679 F.2d 668
BLOOMER SHIPPERS ASSOCIATION and its Members, People of theState of Illinois, Illinois Commerce Commission,Patrick W. Simmons and M. S. Stuckey, Petitioners,v.INTERSTATE COMMERCE COMMISSION and United States of America,Respondents,andIllinois Central Gulf Railroad Company, Intervening Respondent.
No. 81-1233.
United States Court of Appeals,Seventh Circuit.
Argued Jan. 8, 1982.Decided May 6, 1982.*

James E. Weging, Sp. Asst. Atty. Gen., Thomas F. McFarland Jr., Belnap, McCarthy, Spencer, Sweeney & Harkaway, Chicago, Ill., for petitioners.
Daniel B. Harrell, I.C.C., Washington, D. C., John H. Doeringer, Chicago, Ill., for respondents.

1
Before PELL and BAUER, Circuit Judges, and MORGAN, Chief District Judge.**

2
ROBERT D. MORGAN, Chief District Judge.

3
This petition was filed for review of a decision of the Interstate Commerce Commission (ICC) dismissing a complaint filed by Bloomers Shippers Association (BSA), which alleged that Illinois Central Gulf Railroad Company (ICG) had violated the Interstate Commerce Act by its failure to provide adequate service upon a branch line, commonly known as the Bloomer Line, by practicing undue preference to the prejudice of BSA and its members, and by granting a petition by ICG to abandon a 63-mile segment of that line.  Illinois Central Gulf R. Co.-Abandonment, 363 I.C.C. 690 (1980).  ICG intervened as a further respondent upon this petition for review.

Historical Background

4
For many years ICG and its predecessors operated the Bloomer Line, which extends for a distance of 69 miles through an agricultural area in east central Illinois.  The principal commodity transported over the line in relevant recent times is grain.  The movement of grain economically and efficiently by rail requires the use of 100-ton hopper cars, each of which has a loaded gross weight of 263,000 pounds.  The line, constructed between 1913 and 1925, was built of secondhand 75-pound and 85-pound rail.1  Many years would pass before the advent of the 100-ton cars.  The 75-pound rail is inadequate to handle 100-ton shipments.  The 85-ton rail is marginally adequate for such service, but only if train speed is limited to 10 miles per hour.

5
In 1974, in response to shipper requests for 100-ton car service, ICG inaugurated a "gathering train" service over the line.2  ICG moved about ten of such trains over the line from 1974 through early 1977.  Because of accelerated deterioration of the line, ICG lowered the weight limit over most of the line from 263,000 to 210,000 pounds per car on March 2, 1977, precluding the further use of the 100-ton cars.

6
In April 1977, pursuant to the requirements of Section 1a(5) of the Act, 49 U.S.C. § 10904(e),3 and regulations promulgated thereunder,4 ICG filed a system diagram with the ICC which designated a 63-mile segment of the line as a segment for which abandonment would be sought.  49 C.F.R. § 1121.20(b)(1).  The Act fixes a four-month minimum period of previous notice, by the filing of a system diagram before a petition for abandonment can be filed.  49 C.F.R. § 1121.23(d).

7
On July 20, 1977, and before the four-month notice requirement was satisfied, BSA filed a complaint with ICC alleging that ICG had violated the Act by its discontinuance of 100-ton car service on the line.  49 U.S.C. §§ 10702, 10741, 11101, 11121.  On October 28, 1977, ICG filed its application to abandon 63 miles of the line.  Following an investigation, ICC consolidated the abandonment and complaint proceedings and assigned the matter for oral hearings.

The ICC Proceedings

8
On January 5, 1979, following a series of hearings, the administrative law judge, to whom the matter was assigned, denied the abandonment application and found that ICG had violated §§ 11101 and 10741 by its failure to provide 100-ton car service over the line.  His order required ICG to upgrade the line to accommodate trains of 100-ton cars at a speed of 10 miles per hour on an as-needed basis, and to cease and desist from practicing undue prejudice to shippers on the line and undue preference of service to other shippers within its system which were denied to BSA shippers.  He further found that BSA had failed to prove any actual loss.  He awarded no damages.

9
Both parties filed administrative appeals.  On October 12, 1979, the ICC division,5 to which the appeals were taken, reversed the law judge's decision.  It approved the abandonment application and found that there had been no violation of the Act by ICG.6

10
The ICC granted petitions to review the matter.  Among other procedural steps taken, it reopened the record to receive cost and revenue evidence related to operation of the line in 1975 and 1976.  On December 19, 1980, it filed its decision, finding that ICG had not committed the violations charged in BSA's complaint, and that public convenience and necessity permitted abandonment of the 63-mile segment of the line.

11
The ICC first stated that the proper test to be applied when it is alleged that adequate service had been denied to shippers, was the balancing of the public need for service at the level sought by shippers against the burden imposed upon the carrier involved and upon interstate commerce by the providing of service at that level.  That inquiry involves a case-by-case approach.7

12
In its consideration of the contention that ICG had not provided adequate service on the line when it discontinued the use of 100-ton cars, ICC found that the line was not designed or constructed to accommodate the gross weight imposed by the use of 100-ton cars; that substantial deterioration of the line had resulted from the limited use of the 100-ton cars; that, although ICG had provided only minimal maintenance of the line, there was no downgrading of the line, because the physical structure would necessarily require that weight limits be imposed which would preclude 100-ton car service; that rehabilitation and maintenance of the line to accommodate 100-ton car service would require that the line be largely reconstructed, using heavier rails and reinforced grading, entailing substantial rehabilitation costs and annual maintenance costs;8  and that the line could not be profitably operated with 100-ton car service restored without a substantial increase in traffic over and above that generated during the brief period when ICG sought to render that service; that there was no evidence of any possible increase in available traffic which could both offset the substantial rehabilitation and maintenance costs and produce a reasonable prospect of profit; that, although the nonavailability of 100-ton car rail service would impose some economic burden upon the public in the involved area, there was available alternative transportation for the traffic which previously moved over the line; and that the evidence would not justify an order which would require ICG to provide noncompensatory service by reinstating 100-ton car service.  It concluded that ICG had not failed to provide adequate service over the line and that it had not violated Section 11101.

13
Related to the allegations of undue discrimination against the Bloomer group, the ICC said that the question depends on a case-by-case determination.  It said that the line lacked the physical capability to handle 100-ton cars, and thus it differed from other ICG branch lines which possessed that capability, unless it was shown that the lack of capability resulted from the carrier's deliberately downgrading the line.  It found that there had been no downgrading of the line, and that the line's physical incapacity to provide the level of service demanded, was a condition which justified ICG's discontinuance of 100-ton service.  It concluded that there was no discrimination against BSA shippers and no violation of Section 10741.

14
Related to the abandonment application, the ICC found that the line could not be profitable if operated under the 210,000-pound weight restriction, and that 100-ton car operations over a reconstructed line would have no reasonable prospect of profitability.  It found that abandonment would have little impact on rural and community development in the area served, and that any such impact was outweighed by the burden which would be imposed on ICG and interstate commerce if ICG was required to continue operation of the line, with no real prospect of such operation being profitable.

The Scope of Review

15
The scope of review of ICC orders is very narrow.  The ICC has primary jurisdiction in matters related to application of the Act, e.g., Great Northern Ry. v. Merchants Elevator Co., 259 U.S. 285, 291, 42 S.Ct. 477, 479, 66 L.Ed. 943 (1922), which involves the resolution of fact questions and the exercise of discretion in technical matters which are uniquely within the competency of the ICC.  Its decision must be sustained if it is supported by substantial evidence and if it is not arbitrary or capricious.  5 U.S.C. § 706(2)(A), (E).  The ICC has broad discretion in defining the term "public convenience and necessity" as it applies to the infinite variety of circumstances which may be shown to exist in individual applications for abandonment.  ICC v. Parker, 326 U.S. 60, 65, 65 S.Ct. 1490, 1492, 89 L.Ed. 2051 (1945).  To determine the question of abandonment, the ICC must weigh the interest of persons served by an existing rail line against the interests of the carrier and the transportation system as reflected in the evidence presented to it.  E.g., Chicago & Northwestern Transportation Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981); Purcell v. United States, 315 U.S. 381, 384, 62 S.Ct. 709, 710, 86 L.Ed. 910 (1942); Farmland Industries, Inc. v. United States, 642 F.2d 208, 210-211 (7th Cir. 1981).  On review of a decision, the court's function is limited to a determination whether there is warrant in the law and the facts found for the decision reached by the ICC.  United States v. Pierce Auto Freight Lines, 327 U.S. 515, 536, 66 S.Ct. 687, 698, 90 L.Ed. 821 (1946).  The weighing of the evidence and the drawing of inferences and conclusions from it are functions of the ICC alone, if it appears that what the ICC has done is supported by substantial evidence.  E.g., Ralston Purina Co. v. Louisville & Nashville Railroad, 426 U.S. 476, 477-478, 96 S.Ct. 2160, 2161, 48 L.Ed.2d 781 (1976); Mississippi Public Service Commission v. ICC, 650 F.2d 551, 553 (5th Cir. 1981); State of Texas v. United States, 642 F.2d 87, 90 (5th Cir. 1981).

16
Substantial evidence is that grade of evidence which will reasonably support a conclusion reached by the ICC, not a preponderant weight of the evidence.  Substantiality is not affected by the fact, if it be the fact, that the evidence presented is reasonably susceptible to two or more opposed inferences.  Consolo v. FMC, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966).  An ICC decision may not be reversed on review if there is a rational connection between the facts found and the choice made.  Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974).

Specific Arguments

17
BSA's challenge to the decision rests largely upon an untenable premise that this court should review the weight of the evidence and, from that review, determine that subsidiary findings which support the abandonment determination by the ICC are erroneous.  That premise is wholly inconsistent with the permissible scope of judicial review.

18
BSA first argues that the ICC determination that the provision of 100-ton car service would burden ICG and interstate commerce, is arbitrary, for the reason that the ICC relied upon excessive rehabilitation figures to support that determination.  It argues that the rehabilitation cost must be limited to the.$1.2 million cost of replacing the 75-pound rail, and that the balance of cost must be attributed to deliberate downgrading of the line by ICG through deferred maintenance.  That argument must be rejected.  Substantial evidence does support the findings of the ICC that no deliberate downgrading was shown and that the advanced deterioration of the line was occasioned by the limited provision of 100-ton car service by ICG.  Our inquiry must end with that determination.

19
BSA also argues that the ICC findings as to off-branch costs are not supported by substantial evidence.  That argument must also fail.  ICG employed the methodology required by regulations to compute off-branch costs which were attributable to the line.  The ICC stated that those costs were "somewhat overstated," but it found that the costs stated were "substantially correct."  BSA argues that the employment of a different methodology, as exemplified by an exhibit produced by BSA, would render substantially lower off-branch cost figures.  Since that exhibit was before the ICC, the argument is addressed to the weight, not to the substantiality, of the evidence.

20
BSA next contends that the ICC should have attributed the net revenues from the transportation of certain finished products to the line.  Among other products, the line originated shipments of corncobs to manufacturers in Memphis, Tennessee.  Those shipments moved under a rate established by ICG for the cob traffic.  ICG also handles manufactured products shipped by the Memphis manufacturers under a rate fixed for such transport.  There are no transit tariff provisions which link the one shipment to the other.  We cannot conclude that there is no rational basis in law for the ICC determination that net revenues from the finished products were not attributable to the line.

21
Finally, BSA argues ICC's finding that it was not shown that any significant additional traffic would move by rail if the line was rebuilt to accommodate 100-ton cars, is not supported by substantial evidence.  It is clear, from the argument, that BSA again insists that the evidence be reweighed and that a contrary finding be directed.  That is not the function of this court.9

22
For the reasons stated, the decision of the Interstate Commerce Commission is AFFIRMED.

*
 This appeal was originally decided by unreported order on May 6, 1982.  See Circuit Rule 35.  The Court has subsequently decided to issue the decision as an opinion

**
 The Honorable Robert D. Morgan, Chief Judge of the Central District of Illinois, is sitting by designation

1
 Rail weights are stated in pounds of steel per linear yard of rail

2
 A "gathering train" connotes the distribution of empty 100-ton cars at various grain elevators along the line, which, when loaded, are gathered into a train for movement as a unit to Gulf ports

3
 The Act was recodified in 1978, without substantive change.  For convenience, all references herein to the Act cite the current codification, without citation to the previous placement of the Code of the several provisions

4
 Abandonment of R. R. Lines & Discontinuance of Service, 354 I.C.C. 252 (1976)

5
 An appellate division consisting of three Commissioners, which is constituted pursuant to the provisions of 49 U.S.C. § 10302

6
 The division found that only about 10% of the available grain traffic was being shipped by rail at the time when the weight limit was reduced on the line, precluding the further use of 100-ton cars.  It held that any harm to shippers from abandonment was "clearly" outweighed by the burden upon ICG and interstate commerce from the continuance of service over the line at existing levels

7
 The ICC said that Winnebago Farmers Elevator Co. v. Chicago & Northwestern Transportation Co., 354 I.C.C. 859 (1978), could not be construed as establishing a national level of minimum adequate service which is applicable to all branch rail lines

8
 The ICC rejected ICG's engineering cost estimate that reconstruction of the line to accommodate 100-ton cars would cost about $8,000,000.  It adopted a cost estimate by an expert witness of BSA of about $2,000,000 for rehabilitation of the line, by replacing the 75-pound rail as a realistic cost estimate.  It appears that the diversion between those estimates lay in the fact that ICG's estimate proposed the replacement of all 75-pound and 85-pound rail with 115-pound rail, and substantial improvement of the substructure which would befit the line to handle traffic at a maximum speed of 25 miles per hour, while the BSA estimate would replace the 75-pound rail, only, with 90-pound rail, which would limit speed after rehabilitation to 10 miles per hour.  The ICC accepted as reasonable a projected rehabilitation cost of about $2,100,000 and a projected maintenance cost of $256,000 annually, following rehabilitation

9
 In this and in some other contexts, BSA recited findings by the administrative law judge which were opposed to those of the ICC.  However, it was the ICC's function to weigh the evidence and to make its findings of fact.  It is the ICC decision, not that of the administrative law judge, which is here for review.  Even if the fact that the ICC opened the hearing for additional evidence be ignored, the most which might be said of a comparison of the findings of the law judge with those of the ICC, is that the evidence admits of two opposed inferences, both of which may be equally substantiated


                         Fourth Court of Appeals
                                San Antonio, Texas
                                       July 20, 2018

                                   No. 04-18-00187-CV

                           WIGGINS REVOCABLE TRUST,
                                    Appellant

                                             v.

                        Jeffrey A. GLOVER and Donna S. Glover,
                                      Appellees

                From the 218th Judicial District Court, Karnes County, Texas
                            Trial Court No. 16-01-00022-CVK
                        Honorable Donna S. Rayes, Judge Presiding

                                      ORDER
    The appellees’ second unopposed motion for extension of time to file brief is hereby
GRANTED. Time is extended to August 31, 2018.

                                                  _________________________________
                                                  Irene Rios, Justice

       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 20th day of July, 2018.

                                                  ___________________________________
                                                  KEITH E. HOTTLE,
                                                  Clerk of Court


298 U.S. 155 (1936)
HARTFORD ACCIDENT & INDEMNITY CO.
v.
ILLINOIS EX REL. McLAUGHLIN, DIRECTOR OF AGRICULTURE.
No. 692.
Supreme Court of United States.
Argued March 31, 1936.
Decided April 27, 1936.
APPEAL FROM THE SUPREME COURT OF ILLINOIS.
*156 Mr. J.F. Dammann, with whom Mr. Arthur L. Israel was on the brief, for appellant.
Mr. Otto Kerner, Attorney General of Illinois, and Mr. Louis Salinger, Assistant Attorney General, were on the brief for appellee.
MR. JUSTICE ROBERTS delivered the opinion of the Court.
An Illinois statute[1] forbids persons, associations, and corporations to receive, sell, offer, or solicit consignments of farm produce for sale, on commission, within Illinois, unless licensed; requires an applicant for a license to make a showing as to character, responsibility, and good faith in the conduct of the proposed business; and directs that a license must be procured for each location where the business is to be transacted, a fee paid therefor, and a bond, in the sum of $5,000, with satisfactory surety, executed, conditioned on honest accounting and handling of produce received and against fraudulent conduct. Provision is made for the granting and revocation of licenses *157 by the Director of Agriculture. A licensee is required to follow certain business methods, to keep records, which are to be subject to inspection, to account and to pay for produce received for sale. The Director is empowered to bring action upon the licensee's bond for the recovery of sums due consignors for goods sold, if payment is not made by the licensee, or for the recovery of damages suffered by consignors as a result of fraudulent acts or wrongful handling on the part of the licensee. Should the penalty of the bond prove insufficient to pay all such liabilities, the consignors are to receive payment of any amount recovered in proportion to their several claims.
The Cross Company took licenses, and the appellant became surety on its bonds, for the years ending July 1, 1932, and July 1, 1933. In October, 1932, the Cross Company became bankrupt and failed to account for numerous consignments of fresh fruits and vegetables. Some were shipped from Illinois but most were from other states. The Director of Agriculture brought actions in a state court on both bonds. The court consolidated the cases and they were tried together on stipulated facts.
The appellant, in addition to defenses raising no federal question, pleaded that the statute was beyond the state's power because a restriction upon, and a regulation of, interstate commerce. Judgment was entered against the Cross Company and the appellant. Both appealed to the Supreme Court of the State, which affirmed the judgment.[2] The appellant summoned and severed the Cross Company and prosecuted an appeal to this court.
The sole question presented is the constitutional validity of the act as it affects the appellant's liability under its bonds. The statute is a police regulation. The business regulated is local, having its situs within the state *158 and being conducted therein. The fact that the commission merchant contracts to sell, and sells, farm produce forwarded to him from points without, as well as points within, the state is not enough to condemn the regulation of a business carried on within her borders.[3] Such effect as the regulation has upon interstate commerce is indirect and incidental and does not trespass upon the power conferred on Congress by Article I, § 8, of the federal Constitution. In these circumstances, until Congress, under the commerce power, adopts inconsistent legislation, that of the state remains effective.[4]
The appellant urges, however, that Congress has adopted an act[5] regulating the same business and the Cross Company was required to take a license under that act. This alone is not sufficient to nullify the state law, if the federal act does not cover the same field, or is consistent with it.[6] But it is said the state and federal laws are similar in their provisions and, therefore, the exercise by Congress of its paramount power nullifies the state statute. The federal act requires every person, partnership, association, or corporation, who is engaged in the business of receiving in interstate or foreign commerce perishable agricultural commodities, defined as "fresh fruits and vegetables of every kind and character," for sale on commission, to procure a license from the Secretary *159 of Agriculture. The act parallels the state statute in respect of the requirements of proper accounting, honest dealing, and prompt remittance. While it provides for awards of reparation by the Secretary of Agriculture for non-compliance with its prescriptions, gives a right of action to consignors and shippers for violation of its provisions, authorizes the revocation of licenses and imposes penalties, thus covering to some extent the same ground as the State law, it does not call for the giving of any bond by a licensee. Moreover, § 15 provides:
"This Act shall not abrogate nor nullify any other statute, whether State or Federal, dealing with the same subjects as this Act; but it is intended that all such statutes shall remain in full force and effect except in so far only as they are inconsistent herewith or repugnant hereto."
Thus the act of Congress not only omits the requirement of a bond, but affirmatively saves the provision of the Illinois act as to that form of security. As respects the bond and the protection thereby afforded to consignors, there is no inconsistency between the two acts and both may be given effect.
The judgment is
Affirmed.
NOTES
[1]  Smith-Hurd, c. 5, §§ 17-24; Cahill's Ill. Stat. c. 5, §§ 24-32.
[2]  People ex rel. McLaughlin v. G.H. Cross Co., 361 Ill. 405; 198 N.E. 356.
[3]  W.W. Cargill Co. v. Minnesota, 180 U.S. 452, 470; Ware & Leland v. Mobile County, 209 U.S. 405; The Minnesota Rate Cases, 230 U.S. 352, 410; South Covington & C. St. Ry. v. Covington, 235 U.S. 537; Hall v. Geiger-Jones Co., 242 U.S. 539, 557; Federal Compress Co. v. McLean, 291 U.S. 17; Chassaniol v. Greenwood, 291 U.S. 584.
[4]  Sherlock v. Alling, 93 U.S. 99; Pennsylvania R. Co. v. Hughes, 191 U.S. 477.
[5]  Act of June 10, 1930, c. 436, 46 Stat. 531. U.S.C. Tit. 7, §§ 499a-499r.
[6]  Sligh v. Kirkwood, 237 U.S. 52; Mintz v. Baldwin, 289 U.S. 346.


                    IN THE COURT OF APPEALS OF TENNESSEE,
                                 AT JACKSON

             _______________________________________________________        FILED
                                    )
BILLY WESSON and,                   )     Madison County Circuit Court April 6, 1999
DIANE WESSON,                       )     No. C-98-6 and No. C-98-68
                                    )                                Cecil Crowson, Jr.
                                                                      Appellate C ourt Clerk
   Plaintiffs/Appellees.            )
                                    )
VS.                                 )     C.A. No. 02A01-9808-CV-00225
                                    )
WOODWORKS, INC.,                    )
                                    )
   Defendant/Appellant.             )
                                    )
                                    )
WOODWORKS, INC.,                    )
                                    )
   Plaintiff/Appellant.             )
                                    )
VS.                                 )
                                    )
LARRY CUPPLES, d/b/a CUPPLES        )
CONSTRUCTION COMPANY,               )
                                    )
   Defendant/Appellee.              )
______________________________________________________________________________

From the Circuit Court of Madison County at Jackson.
Honorable Whit Lafon, Judge

A. Russell Larson, Jackson, Tennessee
Attorney for Appellant Woodworks, Inc.

David A. Riddick, HOLMES, RICH, SIGLER & RIDDICK, P.C., Jackson, Tennessee
Attorney for Appellees Billy Wesson and Diane Wesson and Appellee Larry Cupples.

OPINION FILED:

REVERSED AND REMANDED

                                          FARMER, J.

CRAWFORD, P.J., W.S.: (Concurs)
HIGHERS, J.: (Concurs)
                   Defendant Woodworks, Inc., appeals the circuit court’s final judgment in the amount

of $8288 which was entered in favor of Plaintiffs/Appellees Billy and Diane Wesson. We reverse

the circuit court’s judgment based upon our conclusion that the court erred in directing a verdict in

favor of Defendant/Appellee Larry Cupples, d/b/a Cupples Construction Company, and we remand

for a new trial.

                   The Wessons instituted these proceedings in April 1997 when they filed an action

against Woodworks in the General Sessions Court of Madison County. The Wessons’ complaint

contained the following allegations:

                   [Woodworks] sold to [the Wessons] a product that was unfit for its
                   intended purpose.         [The Wessons] seek rescission and/or
                   revokation [sic] of sales agreement regarding the purchase of wooden
                   flooring products from [Woodworks] and a refund of amounts paid
                   to [Woodworks] along with any incidental or consequential damages.

                   Woodworks responded to the Wessons’ complaint by filing a motion to dismiss

contending, inter alia, that the general sessions court lacked jurisdiction over Woodworks because

Woodworks was a Georgia corporation which did not conduct business in the state of Tennessee.

                   Apparently, the general sessions court denied Woodworks’ motion to dismiss. The

record reflects that, in January 1998 after conducting a trial, the court entered a judgment in the

amount of $8288 in favor of the Wessons.

                   Woodworks then appealed the judgment to the Circuit Court of Madison County.

When Woodworks appeared in the circuit court, however, it apparently did not renew its motion to

dismiss for lack of personal jurisdiction. The technical record submitted on appeal fails to contain

a written motion to dismiss except for the one filed in the general sessions court. The transcript of

the trial held in circuit court likewise contains no mention of a motion to dismiss.

                   Moreover, the record on appeal does not contain a copy of the claim filed by

Woodworks against Appellee Larry Cupples, d/b/a Cupples Construction Company. According to

the Appellees’ brief, however, after appealing the judgment against it to the circuit court,
Woodworks filed a separate action against Cupples in circuit court. The two actions were tried

together, and the circuit court’s final judgment, entered in July 1998, granted Woodworks’ motion

to consolidate the two cases. In essence, therefore, this lawsuit involved a claim by the Wessons

against Woodworks and a third-party claim by Woodworks against Cupples.                   The gist of

Woodworks’ third-party claim was that any damages incurred by the Wessons were caused by

Cupples’ negligence in installing the flooring and not by any defect in the flooring itself.

               At the trial held in circuit court, the Wessons testified that they purchased the subject

hardwood flooring products from Woodworks in February 1995. In 1994, the Wessons had entered

into a contract with Cupples for the construction of a new home. The Wessons instructed Cupples

to purchase the hardwood flooring from Woodworks with funds from the Wessons’ construction

loan. Woodworks previously had mailed flooring samples to the Wessons. Woodworks shipped the

hardwood flooring in sealed boxes to Averitt Express in Jackson. Cupples picked up the flooring,

transported it to the construction site, and stored it in the dining room of the partially-constructed

home for several weeks. Cupples’ employees then installed the flooring in the home’s foyer, dining

room, and living room.

               In May 1995, shortly after moving into their new home, the Wessons noticed

problems with the hardwood flooring. Billy Wesson testified that the floor had a wavy pattern to it,

as if the flooring had buckled. Wesson also testified that the flooring had separated in places,

particularly at the corners. Diane Wesson corroborated her husband’s testimony that the flooring had

buckled. She testified that the wood bulged or bowed in places and sank in others. On most of the

boards, the edges had risen higher than the center. She also observed that separations had appeared

between the floorboards.

               Larry Cupples testified that his company installed the Wessons’ hardwood flooring

correctly; however, Cupples acknowledged that he was not present when the actual installation was

performed. In May 1995, Cupples observed that the newly-installed flooring was cupping, in that

the edges of the flooring were rising while the centers stayed in place. Cupples also noticed that the

flooring was separating at the joints. The problems appeared to grow worse over a period of time.

Cupples had used Woodworks flooring once before and had not experienced any problems with the
product. In this case, however, Cupples believed that the problems occurred because the flooring

contained an excessive amount of moisture. Cupples testified that the cupping of the wood was

caused by the drying-out process. Cupples explained that the wood contracted as it dried out, thus

producing the cupping effect. Cupples estimated that purchasing and installing a new floor would

cost $8288.

               Several months after discovering these problems, the Wessons hired home inspector

Dale Catlett to examine the flooring. As part of his inspection, Catlett crawled under the house to

check the crawl space for excessive moisture. Catlett confirmed that a vapor barrier had been placed

underneath the house to prevent it from absorbing moisture. Catlett used a moisture meter to detect

the presence of moisture under the house, and the resulting readings indicated relatively low moisture

levels, between eight and ten percent. Catlett did not know what the moisture levels were in the

crawl space in May 1995, but he did not believe excessive moisture had been a problem because he

did not observe any mold or mildew on the floor joists under the house. In Catlett’s opinion, the

problems which had developed in the Wessons’ flooring were caused by excessive moisture in the

wood at the time of installation. Catlett explained that hardwood flooring was kiln-dried until the

moisture content of the wood was as low as six or seven percent. If the wood was not properly dried,

the wood would continue to shrink after installation as it lost moisture. Catlett testified that the

Wessons’ flooring had shrunk after installation in both width and length, thus causing the separations

to appear between the boards and causing the edges of the boards to turn up. Catlett was confident

that the hardwood flooring was exposed to water at some point in time, but he could not tell if it

happened at the factory, during transport, or at the job site.

               The only witness for Woodworks was Jim Tibbs, the owner and president of

Woodworks’ parent company, Georgia Flooring Distributors. Woodworks distributed the products

sold to the Wessons, as well as other hardwood flooring products, but Woodworks did not

manufacture the products. Tibbs examined the Wessons’ flooring on the day before the circuit court

trial. Contrary to the other witnesses’ testimony, Tibbs testified that, in his opinion, the problems

with the Wessons’ flooring were caused, not by excessive moisture in the wood, but by excessive

moisture in the surrounding environment at the time of installation. Tibbs testified that all three

problems observed by the Wessons, the cupping, the buckling, and the separating, were caused when
the wood absorbed moisture from the environment. Tibbs explained that the cupping effect resulted

when water underneath the house caused the back of the flooring to expand at a faster rate than the

top or face of the flooring. According to Tibbs, this expansion of the wood also caused the flooring

to eventually buckle and separate. Tibbs testified that, in previous discussions, Billy Wesson

indicated that the Wessons once had moisture problems underneath the house but that Cupples had

corrected the problems. Tibbs further testified that, while examining the flooring on the previous

day, he detected a high moisture level with a moisture meter. Tibbs opined that, although the

flooring was properly installed, the flooring should not have been installed in this environment

because it contained too much moisture. Tibbs agreed that the only way to remedy the problems

would be to replace the floor.

               Based on the foregoing evidence, at the trial’s conclusion, the circuit court directed

a verdict in favor of Cupples on Woodworks’ third-party claim. The jury then returned a verdict in

favor of the Wessons and against Woodworks in the amount of $8288, and the circuit court entered

a judgment accordingly.

               On appeal, Woodworks presents the following issues for this court’s review:

               1.      Whether or not there was jurisdiction over the Defendant,
                       Woodworks, Inc.

               2.      Whether the evidence supported an implied warranty in
                       regard to Woodworks, Inc.

               3.      Whether the Court was in error in directing a verdict as to
                       Larry Cupples Construction Company.

               As its first issue, Woodworks contends that the circuit court erred in finding that it

had personal jurisdiction over Woodworks. We conclude that Woodworks waived this issue for

purposes of appellate review by failing to raise it in the circuit court.

                Objections to personal jurisdiction may be waived by a party’s consent or failure to

object. Meighan v. U.S. Sprint Communications Co., 924 S.W.2d 632, 639 n.4 (Tenn. 1996).

Unless raised in a timely manner, a party’s objections to personal jurisdiction are deemed waived.
Dixie Sav. Stores, Inc. v. Turner, 767 S.W.2d 408, 410 (Tenn. App. 1988). Thus, if a party makes

a general appearance and does not raise the issue of personal jurisdiction, “the courts customarily

find that the party has waived its objections” thereto. Id. When a defendant “makes an appearance

in a pending matter without attacking in personam jurisdiction, and seeks affirmative relief from the

court, or acts in a manner inconsistent with the claim of absence of jurisdiction,” the defendant has

made a general appearance and has consented to the jurisdiction of the court. Department of

Human Servs. v. Daniel, 659 S.W.2d 625, 626 (Tenn. App. 1983).

                The record in the present case reflects that Woodworks appealed the general sessions

court’s judgment to the circuit court and that it appeared in the circuit court without raising the issue

of the court’s personal jurisdiction. We hold that, under these circumstances, Woodworks has

waived the right to challenge the circuit court’s jurisdiction over it.

                Our conclusion that Woodworks waived this issue is supported by the general rule

that a party who fails to raise an issue at the circuit court level waives its right to have the issue

reviewed by this court on appeal. See, e.g., Dement v. Kitts, 777 S.W.2d 33, 36 (Tenn. App. 1989).

We believe that this principle applies here because, in appealing the judgment of the general sessions

court, Woodworks was entitled to a trial de novo in the circuit court. See T.C.A. § 27-5-108(c)

(1980). In a trial de novo, the circuit court tries the lawsuit anew, as if it had originated in the circuit

court. Simms Elec., Inc. v. Roberson Assocs., No. 01A01-9011-CV-00407, 1991 WL 44279, at *2

(Tenn. App. Apr. 3, 1991). The parties may assert therein the same claims and defenses that they

asserted in the general sessions court. Clark v. Metropolitan Gov’t, 827 S.W.2d 312, 318 (Tenn.

App. 1991) (Koch, J., concurring). The issues are tried as if they “had not been heard before and as

if no decision had been previously rendered.” Black’s Law Dictionary 392 (5th ed. 1979). In our

view, this procedure required Woodworks, as the appellant, to raise in the circuit court all of the

issues it wanted retried by that court, including that of personal jurisdiction.

                Moreover, as previously indicated, Woodworks filed a separate action against

Cupples in the circuit court which later was consolidated with its appeal against the Wessons.

Woodworks’ action of seeking such affirmative relief in the circuit court provides additional support

for our conclusion that Woodworks waived the defense of lack of personal jurisdiction. See, e.g.,
Dooley v. Dooley, 980 S.W.2d 369, 372 (Tenn. App. 1998) (holding that defendant in action to

enforce divorce decree waived personal jurisdiction defense by filing motion seeking to modify

decree’s support provisions); In re Grosfelt, 718 S.W.2d 670, 672 (Tenn. App. 1986) (holding that

defendant in paternity action waived personal jurisdiction defense by not raising defense until after

he filed motion to transfer case to circuit or chancery court for jury trial on paternity issue).

                We note that Woodworks still could have preserved the defense of lack of personal

jurisdiction if it had timely raised this defense in the circuit court. See Proctor & Gamble Cellulose

Co. v. Viskoza-Loznica, 33 F. Supp. 2d 644, 662 (W.D. Tenn. 1998). A defendant does not waive

the defense of lack of personal jurisdiction merely by filing a claim against a third party, provided

the defendant asserts the third-party claim and the personal jurisdiction defense in the same

responsive pleading. Id.; see also Dooley v. Dooley, 980 S.W.2d 369, 371-72 (Tenn. App. 1998)

(noting that defendant who unsuccessfully raises personal jurisdiction defense has no alternative

except to answer and defend or risk entry of default judgment). Here, however, Woodworks

apparently filed a separate action against Cupples without renewing its motion to dismiss for lack

of personal jurisdiction. Under these circumstances, Woodworks did not preserve its defense of lack

of personal jurisdiction.

                For several reasons, we also reject Woodworks’ argument that, based upon the sealed

container doctrine, the circuit court erred in submitting the Wessons’ claim against Woodworks to

the jury. As an initial matter, we note that the trial transcript provided to this court fails to indicate

whether Woodworks moved for a directed verdict on this issue at the conclusion of the proof at trial.1

Accordingly, we are not convinced that this issue is properly before this court for review. See

Potter v. Tucker, 688 S.W.2d 833, 835 (Tenn. App. 1985) (holding that, in order to preserve for

appellate review issue of whether circuit court erred in failing to direct verdict in its favor, party must

        1
         We note that the trial transcript may not contain a complete account of what transpired at
trial. For example, the transcript does not contain opening or closing arguments of counsel, and
it does not contain the circuit court’s instructions to the jury. We remind the parties that the
appellant has the duty to prepare “a transcript of such part of the evidence or proceedings as is
necessary to convey a fair, accurate and complete account of what transpired with respect to
those issues that are the bases of appeal.” See T.R.A.P. 24(b); accord Nickas v. Capadalis, 954
S.W.2d at 735, 742 (Tenn. App. 1997). As submitted to this court, the transcript contains no
evidence that Woodworks either (1) renewed its motion to dismiss for lack of personal
jurisdiction at any time before or during the trial or (2) moved for a directed verdict at the trial’s
conclusion.
present motion for directed verdict at conclusion of all proof at trial).

                In any event, the proof presented at trial was not sufficient to support the application

of the sealed container doctrine to this case. As codified in Tennessee, the sealed container doctrine

provides that no products liability action

                shall be commenced or maintained against any seller when the
                product is acquired and sold by the seller in a sealed container and/or
                when the product is acquired and sold by the seller under
                circumstances in which the seller is afforded no reasonable
                opportunity to inspect the product in such a manner which would or
                should, in the exercise of reasonable care, reveal the existence of the
                defective condition.

T.C.A. § 29-28-106(a) (Supp. 1994). Although the proof in this case showed that Woodworks sold

the hardwood flooring in sealed containers, the proof failed to reflect that Woodworks acquired the

flooring in these sealed containers such as to trigger application of the sealed container doctrine. The

proof also failed to address whether Woodworks had a reasonable opportunity to inspect the flooring

for defects prior to shipping it to Cupples.

                We further note that, as codified in Tennessee, the sealed container doctrine does not

apply to actions based upon a breach of an express or implied warranty, as defined by Tennessee’s

Uniform Commercial Code. See T.C.A. § 29-28-106(a)(1) (Supp. 1994); see also T.C.A. § 47-2-313

(1996) (addressing creation of express warranties); T.C.A. § 47-2-314 (1996) (addressing creation

of implied warranty of merchantability); T.C.A. § 47-2-315 (1996) (addressing creation of implied

warranty of fitness for particular purpose). As framed, the Wessons’ complaint against Woodworks

encompassed a claim for breach of implied warranty by alleging that the product purchased was unfit

for its intended purpose. Moreover, in his trial testimony, Jim Tibbs acknowledged that, when it sold

the flooring, Woodworks warranted that the flooring was fit for its intended purpose and that it was

not defective. Accordingly, we conclude that the circuit court did not err by failing to direct a verdict

in Woodworks’ favor based upon the sealed container doctrine.

                We agree, however, with Woodworks’ assertion that the circuit court erred in

directing a verdict in favor of Cupples on Woodworks’ third-party claim. In ruling on Cupples’
motion for directed verdict, the circuit court was required to take the strongest legitimate view of the

evidence in favor of the non-moving party, Woodworks. Eaton v. McLain, 891 S.W.2d 587, 590

(Tenn. 1994). That is, the court was required to resolve any conflict in the evidence by construing

it in the light most favorable to Woodworks and by discarding all countervailing evidence. Id.

Cupples was entitled to have his motion granted only if, after assessing the evidence according to

the foregoing standard, the circuit court determined that reasonable minds could not differ as to the

conclusions to be drawn from the evidence. Id. If it entertained any doubt as to the proper

conclusions to be drawn from the evidence, the court was required to deny Cupples’ motion and to

submit the case to the jury. Id.

                Applying this standard, we conclude that the circuit court erred in granting Cupples’

motion for directed verdict. Contrary to the circuit court’s ruling, Woodworks presented evidence

from which the jury could have found that Cupples negligently installed the hardwood flooring and

that this negligence caused the Wessons’ damages. Specifically, Woodworks presented evidence

that the problems with the Wessons’ flooring were caused by excessive moisture in the Wessons’

home. Jim Tibbs testified, without objection, that Plaintiff Billy Wesson once acknowledged to him

that the Wessons had experienced moisture problems underneath their house in the past. According

to Tibbs, Wesson indicated that he had experienced “a water problem” in the crawl space underneath

the house, although Wesson insisted that the problem had been corrected. Tibbs also testified that,

when he examined the flooring the day before trial, he performed a simple test with a moisture meter

which revealed the presence of a high level of moisture in the house. Based upon this information,

as well as his own observation of the condition of the flooring, Tibbs opined that Cupples or his

employees improperly installed the flooring in an environment which contained excessive moisture.

Tibbs also described how, in his opinion, this excessive moisture had caused the specific problems

of which the Wessons complained.

                In granting Cupples’ motion for directed verdict, the circuit court appeared to focus

on Tibbs’ testimony whereby he acknowledged that he found nothing wrong with the installation of

the floor. This testimony was elicited by the circuit court in the following exchange:

                        THE COURT: Let me ask you this question. Did you find
               anything wrong with the actual installation?

                       THE WITNESS: With the actual installation?

                      THE COURT: Putting the wood in the floor. Did you see
               anything unusual about that?

                      THE WITNESS: Other than the fact there wasn’t enough
               expansion, and it actually buckled up against the walls. Typically,
               Your Honor, part of an installation --

                      THE COURT: Just a minute, now. I understood you to say
               the buckling up was due to the water.

                       THE WITNESS: Due to the water.

                      THE COURT: Well, does the -- did the installer do -- did you
               see anything he did other than the fact that it was a damp place?

                      THE WITNESS: No. He installed wood flooring in an
               environment that it should not have been installed.

                      THE COURT: The installation itself. Let’s forget the
               environment. Was there anything wrong with the installation?

                       THE WITNESS: Not a thing.

                       THE COURT: Not a thing. That’s what I wanted. Go ahead.

               Contrary to the trial court’s ruling, this testimony did not entitle Cupples to a directed

verdict on the issue of whether he negligently installed the hardwood flooring in the Wessons’ house.

This testimony merely showed that Tibbs did not observe anything wrong with the way the boards

were laid when the floor was installed. In other testimony, Tibbs clearly explained that site

preparation was part of the installation process and that proper site preparation, in turn, included

ensuring that the environment in which the floor was being installed did not contain excessive

moisture. In Tibbs’ opinion, when Cupples installed the hardwood flooring in the Wessons’ home,

the environment contained excessive moisture. In light of this testimony, the circuit court should

have permitted the jury to decide which party was to blame for the problems which developed in the

Wessons’ flooring.

               The trial court’s judgment is reversed, and this cause is remanded for a new trial.

Costs of this appeal are taxed one-half to the Wessons and one-half to Cupples, for which execution

may issue if necessary.
                                 ____________________________________
                                 FARMER, J.

______________________________
CRAWFORD, P.J., W.S. (Concurs)

______________________________
HIGHERS, J. (Concurs)


742 F.Supp.2d 1179 (2010)
CROSS CONTINENT DEVELOPMENT, LLC, a Colorado limited liability corporation, Plaintiff,
v.
TOWN OF AKRON, COLORADO, a Colorado municipal corporation; The Akron Town Council; Carl S. McGuire II, Esq., in his official capacity as Attorney for the Town of Akron; The Board of Trustees of the Town of Akron; and The Colorado Plains Regional Airport Development Committee, Defendants.
Civil Action No. 09-cv-02413-WYD-KMT.
United States District Court, D. Colorado.
September 23, 2010.
*1182 Victor M. Morales, Katherine A. Kelley, McElroy Deutsch Mulvaney & Carpenter, LLP, Greenwood Village, CO, for Plaintiff.
Geoffrey Race, Lawrence Michael Brooks, Jr., Rachel E. Ollar, Wells, Anderson & Race, LLC, Mary Kathryn Strauss, Peter H. Doherty, Overturf McGath Hull & Doherty, P.C., Denver, CO, for Defendants.

ORDER
WILEY Y. DANIEL, Chief Judge.
THIS MATTER is before the Court on Defendants' Motion to Dismiss. Defendants move, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss Plaintiff's claims asserted under federal law for unlawful taking, deprivation of procedural due process and deprivation of substantive due process. If these claims are dismissed, Defendants *1183 also ask the Court to decline to retain supplemental jurisdiction over the remaining state law claims and dismiss them without prejudice.

I. BACKGROUND

This case arises out of a lease between the Town of Akron ["Akron"] and Cross Continent Development, LLC ["CCD"], a private entity. CCD alleges that on January 5, 2009, with no prior warning or notice, Akron terminated a 49-year old lease (the "Lease") with CCD, under which CCD leased property adjacent to the Colorado Plains Regional Airport in Akron.
The Lease states that it may be terminated by a party only upon "written notice" of the existence of a breach and after providing the party alleged to be in breach with, at minimum, a one-year opportunity to cure. (Am. Compl., ¶ 19, Ex. A. p. 10.) CCD alleges that in reliance on the Lease, it sought, secured, and entered into agreements with investors and sublessees that would undertake construction and development of the airport facilities. (Id., ¶¶ 17, 21-22.) Pursuant to these agreements, CCD was projected to earn more than $60 million during the Lease term. (Id., ¶ 23.)
Under the Lease, Akron permitted CCD to lease the airport land for a period of 49 years, with five additional ten-year extension options. (Am. Compl., ¶ 15.) In turn, CCD was obligated to develop the leased land. (Id., ¶ 16.) CCD's development responsibilities under the Lease included preparation of a plan for development of the leased land, to be completed no later than December 31, 2008. (Id., ¶ 16.)
In November 2008, CCD alleges it fulfilled its obligation under the Lease by presenting to Akron a comprehensive development plan that incorporated Akron's previous suggestions and corrections. (Am. Compl., ¶ 20.) The development plan allegedly satisfied all required elements under the Lease. (Id.) Despite informing CCD that it would provide additional feedback after the November 2008 presentation, Akron failed to do so. (Id.) Instead, it terminated the Lease on January 5, 2009, without providing CCD written notice or a one-year opportunity to cure as required.

II. ANALYSIS

A. Standard of Review

The Federal Rules of Civil Procedure provide that a defendant may move to dismiss a claim for "failure to state a claim upon which relief can be granted." Fed. R.Civ.P. 12(b)(6). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir.2003) (citations and quotation marks omitted). "A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff." Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. If the allegations state a plausible claim for relief, the claim survives the motion to dismiss. Id. at 1950.

*1184 B. Whether Dismissal is Appropriate as to the Federal Claims

1. Unlawful Taking Claim

Defendants assert that the complaint fails to state a claim for an unlawful taking. They argue that a taking claim is only appropriate in connection with a government contract if the plaintiff is foreclosed from bringing a state breach of contract claim. Here, Defendants assert that the rights between the parties were created by contract under the Lease, and that the contract rights are wholly intact. Accordingly, it is argued that Akron has not deprived Plaintiff of the full range of remedies under a breach of contract claim.
Turning to my analysis, it is well established that a plaintiff who is suing in connection with a government contract "is entitled to a takings remedy only if it is foreclosed from bringing a breach of contract action, i.e., if its contract rights have been `taken'." Pi Electronics Corp. v. United States, 55 Fed.Cl. 279, 285 (Fed.Cl.2003); Hughes Communications v. United States, 271 F.3d 1060, 1070 (Fed.Cl.2002); Castle v. United States, 301 F.3d 1328, 1342 (Fed.Cir.2002). In other words, "[a] takings claim has limited applicability when a claimant has a viable breach remedy." Pi Electronics, 55 Fed.Cl. at 285. "This is so because `[v]irtually every contract operates, not as a guarantee of particular future conduct, but as an assumption of liability in the event of nonperformance.'" Id.
As explained in Hughes, "[t]akings claims rarely rise under government contracts because the Government acts in its commercial or proprietary capacity in entering contracts, rather than its sovereign capacity. Hughes, 271 F.3d at 1070." "Accordingly, remedies arise from the contracts themselves, rather than from the constitutional protection of property rights." Id. The court also noted that if the government's breach in that case of a launch services agreement with NASA was a taking under the Fifth Amendment, "then nearly all government contract breaches would give rise to compensation under the Fifth Amendment." Id. It stated that the "court's predecessor has cautioned against commingling takings compensation and contract damages." Id. The court then held that the government was acting in its proprietary capacity when it entered the contract as it "`obtained certain rights and incurred certain responsibilities as did plaintiffs.'" Id. Accordingly, Hughes could only assert a breach of contract claim.
None of the above cases, however, dealt with leases involving real property. "As a general proposition, a leasehold interest is property, the taking of which entitles the leaseholder to just compensation for value thereof." Sun Oil Co. v. United States, 215 Ct.Cl. 716, 572 F.2d 786, 818 (1978). "Further, authorized governmental actions can entail such an actual invasion of property rights that a constitutional taking can be implied." Id. Nonetheless, "the concept of a taking as a compensable claim theory has limited application... [even when a lease is involved] when those rights have been voluntarily... created by contract." Id. In such instances, as with other government contracts, interference with such contractual rights generally gives rise only to a breach of contract action. Id.; see also Zoeller v. United States, 65 Fed.Cl. 449, 460-62 (Fed.Cl.2005).
In this case, CCD does not dispute that Akron was acting in its proprietary capacity when it entered the lease as it can be inferred from the allegations of the Amended Complaint that Akron "`obtained certain rights and incurred certain responsibilities as did [CCD].'" Hughes, 271 F.3d at 1070. Instead, CCD argues that it is precluded from the full range of *1185 remedies associated with any contractual property right it possesses in the lease. CCD asserts that because the Akron Town Council evicted CCD and treated the Lease as extinguished, rather than bringing an action for alleged contract breaches, and then approved subleases to third parties on the property, CCD's ability to enforce its rights under the Lease (including the right to specific performance) is impaired. I reject this argument.
I find the Zoeller opinion instructive on that issue. There, as here, a lessee of government land brought suit against the government alleging that its termination of a lease effected a taking. Zoeller, 65 Fed. Cl. at 452. The court noted that plaintiff's claims arose out of the termination of the lease, and held that the lease between the plaintiff and the government "prescribed the contract rights of the parties upon termination." Id. at 462. The lease "contemplated and provided a method of resolving damages upon [its] termination", and "[b]y entering into the Lease, the plaintiff agreed to be compensated under the terms of the Lease." Id. Zoeller further noted that the government did not prevent the plaintiff from seeking contractual remedies for losses related to the termination, and that in fact the plaintiff did pursue a breach of contract case with the state. Id. Accordingly, the Zoeller court dismissed the taking claim.
Here, as in Zoeller, the parties entered into a contract that specified what would occur when a party breached the contract. Under the Lease, CCD has the right to seek damages for Defendants' breach, including the alleged failure to give notice and a right to cure before the Lease's termination. This right has not been impaired. Plaintiff has in fact brought a breach of contract action, and Defendants have done nothing to preclude CCD from asserting its contractual remedies.
As noted by one court, "[i]nstead of conferring a right protected from a taking, `the contract promised either to regulate [the parties] consistent with the contract's terms, or to pay damages for breach.'" Klamath Irrigation Dist. v. United States, 67 Fed.Cl. 504, 532 (Fed.Cl.2005) (quotation omitted). "Under this approach, the availability of contract remedies is sufficient to vitiate a takings claim...." Id.; see also Die Casters Intern., Inc. v. United States, 73 Fed.Cl. 174, 198 (Fed.Cl.2006) (the plaintiff voluntarily entered into a lease with the Government as a commercial partner, and its rights "must be decided with reference to contract law"); Janicki Logging Co. v. United States, 36 Fed.Cl. 338, 346 (Fed. Cl.1996) (denying takings remedy because plaintiff "remained unfettered in its ability to use the legal process defined in the contract" to remedy the claim against the government).
CCD also argues, however, that it is precluded from seeking specific performance since the lease is terminated and Akron has entered into subleases with other entities regarding the property. However, "the lack of a complete contract remedy... because the contract theory does not yield a recovery, does not give life to a takings theory." Home Sav. of America, F.S.B. v. United States, 51 Fed.Cl. 487, 495-96 (Fed.Cl.2002). "If the contract remedy does not produce a recovery, it is because the contract did not give a right to a recovery." Id. at 496. Here, the contract did not reference specific performance as a remedy, only damages.
Finally on this claim, CCD argues that a legislative body, the Akron Town Council, took away its contract rights through legislative action. "Fifth Amendment issues potentially can arise when the federal government, through legislative or administrative action, interferes with the property owner's use of its property." *1186 Janicki Logging Co., 36 Fed.Cl. at 346. As stated by one court, when a defendant "`comes down from the position of sovereignty and enters the domain of commerce, it submits itself to the same laws that govern individuals there.'" Sun Oil, 572 F.2d at 818 (quotation omitted).
In Janicki Logging Co., the court found that the plaintiff did not state a taking claim because it did not allege "that the Forest Service ever engaged in legislative or administrative action that abrogated or repudiated any contract obligation or otherwise impaired plaintiff's ability to enforce the rights plaintiff secured under the contract." Id., 36 Fed.Cl. at 346. "Hence, rather than acting as a sovereign and taking plaintiff's property for public use, the Forest Service acted in a proprietary capacity as a party to a contract and purported to exercise its rights for which it bargained under the contract." Id. "Plaintiff's property interest was not adversely affected because plaintiff remained unfettered in its ability to use the legal process defined in the contract...." Id.
CCD argues that this case is distinguishable from Janicki Logging Co. That is because the Amended Complaint alleges that the Akron Town Council, a legislative body, approved the delivery of a letter to CCD terminating the Lease. By doing so, CCD argues that Akron abrogated or repudiated its contractual obligations of providing CCD with written notice and an opportunity to cure. I reject this argument. The Amended Complaint does not actually allege that Akron or its Town Council engaged in legislative or administrative action. While it does allege that the Akron Town Council is a legislative body of the Town of Akron (Am. Compl., ¶ 5), a government exercises its right as sovereign when it "acquire[s] property from the rightful owner for the public good.'" J & E Salvage Co. v. United States, 36 Fed.Cl. 192, 195 (Fed.Cl.1996) (quotation and internal quotation marks omitted); see also Franconia Assocs. v. United States, 61 Fed.Cl. 718, 738 (Fed.Cl. 2004) (noting that cases followed the lead of Omnia Commercial Co., Inc. v. United States, 261 U.S. 502, 510, 43 S.Ct. 437, 67 L.Ed. 773 (1923), "in which the Supreme Court held that if the government does not appropriate property for `public use,' no taking, in the constitutional sense, occurs."). Here, as in J & E Salvage, CCD does "not allege or argue that [Akron] intended to take the [property] for the public good" or state facts that would allow the Court to infer that the termination letter was actually written in the Akron Town Council's sovereign capacity. Id.
Accordingly, I find that Defendants' Motion to Dismiss should be granted as to the unlawful taking claim.

2. Procedural Due Process Claim

Defendants assert that the Amended Complaint also fails to state a procedural due process violation because, like a taking claim, a plaintiff is entitled to a procedural due process remedy only if it is foreclosed from bringing a state breach of contract claim. Since the contract rights are intact, they argue that CCD has not stated a claim. Defendants also argue that the procedural due process claim should be dismissed because there has not been a deprivation of a constitutionally protected property right.
Turning to my analysis, a procedural due process claim requires a showing that the plaintiff possessed a constitutionally protected liberty or property interest such that due process protections were applicable and that the plaintiff was not "afforded an appropriate level of process." Copelin-Brown v. N.M. State Pers. Office, 399 F.3d 1248, 1254 (10th Cir.2005); see also Kirkland v. St. Vrain Valley Sch. Dist. No. Re-1J, 464 F.3d 1182, 1189 (10th Cir.2006). The requirements *1187 of procedural due process apply only to the deprivation of those liberty and property interests encompassed by the Fourteenth Amendment. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Thus, in analyzing a procedural due process issue, it must first be determined whether the state has interfered with a protected liberty or property interest. See Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989).
Defendants are correct that courts have held "[a] claim of breach of contract by a state actor, without `any indication or allegation that the state would refuse to remedy the plaintiffs' grievance should they demonstrate a breach of contract under state law,' does nos not state a claim for procedural due process." Ramirez v. Arlequin, 447 F.3d 19, 25 (1st Cir.2006). In other words, a claim for breach of contract generally does not support a due process claim unless state contract remedies are foreclosed to the plaintiff. Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 196-98, 121 S.Ct. 1446, 149 L.Ed.2d 391 (2001); see also R.E. Grills Constr. Co. v. Alabama Dep't of Transp., 198 F.Supp.2d 1297, 1301 (N.D.Ala.2002).
Under this line of cases, if the state provides a remedy through a breach of contract action in state court, there is no due process violation. Lujan, 532 U.S. at 195-96, 121 S.Ct. 1446. As noted by the Sixth Circuit, "`it is neither workable nor within the intent of section 1983 to convert every breach of contract claim against a state into a federal claim.'" Taylor Acquisitions, L.L.C. v. City of Taylor, 313 Fed.Appx. 826, 831 (6th Cir.), cert. denied, ___ U.S. ___, 130 S.Ct. 299, 175 L.Ed.2d 136 (2009) (quotation omitted). Ramsey explained that "[a] state breach of contract action is most clearly an adequate remedy for a property deprivation when the only basis for federal jurisdiction is that a state actor is one of the contracting parties." Id.
However, Ramsey also acknowledged that a state breach of contract action may not provide an adequate remedy for a deprivation of some kinds of property. Id., 844 F.2d at 1273. Due process may then require some kind of a predeprivation procedure. Id. In other words, "not all parties can be made whole through a breach of contract action." Baird v. Bd. of Educ. for Warren Community Unit, 389 F.3d 685, 691 (7th Cir.2004). The issue turns on whether the plaintiff "was denied a right by virtue of which he was presently entitled either to exercise ownership dominion over real or personal property, or to pursue a gainful occupation." Id. (quoting Lujan, 532 U.S. at 196, 121 S.Ct. 1446); see also Perry v. Sindermann, 408 U.S. 593, 601-03, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (holding that "[a] person's interest in a benefit is a `property' interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke a hearing" and finding that a teacher's written contract with an explicit tenure provision may justify a legitimate claim of entitlement entitled to due process).
As stated by the Ninth Circuit, there is no due process claim where "the contract has not given rise to a greater interest than the contract itself, and so a wrongful termination of the contract may be fully remedied by a common law breach of contract action." DeBoer v. Pennington, 287 F.3d 748, 750 (9th Cir.2002). The Seventh Circuit noted in trying to further define this issue that "[t]he postdeprivation remedies appropriate to the deprivation of an interest to which there is a present entitlement are characterized by promptness and by the ability to restore the claimant to *1188 possession." Baird, 389 F.3d at 692. "The underlying concept seems to be that the remedy is available before the loss has become complete and irrevocable." Id.
I now turn to whether Plaintiff's interest in the lease is sufficient to rise to the level of protection available under the Due Process clause. As noted by the Tenth Circuit, "[p]roperty interests are not created by the Constitution, but rather by independent sources such as state law." Kirkland, 464 F.3d at 1189-90. "`Thus, constitutionally protected property interests are created and defined by statute, ordinance, contract, implied contract and rules and understandings developed by state officials.'" Id. (quotation omitted).
Turning to the applicable state law, Colorado law has impliedly recognized that commercial leases of the type at issue in this case are protected property interests. Cherry Creek Aviation, Inc. v. City of Steamboat, 958 P.2d 515, 518 (Colo.Ct.App. 1998). That case is strikingly similar to the case at hand. The plaintiff there had an agreement that it would provide a "fixed base operation" at the Steamboat Springs Airport. Id. The lease was for three years, with an option to extend for thirty years. Id. One year into the lease the city terminated the lease, declaring it invalid. Id. The court first noted under Colorado law that not all contracts between a public entity and a private party give rise to a property right. Id. at 524. In so holding, the court implicitly found that some contracts do give rise to a property right. It then concluded as to a procedural due process claim that the plaintiff lacked a basis to assert a protected property right entitled to constitutional protection. Id. That was based solely on the fact that the lease was invalid because it did not comply with the city charter requiring the lease to be adopted by ordinance. Id. at 519-20, 524. Thus, instead of holding that the lease in question did not constitute a protected property interest for purposes of due process, it implicitly recognized that it did constitute such an interest but denied the claim on a different basis, that the lease was invalid. Id. at 524; see also Eason v. Bd. of County Comm'rs of County of Boulder, 70 P.3d 600, 605-06 (Colo.Ct.App.2003) (holding that "[u]nder Colorado law, the right to use property is fully protected by the Due Process Clauses of the federal and state constitutions" and finding "Colorado law recognizes a protected property interest in a prior zoning classification when a landowner takes substantial actions in reliance on same").
Based on the foregoing, I find that the underlying substantive interest in the contract was created by state law. I now must decide under "federal constitutional law ... whether that interest rises to the level of a `legitimate claim of entitlement' protected by the Due Process Clause" such that the right is a protected property right protected by due process. Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1, 9, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978) (quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)).
I find for purposes of the motion to dismiss that Plaintiff has a protected property right in remaining in the lease for its full term and in being able to develop the property in accordance with the lease. CCD has a legitimate right of entitlement to the property under the lease, including the right to enter and build on the land, and the property interests affected by Akron's action are substantial. Many courts have recognized that leases, including commercial leases, involving use of a property give rise to a protected property interest. See Gentry v. City of Lee's Summit, Mo., 10 F.3d 1340, 1344 (8th Cir.1993); Jeffries *1189 v. Ga. Residential Fin. Auth., 678 F.2d 919, 925 (11th Cir.1982); Holt Cargo Sys. Inc. v. Del. River Port Auth., 20 F.Supp.2d 803, 830 (E.D.Pa.1998), aff'd, 165 F.3d 242 (3d Cir.1999); see also Neiderhiser v. Borough of Berwick, 840 F.2d 213, 218 (3d Cir.1988) (lessor who had been denied an exemption from a zoning ordinance stated a substantive due process claim); Lozano v. City of Hazleton, 496 F.Supp.2d 477, 537 (M.D.Pa.2007) ("According to the Supreme Court of the United States: `It cannot be disputed that tenants have a property interest in their apartments for the term of their lease.'") (quoting Lindsey v. Normet, 405 U.S. 56, 72, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972)); cf. Bryan v. City of Madison, Miss., 213 F.3d 267, 275-76 (5th Cir.2000) (developer's purchase agreement to buy city-owned land in order to build apartments did not convey any protected property interest as it did not convey a right "to enter the land, to exclude others from the land, or to build anything on the land", only "a right to get the down payment back if the seller does not make good title").[1]
I also find that CCD established the second prong of a procedural due process element. It appears undisputed that Defendants did not provide CCD any type of hearing or notice before it deprived CCD of its property interest in the Lease, either through written notice and a right to cure as required under the Lease or through any other type of hearing. While I recognize that in certain circumstances a postdeprivation hearing will suffice, I find under the circumstances of this case such a hearing will not satisfy due process. In addressing what process is due, the Supreme Court applies a threepart balancing test involving three distinct factors: "`the private interest that will be affected by the official action; ... the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest.'" Kirkland, 464 F.3d at 1192 (quoting Gilbert v. Homar, 520 U.S. 924, 931-32, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997)).
Here, I find that the private interest in the Lease and the rights thereunder to develop the land are substantial, particularly when I take into account that this is a 49-year lease with five additional ten-year extension options. CCD had substantial protections afforded by the lease, including the right to written notice in connection with a default, and a right to cure period of at least one year. Further, CCD alleges that it sought, secured and entered into agreements with investors and sublessees to develop the land which would afford it a projected $60 million over the balance of the Lease term, and that it prepared a comprehensive development plan as required by the Lease. Thus, it arguably *1190 took substantial action in reliance on the lease.
Turning to the second factor, I find that the risk of an erroneous deprivation was high. It does not appear from the Amended Complaint that Akron took any actions before terminating the lease to determine whether CCD was actually in breach of the lease, nor did it provide CCD any opportunity to contest the grounds upon which CCD terminated the lease. Accordingly, there could have been an erroneous deprivation in connection with the termination of the lease. Finally, as to the government's interest, I acknowledge that "[t]here are times where a government entity `must act quickly, or where it would be impracticable to provide predeprivation process.'" Kirkland, 464 F.3d at 1193. Here, however, Defendants have not identified any such circumstances. Based on the above, I find after a balancing of interests that a predeprivation hearing should have been afforded, and that a postdeprivation hearing would not suffice.
Based upon the foregoing, I find that CCD has stated a plausible procedural due process claim, and deny Defendants' Motion to Dismiss as to this claim.

3. Substantive Due Process Claim

CCD also alleges a Fourteenth Amendment substantive due process claim. Defendants again argue that CCD has not stated a protected property interest and also assert that a private corporation's rights arising from a contract with a government entity do not fall within the fundamental rights protected by substantive due process. Further, Defendants argue in their reply brief that there is no allegation that the Defendants' conduct shocks the conscience. Accordingly, Defendants request that this claim be dismissed with prejudice.
Turning to my analysis, in comparing procedural and substantive due process, the Tenth Circuit explained that "[p]rocedural due process ensures the state will not deprive a party of property without engaging fair procedures to reach a decision, while substantive due process ensures the state will not deprive a party of property for an arbitrary reason regardless of the procedures used to reach that decision." Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir.2000). In order to state a substantive due process claim, "[Plaintiff] must first allege sufficient facts to show a property or liberty interest warranting due process protection." Crider v. Bd. of County Comm'rs of County of Boulder, 246 F.3d 1285, 1289 (10th Cir.2001); see also Hyde Park, 226 F.3d at 1210.
Rights of substantive due process are generally not founded upon state provisions "but upon deeply rooted notions of fundamental personal interests derived from the Constitution." Mangels v. Pena, 789 F.2d 836, 839 (10th Cir.1986); see also DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 599 (3rd Cir.1995), abrogated on other grounds, United Artists Theatre Circuit, Inc. v. Township of Warrington, PA, 316 F.3d 392 (3rd Cir.2003). "[W]hat constitutes a property interest in the procedural due process context might not constitute one in that of substantive due process." Reich v. Beharry, 883 F.2d 239, 243 (3d Cir.1989).
I find for purposes of the motion to dismiss that CCD has stated a protected property interest as to this claim. As with a procedural due process claim, several courts have recognized that commercial leaseholds constitute property rights worthy of substantive due process protection. See DeBlasio, 53 F.3d at 601 n. 10 (citing Neiderhiser, 840 F.2d at 218); Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 692-93 (3rd Cir.1993), abrogated on other grounds, 316 F.3d 392 (3rd Cir.2003); American Marine Rail NJ, LLC v. *1191 City of Bayonne, 289 F.Supp.2d 569, 584 (D.N.J.2003); Holt Cargo Systems, 20 F.Supp.2d at 830. Other courts have taken this principle one step further and held that a developer has a protected property interest under substantive due process in the approval of its development plans for property where, as here, the approving authority's discretion to reject the plans is limited. See Woodwind Estates v. Gretkowski, 205 F.3d 118, 123 (3rd Cir.2000), abrogated on other grounds, 316 F.3d 392 (3rd Cir.2003); Hyde Park Co., 226 F.3d at 1210. Based on the foregoing, I find for purposes of the motion to dismiss that a property interest has been stated worthy of substantive due process protection.[2]
Second, I reject Defendants' argument that a private corporation's rights arising from a contract with the government entity are not entitled to substantive due process protection for their business and property. The Tenth Circuit has stated that a corporate defendant is entitled to the protections of the Due Process Clause. United States v. Rockwell Intern. Corp., 124 F.3d 1194, 1201 (10th Cir.1997) (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)); see also First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 779-80, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) (corporations are "persons" within meaning of Fourteenth Amendment). Further, the Tenth Circuit has analyzed substantive due process claims by corporations, implicitly recognizing that they have the right to assert such a claim. See, e.g., Rocky Mountain Rogues, Inc. v. Town of Alpine, 375 Fed.Appx. 887 (10th Cir.2010); Ramsey Winch Inc. v. Henry, 555 F.3d 1199 (10th Cir.2009); KT & G Corp. v. Attorney General of State of Okla., 535 F.3d 1114 (10th Cir.2008).
Finally, to the extent that Defendants argue that the Amended Complaint does not meet the second prong of a substantive due process claim, I disagree. To satisfy this element, CCD "`must allege facts sufficient to show that the challenged governmental action was `arbitrary and capricious.'" Crider, 246 F.3d at 1289 (quotation omitted). In other words, CCD must show conduct "that shocks the judicial conscience", defined as "deliberate government action that is `arbitrary' and `unrestrained by the established principles of private right and distributive justice.'" Seegmiller v. LaVerkin City, 528 F.3d 762, 767 (10th Cir.2008) (quotation omitted).
On this issue CCD alleges that Akron's termination was "arbitrary, capricious, and made in bad faith." (Am. Compl., ¶ 25.) The Complaint also describes conduct exhibiting these traits, including (1) Defendant McGuire publicly acknowledging the one-year cure period in the lease, and then nevertheless stating that CCD's rejection of the termination notice on that basis would "set us up for the next violation"; (2) Akron's receiving of advice from one of CCD's former members, Randall Hayes, who had an economic incentive in seeing CCD's Lease terminated; and (3) Akron's usurping CCD's right under the Lease to approve subleases and receive monetary compensation therefrom. *1192 (Id.) Assuming these facts as true for purposes of the motion to dismiss and construing the facts in the light most favorable to CCD, I find that these facts could allow this Court to draw the reasonable inference that Defendants' acts were arbitrary, capricious and/or conscience shocking. This is a fact issue that is better left for resolution at a later stage of this proceeding. See Adams Parking Garage, 171 F.Supp.2d at 425 ("the economic motive of a state actor violates due process ... where the state actor makes a pretextual use of its governmental power for proprietary gain" and that "[w]hether a city has acted with an improper motive is a factual question").

4. CCD's State Law Claims

Defendants' motion asked the Court to decline to exercise supplemental jurisdiction over the state claims if the federal claims were dismissed. Since I have not dismissed all the federal claims, this argument is denied as moot.

III. CONCLUSION

Based upon the foregoing, it is
ORDERED that Defendants' Motion to Dismiss is GRANTED IN PART AND DENIED IN PART. It is GRANTED as to the unlawful taking claim (the Third Claim for Relief) and DENIED as to all other claims.
NOTES
[1]  The cases relied on by Defendants in its motion to dismiss are inapplicable as they did not involve leases or property rights thereunder. While Defendants cite Zoeller in its reply as establishing that a lease is not a protected property interest for purposes of procedural due process, the case does not stand for that principle. Zoeller did not address a due process claim, only a taking claim, and concluded as I did that a taking claim in connection with a termination by the government of a lease did not state a claim for relief. Finally, the case of Mid-Atlantic Soaring Ass'n v. F.A.A., No. RDB 05-2110, 2006 WL 1892412 (D.Md. June 29, 2006) cited in Defendants' reply was not predicated on termination of a lease that the plaintiff had with the government, but on an addendum to the lease which meaning was disputed between the parties regarding the use of a turf runway. Thus, I find it is distinguishable. The court in that case also found no property right to the runway because "nothing in the addendum bestows rights over the turf runway" to the plaintiff. Id. at *6, 8.
[2]  Defendants' reliance on Adams Parking Garage, Inc. v. City of Scranton, 171 F.Supp.2d 417 (M.D.Pa.2001) is misplaced. In that case, the lease at issue allowed the city to terminate upon condemnation of the property. Id. at 424. The property was later condemned and the lease terminated. Id. The court found under those circumstances that the plaintiff no longer had a legitimate claim of entitlement to the property. Id. at 425-26. Here, however, accepting CCD's allegations as true, the Lease did not allow for termination in the manner done by Defendants, and CCD had a legitimate claim of entitlement to the property under the Lease. The case thus actually supports CCD's argument, not Defendants' argument.