judge, nor had the point been argued or briefed.  Counsel were granted additional time to file supplemental briefs.

4
The complaint was filed on January 10, 1967.  Plaintiff alleged that on October 4, 1962 it had entered into a written contract with the defendant, Corn Products Sales Company, under the terms of which Corn Products agreed to install certain storage facilities and equipment for receiving and storing liquid corn syrup; that Corn Products breached the contract--

5
'* * * by the improper and defective installation in the storage tank of black iron heating coils which were connected to copper fittings.  This improper connection caused electrolysis and deterioration of these connections and thereby allowed moisture and bacteria into the corn syrup which was stored in such tank.'

6
Plaintiff was in the meat processing and packing business in Piqua, Ohio, and used the corn syrup as an ingredient in its meat products.  It alleged that due to the presence of moisture and bacteria in the storage tank the corn syrup used in the meat products became spoiled, thereby damaging the meat products.  As a result of Corn Products' alleged breach of the contract, plaintiff alleged that it had been damaged in the amount of $25,504.91, for which amount it prayed judgment.

7
In its answer Corn Products admitted that it had entered into a contract with plaintiff, but denied that it had breached the contract or that plaintiff was proximately damaged.  Corn Products further alleged as an affirmative defense that the action was not brought within the Ohio two-year statute of limitations applicable to injuries to personal property.  Corn Products alleged default in payments on the contract and counterclaimed for $900.11, the unpaid balance alleged to be due and owing.

8
Plaintiff's answers to defendant's interrogatories established that the equipment installation was completed on or about June 20, 1963, and that the spoilage of corn syrup was discovered in July, 1964.  The action was commenced two and one-half years after plaintiff discovered the damage but within four years of completion of the installation.

9
The date when the cause of action accrued, in our opinion, is the date on which installation was completed and not the date of discovery of the spoilage.  The date of completion does not appear to be disputed.

10
Corn Products contends that since the question of applicability of the four-year statute was not raised in the District Court, it is not properly before us.  We disagree.  No new issue has been raised.  The only issue before the District Court was whether plaintiff's action was barred by a state statute of limitations.  The Court was required to determine which statute was applicable.  Having made that determination and dismissed the complaint, its judgment is subject to appellate review, and we have the right to consider all of the statutes and to apply the one which in our judgment is required under Ohio law.  We may take judicial notice of the state statutes, Lamar v. Micou, 114 U.S. 218, 5 S.Ct. 857, 29 L.Ed. 94 (1885).

11
The criteria to be applied in determining the applicability of a statute of limitations was established in Andrianos v. Community Traction Co., supra, where the Court held:

12
'A special statutory provision which relates to the specific subject matter involved in litigation is controlling over a general statutory provision which might otherwise be applicable.'  (Syl. 1)

13
We are of the opinion that the plaintiff's action may be properly characterized as an action for breach of an implied warranty of merchantability (Ohio Rev.Code 1302.27 (UCC 2-314)) or fitness for a particular purpose (Ohio Rev.Code 1302.28 (UCC 2-315)) under the Ohio Uniform Commercial Code, and that the applicable statute of limitations is the four-year statute provided in the Code.  Ohio Rev.Code 1302.98 (UCC 2-725).

14
The issue presented here appears to be one of first impression in Ohio for we find no decision of the Ohio Supreme Court or of the lower courts resolving it.  Andrianos v. Community Traction Co., 155 Ohio St. 47, 97 N.E.2d 549 (1951), upon which the District Judge relied, did not involve a sales contract.  In that case, the plaintiff brought an action for damages for personal injuries suffered while she was riding on the defendant's bus.  The Ohio Supreme Court characterized the action as one for personal injuries as the result of the negligent conduct of the common carrier.  The Court rejected the plaintiff's characterization of the case as an action for breach of an implied contract for safe carriage.  The Court held that the two-year statute of limitations applicable to bodily injury governed, and not the six-year statute for implied contracts.4

15
Since there are no Ohio decisions in point, we look to other jurisdictions for authority and guidance.  In Gardiner v. Philadelphia Gas Works, 413 Pa. 415, 197 A.2d 612 (1964), rehearing denied, Feb. 28, 1964, the Supreme Court of Pennsylvania held that an assumpsit action by customers of a gas company for personal injuries sustained as a result of breach of the company's warranty to transmit gas in a safe manner, was governed by the Pennsylvania Uniform Commercial Code four-year statute of limitations,5 and not by Pennsylvania's two-year statute of limitations applicable to actions for damages for personal injuries.6  The Pennsylvania Supreme Court, in reaching its decision, noted that prior to enactment of the Code, its two-year statute of limitations had been applied to all actions for damages for personal injuries, whether arising out of contract or tort.

16
In rejecting the application of the two-year statute in Gardiner, the Court relied upon Sections 10-103, 2-715, and 2-725 of the Uniform Commercial Code.  12A P.S. 10-103, 2-715, and 2-725.  Section 10-103 of the U.C.C. provides that--

17
'* * * all acts and parts of acts are repealed in so far as they are inconsistent herewith.'

18
The Court held that insofar as the two-year statute was inconsistent with the Code's four-year statute, the two-year statute was repealed.  The Court stated that it did not base its decision entirely on Section 10-103, for it relied upon Section 2-715 which provides for consequential damages including personal injuries resulting from any breach of warranty.  For further authority the Court cited Section 1-102 of U.C.C.:

19
'(B) Underlying purposes and policies of such chapters are:

20
(1) to simplify, clarify, and modernize the law governing commercial transactions;

21
(3) to make uniform the law among the various jurisdictions.'

22
The Court in Gardiner also relied upon the Comment to Section 2-725, which provides in pertinent part:

23
'The purposes of this section are to introduce a uniform statute of limitations for sales contracts, thus eliminating the jurisdictional variations and providing needed relief for concerns doing business on a nationwide scale whose contracts have heretofore been governed by several different periods of limitation depending upon the state in which the transaction occurred.  This Chapter takes sales contracts out of the general laws limiting the time for commencing contractual actions and selects a four year period as the most appropriate to modern business practice.  This is within the normal commercial record keeping period.'

24
The Supreme Court of Pennsylvania concluded in Gardiner:

25
'* * * It was the legislative intent that there be a four year period of limitation on all actions for breach of contracts for sale, irrespective of whether the damages sought are for personal injuries or otherwise.'  Id., 197 A.2d at 614.

26
The rule in Gardiner has been followed by the Pennsylvania Supreme Court in Rufo v. Bastian Blessing Co., 417 Pa. 107, 207 A.2d 823 (1965) and by the District Court for the Western District of Pennsylvania in Bobo v. Page Eng'r Co., 285 F.Supp. 664 (W.D.Pa.1967), aff'd, 395 F.2d 991 (3rd Cir. 1968).

27
The only decision which we have found contrary to Gardiner is that of a Connecticut Common Pleas Court in Abate v. Barkers of Wallingford, Inc., 27 Conn.  Supp. 46, 229 A.2d 366 (1967), in which the Court applied the Connecticut three-year statute of limitations for tort actions to bar an action for breach of an alleged implied warranty of fitness.  The Abate decision has been disapproved by Code authorities.  Willier and Hart, 2 U.C.C. Rep. & Dig. 2-693 (1969).

28
The Ohio General Assembly enacted the Uniform Commercial Code into law, effective July 1, 1962.  The Code provides for implied warranties of merchantability and fitness as noted above.  Ohio Rev.Code 1302.27 and 1302.28.  Ohio, like Pennsylvania, adopted the four-year statute of limitations for sales contracts.  Ohio Rev.Code 1302.98 (UCC 2-725).  In so doing, the General Assembly amended the six-year statute of limitations for implied contracts and the fifteen-year statute for express contracts to provide an exception for sales contracts within the provisions of Ohio Rev.Code 1302.98 (UCC 2-725).  The two-year statute remained unaltered.

29
Unlike Pennsylvania, however, the Ohio Assembly did not enact Section 10-103 of the Code, the repealer provision; yet it did enact Section 1-102, Ohio Rev.Code 1302.02, which provides that the Code be construed liberally and consistent with the underlying policy of uniform laws governing commercial transactions.

30
In 48 Ohio Jur.2d, Sales, at page 356 the author states:

31
'The 4-year period under the Code would likely apply in the case of an action against a manufacturer or seller for breach of warranty or negligence in a products liability case resulting in personal injury or property damage.  At least it has been so held in another Code jurisdiction.' The decision of the Supreme Court of Pennsylvania in Gardiner is cited as authority.

32
Applying the criteria in Andrianos, it follows that the specific statute of limitations relating to the specific subject matter of sales in the Ohio Uniform Commercial Code controls over the general statute of limitations dealing with actions for injuries to person or property.

33
Reversed and remanded.

1
 Ohio Rev.Code 2305.10 provides:
'An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose.'

2
 Ohio Rev.Code 2305.06 provides:
'Except as provided in section 1302.98 of the Revised Code, an action upon a specialty or an agreement, contract, or promise in writing shall be brought within fifteen years after the cause thereof accrued.'

3
 Ohio Rev.Code 1302.98 (UCC 2-725) provides:
'(A) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued.  By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.'

4
 Andrianos arose before Ohio adopted the Uniform Commercial Code

5
 Act of April 6, 1953, P.L. 3, 2-725, as amended 12A P.S. 2-725

6
 Act of June 24, 1895, P.L. 236, 2, 12 P.S. 34


                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT

                              No. 09-6496

STEVEN Z. RAST,

                  Plaintiff - Appellant,

          v.

UNITED STATES OF AMERICA,

                  Defendant - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.   G. Ross Anderson, Jr., Senior
District   Judge.    (6:02-cr-00948-GRA-1;  7:03-cr-00429-GRA-1;
7:08-cv-70087-GRA)

Submitted:   February 11, 2010               Decided:   May 26, 2010

Before MOTZ, KING, and GREGORY, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Steven Z. Rast, Appellant Pro Se. Alan Lance Crick, Assistant
United   States Attorney,  Greenville,  South  Carolina,  for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Steven Z. Rast seeks to appeal the district court’s

order    denying     his        motion      for       reconsideration          of    the       order

denying     relief       on    his    28    U.S.C.A.          § 2255    (West       Supp.      2009)

motion. *   The order is not appealable unless a circuit justice or

judge     issues     a        certificate         of    appealability.               28     U.S.C.

§ 2253(c)(1) (2006).                 A certificate of appealability will not

issue     absent     “a       substantial          showing       of     the     denial      of     a

constitutional       right.”              28     U.S.C.       § 2253(c)(2)       (2006).           A

prisoner      satisfies          this          standard        by      demonstrating            that

reasonable     jurists          would       find       that    any     assessment         of     the

constitutional       claims          by    the    district       court    is    debatable         or

wrong and that any dispositive procedural ruling by the district

court is likewise debatable.                      Miller-El v. Cockrell, 537 U.S.

322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);

Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).                                        We have

independently reviewed the record and conclude that Rast has not

made the requisite showing.                    Accordingly, we deny a certificate

of appealability and dismiss the appeal.                            We dispense with oral

argument because the facts and legal contentions are adequately

     *
       We note that the caption of the district court’s order
lists only Case No. 7:03-cr-00429-GRA.     However, it is clear
that the order also pertains to Case No. 6:02-cr-00948-GRA.

                                                  2
presented in the materials before the court and argument would

not aid the decisional process.

                                                     DISMISSED

                                  3


816 P.2d 525 (1991)
112 N.M. 456
Bess G. THOMAS, et al., Plaintiffs-Appellees and Cross-Appellants,
v.
CITY OF SANTA FE, et al., Defendants-Appellants and Cross-Appellees.
No. 11017.
Court of Appeals of New Mexico.
June 25, 1991.
Certiorari Denied July 31, 1991.
*526 Floyd Wilson, Pongetti, Wilson & Pryor, P.C., Albuquerque, for plaintiffs-appellees cross-appellants.
James C. McKay, City Atty., Santa Fe, for defendants-appellants cross-appellees.

OPINION
APODACA, Judge.
This appeal and cross-appeal both involve the respective rights of the parties to certain land located adjacent to the Santa Fe municipal airport. The City of Santa Fe (city) appeals the trial court's decision allowing a partial reversion of the subject property, purchased by the city in 1941, to the grantors' children (plaintiffs) because of the purported failure of the city to use the property for "airport purposes" as specified in the deed in question. Plaintiffs cross-appeal the trial court's refusal to uphold plaintiffs' claim of reversion to a separate tract of land that was the subject of another, later revised condition subsequent. Both parties raise the issue of the interpretation of the two conditions subsequent and whether the language and intent of the parties permitted partial reversion. Plaintiffs also argue that the city failed to preserve certain issues. Determining that the trial court erred in ordering the partial reversion, we reverse on the issue raised by the city's appeal. We affirm on the cross-appeal, concluding the trial court did not err in disallowing partial reversion with respect to the separate tract.

FACTS
In 1941, plaintiffs' predecessors sold certain land to the city. At trial, the parties referred to four different tracts, but the maps submitted as exhibits show the four constitute two distinct larger tracts. For simplicity, we refer to the subject land as consisting of these two larger tracts. The city paid $5.00 per acre for the tracts. However, there is nothing in the record concerning the fair market value of the property at the time of sale. The city bought the tracts, as well as other land belonging to other individuals, to construct the municipal airport.
The deed consummating the sale contained the following language:
Provided always, and it is hereby made a provision and restriction of this conveyance that if the property herein above described should cease to be used for airport purposes, or in connection with the maintenance and operation of an airport on adjoining lands, * * * it shall be lawful for the [plaintiffs] * * * into and upon all and singular the said premises to enter * * * to hold and enjoy in the same manner as if this conveyance had never been made and executed.
After purchasing the tracts, the city constructed the airport. A small portion of one of the tracts contains parts of one runway and two taxiways. Portions of both tracts are located within "clear zones" and building restriction lines extending beyond the ends of two runways. These zones are necessary to ensure safe landings and takeoffs. The airport's security fence crosses both tracts. This barbedwire fence is intended to keep cattle and other animals off the runways.
Twenty years later, in 1961, the city, in need of land for a sewage plant, approached plaintiffs concerning the possibility of using a portion of one of the tracts for that purpose, without risking forfeiture for violation of the condition subsequent contained in the 1941 deed. Plaintiffs agreed to the new use, and the parties then signed a document entitled "Release and Relinquishment of Reversionary Right." *527 The release applied only to the specific portion of the tract earmarked for the sewage plant. The plant was constructed and is presently operating. It does not physically occupy the entire portion of property designated for sewage plant use. The relinquishment document contained language indicating that the document would not be a release of reversionary rights "in so far as the use for any purposes other than airport purposes or sewage disposal plant purposes are concerned."
In the mid-1980's, plaintiffs filed a quiet title action to enforce their power to terminate, claiming the city was not using large portions of the two tracts for airport purposes. At trial, they conceded that the portions of the tracts located within the clear zones and building restriction lines were being used for airport purposes and withdrew their claims to those portions. They argued, however, that the condition subsequent was divisible and that the unused remainder of the tracts was subject to their power of termination, even if portions of the tracts were being properly used. Plaintiffs also argued that the parts of the sewage plant tract that were not physically occupied by the plant and its surrounding fence should likewise revert.
The trial court concluded that the condition subsequent contained in the 1941 deed was divisible, and that it was proper for portions of the tracts to revert. The court held that those portions of the tracts located outside the airport's security fence were not being used for airport purposes or in connection with the maintenance and operation of an airport on adjoining lands, and should revert to plaintiffs. The court, however, refused to order reversion of any part of the sewage plant property.

APPEAL
The city argues that, under the 1941 deed's condition subsequent, only part of the two tracts were required to be used for airport purposes to prevent forfeiture of any portion of the tracts  in essence, the condition was not divisible and partial termination should not be permitted. Alternatively, the city argues it has been using all of both tracts in connection with the operation of the airport. In response, plaintiffs counter with several arguments. First, they contend that the city did not preserve the partial termination issue below, because the city did not request appropriate findings of fact and conclusions of law on the issue. They next argue that the condition was divisible and partial termination should be allowed. Finally, they maintain there was evidence to support the trial court's determination that the areas outside the security fence were not being used for airport purposes or in connection with the operation of the airport.
In support of the preservation argument, plaintiffs direct our attention to the requested findings of fact and conclusions of law filed by the city. The city's first set of requested conclusions included a conclusion that there had been a partial abandonment of the areas outside the security fence.
However, after these requested findings and conclusions were submitted, the trial court wrote a letter to the parties, requesting that several issues be briefed. One of the issues was "[w]hether the condition subsequent [was] divisible[,] i.e. whether partial reversion [was] allowed by law." The city then submitted a brief, arguing that the condition was not divisible. The city also submitted amended proposed findings and conclusions, which omitted the request that the court find that a partial abandonment had occurred. These amended findings and conclusions superseded those originally submitted and eliminated the invited error aspect of the partial forfeiture issue. It was clear from the trial court's letter that the question of partial forfeiture remained at issue, insofar as the court was concerned. Likewise, it was clear from the city's brief and amended findings and conclusions that it did not ultimately concede the issue.
Plaintiffs also argue that the city failed to request specific findings and conclusions on the partial reversion issue. It is true that none of the proposed amended findings or conclusions included the terms "partial reversion" or "divisibility." The city did, however, request findings on each *528 parcel of land involved in the lawsuit. These findings essentially requested the trial court to find that each parcel was being used for airport purposes because, for example, the property "include[d] land within the clear zone for Runway 20 and within the building restriction line applicable to Runway 20," or "contain[ed] a security fence to keep off all intruders." Use of the words "include[d]" and "contain[ed]" in these requested findings indicates to us that the trial court was being requested to disallow reversion, even though not all of the property was within a building restriction line or enclosed by the security fence. Additionally, the trial court was apparently well aware of the issue of partial reversion and of the city's position on that issue, because of the city's brief addressing it.
Although we believe the requested findings, together with the city's brief, could be considered adequate to have preserved the partial reversion issue, we need not decide that question for the following reason. Even if proper requested findings had not been submitted, we may review the trial court's findings of fact and conclusions of law to determine whether the conclusions appropriately flowed from the findings of fact made. Gonzales v. Garcia, 89 N.M. 337, 552 P.2d 468 (1976). The trial court here entered a number of findings and reached conclusions of law based on those findings. One conclusion was that partial reversion should be allowed, given the language of the condition subsequent in the 1941 deed and the circumstances of this case. That conclusion is reviewable even if the city's requested findings are deemed inadequate. Id.; see Blea v. Sandoval, 107 N.M. 554, 761 P.2d 432 (Ct.App. 1988) (in the absence of requested findings, appellate court will not review evidence but may review trial court's decision to determine whether it is legally correct).
Plaintiffs challenge the adequacy of the city's preservation of issues in one other respect. They maintain the city did not specifically challenge the trial court's finding of fact No. 16, which states that the parties intended the condition to be divisible. Absent an adequate challenge to that finding, plaintiffs argue, this court is bound by the finding in this appeal. See SCRA 1986, 12-213(A)(3). It is true that the city did not specifically state that it challenged the trial court's finding. In its docketing statement, however, the city contended that the trial court's decision regarding partial reversion was incorrect. The city argued that the intention of the parties to the deed should have been ascertained from the language of the deed, viewed in light of the surrounding circumstances, and that the plain language of the deed precluded partial reversion. This is a direct attack on the finding that the parties intended the condition to be divisible, even though that finding is not specifically mentioned.
We first observe that, because the only evidence concerning this issue was either documentary or in the form of uncontested facts concerning the circumstances of the transaction, we are not bound by the trial court's finding that the parties intended to allow partial reversion to occur. See House of Carpets, Inc. v. Mortgage Inv. Co., 85 N.M. 560, 514 P.2d 611 (1973) (where evidence consists of documents and stipulated facts, appellate court is in as good a position as the trial court to determine the facts and is not bound by the trial court's findings.)
The city's failure to refer specifically to the finding is a technical violation of Rule 12-213. However, since the city directly attacked the conclusion that partial reversion should occur, as well as the finding on the parties' intent, we are not bound by the finding. See Ortiz v. Ortiz & Torres DriWall Co., 83 N.M. 452, 493 P.2d 418 (Ct. App. 1972) (where appellant failed to specifically challenge findings of fact, but did challenge conclusions of law and set forth findings that trial court should have found, technical violation of briefing rule would not prevent review of the issues on appeal).
We now address the merits of the issue raised by the city. The city characterizes partial reversion as a "novel theory" and argues that it is unsupported by New Mexico precedent. For that reason, *529 we must first decide whether partial reversion should be prohibited generally, as a matter of law. That is, should partial reversion be allowed under any circumstances? We see no reason to impose a blanket prohibition against such a theory. Although explicit authority on the question is scant, the few cases that directly address the question appear to favor partial reversion in appropriate circumstances. See, e.g., Tamalpais Land & Water Co. v. Northwestern Pac. R.R., 73 Cal. App.2d 917, 167 P.2d 825 (1946) (approving partial reversion in partial abandonment situation); Marthens v. Baltimore & O.R.R., 170 W. Va. 33, 289 S.E.2d 706 (1982) (discussing factors to be applied to determine whether partial reversion should be allowed); cf. Village of Larchmont v. City of New Rochelle, 100 Misc.2d 463, 418 N.Y.S.2d 966 (1979) (abandonment can extinguish an entire easement or only the excess portion).
In a subsequent diversity case applying California law, the Ninth Circuit considered what was meant in Tamalpais by "a proper case" for a finding of a partial violation of a condition subsequent allowing a partial reversion. In Bornholdt v. Southern Pacific Co., 327 F.2d 18 (1964), the court held that a railroad's lease of a portion of its land held in fee simple determinable did not work a partial reverter for ceasing to use the land for railroad purposes. The court stated that "[t]he doctrine of partial reversion is based on the court's desire to avoid forfeiture whenever possible and should only be applied when no other means of avoiding a forfeiture are possible." The Ninth Circuit cited Quatman v. McCray, 128 Cal. 285, 60 P. 855 (1900), as an example of the use of partial reversion to avoid a total forfeiture. Quatman involved a forfeiture provision applicable to several plots of land; the court held that a violation of the provision on a single plot worked a forfeiture of only that plot.
Other courts, faced with land use only partially consistent with a condition subsequent, have reached the same result as Tamalpais and Bornholdt, holding that the failure to use the entire extent of the land for a required purpose, or the use of part of the land for a purpose other than the required purpose, does not result in a forfeiture. See Kinney v. State, 238 Kan. 375, 710 P.2d 1290 (1985); Johnson v. City of Hackensack, 200 N.J. Super. 185, 491 A.2d 14 (1985); Davis v. Skipper, 125 Tex. 364, 83 S.W.2d 318 (1935); but see E.C. Brown Co. v. Ontario County, 123 N.Y.S.2d 546 (1953) (sale of portion of land would cause entire estate to revert). In none of these cases did the court appear to consider the possibility of a partial reversion.
Additionally, there is analogous New Mexico law involving divisibility of a contract, which indicates a contract is divisible if that is the parties' intent. Arrow Gas Co. v. Lewis, 71 N.M. 232, 377 P.2d 655 (1962) (where parties contracted to develop irrigation water on two parcels of land, and only one tract was developed, contract was divisible and developers were entitled to one-half ownership of the developed tract). The parties' intent is the key issue, and where the parties have clearly expressed an intent to impose a divisible condition subsequent, we decline to impose a blanket prohibition against such a condition. Cf. id. (parties' intent apparent from face of agreement).
Having so determined, we next examine the specific circumstances of this appeal to consider whether the condition may be construed as divisible.
Whether a terminating event has occurred involves a determination of two separate questions... . First, the language must be construed to identify the event and, second, a factual determination must be made as to whether the event has occurred... . A condition in a deed which is relied upon to defeat an estate is strictly construed and, when possible, against forfeiture. * * * The violation of a condition which involves forfeiture must be clearly established. * * * "When the event upon which the estate of the transferee is to terminate consists of a failure to use the premises in a particular way, it is clear the courts are reluctant to find a termination."
*530 Johnson v. City of Hackensack, 200 N.J. Super. at 190, 491 A.2d at 17.
We next note that the allowance of partial reversion in this appeal would result in a forfeiture of the property purchased by the city. Thus, in construing the condition's language, we interpret the condition most strongly against the grantor. See Garry v. Atchison, Topeka & Santa Fe Ry., 71 N.M. 370, 378 P.2d 609 (1963). We will construe the condition to avoid forfeiture if at all possible. Id.; Berger v. Santa Fe College, 28 N.M. 545, 215 P. 825 (1923).
The express language of the condition does not specifically mention the possibility of divisibility or partial forfeiture. Neither does it contain language that would indicate such possibility was considered, such as "if the property or any portion thereof should cease to be used for airport purposes, the power of termination may be exercised as to that portion of the property no longer used for airport purposes." Also, the language of the condition is extremely broad. The property may be used not only for "airport purposes", but also in connection with the operation or maintenance of an airport on adjoining lands. From this language, it becomes clear to us that the parties did not require the airport to be physically located, even in part, on the tracts plaintiffs sold to the city.
Finally, there was no direct evidence of the parties' intent, in the form of testimony or documentary evidence. The only evidence before the trial court was the language of the deed, which does not indicate expressly that the parties intended to allow partial reversion, and the bare circumstances of the case  that the city needed land for an airport and plaintiffs sold the land to the city. The circumstances surrounding the sale are a proper factor to be considered because the condition's language itself is not conclusive on the issue of intent. See Kelley v. City of Lakewood, 644 P.2d 103 (Colo.Ct.App. 1982) (where language of condition subsequent is ambiguous, court resorts to other evidence of intent); Garry v. Atchison, Topeka & Santa Fe Ry. (parties' intent is to be gleaned from language of instrument as well as surrounding circumstances); cf. Northrip v. Conner, 107 N.M. 139, 754 P.2d 516 (1988) (if the deed is not ambiguous, the trial court may not go outside the deed to interpret the parties' intentions).
In some situations, the circumstances surrounding the transaction might be strong indicators of intent, but we conclude that is not the case in this appeal. The fact that the grantors wished to retain a power of termination exercisable if the property ceased to be used for airport purposes, does not give us any indication of their desires in the event that some portions of the land were needed for the airport and other portions were not. What remains for us to consider, then, is only the bare language of the condition, which, as we have already noted, must be construed to avoid forfeiture if at all possible.
The apparent recognition by the parties that the airport might not be physically located on plaintiffs' tracts cuts against a determination that the parties intended unused portions of the tracts to revert. So also does the absence of any express terms that would indicate an intent to divide the tracts, such as "part" or "portion." We hold that the evidence and deed language in this case was simply not explicit enough to overcome the strong preference for avoiding a forfeiture. See Hyder v. Brenton, 93 N.M. 378, 600 P.2d 830 (Ct.App. 1979) (provision that might appear to require buyer to build house or face forfeiture construed to avoid such result).
Such a construction of the language is especially appropriate in this appeal, where the city has not placed portions of the property to wholly different uses but has merely left it vacant. The broad phrase "or in connection with the maintenance or operation of an airport on adjoining lands" indicates that nonuse of a portion of the property, which lies adjacent to the airport, should not result in forfeiture. Leaving open land immediately adjacent to an airport is not incompatible with the use of the land for "airport purposes," since clearance for air traffic in the vicinity of the airport *531 is necessary for safety and noise abatement purposes.
Because of our resolution of this issue, we need not address the city's contention that it was actually using the entirety of the tracts for airport purposes or in connection with the maintenance and operation of the airport on adjoining lands.

CROSS-APPEAL
Plaintiffs expressly relinquished their reversionary rights to the entire portion of land covered by the relinquishment agreement. The relinquishment, however, was not effective for "any purposes other than airport purposes or sewage disposal plant purposes." This language in the 1961 relinquishment agreement created a new condition subsequent by retaining the 1941 reversionary rights if the land described in the agreement was used for other than airport or sewage plant purposes. As we observed in discussing the city's appeal, conditions such as those at issue in this appeal, which may result in forfeiture of property, are construed most strongly against the grantor. Garry v. Atchison, Topeka & Santa Fe Ry. For instance, if the condition requires forfeiture only for misuser of the property, forfeiture cannot result from mere nonuser of the land. Berger v. Santa Fe College.
The 1961 relinquishment retained plaintiffs' right to reversion only if the property ceased to be used for other than airport or sewage plant purposes. By the plain language of the agreement, construed strictly against plaintiffs, the right to relinquishment was not preserved for mere nonuse of portions of the property. See Berger v. Santa Fe College (where condition states the premises shall revert if used for any other purpose than for a Christian educational institution, failure to use the property at all does not result in forfeiture; only use for a different purpose would cause reversion).
Plaintiffs made no showing below that the city did not use the property for the specified purposes. Their only ground in support of partial reversion was that, since the sewage plant and fence did not occupy the entire piece of land subject to the relinquishment agreement, the remaining portions of the land are not being used for sewage plant purposes. Thus, plaintiffs' argument fails, and we hold the trial court properly denied their claim for reversion. See id.
The main thrust of plaintiffs' argument on appeal is that the trial court impermissibly based its decision concerning this issue on a memorandum submitted to the trial court by the city, but not introduced into evidence at trial. This memorandum indicated the city's future plans to expand its sewage plant and to use more of the subject tract to do so. We consider it unnecessary to address the question of whether the court's consideration of the memorandum was proper. As we have previously noted, the applicable case law and the language of the relinquishment agreement establish that partial forfeiture was not proper in these circumstances, and we base our affirmance on those grounds. See State ex rel. State Highway Dep't v. Strosnider, 106 N.M. 608, 747 P.2d 254 (Ct.App. 1987) (trial court decision that is legally correct will not be reversed if the decision was reached for the wrong reason).

CONCLUSION
In summary, we hold that the city adequately preserved the issues involving partial reversion. We also determine that the trial court erred in allowing the airport land to partially revert to the plaintiffs due to the city's alleged nonuse of portions of the property, because the language of the condition subsequent did not evidence any intent on the part of the parties to allow such a reversion and the law in New Mexico interprets deeds so as to avoid forfeitures. We thus reverse with respect to the city's appeal. Finally, with respect to plaintiffs' cross-appeal, we affirm the trial court's disallowance of a partial reversion concerning the sewage treatment plant property. The city is awarded its costs on appeal.
IT IS SO ORDERED.
DONNELLY and CHAVEZ, JJ., concur.


      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                                      NO. 03-08-00039-CV

                                  Stephen N. Lisson, Appellant

                                                 v.

                                     Mary Padgett, Appellee

    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
    NO. D-1-GN-05-000835, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

                            MEMORANDUM OPINION

               Appellant Stephen N. Lisson’s brief was due on June 9, 2008. On December 15, 2008,

this Court notified Lisson that his brief was overdue and that his failure to file a proper motion for

extension of time by December 29, 2008, would result in the dismissal of his appeal for want of

prosecution. To date, Lisson has not filed a brief or a motion for extension of time. Accordingly, we

dismiss this appeal for want of prosecution.

                                               ___________________________________________

                                               Diane M. Henson, Justice

Before Chief Justice Jones, Justices Puryear and Henson

Dismissed for Want of Prosecution

Filed: February 5, 2009