345 F.3d 1036
In re: Steven H. STERN, Debtor, No. 00-56431David A. Gill, Chapter 7 Trustee, Appellant,v.Steven H. Stern, Appellee.In re: Steven H. Stern, Debtor,Steven H. Stern, Appellant,v.David A. Gill, Chapter 7 Trustee, Appellee, andDove Audio, Inc., Plaintiff.
No. 00-56431.
No. 00-56526.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 5, 2002 — Pasadena, California.
Filed February 4, 2003.
Amended Opinion Filed October 7, 2003.

Richard D. Burstein, Danning, Gill, Diamond & Kollitz, Los Angeles, California, for the appellant.
David R. Weinstein (argued), Sharon Z. Weiss (briefed), Weinstein, Eisen & Weiss, Los Angeles, California, for the appellees.
Appeal from the United States District Court for the Central District of California; Gary A. Feess, District Judge, Presiding. D.C. No. CV-98-07415-GAF.
Before: Arthur L. Alarcón, Barry G. Silverman and Johnnie B. Rawlinson, Circuit Judges.

1
Opinion by Judge Rawlinson; Partial Concurrence and Partial Dissent by Judge Alarcón.

ORDER AND AMENDED OPINION
ORDER

2
The opinion filed on February 4, 2003, is hereby amended. With this amendment, a majority of the panel has voted to deny the petition for rehearing and the alternative petition for rehearing en banc.

3
Judges Silverman and Rawlinson voted to deny the petition for rehearing and the alternative petition for rehearing en banc. Judge Alarcón voted to grant the petition for rehearing and recommended granting the alternative petition for rehearing en banc.

4
The full court has been advised of the alternative petition for rehearing en banc, and no active judge of the court has requested a vote on rehearing the matter en banc. Fed. R.App. P. 35.

5
The petition for rehearing and alternative petition for rehearing en banc filed on February 12, 2003 are DENIED.

6
No additional petitions for rehearing will be accepted in this case.

OPINION

7
RAWLINSON, Circuit Judge.

8
David A. Gill, Bankruptcy Trustee, ("Trustee") appeals the district court's decision affirming the bankruptcy court's order, which granted summary judgment in favor of the debtor Steven Stern ("Stern"). Stern cross-appeals the district court's determination that Stern's pension plan funds are not excluded from the bankruptcy estate.

9
Stern filed for bankruptcy after the entry of a sizeable judgment against him in an arbitration proceeding. We must determine whether the transfer of proceeds from an Individual Retirement Account ("IRA") into a Profit Sharing Pension Plan was a fraudulent transfer, subject to avoidance by the Trustee.1

10
Constrained by our precedent, we AFFIRM the district court's holding that, although the pension plan was properly included within the bankruptcy estate, the pension plan assets were exempt from distribution to Stern's creditors.

I.

Background

11
Stern's retirement planning commenced with the creation of a tax-qualified profit-sharing plan in 1974 ("1974 Plan").2 In 1978, Stern terminated the 1974 Plan and created a qualified, defined benefit pension plan ("1978 Plan"). In 1989, Stern terminated the 1978 Plan and transferred the plan assets into an IRA account ("IRA").

12
Stern became embroiled in a business dispute with Dove Audio, Inc. in 1991. The dispute culminated in an arbitration award of over $4.5 million dollars against Stern. At about the same time, Stern hired Margaret Mayersohn ("Mayersohn"), with whom he became romantically involved, and later married.

13
In April 1992, Stern created a Profit Sharing Plan ("1992 Pension Plan") with Mayersohn and Stern as beneficiaries. On October 22, 1992, the Los Angeles Superior Court issued a writ of attachment to secure the arbitration award. The next day, Stern executed the Plan Documents for the 1992 Pension Plan and, a few days later, transferred the proceeds of his IRA into the 1992 Pension Plan. Dove filed a fraudulent transfer action in state court, contending that Stern's transfer of funds from his IRA into the 1992 Pension Plan was fraudulently designed to shield his assets from creditors. Stern, in turn, initiated a voluntary Chapter 7 bankruptcy proceeding. The creditors removed the fraudulent transfer action to the bankruptcy court as an adversary proceeding.

14
Stern filed a Motion for Summary Judgment in the core bankruptcy proceeding, seeking to exclude the assets of the 1992 Pension Plan from the bankruptcy estate. Stern also sought summary judgment on the fraudulent transfer claim in the adversary proceeding.

15
The bankruptcy court ruled that the 1992 Pension Plan was excluded from the bankruptcy estate because it was a qualified plan under the provisions of the Employee Retirement Income Security Act of 1974 ("ERISA"). The bankruptcy court also concluded that, although the 1992 Pension Plan assets were not excluded from the estate under California law, the 1992 Pension Plan's assets were exempted from creditors' claims under California law. Finally, the bankruptcy court held that Stern's transfer of assets from the IRA to the exempt 1992 Pension Plan was not fraudulent. The creditors appealed the bankruptcy court's rulings to the district court.

16
The district court rendered the following rulings on appeal:

17
1. The 1992 Pension Plan was not ERISA qualified;

18
2. The 1992 Pension Plan was not excludable under state law;

19
3. The 1992 Pension Plan was exempt under California law; and

20
4. The transfer of assets from Stern's IRA to the 1992 Pension Plan was not fraudulent.

21
Stern appeals the district court's ruling that the 1992 Pension Plan was not ERISA-qualified. The Trustee appeals the district court's rulings that the 1992 Pension Plan was exempt under California law, and that the transfer of assets from the IRA to the 1992 Pension Plan was not fraudulent.

II.

Standard of Review

22
We review the bankruptcy court's grant of summary judgment de novo. Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th Cir.2001). We must determine whether, viewing the evidence in the light most favorable to the nonmoving party, genuine issues of fact remain for trial. Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002). We also must determine whether the bankruptcy court correctly applied the relevant substantive law. Id.

23
"We review the district court's decision on appeal from the bankruptcy court de novo, without giving deference to the district court's conclusions." Harmon v. Kobrin (In re Harmon), 250 F.3d 1240, 1245 (9th Cir.2001) (citation omitted). Because the facts in this case are virtually undisputed, we focus on the court's application of the law to the facts.3

III.

Discussion

24
A. ERISA — Qualified Status of the 1992 Pension Plan

25
If the 1992 Pension Plan was ERISA-qualified, the assets in the plan were excluded from the bankruptcy estate. See Patterson v. Shumate, 504 U.S. 753, 757-58, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992); Barkley v. Conner (In re Conner), 73 F.3d 258, 259-60 (9th Cir.1996). The status of the pension plan is determined as of the date of the bankruptcy filing. Lowenschuss v. Selnick (In re Lowenschuss), 171 F.3d 673, 680 (9th Cir.1999).

26
It is undisputed that, as of the date of his bankruptcy filing, Stern was married to Mayersohn, the only other beneficiary of the 1992 Pension Plan. Prior to the marriage, Mayersohn was the sole employee of the 1992 Pension Plan.4 Absent at least one employee beneficiary, a pension plan is not ERISA-qualified. See Peterson v. Am. Life & Health Ins. Co., 48 F.3d 404, 407-08 (9th Cir.1995).

27
Although Stern acknowledged the applicability generally of In re Lowenschuss, he challenges its applicability specifically to the facts of this case. Relying upon Peterson, Stern contended that his marriage to Mayersohn did not alter the ERISA-qualified status of the 1992 Pension Plan.

28
We agree with the district court that the fact that Peterson concerned an employee welfare benefit plan and In re Lowenschuss addressed a pension plan is outcome determinative.

29
29 U.S.C. § 1002(1) defines an ERISA-qualified welfare benefit plan as one "established or maintained ... for the purpose of providing [benefits] for its participants or their beneficiaries[.]" 29 U.S.C. § 1002(1) (West 1999). In contrast, a pension plan is ERISA-qualified only "to the extent that by its express terms or as a result of surrounding circumstances [the pension plan] provides retirement income to employees ..." 29 U.S.C. § 1002(2)(A)(i) (West 1999).

30
Taking into account the welfare benefit plan definition's focus on the past and the pension plan definition's emphasis on the present, Peterson and In re Lowenschuss are easily reconciled. Under the rationale of Peterson, ERISA qualification for a welfare benefit plan is determined after considering the purpose of the plan when it was established or as it is maintained. 48 F.3d at 407-08. In In re Lowenschuss, however, we are instructed to assess ERISA qualification for a pension plan by gauging whether there is at least one extant employee beneficiary. 171 F.3d at 680. Under In re Lowenschuss, the assessment is made as of the bankruptcy filing date. Id.

31
There is no dispute that as of the bankruptcy filing date, the 1992 Pension Plan covered an owner and the spouse of an owner, neither of which met the definition of employee. See Peterson, 48 F.3d at 408; see also 29 C.F.R. § 2510.3 3(c)(1). The district court properly applied In re Lowenschuss and determined that the 1992 Pension Plan was not ERISA-qualified at the time of the bankruptcy filing. As a result, the assets of the 1992 Pension Plan were not exempt from the bankruptcy estate by virtue of ERISA qualification.

32
B. Exemption of the 1992 Pension Plan Under California Law5

33
Cal.Civ.Proc.Code § 704.115(b) provides: "All amounts held, controlled, or in process of distribution by a private retirement plan, for the payment of benefits as an annuity, pension, retirement allowance, disability payment, or death benefit from a private retirement plan are exempt."

34
The Trustee does not take issue per se with the applicability of Cal.Civ.Proc.Code § 704.115(b). Rather, the Trustee challenges the exemption on the basis that Stern's transfer of assets from the IRA into the 1992 Pension Plan was fraudulent. That brings us to the final issue before us.

35
C. Transfer of Assets Into the 1992 Pension Plan

36
The Trustee vigorously advocates that Stern's transfer of assets from his IRA into the 1992 Pension Plan was fraudulent, and therefore, the assets are not exempt from the reach of creditors.

37
The Trustee's Fourth Amended Complaint asserted claims for fraudulent transfer pursuant to Cal. Civ.Code §§ 3439.04(a); 3439.04(b)1-2 and 3439.05.6

38
Cal. Civ.Code § 3439.04(a) and (b) provide:

39
§ 3439.04. Transfers fraudulent as to present and future creditors.

40
A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation as follows:

41
(a) With actual intent to hinder, delay, or defraud any creditor of the debtor.

42
(b) Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor:

43
(1) Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or

44
(2) Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due.

45
Cal. Civ.Code § 3439.04.

46
§ 3439.05. Transfers fraudulent as to present creditors.

47
A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.

48
Cal. Civ.Code § 3439.05.

49
On appeal, only the Fourth, Fifth and Sixth Claims for Relief, related solely to the IRA transfer, are at issue. In the Fourth Claim for Relief, the Trustee alleged that Stern and his Pension Plan effectuated the IRA transfer "with the specific intent to hinder, delay and to defraud creditors of the Debtor."

50
In the Fifth Claim for Relief, the Trustee alleged that Stern "did not receive reasonably equivalent value in exchange for the IRA transfer."

51
In the Sixth Claim for Relief, the Trustee alleged that Stern "was insolvent at the time of the IRA Transfer, or ... became insolvent as a result of the IRA transfer."7

52
We review the district court's determination through the applicable evidentiary lens. See Anderson v. Liberty Lobby, 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("[I]n ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden.").

53
The appropriate evidentiary standard in this case is a matter of some dispute. We have previously ruled in a bankruptcy action involving state law exemptions that proof of fraud "must ordinarily be made by evidence which is clear and convincing." Love v. Menick (In re Love), 341 F.2d 680, 682 (9th Cir.1965) (citation and internal quotation marks omitted).8 However, the United States Supreme Court more recently ruled, in Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991), that proof of fraud for the purpose of the nondischargeability provision of the Bankruptcy Code is governed by "the ordinary preponderance-of-the-evidence standard." Id. at 291.

54
Admittedly, Grogan addressed exceptions to the discharge of debts, as provided in 11 U.S.C. § 523, and this case concerns eligibility for state law exemptions under 11 U.S.C. § 522. Nevertheless, we are persuaded that the ruling in Grogan implicitly overruled our holding in In re Love.

55
We recently clarified that "circuit precedent, authoritative at the time that it issued, can be effectively overruled by subsequent Supreme Court decisions that `are closely on point,' even though those decisions do not expressly overrule the prior circuit precedent." Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.2003) (en banc) (citation omitted). We are now instructed that we are "bound not only by the holdings of [Supreme Court] decisions but also by their `mode of analysis.' Id. at 900 (citation omitted)."[T]he issues decided by the higher court need not be identical in order to be controlling. Rather, the "... court ... must have undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable." Id. at 900.

56
Grogan's "mode of analysis" definitively "undercuts the theory" of In re Love that proof of fraud sufficient to negate a state law exemption must be clear and convincing. In Grogan, the Supreme Court reasoned that "in the context of provisions designed to exempt certain terms from discharge, a debtor has [no] interest in discharge sufficient to require a heightened standard of proof." 498 U.S. at 286, 111 S.Ct. 654. Rather, "[r]equiring the creditor to establish by a preponderance of the evidence that [the assets are non-exempt] reflects a fair balance between the[] conflicting interests" of giving debtors a fresh start and protecting creditors who are victims of fraud on the part of the debtor. Id. at 287, 111 S.Ct. 654.

57
The reasoning of Grogan warrants a conclusion that our prior precedent, In re Love, has been implicitly overruled. No principled basis exists to distinguish between actual fraud and constructive fraud on the one hand, or between nondischargeability of debts and exemption of assets on the other.

58
Accordingly, we view the evidence in this case in light of the preponderance of the evidence standard of proof. Even so, summary judgment was appropriately entered on behalf of the debtor.

59
We are constrained by our prior opinion in Wudrick v. Clements, 451 F.2d 988 (9th Cir.1971). In that case, we ruled "that the purposeful conversion of nonexempt assets to exempt assets on the eve of bankruptcy is not fraudulent per se." Id. at 989 (citation omitted).

60
The facts of Wudrick are not unlike our case.

61
When bankruptcy appeared inevitable, Mr. and Mrs. Roon consulted experienced bankruptcy counsel. One of the things they did on his advice to enhance their exemptions was to refinance their 1966 Chevrolet. The bank loaned them $2,325 on the car. From this amount they paid off the previous car loan and their attorney's fees, and deposited $800 in the Union Federal Savings & Loan Association. They then filed petitions in bankruptcy. They claimed that the $800 account was exempt from execution under California [law] and was therefore exempt under section 6 of the Bankruptcy Act, 11 U.S.C. § 24, though the automobile would not have been.

62

Id.

63
In reversing the district court's determination that Wudrick engaged in a fraudulent transfer, we clarified that "[t]he finding of fraud was based solely on the fact that nonexempt assets were deliberately converted to exempt assets just prior to filing the bankruptcy petition." Id. at 990. We explained that this "evidence was insufficient as a matter of law to establish fraud." Id. Our analysis was impliedly affected by the clarification that a different conclusion might be reached "if on the eve of bankruptcy a debt were created with no intention of repaying the creditor...." Id.

64
Here, the principal evidentiary inference relied upon by the Trustee is that non-exempt assets were converted to exempt assets immediately prior to bankruptcy. But, as Wudrick demonstrates, this inference is insufficient as a matter of law to establish a fraudulent transfer. See Jackson v. Grover (In re Jackson), 472 F.2d 589, 590 (9th Cir.1973).

65
The dissent cites In re Love in an effort to distinguish Wudrick. However, In re Love actually supports a finding of exemption. In that case we recognized that "the exemption statutes of California are applied with liberality." 341 F.2d at 682 (citations omitted). We also clarified that the exemption determination is to be determined "upon the basis of conditions existing at the time of the filing of the bankruptcy petition." Id. (citations omitted). When Stern's bankruptcy petition was filed, the assets in question "rested in [the 1992 Pension Plan] which ... enjoyed an exempt status." See id.

66
The dissent also cites Acequia Inc. v. Clinton, (In re Acequia, Inc.), 34 F.3d 800 (9th Cir.1994) in support of its position. However, that case is inapposite because the property transferred did not enjoy an exempt status when the bankruptcy petition was filed. The rationale of Wudrick is inapplicable to a situation such as that presented in Acequia, but completely pertinent to the case at hand, where assets are converted to an exempt status pre-bankruptcy.

67
At bottom, the "badges of fraud" articulated in the dissent merely rephrase the argument that Stern transferred funds from his IRA account into the 1992 Pension Plan Account on the eve of bankruptcy. In such a circumstance, we are persuaded that Wudrick controls.

68
Aside from the conversion of non-exempt assets into exempt assets, which is nonfraudulent "as a matter of law," see Wudrick, 451 F.2d at 990, the Trustee and the dissent cite as "badges of fraud" the facts that Stern:

69
1) was sued and lost the arbitration before transferring the funds to the Plan;

70
2) testified inconsistently as to his motive for transferring the funds to the Plan;

71
3) may have, as a result of the 4.5 million dollar arbitration award levied against him, been insolvent when he made the transfer; 4) transferred the funds to the Plan to benefit him and his wife;

72
5) transferred all or substantially all of his property into the Plan; and

73
6) retained control of the funds following the transfer.

74
(Dissenting Opinion at pages 1048) (emphasis added).

75
With the exception of the arbitration loss and the speculative insolvency, the other articulated badges of fraud are simply restatements of the accusation that Stern converted nonexempt assets into exempt assets, an accusation that cannot support a finding of fraud. See Wudrick, 451 F.2d at 990. A similar fate awaits the claim that Stern "may have been insolvent." We have consistently discounted speculative assertions when raised in defense of a summary judgment motion. See, e.g., Paladin Assoc., Inc. v. Montana Power Co., 328 F.3d 1145, 1161 (9th Cir.2003). We are left with the fact that Stern lost a multimillion dollar arbitration. That single unspectacular fact does not meet a preponderance of the evidence burden of proof.

76
Accordingly, we AFFIRM the district court's rulings that the 1992 Pension Plan was not ERISA-qualified; that the 1992 Pension Plan was exempt under California law; and that the transfer of assets from Stern's IRA to the 1992 Pension Plan was not fraudulent.

77
AFFIRMED.

Notes:

1
 The remaining creditors did not actively participate in the appeal

2
 The retirement plans were established under the auspices of Steven H. Stern, Inc., and benefitted Stern and his then-wife Sharma, who were both employees of Stern, Inc

3
 The Trustee objected to consideration of certain affidavits submitted by Stern in support of his summary motion. However, the affidavits were in compliance with the requirements of Rule 56(e) of the Federal Rules of Civil ProcedureBlock v. City of Los Angeles, 253 F.3d 410, 419 (9th Cir.2001) (stating that affidavits must be based upon personal knowledge and contain admissible evidence). Contrary to the Trustee's assertion, the affidavits were not so inconsistent with deposition testimony that the bankruptcy court abused its discretion in considering the affidavits.

4
 Stern, as sole owner of the 1992 Pension Plan's sponsor, did not fit within the definition of employeeSee Peterson v. Am. Life & Health Ins., 48 F.3d 404, 408 (9th Cir.1995).

5
 11 U.S.C. § 522(b) permits the debtor to claim exemptions under state law

6
 These code provisions encompass actual and constructive fraudSee Plotkin v. Pomona Valley Imports, Inc. (In re Cohen), 199 B.R. 709, 716, nn. 7, 8 (B.A.P. 9th Cir.1996).

7
 The Fourth Claim for Relief states a claim for actual fraud. The Fifth and Sixth Claims for Relief assert constructive fraud claimsSee Mejia v. Reed, 31 Cal.4th 657, 3 Cal.Rptr.3d 390, 74 P.3d 166 (2003).

8
 We are aware that various bankruptcy courts have adopted a preponderance of the evidence standard burden of proof for proceedings under 11 U.S.C. § 548See e.g., Model Imperial v. Hamilton Bank, 250 B.R. 776 (S.D.Fla.2000). However, those cases are not binding precedent, as is In re Love.

78
ALARCÓN, Senior Circuit Judge, Concurring in Part, Dissenting in Part.

79
I concur in the majority's holding that the funds in the Plan were not excludable from Stern's bankruptcy estate. I dissent from the majority's conclusion that the funds in the Plan were exempt from distribution to Stern's creditors under California law. I would hold that the Trustee presented sufficient facts to support an inference that Stern transferred funds into the Plan with the intent to hinder, delay, or defraud his creditors. A fraudulent transfer is not exempt from distribution to creditors under California law. Cal. Civ. Code §§ 3439.04 & 3439.05 (West 2002); Maddox v. Robertson (In re Prejean), 994 F.2d 706, 708 (9th Cir.1993). Accordingly, whether the Debtor acted with fraudulent intent is a question that should be determined after a trial on the merits and a determination of the credibility of the witnesses regarding Stern's intent.

80
The Trustee presented evidence that on September 15, 1992, Dove Audio, Inc. ("Dove") received an arbitration award of 4,585,000 dollars against Stern. Stern learned of the award on or about September 30, 1992. On October 22, 1992, the Los Angeles Superior Court issued a writ of mandate to secure the payment to Dove of the amount awarded by the arbitrator.

81
On October 14, 1992, Stern filed for a divorce. The next day, Stern received a Default Judgment of Dissolution of his marriage that included a stipulated property settlement agreement. Between October 19, 1992 and October 21, 1992, pursuant to the property settlement agreement, Stern transferred all his community property, consisting of over 2 million dollars in non-exempt assets, to Sharma Stern. Stern made these transfers without the benefit of property appraisals. Stern retained only supposedly exempt assets and assumed the 4.5 million dollar arbitration award, a community debt, owed to Dove. On October 23, 1992, Stern executed the documents that created the Plan. Later in the same month, Stern rolled 1.4 million dollars from his IRA into the Plan. On November 2, 1992, Stern filed for bankruptcy. Stern dismissed the Chapter 11 action on December 22, 1992, after the bankruptcy judge indicated that she would appoint a trustee for Stern's estate.

82
In July 1993, Dove filed an action in the Los Angeles Superior Court in which it alleged that Stern had fraudulently transferred the 1.4 million dollars into the Plan to shield his estate from his creditors. On August 11, 1995 while the fraudulent conveyance action was pending in state court, Stern filed a Chapter 7 bankruptcy petition (the "core proceeding"). In the fall of 1995, Dove transferred the fraudulent conveyance action (the "adversary proceeding") to the bankruptcy court. On June 26, 1996, the Trustee was authorized to intervene in the adversary proceeding.

83
On or about March 27, 1998, Stern filed a motion for summary judgment in the core proceeding. He sought to prevent the money in the Plan from being included in the bankruptcy estate. He argued that: (1) the Plan is excludable from the bankruptcy estate as ERISA-qualified; (2) the Plan is exempt from creditor distribution under California law; and (3) even if there had been a fraudulent transfer, the Plan would still be exempt. The Trustee responded on April 27, 1998. The bankruptcy court agreed with Stern's arguments. It held that the Plan was excluded from the estate as ERISA-qualified and that it was also exempt under California law.

84
On or about May 11, 1998, Stern moved for summary judgment on the fraudulent transfer claims in the adversary proceeding. Stern asserted that there was no transfer. He asserted in the alternative that even if there had been a transfer, the Trustee could not show that it was fraudulent. In response, the Trustee disputed Stern's legal arguments and asserted that there was a question of fact regarding Stern's credibility and his intent regarding the transfer. The bankruptcy court concluded that there was nothing improper about transferring assets into an exempt retirement fund on the eve of bankruptcy.

85
The Trustee timely appealed the bankruptcy court's rulings on summary judgment to the district court. On August 9, 2000, the district court concluded that the funds in the Plan were not excludable as ERISA-qualified. It also concluded that the funds were exempt from distribution to creditors under California law because the Trustee failed to present evidence of fraud beyond the mere transfer of funds on the eve of bankruptcy.

86
Under California law, funds held in a "private retirement plan" are exempt from distribution to creditors. Cheng v. Gill (In re Cheng), 943 F.2d 1114, 1116 (9th Cir.1991); Cal.Civ.Proc.Code § 704.115(b)-(e) (West 2002). Corporate plans are entitled to complete exemption even where the corporation sponsoring the plan is closely held and its sole shareholder, director, and chief executive officer is the debtor. In re Cheng, 943 F.2d at 1115-17. The Plan in the instant case is a corporate plan, sponsored by Stern, Inc., and is therefore exempt. Stern argues that even if we assume that he transferred the funds into the Plan to defraud his creditors, the funds nevertheless remain exempt as part of the corporate plan. I disagree. I would hold that it was error for the district court to uphold summary judgment in favor of Stern where the Trustee presented evidence of fraud, beyond the mere transfer of property on the eve of bankruptcy.

87
A transfer may be avoided under California law if it was made with the "actual intent to hinder, delay, or defraud any creditor of the debtor," or if it was made "[w]ithout receiving a reasonably equivalent value in exchange for the transfer...." Cal. Civ.Code §§ 3439.04 & 3439.05 (West 2002); Maddox v. Robertson (In re Prejean), 994 F.2d 706, 708-09 (9th Cir.1993). A transfer may also be avoided where there is actual fraud. Love v. Menick, 341 F.2d 680, 682-83 (9th Cir.1965); In re Moffat, 107 B.R. 255, 266 (Bankr.C.D.Cal.1989). Fraudulent intent may be shown through circumstantial evidence of actual intent to defraud, or "badges of fraud." Badges of fraud include:

88
(1) actual or threatened litigation against the debtor;

89
(2) a purported transfer of all or substantially all of the debtor's property;

90
(3) insolvency or other unmanageable indebtedness on the part of the debtor;

91
(4) a special relationship between the debtor and the transferee; and, after the transfer, (5) retention by the debtor of the property involved in the putative transfer.

92
The presence of a single badge of fraud may spur mere suspicion; the confluence of several can constitute conclusive evidence of actual intent to defraud, absent "significantly clear" evidence of a legitimate supervening purpose.

93
Acequia Inc. v. Clinton (In re Acequia Inc.), 34 F.3d 800, 806 (9th Cir.1994) (emphasis and citations omitted); see also Cal. Civ.Code § 3439.04 (referring in comment (5) to the consideration courts give to the "badges of fraud").

94
Citing to on this court's opinion in Wudrick v. Clements, 451 F.2d 988 (9th Cir.1971), the majority writes; "Here, the principal evidentiary inference relied upon by Trustee is that non-exempt assets were converted to exempt assets immediately prior to bankruptcy. But, as Wudrick demonstrates, this inference is insufficient as a matter of law to establish a fraudulent transfer." Majority opinion at p. 1044.

95
I respectfully disagree with my esteemed colleagues that Wudrick is determinative. It can readily be distinguished from the instant case. In Wudrick, Mr. and Mrs. Roon, after consulting experienced bankruptcy lawyers, refinanced their 1966 Chevrolet automobile. Id. at 989. The bank loaned them 2,325 dollars on the car. The Roons used these funds to pay off their previous car loan and their attorney's fees. Id. They also deposited 800 dollars in a savings and loan association. Id. They then filed bankruptcy petitions. They claimed that the 800 dollar account was exempt from distribution under California law and the Bankruptcy Act. Id.

96
In a companion case, the record showed that Wudrick, on the advice of bankruptcy counsel, obtained a 2,197 dollar loan from a finance company on two vehicles about three weeks before filing his bankruptcy petition. Id. He put 1,300 dollars in a credit union. Such funds are exempt from distribution under California law. Id.

97
The Trustee argued in Wudrick that "conversion of non-exempt assets to exempt assets on the eve of bankruptcy by creation of a secured debt and deposit of the proceeds in an exempt account is fraudulent as a matter of law and therefore a claim of exemption based on such a transfer is invalid." Id. at 990. In rejecting this argument, we held that "[i]t has long been the rule in this and other jurisdictions that the purposeful conversion of nonexempt assets to exempt assets on the eve of bankruptcy is not fraudulent per se." Id. at 989 (citing In re Dudley, 72 F.Supp. 943, 945-947 (D.Cal.1947), aff'd per curiam, Goggin v. Dudley, 166 F.2d 1023 (9th Cir.1948); Love v. Menick, 341 F.2d 680, 682-683 (9th Cir.1965)).

98
The actual holding in Wudrick reads as follows:

99
Since no more is shown in either case than the intentional conversion of nonexempt property to exempt property, Love v. Menick, supra, controls.

100
A different case would be presented if on the eve of bankruptcy a debt were created with no intention of repaying the creditor, either by purchasing goods on credit or borrowing money without security. See Love v. Menick, supra, at 682-683 F.2d.

101
Wudrick, 451 F.2d at 990.

102
There is no showing in this matter that Stern consulted an experienced bankruptcy attorney before he transferred the funds from his IRA into the exempt Plan. He therefore cannot prevail on the argument that he acted in good faith reliance on the advice of his attorney when he transferred the funds and therefore lacked the intent required to deny him a discharge of his debts. See In re Adeeb, 787 F.2d 1339, 1343 (9th Cir.1986) (discussing the effect of a debtor's good faith reliance on an attorney's advice). Furthermore, the Trustee presented evidence that he did more than purposefully convert his assets on the eve of bankruptcy.

103
The Trustee presented evidence that Stern: (1) was sued and lost the arbitration before transferring the funds to the Plan; (2) testified inconsistently as to his motive for transferring the funds to the Plan; (3) may have, as a result of the 4.5 million dollar arbitration award levied against him, been insolvent when he made the transfer; (4) transferred the funds to the Plan to benefit him and his wife; (5) transferred all or substantially all of his property into the plan; and (6) retained control of the funds following the transfer. This evidence demonstrates the presence of several badges of fraud, including actual litigation against Stern, transfer of substantially all of Stern's property, insolvency, and retention of control over the funds after the transfer. This evidence supports an inference of fraudulent intent.

104
In Wudrick, we cited Love v. Menick for the rule regarding the purposeful conversion of nonexempt assets to exempt assets. Wudrick, 451 F.2d at 989-90. In Love, we noted that in In re Martin, 217 F.Supp. 937 (D.Or. 1983), the district court cited the prevailing rule "that the purchase of exempt property by an insolvent debtor on the eve of bankruptcy will not, in itself, permit the trustee to disallow the claimed exemption." Love, 341 F.2d at 683 (internal quotations omitted). The district court held in In re Martin, however, that substantial evidence in the record supported the referee's finding of fraudulent intent and action. Love, 341 F.2d at 683. In reconciling the Martin decision with the "prevailing rule," we commented in Love:

105
To harmonize the court's decision with its recognition of the force of ... the "prevailing rule," we must assume that the record in Martin contained some quality of "substantive evidence" of fraudulent intent which we cannot find in the record of the case at hand.

106
Love, 341 F.2d at 683; see also In re Dudley, 72 F.Supp. 943, 945-47 (S.D.Cal. 1947) (discussing the "prevailing rule").

107
Thus, the law of this circuit as reflected in Wudrick, and Love is as follows: "the purposeful conversion of nonexempt assets to exempt assets on the eve of bankruptcy is not fraudulent per se." Wudrick, 451 F.2d at 989. The term "per se" is defined as: "[o]f, in, or by itself; standing alone, without reference to additional facts." Black's Law Dictionary 1162 (7th ed.1999). Therefore, where substantial evidence in the record supports a finding of the debtor's fraudulent intent, property transferred on the eve of bankruptcy is not exempt from distribution to creditors. See Tavenner v. Smoot, 257 F.3d 401, 406-09 (4th Cir.2001) (holding that "transfers of exemptible property are amenable to avoidance and recovery actions by bankruptcy trustees," and that "such transfers surely can be characterized as fraudulent, so long as the debtor had the requisite fraudulent intent"); Ford v. Poston, 53 B.R. 444, 448, 449-50 (D.Va.1984) (stating the general rule that "in the eleventh hour a debtor may convert a part of his property which is not exempt into exempt items for the purpose of placing the property out of reach of his creditors when he claims the exemption," and stating that "[t]he courts have long recognized a limitation of this rule: If the evidence reveals fraud apart and distinct from the mere transfer of non-exempt property into exempt, the debtor has transferred the property with the intent to defraud, hinder, or delay his creditors."); In re Krantz, 97 B.R. 514, 522 (Bankr.N.D.Iowa 1989) (discussing the rule that "the act of converting non-exempt property to exempt property is not enough to deny the exemption," but "[t]he actual intent to hinder, delay or defraud one's creditors is sufficient to deny an exemption," and that "[b]ecause intent to hinder, delay or defraud is so difficult to prove directly, the Iowa Supreme Court relies on `badges or indices of fraud' to determine the debtor's intent."). This court's use of the term "per se," in setting forth the rule in Wudrick that "the purposeful conversion of non-exempt assets to exempt assets on the eve of bankruptcy is not fraudulent per se," is significant. We did not hold in Wudrick that a transfer on the eve of bankruptcy is inexorably exempt from distribution to creditors. The Majority has simply ignored the significance of the term "per se" in this court's holding in Wudrick.1

108
Because the Trustee presented genuine issues of material fact regarding whether Stern acted with fraudulent intent when he transferred funds from his IRA into exempt funds under the Plan, I would reverse the judgment of the district court and remand for a trial on the merits and express findings on the question whether Stern intended to hinder, delay, or defraud his creditors.

Notes:

1
 During oral argument, Stern's attorney quoted the holding inWudrick, and attempted to convince this Court that the words "per se" were superfluous. He argued as follows:
"[T]he purposeful conversion of nonexempt assets to exempt assets on the eve of bankruptcy is not fraudulent per se." And what he [Stern] seems to be saying if I understand him is those two words, "per se," at the end may open up some door, though I've already answered if you assume that opens up a door what could there be behind that door? And the answer is, nothing that changes it. But what's interesting in terms of case analysis, if you take those two words off of there, I can't imagine he could even make the argument, and if Wudrick read, "It has long been the rule that the purposeful conversion of nonexempt assets to exempt assets on the eve of bankruptcy is not fraudulent," period ... I can't even imagine that this would be considered anything but a pure reversal of Wudrick, and to suggest that those two words there in that context really mean anything but that, alternatively, is not per se fraudulent. Well, would that open a door? The test has to be what could be behind that door....


986 P.2d 216 (1998)
195 Ariz. 183
STATE of Arizona, Appellee,
v.
Harue YOSHIDA, Appellant.
No. 1CA-CR 97-0658.
Court of Appeals of Arizona, Division 1, Department B.
September 22, 1998.
Reconsideration Denied October 21, 1998.
Review Denied May 25, 1999.
Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel Criminal Appeals Section and Joseph T. Maziarz, Assistant Attorney General Attorneys, Phoenix, for Appellee.
Debus & Kazan, Ltd. by Tracey Westerhausen, Phoenix, for Appellant.

*217 OPINION
KLEINSCHMIDT, Judge.
¶ 1 Harue Yoshida appeals her conviction on one count of aggravated assault on a peace officer, a class 5 felony in violation of Arizona Revised Statutes Annotated ("A.R.S.") section 13-1204(A)(5) (Supp.1996). We affirm.

FACTS
¶ 2 On an afternoon in January 1996, the Defendant and her boyfriend were arguing, and the boyfriend left the Defendant's apartment to walk to his own apartment.[1] The Defendant followed a short distance behind him. In an attempt to attract the boyfriend's attention, the Defendant stepped into the path of an oncoming vehicle. An off-duty police officer saw this and called the police. Before the police arrived, the Defendant returned to her own apartment.
¶ 3 A Tempe police officer responded to the call and, as she arrived at the Defendant's apartment, she was met by the boyfriend. He told the officer about the incident with the car and also related that, on prior occasions, the Defendant had attempted to slit her wrists and to jump off the balcony of her second-story apartment.
¶ 4 When the officer and the boyfriend arrived at the Defendant's apartment, the Defendant had just taken a shower, and she was wearing only a towel when she opened the door. The officer explained that she was responding to a report that the Defendant had attempted to harm herself by stepping into the path of a car. The Defendant said that she was "okay," informed the officer that she wanted to dress, and allowed her boyfriend and the officer to enter her apartment.
¶ 5 After the Defendant dressed, the officer tried to talk to her about the apparent suicide attempt and tried to persuade her to allow a psychological "crisis team" to come to the apartment to evaluate her emotional state. Although the Defendant was not receptive to this, the officer contacted Terros, a counseling agency, and requested that a crisis team evaluate the Defendant. At one point, the Defendant, in frustration, told the officer to go ahead and shoot her if she wanted to help. Shortly thereafter, another police officer arrived at the apartment. He observed nothing to suggest that the Defendant was suicidal.
¶ 6 As the first officer was calling Terros a second time to inquire when the crisis team would arrive, the Defendant ran out the front door. Believing that she might harm herself, the officers pursued, each grabbing the Defendant by an arm. As they struggled, the first officer wrapped her arm around the Defendant's neck. In response, the Defendant bit the officer's forearm, breaking the skin and drawing blood. The bite lasted about fifteen seconds before the officers subdued the Defendant and took her to jail.
¶ 7 The State subsequently charged the Defendant with aggravated assault in violation of A.R.S. section 13-1204(A)(5) for intentionally, recklessly or knowingly causing physical injury to the officer, knowing or having reason to know that she was a peace officer engaged in the execution of her official duties. The Defendant waived her right to a jury, and her case was tried to the court. At trial, the Defendant maintained that the officers had no real reason to believe that she was suicidal, and they had therefore unlawfully restrained her when she attempted to leave her apartment. She further argued that she bit the officer in self-defense in response to the officer's use of excessive force.
¶ 8 The trial judge concluded that, even if the officer had been mistaken in her belief that the Defendant was suicidal and mistaken in the belief that she had authority to detain the Defendant, the officer was nevertheless engaged in the execution of her "official duties" when the assault occurred. The judge also concluded that the officers did not use excessive force in restraining the Defendant. Accordingly, the judge found that the Defendant was not justified in using physical force against the officer, and found her guilty of the charged offense.

*218 THE OFFICER WAS ENGAGED IN HER OFFICIAL DUTIES
¶ 9 One element of the offense charged is that the officer must have been engaged in her official duties at the time of the assault. Arizona Revised Statutes Annotated section 36-525(B) (1993) authorizes a police officer to take into custody a person who is believed to be a danger to self or others by reason of a mental disorder until mental health screening procedures can be started. The Defendant nonetheless argues that the officer had no legal authority to enter or remain in her apartment and lacked authority to restrain the Defendant when she attempted to leave. She maintains that the only legitimate basis the officer would have had for entering the apartment without a warrant would have been to determine whether the Defendant was in need of immediate aid. See, e.g., State v. Jones, 188 Ariz. 388, 395, 937 P.2d 310, 317 (1997) (discussing emergency aid exception to warrant requirement of fourth amendment), cert. denied, 522 U.S. 1054, 118 S.Ct. 705, 139 L.Ed.2d 647 (1998). She also argues that it should have been evident to the officer that she was not in need of immediate aid, so that there was no authority for the officer to remain in the apartment. She claims that the officer, by remaining in the apartment and restraining her when she attempted to leave, violated her Fourth Amendment right to be free from unreasonable searches and seizures. She reasons that, because the officer's actions were unconstitutional, the officer was not engaged in the execution of any official duties when the assault occurred.
¶ 10 We reject every aspect of the Defendant's argument. We believe that the officer had reason to enter and remain in the Defendant's apartment and to detain the Defendant when she tried to leave. Even if it were otherwise, the Defendant cannot prevail. Apparently, there is no Arizona case directly on point, but we have no difficulty in concluding that the term "official duties," as it appears in section 13-1204, encompasses all aspects of a peace officer's good faith performance of his or her job-related duties, even if the officer's actions are later found to be constitutionally unreasonable. Certainly, the legislature did not intend that police officers forfeit the protection of the statute whenever, faced with an ambiguous situation in the field, they make a mistake in how they respond. Cases from other states which interpret similar statutes support our conclusion. See, e.g., State v. Mierz, 127 Wash.2d 460, 901 P.2d 286, 295 (1995) (for purposes of Washington aggravated assault statute, term "`official duties' ... encompasses all aspects of a law enforcement officer's good faith performance of job-related duties ...."); accord Hughes v. State, 897 S.W.2d 285, 298 (Tex. Crim.App.1994) (officer acting within "lawful discharge of official duties" even when he makes an unlawful traffic stop).

THE TRIAL JUDGE DID NOT ABUSE HIS DISCRETION IN FINDING THAT THE OFFICERS DID NOT USE EXCESSIVE FORCE
¶ 11 The Defendant argues that the trial court erred in rejecting her claim that she was justified in using physical force because the officer unlawfully employed excessive force in subduing her. A person may not use physical force to resist an arrest "unless the physical force used by the peace officer exceeds that allowed by law." A.R.S. § 13-404(B) (1989). A peace officer employs unlawful physical force in detaining a person if the force used exceeds that which a reasonable person would believe immediately necessary to effect the detention. A.R.S. § 13-409(1).
¶ 12 The trial court found that the officer placed her arm around the Defendant's neck but concluded that this did not constitute unlawful physical force, noting that the "[D]efendant did not testify that she was unable to breathe or that she was about to pass out." By every account, the Defendant's attempt to flee, and the officer's attempts to restrain her, happened very quickly.
¶ 13 The Defendant challenges these factual findings arguing that the officers could have restrained her "without choking her." We consider all of the evidence presented to the trial courtand all the inferences to be drawn from that evidencein *219 the light most favorable to sustaining the court's findings. See State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987); State v. Hall, 129 Ariz. 589, 593, 633 P.2d 398, 402 (1981). We will not reverse the trial court's decision if substantial evidence supports it. State v. Atwood, 171 Ariz. 576, 597, 832 P.2d 593, 614 (1992). "Substantial evidence" exists if reasonable persons may fairly differ as to whether certain evidence establishes a fact in issue. Id. Thus, to set aside the trial court's findings in this case, "it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support" the court's conclusion that the officer acted reasonably in wrapping her arm around the Defendant's neck in an attempt to subdue her. See Arredondo, 155 Ariz. at 316, 746 P.2d at 486. There was substantial evidence to support the trial court's finding that the officer did not use unlawful excessive force in subduing the Defendant.
¶ 14 The judgment of conviction is affirmed.
CONCURRING: EDWARD C. VOSS, Presiding Judge, and JAMES E. SULT, Judge.
NOTES
[1]  We view the facts in the light most favorable to sustaining the trial court's verdict. State v. Atwood, 171 Ariz. 576, 596, 832 P.2d 593, 613 (1992).


271 P.3d 1194 (2012)
ASBURY PARK, LLC, an Idaho limited liability company; and John Esposito, an individual, Plaintiffs-Counterdefendants-Respondents,
v.
GREENBRIAR ESTATE HOMEOWNERS' ASSOCIATION, INC., an Idaho nonprofit corporation, Defendant-Counterclaimant-Appellant, and
Debra Hobbs a/k/a Debbie Hobbs, an individual, d/b/a Action Association Management Company, Defendant-Counterclaimant.
No. 37556.
Supreme Court of Idaho, Boise, August 2011 Term.
January 11, 2012.
Rehearing Denied February 16, 2012.
*1196 Hawley Troxell Ennis & Hawley, LLP, Boise, for appellant. Geoffrey Wardle argued.
Cosho Humphrey, LLP, Boise, for respondents. David Penny argued.
HORTON, Justice.
Greenbriar Estates Homeowner's Association (Greenbriar HOA or the HOA) and developer Asbury Park, LLC assert conflicting interests in a Greenbriar Estates Subdivision (Greenbriar Estates or the subdivision) lot upon which Asbury Park constructed storage facilities. The district court granted partial summary judgment in favor of Asbury Park. Greenbriar HOA appeals and asserts that the district court erred by rejecting the HOA's common law dedication and fraud claims, as well as by refusing to apply the Restatement (Third) of Property-Servitudes. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND
Asbury Park is a limited liability company of which John Esposito is the sole member. In late 2004, Asbury Park initiated the process to develop the Greenbriar Estates Subdivision. The City of Nampa (the City) annexed and rezoned the parcel where Asbury Park intended to construct the subdivision and approved Asbury Park's subdivision application. On February 22, 2005, the City approved the Greenbriar Estates Subdivision final plat. Several months later, on September 23, 2005, Asbury Park recorded the approved final plat. Asbury Park recorded the subdivision's Declaration of Covenants, Conditions, and Restrictions (CC & Rs) on October 4, 2005, and filed articles of incorporation for the Greenbriar Estates Homeowners' Association on October 5, 2005. Thereafter, Asbury Park conveyed subdivision lots to two builders that in turn sold lots to individual homeowners.
The final plat and the CC & Rs each provided that a storage facility for the use of individual homeowners would be located on subdivision Lot 39. Asbury Park began construction of that facility on June 15, 2006. Pursuant to language in the CC & Rs, the HOA believed that Asbury Park owned Lot 39 and paid rent to Asbury Park for the storage facility units.
In early July 2007, Asbury Park conveyed all common areas to Greenbriar HOA, but reserved to Asbury Park ownership of Lot *1197 39. Later that month, Esposito encouraged the surveyor who had assisted in preparation of the recorded plat to record an affidavit indicating that the original plat had erroneously listed Lot 39 as a common area owned by the HOA. The surveyor recorded an affidavit purporting to correct the error.[1]
In October 2007, it was discovered that Asbury Park lacked a certificate of occupancy for the storage units. The HOA consequently believed that vacant units could not legally be occupied, and ceased paying rent to Asbury Park for unoccupied storage units. Around the same time, it came to light that the recorded plat, the CC & Rs, and the deeds contained the following conflicting language regarding the ownership of Lot 39:
(1) The Recorded Plat: The recorded plat states that Lot 39 and several other lots were "designated as common area lots and shall be owned and maintained by the homeowner's association as established in the subdivision covenants."
(2) The CC & Rs: One section of the CC & Rs lists Lot 39 as one of several lots that are "common area," defined as "all real property (including the Improvements thereto) owned by the Association for the common use and enjoyment of all Owners, Residents and the Assisted Living Facility Owner." Another section of the CC & Rs states that Lot 39 is the intended location of the "community storage facility," which "shall be privately owned and operated. The Community Storage Facility owner will not by [sic] a Member in the Association and shall not be required to pay Assessments. The Community Storage Facility owner will be entitled to a fair market value rental rate,... for the use of storage units.... The Community Storage Facility owner shall be solely responsible for the operation and maintenance of the Community Storage Facility."
(3) The Deeds: Those deeds conveying lot ownership from Asbury Park to the builders, as well as those deeds conveying lot ownership from the builders to homeowners, state that the properties conveyed were subject to restrictions and reservations of record.
Citing the recorded plat's language that Lot 39 was designated as a common area to be owned and maintained by the HOA, the HOA began to assert that it was not liable for rent to Asbury Park. The HOA continued to assess storage fees against homeowners, but it ceased its rent payments to Asbury Park.
Asbury Park filed suit against Greenbriar HOA seeking damages for unpaid rent. The HOA answered and counterclaimed. Asbury Park moved for partial summary judgment dismissing the HOA's counterclaims, which motion the district court granted. The district court held that the HOA's common law dedication claim failed because the relevant documents could not be construed to demonstrate a clear and unequivocal intent to dedicate, and also because the HOA had relied on the CC & Rs and not the recorded plat. The court dismissed the HOA's assertion that Lot 39 was a common area pursuant to the Restatement (Third) of PropertyServitudes § 6.19, holding that there was no need to adopt the Restatement because the issue could be resolved by application of the Idaho common law of dedication. The court also dismissed the HOA's fraudulent misrepresentation claim on the ground that even if Asbury Park had misrepresented that Lot 39 was owned by the HOA, the HOA had not relied on that misrepresentation but rather had relied on the CC & Rs' statement that Asbury Park owned Lot 39.
The district court denied the HOA's subsequent motion to reconsider, but granted the HOA's I.R.C.P. 54(b) motion to certify the partial judgment as final. Greenbriar HOA timely appealed. Both parties request attorney fees pursuant to the CC & Rs, I.A.R. 40 and 41, and I.C. § 12-120(3).

II. STANDARD OF REVIEW
This Court reviews a trial court's grant of summary judgment under the same *1198 standard used by the trial court in ruling on the motion. Infanger v. City of Salmon, 137 Idaho 45, 46-47, 44 P.3d 1100, 1101-02 (2002) (citing Eagle Water Co. v. Roundy Pole Fence Co., 134 Idaho 626, 628, 7 P.3d 1103, 1105 (2000)). "All disputed facts are to be construed liberally in favor of the non-moving party, and all reasonable inferences that can be drawn from the record are to be drawn in favor of the non-moving party." Id. at 47, 44 P.3d at 1102. Summary judgment is proper when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." I.R.C.P. 56(c). "A moving party is entitled to summary judgment when the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party's case on which that party will bear the burden of proof at trial." Brown v. City of Pocatello, 148 Idaho 802, 806, 229 P.3d 1164, 1168 (2010) (quoting Thomson v. Idaho Ins. Agency, Inc., 126 Idaho 527, 530-31, 887 P.2d 1034, 1037-38 (1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986))).

III. ANALYSIS

A. The district court properly dismissed the HOA's common law dedication claim because Asbury Park did not make a clear and unequivocal offer to dedicate Lot 39 to the HOA.
Common law dedication consists of "(1) an offer by the owner clearly and unequivocally indicating an intent to dedicate the land and (2) an acceptance of the offer." West Wood Inv., Inc., v. Acord, 141 Idaho 75, 87, 106 P.3d 401, 413 (2005) (citing Sun Valley Land & Minerals, Inc. v. Hawkes, 138 Idaho 543, 548, 66 P.3d 798, 803 (2003)). Greenbriar HOA contends that the district court erred in ordering summary judgment because only the language of the recorded plat was relevant to the substance of Asbury Park's alleged offer, and therefore there was a genuine issue of material fact. The district court considered the recorded plat, the CC & Rs, and the deeds to be the relevant documents and concluded that "where the recorded instruments are inconsistent there can be no clear and unequivocal intent to make an offer of dedication." Since Greenbriar HOA challenges the district court's consideration of documents other than the recorded plat, we first examine which documents are relevant to a determination of the substance of an offer of dedication. Based on the resolution of that matter, we then examine whether the district court's grant of summary judgment was proper.

1. The district court did not err when it considered the CC & Rs.

Common law dedication requires "an offer by the owner clearly and unequivocally indicating an intent to dedicate the land." West Wood Inv., Inc., 141 Idaho at 87, 106 P.3d at 413. The doctrine is intended to "protect[] the interest of purchasers who rely on the value of these public areas." Saddlehorn Ranch Landowner's, Inc. v. Dyer, 146 Idaho 747, 752, 203 P.3d 677, 682 (2009). Greenbriar HOA contends that, in order to determine the substance of Asbury Park's alleged offer of dedication, the district court should have looked solely to the recorded plat, which describes Lot 39 as a common area that "shall be owned and maintained by the homeowner's association...." This Court has expressly held that the substance of an offer requires a court to evaluate "the CC & Rs, the Plat, and the circumstances surrounding the alleged dedication." Sun Valley Land & Minerals, Inc., 138 Idaho at 548, 66 P.3d at 803. Nonetheless, Greenbriar HOA challenges the district court's consideration of the CC & Rs on three grounds. First, the HOA asserts the dedication was complete before the CC & Rs were recorded, and therefore the CC & Rs are irrelevant. Second, the HOA contends that the CC & Rs are ambiguous. Third, the HOA argues that, on these facts, public policy precludes consideration of the CC & Rs. We reject each of these arguments and hold that the district court's assessment of the substance of Asbury Park's alleged offer of dedication was not limited to the recorded plat alone.
*1199 The substance of an offer of dedication is not measured until the time of acceptance, and an accepted offer of dedication is irrevocable. Ponderosa Homesite Lot Owners v. Garfield Bay Resort, Inc., 143 Idaho 407, 409, 146 P.3d 673, 675 (2006); Worley Hwy. Dist. v. Yacht Club of Coeur D'Alene, Ltd., 116 Idaho 219, 225, 775 P.2d 111, 117 (1989). Dedication is complete "[w]hen an owner of land plats the land, files the plat for record, and sells lots by reference to the recorded plat." Saddlehorn Ranch Landowner's, Inc., 146 Idaho at 752, 203 P.3d at 682; see also Ponderosa Homesite Lot Owners, 143 Idaho at 409-10, 146 P.3d at 675-76; Armand v. Opportunity Mgmt. Co., 141 Idaho 709, 714-15, 117 P.3d 123, 128-29 (2005). Thus, once a plat is recorded, acceptance occurs when the offeree purchases the real property at issue. The doctrine of dedication protects purchasers who rely on clear, unequivocal offers of dedication when they purchase real property in reliance on the offer. Saddlehorn Ranch Landowner's, Inc., 146 Idaho at 752, 203 P.3d at 682.
In the present case, Asbury Park recorded the final plat on September 23, 2005 and recorded the CC & Rs on October 4, 2005. Both of these recordings preceded Asbury Park's conveyance of subdivision lots to the builders and the subsequent conveyances to individual homeowners. Since an alleged offer of dedication is determined as of the time of the claimed acceptance, we hold that the district court properly considered the CC & Rs when it evaluated whether there was a genuine issue of material fact as to whether Asbury Park clearly and unequivocally offered to dedicate Lot 39.
Greenbriar HOA also contends that the district court erred because the CC & Rs contained inconsistent statements regarding ownership of Lot 39, and therefore the CC & Rs contained an ambiguity that presented a question of fact precluding summary judgment. However, the issue before the court at summary judgment was not the contractual significance of the CC & Rs, but rather whether the circumstances surrounding Asbury Park's alleged offer of dedication indicated a clear and unequivocal intent to dedicate. The ambiguity noted by the HOA does not constitute a genuine issue of fact material to the alleged dedication; rather, it is a fact that is relevant to the pertinent question whether Asbury Park manifested a clear and unequivocal intent to dedicate Lot 39 to the HOA.
Finally, we are not persuaded by Greenbriar HOA's contention that public policy requires this Court to overturn its precedent by precluding consideration of CC & Rs when assessing the substance of an alleged offer of dedication. The HOA contends that permitting consideration of CC & Rs invites developers to engage in fraudulent conduct by providing them a means by which to avoid the public platting process. However, "[w]hen there is controlling precedent on questions of Idaho law `the rule of stare decisis dictates that we follow it, unless it is manifestly wrong, unless it has proven over time to be unjust or unwise, or unless overruling it is necessary to vindicate plain, obvious principles of law and remedy continued injustice.'" Greenough v. Farm Bureau Mut. Ins. Co. of Idaho, 142 Idaho 589, 592, 130 P.3d 1127, 1130 (2006) (quoting Houghland Farms, Inc. v. Johnson, 119 Idaho 72, 77, 803 P.2d 978, 983 (1990)). Greenbriar HOA has not demonstrated that the existing precedent has proven unjust or is manifestly wrong. We therefore decline to upset that well-established body of precedent.

2. The evidence before the district court could only be construed to demonstrate that any intent by Asbury Park to dedicate Lot 39 was ambiguous, i.e., unclear and equivocal.

Having concluded that the district court's consideration of the CC & Rs was proper, we turn to the substance of Asbury Park's alleged offer and hold that the district court properly granted summary judgment in favor of Asbury Park. "[A] moving party is entitled to summary judgment when the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party's case on which that party will bear the burden of proof at trial." Brown, 148 Idaho at 806, 229 P.3d at 1168.
The moving party bears the burden of proving the absence of material facts. *1200 Once the moving party establishes the absence of a genuine issue of material fact, the burden shifts to the nonmoving party to show the existence of a genuine issue of material fact. A nonmoving party must come forward with evidence by way of affidavit or otherwise that contradicts the evidence submitted by the moving party, and that establishes the existence of a material issue of disputed fact.
Chandler v. Hayden, 147 Idaho 765, 769, 215 P.3d 485, 489 (2009) (citations omitted). If facts are disputed but immaterial to the issue presented, the disputed facts will not preclude summary judgment. Garzee v. Barkley, 121 Idaho 771, 774, 828 P.2d 334, 337 (Ct.App.1992).
Even construing all inferences in favor of the HOA, the inconsistent language in the plat and CC & Rs precludes a finding of clear and unequivocal offer, and we therefore affirm the district court's grant of summary judgment. The district court did not impermissibly shift the burden of proof to Greenbriar HOA, but rather held the HOA to its burden of presenting evidence demonstrating the existence of a genuine issue of fact material to the alleged offer of dedication. As we reasoned in West Wood Investments, Inc., one cannot show a clear and unequivocal intent to dedicate where the alleged offeror demonstrates intent inconsistent with a dedication. 141 Idaho at 87, 106 P.3d at 413. In West Wood, the recorded plat and a recorded security interest contained inconsistent statements regarding ownership of the real property at issue, and as a consequence we concluded that "[t]he surrounding circumstances of the transaction reveal nothing more ... than an ambiguous intent." Id. Since "unequivocal" and "ambiguous" are antonyms, no reasonable person could conclude that the conflicting (and therefore ambiguous) statements reflected in these contradictory documents reflected Asbury Park's unequivocal intent. See Molyneux v. Twin Falls Canal Co., 54 Idaho 619, 632, 35 P.2d 651, 656 (1934) (noting that the dictionary definition of "unequivocal" included the meaning "not ambiguous"). Here, any reasonable reading of the recorded plat and CC & Rs can only lead to a finding that the two documents contain inconsistent statements as to the intended ownership of Lot 39. We therefore conclude that the district court properly granted summary judgment.[2]

B. The district court did not err by declining to apply Section 6.19 of the Restatement (Third) of Property-Servitudes because Idaho law can resolve the issues in this case.
Greenbriar HOA contends that the district court erred by refusing to apply Section 6.19 of the Restatement (Third) of Property-Servitudes (2000)[3] and permitting Greenbriar HOA to thereby assert a claim to title of Lot 39. The district court concluded *1201 that it had no discretion to adopt the Restatement because the Restatement and Idaho's common law doctrine of dedication grant distinct interests in real property, rendering the Restatement inconsistent with Idaho law.
"The Restatement is not law unless it has been adopted by this Court." Estate of Skvorak v. Sec. Union Title Ins. Co., 140 Idaho 16, 22, 89 P.3d 856, 862 (2004). "This Court will not adopt a Restatement provision if it is inconsistent with Idaho precedent, a different formulation resolved the issue, or the issue can be resolved by current Idaho law." Id. Since the common law doctrine of dedication exists in Idaho and provides a means by which to resolve the parties' ownership dispute, we hold that the district court was not obligated to apply the Restatement. The HOA's dissatisfaction with the burdens imposed upon a party asserting common law dedication is not a sufficient basis for this Court to adopt a doctrine not previously recognized in Idaho when existing Idaho law resolves the matter.[4] We therefore affirm the district court.

C. The district court properly dismissed Greenbriar HOA's fraud claim because the HOA did not show that Asbury Park made a false representation regarding ownership of Lot 39 upon which the HOA relied to its detriment.
Greenbriar HOA asserts that Asbury Park engaged in fraudulent conduct when it drafted, recorded, and enforced CC & Rs that falsely stated Asbury Park owned Lot 39. Fraud consists of "1) a statement or a representation of fact; 2) its falsity; 3) its materiality; 4) the speaker's knowledge of its falsity; 5) the speaker's intent that there be reliance; 6) the hearer's ignorance of the falsity of the statement; 7) reliance by the hearer; 8) justifiable reliance; and 9) resultant injury." Taylor v. McNichols, 149 Idaho 826, 845-46, 243 P.3d 642, 661-62 (2010). Greenbriar HOA admits that its fraud claim depends upon a finding by this Court that it has a property interest in Lot 39. In view of our determination that the district court properly granted summary judgment rejecting the HOA's claim of ownership of Lot 39, the HOA's claim necessarily fails. We therefore affirm the district court's grant of summary judgment as to this claim.

D. We remand the issue of attorney fees to the district court to consider at the conclusion of this case.
Both parties requested attorney fees pursuant to article X, section 6 of the CC & Rs, I.C. § 12-120(3), and Idaho Appellate Rules 40 and 41. The prevailing party is entitled to attorney fees on the basis of the CC & Rs which provide in article X, section 6 that:
In the event it shall become necessary for the Declarant, the Association, any Owner, or the Assisted Living Facility owner to retain legal counsel to enforce any term, covenant, condition, or Restriction contained within this Declaration, the prevailing party to any court proceeding shall be entitled to recover their reasonable attorneys' fees and costs of suit, including any bankruptcy, appeal or arbitration proceeding.
The underlying action is a breach of contract claim wherein Asbury Park alleges the CC & Rs were violated. Therefore under the plain terms of the CC & Rs, the prevailing party is due attorney fees and costs.
However, the procedural posture of this case prevents us from awarding attorney fees and costs at this time. This appeal arises from a judgment that was certified as final pursuant to I.R.C.P 54(b). The certified judgment does not dispose of all of the parties' claims. Therefore, we cannot determine the prevailing party, nor can we award attorney *1202 fees. Bagley v. Thomason, 149 Idaho 799, 804-05, 241 P.3d 972, 977-78 (2010). "The trial court is to take the issue of attorney fees and costs for this appeal into consideration when it addresses all fees and costs at the conclusion of the case." Fuller v. Dave Callister, 150 Idaho 848, 856, 252 P.3d 1266, 1274 (2011).[5]

IV. CONCLUSION
We affirm the district court's order granting Asbury Park's motion for partial summary judgment. Because this appeal arises from an I.R.C.P. 54(b) certified judgment, no attorney fees may be awarded until judgment resolving each claim has been entered by the district court. Costs to Asbury Park.
Chief Justice BURDICK and Justices EISMANN, J. JONES and W. JONES concur.
NOTES
[1]  We note that the mere recording of an affidavit cannot cure a defective description of a subdivision contained within a recorded plat. Rather, such defect may only be cured by securing approval of the replatted subdivision by the appropriate entity in compliance with the requirements of I.C. § 50-1308.
[2]  Having reached this conclusion, we note that the instant appeal solely addresses ownership of Lot 39. On appeal, the parties did not raise the issue that Asbury Park may be entitled to rental for use of the improvements constructed on Lot 39, even if Greenbriar HOA owned the land underlying those improvements. Thus, we are not asked to determine whether the CC & Rs obligated Greenbriar to pay rent to Asbury Park for use of the storage facility, irrespective of the ownership of the underlying real property.
[3]  The provision reads in full:

(1) The developer of a common-interest-community project has a duty to create an association to manage the common property and enforce the servitudes unless exempted by statute.
(2) After the time reasonably necessary to protect its interests in completing and marketing the project, the developer has a duty to transfer the common property to the association, or the members, and to turn over control of the association to the members other than the developer.
(3) After the developer has relinquished control of the association to the members, the association has the power to terminate without penalty:
(a) any contract or agreement for the provision of management or maintenance services to the association;
(b) any contract or lease between the association and the developer, or an affiliate of the developer;
(c) any lease of recreational or parking facilities; or
(d) any contract or lease that is not bona fide, or was unconscionable to the members other than the developer at the time it was entered into, under the circumstances then prevailing.
[4]  We note that it is unclear whether Restatement (Third) of Property-Servitudes § 6.19 provides a means of resolving the issue before the district court. Section 6.19's primary purpose is to require developers to create homeowners' associations in order to avoid the difficulties created by owning common property as tenants in common. See cmt. a.
[5]  We recognize the possibility that the district court may ultimately find that Esposito and Asbury Park are the prevailing parties in this litigation. Although we would prefer that Esposito not be rewarded for his failure to comply with the statutory obligation to obtain the City's approval of an amended plat, "[c]ourts do not possess the roving power to rewrite contracts in order to make them more equitable." Shawver v. Huckleberry Estates, LLC, 140 Idaho 354, 362, 93 P.3d 685, 693 (2004) (quoting Smith v. Idaho State Univ. Fed. Credit Union, 114 Idaho 680, 684, 760 P.2d 19, 23 (1988)). Since article X, section 6 plainly provides for an award of fees to the prevailing party, at the close of this litigation the district court must grant such an award to the party it finds has prevailed.


941 A.2d 739 (2008)
REALEN VALLEY FORGE GREENES ASSOCIATES
v.
UPPER MERION TOWNSHIP ZONING HEARING BOARD and Upper Merion Township
Appeal of Thomas J. Timoney, as Receiver for the Hankin Family Partnership and the Hankin Family Partnership.
Commonwealth Court of Pennsylvania.
Argued December 10, 2007.
Decided January 8, 2008.
Reargument Denied March 7, 2008.
*740 John M. Elliott, Timothy T. Myers, and Stewart J. Greenleaf, Jr., Blue Bell, for appellants.
Kevan F. Hirsch and David L. Black, Blue Bell, for appellee, Realen Valley Forge Greenes Associates.
Joseph J. Pizonka, King of Prussia, for appellee, Upper Merion Township Zoning Hearing Board.
BEFORE: McGINLEY and PELLEGRINI, Judges, and KELLEY, Senior Judge.
Reargument Denied En Banc March 7, 2008.
OPINION BY Judge PELLEGRINI.
Thomas J. Timoney, Esquire, as Receiver for the Hankin Family Partnership, and the Hankin Family Partnership (collectively, Hankin) appeal from an order of the Court of Common Pleas of Montgomery County (trial, court) denying Hankin's petition for intervention in a zoning appeal between Realen Valley Forge Greenes Associates (Realen) and Upper Merion Township (Township).[1] In this appeal, we are asked to consider whether (1) under the intervention rules of the Pennsylvania Rules of Civil Procedure, a party who could have joined in an action when initially brought can intervene, even though the interest that entitled that party to intervene no longer exists when intervention is finally sought; (2) in a zoning appeal, a "legally enforceable interest" for a party advancing certain development plans encompasses anything more than an interest in land; and (3) a party's intervention would unduly delay the resolution of a zoning appeal when it possesses no interests that would be directly affected by the litigation.
This appeal involves the 135-acre parcel formerly known as Valley Forge Golf Club (Property) which Hankin owned since the 1920s. Over the last 40 years or so, Hankin's desire to develop this Property and the Township's desire to keep it as open space has spawned litigation to change the zoning of the Property to allow for commercial development, as well as litigation to prevent the Township from taking the Property as a park, all of which came to naught. This latest round of litigation began in 1996 when Realen entered a conditional agreement of sale to purchase the Property contingent on Realen receiving zoning approval to allow commercial development. The final version of the purchase agreement, the Second Amended Purchase *741 Agreement, called for Realen, to pay a base purchase price of $25,000,000 for the Property, but it also contained "inflators" to this price based on density of development permitted by the anticipated zoning approvals (Additional Purchase Price).
To obtain zoning approval for commercial development, in 1997, Realen filed a validity challenge to the agricultural zoning of the Property with the Township Zoning Board. Realen claimed that the Property's AG District zoning constituted spot zoning, special legislation, and was arbitrary and irrational. Two conceptual site plans were presented with the challenge to' illustrate the desired definitive reliefone for a retail/hotel/apartment complex and the other for a retail/hotel/office building plan on the Property (collectively, Challenged Plans). The Zoning Board denied Realen's challenge, which was affirmed by the trial court and then this Court in In re Realen Valley Forge Greenes Associates, 799 A.2d 938 (Pa. Cmwlth.2002). Our Supreme Court, however, reversed, holding that the Township's agricultural zoning constituted unlawful spot zoning. See In re Realen Valley Forge Greenes Associates, 576 Pa. 115, 838 A.2d 718 (2003). The Supreme Court remanded the matter to the trial court for the grant of "definitive relief' in favor of Realen. Even though Hankin remained equitable owner of the Property throughout those appeals, at no time did it seek to intervene in the matter. On June 24, 2004, Hankin conveyed legal title of the Property to Realen, thereby extinguishing any real property interest it had in the Property.
While the zoning appeal was pending before this Court in 2001, Realen and Hankin filed two actions against the Townshipa state court action involving inverse condemnation and a federal civil rights action in which the two parties sought damages (Additional Actions). The parties agreed that those actions were brought to put pressure on the Township to settle the zoning appeal.
After the Supreme Court remanded the land use matter to the trial court, Realen alone pursued a settlement as to what "definitive relief' was appropriate, i.e., what it would be allowed to build on the Property. While settlement discussions were ongoing, on March 18, 2005, Realen brought a declaratory judgment action against Hankin alleging that it was not required to pay any Additional Purchase Price to Hankin (Declaratory Judgment Action).[2]
On May 25, 2005, Realen and the Township filed a joint motion with the trial court seeking approval of a proposed settlement which was later supplanted by a settlement agreement that set forth comprehensive means and methods to be employed by Realen and the Township for the development of a town center, a mix-use community, rather than the Challenged Plans. The settlement agreement, however, was contingent on Realen obtaining dismissal of the Additional Actions in which Hankin was a party plaintiff. It also contained a number of provisions referring to the Declaratory Judgment Action, the Additional Actions, and to Hankin's status.
Believing that its ability to obtain any additional compensation for the Property and maintain the Additional Actions would *742 be adversely affected if the settlement was approved, in October 2005, Hankin filed a petition to intervene with the trial court in the zoning appeal.[3] Hankin contended that it was entitled to intervene under Pa. R.C.P. No. 2327(3)[4] because as original landowner of the Property, it could have been joined as a party when the zoning appeal was filed, and under Pa. R.C.P. No. 2327(4) because it had a "legally enforceable interest" in the zoning appeal as its resolution could impact its ability to receive additional compensation based on the "inflators" contained in the purchase agreement and would require it to settle the Additional Actions brought against the Township.
In denying Hankin's petition, the trial court reasoned that:
 under Pa. R.C.P. No. 2327(3), once Hankin divested itself of all legal and equitable interest in the Property, it correspondingly divested itself of standing to join or be joined as a party in the land use appeal;
 under Pa. R.C.P. No. 2327(4), Hankin failed to identify any legally enforceable interest which could be affected by a decision on approval of the settlement agreement and the proposed plan for development of the Property; and
 the exercise of discretion under Pa. R.C.P. No. 2329(3)[5] would unduly delay final adjudication of the rights of Realen and the Township.
After that decision, on March 30, 2007, the trial court approved the settlement agreement. *743 Hankin then filed this appeal.[6]

I.
Hankin contends that the trial court erred in finding that a person seeking to intervene had to have standing when intervention was sought when Pa. R.C.P. No. 2327(3) only requires that the party seeking intervention "could have joined as an original party in the action." Because when the land use appeal was filed Hankin was legal title owner and could have "joined as an original party," Hankin argues that it was entitled to intervene at any stage of that proceeding even though it was no longer the legal title owner of the Property.
While that language in Rule 2327(3) allows a party to intervene if it could have been originally joined when the action was filed, that does not mean that the party's right to intervene is fixed "forever." In a land use appeal, a party seeking zoning approval must have a real property interest at the time the appeal is sought and must maintain that interest throughout the appeal process; once it no longer possesses an interest in the property, the appeal itself must be dismissed as moot.[7]Gwynedd Properties v. Board of Supervisors, 160 Pa.Cmwlth. 599, 635 A.2d 714 (1993); Peach Bottom Township v. Peach Bottom Zoning Hearing Board, 106 Pa.Cmwlth. 340, 526 A.2d 837 (1987).[8] Just as a land use appellant loses standing to maintain the appeal once it no longer has a cognizable interest, once a party no longer has an interest in the property allowing joinder, it similarly looses its right to intervene. Because a land use appeal resolves how property is to be developed, we agree with the trial court that a party seeking zoning approval must have standinga real property interestat the time intervention is sought, not just when the zoning action is initially brought.

II.
Hankin next contends that it still should have been allowed to intervene under Pa. R.C.P. No. 2327(4) because it has a "legally enforceable interest" as the settlement agreement "may" compromise its financial claims against Realen for additional compensation and its claims against the Township in the Additional Actions[9] or will *744 affect it in ways that are not instantly discernable.
The standard for determining a "legally enforceable interest" for intervening in a pending action under Rule 2327(4) is not as straightforward as it might first appear. As our Supreme Court has long emphasized, "the exact boundaries of the `legally enforceable interest' limitation [of Pa. R.C.P. p327(4)] are not clear." Consequently, "[t]he result is a flexible, although uncertain rule whose application in a given case calls for a careful exercise of discretion and consideration of all the circumstances involved." Pennsylvania Crime Commission Subpoena, 453 Pa, 513, 520, 309 A.2d 401, 406 (1973); Pennsylvania Railroad Co. v. Hughart, 422 Pa. 615, 618, 222 A.2d 736; 738 (1966). In the context of a claim based on an interest flowing from a contract, it is necessary to analyze the exact nature of the "legally enforceable interest" claimed and what claimed rights are legally enforceable under that agreement. Chen v. Chen, 586 Pa. 297, 893 A.2d 87 (2006).
In this case, for Hankin to make out its Rule 2327(4) claim, it had to establish that its "legally enforceable interest," for the reasons previously set forth, was a real property interest in the land, not some tangential interest(s) that could arise out of business dealings that did not involve the Property. Hankin claims that it had such an interest because it could receive a premium over the base purchase price under the Second Amended Purchase Agreement depending on the level of development allowed by the zoning appeal. However, Thomas J. Timoney testified that Hankin did not have any rights under the purchase agreement on how Realen was going to develop the Property. Moreover, under the agreement, Realen was not required to obtain final approval from Hankin on its plan to develop the Property, nor was it under any duty to develop the Property to maximize the premium that Hankin would receive. Because under the purchase agreement, Hankin did not have any rights on what was going to be developed, it has not made out a legally enforceable interest that would justify intervention on the basis it may receive any additional premium on the purchase price already paid for the Property.[10]
As to Hankin's contention that approval of the settlement agreement is contingent on Realen settling the Additional Actions and its approval would affect Hankin's rights in the Additional Actions, those actions do not constitute a legally enforceable interest entitling it to intervene because the resolution of this appeal does not terminate those actions. To the contrary, the approval of the settlement agreement is expressly contingent on the discontinuance of the Additional Actions on behalf of Hankin, and whether Realen has the ability *745 to effect the discontinuance must be determined in those actions, not in this zoning appeal, which, we reiterate, only involves the manner in which the Property will be developed.

III.
Finally, even if Hankin had made out a cognizable reason to allow intervention under either Pa. R.C.P. No. 2327(3) or 2327(4), we agree with the trial court that that intervention still should be denied under Pa. R.C.P. No. 2329(3). Under that Rule, intervention may be denied if "the petitioner has unduly delayed in making application for intervention or the intervention will unduly delay . . the adjudication of the rights of the parties." Hankin maintains that it did not learn of Realen and the Township's May 25, 2005 joint motion to develop a town center and their intentions to resolve the zoning appeal until October 2005, at which time it immediately filed the petition to intervene.[11] Because it did not "idly wait" for the approval of the settlement agreement but rather sought intervention upon learning of Realen and the Township's negotiations, Hankin argues that it did not unduly delay in petitioning for intervention in this matter.
But Hankin did "idly wait" not seeking to intervene until 2006, nine years after the appeal was filed in 1997 and five years after it sought to "encourage" the Township to settle by filing the Additional Actions in 2001. See London, Inc. v. Fedders Corporation, 306 Pa.Super. 103, 452 A2d 236 (1982). Moreover, even if we were to find that its delay in seeking intervention was excusable, Hankin has failed to meet the "second prong" of Rule 2329(3) because the Township and Realen would be prejudiced if 10 years after the action was commenced and after it went up and down from our Supreme Court, the appeal could not be concluded by allowing Hankin to intervene.
Accordingly, because the trial court did not abuse its discretion in denying intervention, the order of the trial court denying Hankin's petition to intervene is affirmed.

ORDER
AND NOW, this 8th day of January, 2008, the order of the Court of Common Pleas of Montgomery County denying Hankin's petition to intervene is affirmed.
KELLEY, Senior Judge, files a dissenting opinion.
DISSENTING OPINION BY Senior Judge KELLEY.
I respectfully dissent.
Rule 2327(3) requires that a person not a party to an action be permitted to intervene where the petitioner "could have joined as an original party in the action or could have been joined therein." Pa. R.C.P. No. 2327(3). There is no dispute that at the time the action was filed in 1997, Hankin could have joined as an original party and may have necessarily been joined therein because they owned the Property at that time. The rule speaks to the time the action was filed and is silent with regard to ongoing status.
Nevertheless, assuming that a party must demonstrate a right to intervene at the time intervention is sought, not just when the zoning action is initially brought, Hankin continues to maintain a legally enforceable interest in the Property pursuant to Rule 2327(4) justifying intervention. *746 While Hankin has sold the Property to Realen, Hankin has not divested itself of all legal and equitable interest in the Property. In fact, litigation over the Property and the agreed upon purchase price is ongoing. The additional purchase price is contingent upon zoning approvals for the development of the Property. The greater the level of development allowed by the zoning appeal, the greater the additional purchase price. Hankin has also filed an action seeking to rescind the purchase agreement with Realen and re-take possession and title of the Property. Under these unique circumstances, Hankin maintains a viable legal interest in the manner in which the Property will be developed. Therefore, I believe that Hankin should be permitted to intervene.
NOTES
[1]  Upper Merion Township is widely known by its postal designation: King of Prussia.
[2]  On February 1, 2006, Realen filed a motion for partial summary judgment in the declaratory judgment action requesting that the trial court determine whether it could settle Hankin's claims for damages against the Township in the Additional Actions. Hankin opposed the motion on the grounds that Realen had not adequately raised that issue in the pleadings. This matter is still pending before the trial court.
[3]  The right to intervene at the trial court level in this zoning appeal is governed by Section 1004-A of the Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, added by Section 101 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 11004-A, which provides:

Within the 30 days first following the filing of a land use appeal, if the appeal is from a board or agency of a municipality, the municipality and any owner or tenant of property directly involved in the action appealed from may intervene as of course by filing a notice of intervention, accompanied by proof of service of the same, upon each appellant or each appellant's counsel of record. All other intervention shall be governed by the Pennsylvania Rules of Civil Procedure.
The rules of civil procedure which apply to interventions are set forth at Pa. R.C.P. Nos. 2326-2350. One wishing to intervene is required to file a petition to intervene, "setting forth the ground on which intervention is sought and a statement of relief or defense which the petitioner desires to demand or assert." Pa. R.C.P. No. 2328. The trial court then must hold a hearing to determine whether the petition to intervene should be granted. Pa. R.C.P. No. 2329. Whether or not to grant a petition is within the discretion of the trial court. Stanbro v. Zoning Hearing Board of Cranberry Township, 130 Pa.Cmwlth. 84, 566 A.2d 1285 (1989).
[4]  Pa. R.C.P. No. 2327(3) and (4) provide, in pertinent part:

At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if
* * *
(3) such person could have joined as an original party in the action or could have been joined therein; or
(4) the determination of such action may affect any legally enforceable interest of such person whether or not such person may be bound by a judgment in the action.
[5]  Pa. R.C.P. No. 2329(3) provides, in pertinent part:

Upon the filing of the petition and after hearing, of which due notice shall be given to all parties, the court, if the allegations of the petition have been established and are found to be sufficient, shall enter an order allowing intervention; but an application for intervention may be refused, if
* * *
(3) the petitioner has unduly delayed in making application for intervention or the intervention will unduly delay, embarrass or prejudice the trial or the adjudication of the rights of the parties.
[6]  Our scope of review of a denial of a petition to intervene is limited to determining whether the trial court abused its discretion or committed an error of law. Atticks v. Lancaster Township Zoning Hearing Board, 915 A.2d 713 (Pa.Cmwlth.2007).
[7]  Mootness is the doctrine of standing in a time frame. The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness). Town of McCandless v. McCandless Police Officers Association, 587 Pa. 525, 901 A.2d 991 (2006).
[8]  See also Ridley Park Shopping Center, Inc. v. Sun Ray Drug Company, 407 Pa. 230, 180 A.2d 1 (1962) (developer's appeal of trial court's determination that lessee was legally occupying additional space in building pursuant to oral agreement was rendered moot after developer sold subject property to third party and had no legal claim to possession of property); Sunnyside Up Corporation v. City of Lancaster Zoning Hearing Board, 739 A.2d 644 (Pa.Cmwlth.1999) (corporation lacked standing to appeal when it was divested of interest in land adjacent to the subject property because its option to purchase the adjacent' parcel expired). Having a real property interest is necessary to maintain the zoning appeal because, otherwise, the party seeking zoning approval could not implement plans for which that approval is sought as it no longer would own or control the property.
[9]  Hankin contends that the trial court erred in finding that its cause of action to rescind the purchase agreement and reacquire title to the Property was not a legally enforceable interest. Hankin objects to this determination on the grounds that at the time the trial court issued its decision, it had not yet formally filed its action to seek such a remedy, and the trial court improperly determined that possible rescission of the purchase agreement was a future interest that did not warrant intervention. Despite these contentions, it fails to explain how the resolution of the current zoning `appeal would affect its interest in relation to its action seeking rescission.
[10]  See Marion Power Shovel Company v. Fort Pitt Steel Casting Company, 285 Pa.Super. 45, 426 A.2d 696 (1981), where a striking union and its members sought to intervene in a replevin action brought against their employer/manufacturer by a customer/company that wanted to seize possession of steel castings manufactured by the union members' employer. The union asserted a legally enforceable interest in the steel castings because of "incentive wages" that might have been due to them on the castings. The Marion Power court, however, rejected this argument, noting that the union "neither claims nor could claim the right" to possess the castings, which it needed solely as a basis to calculate incentive wages. Id., 426 A.2d at 701.
[11]  Hankin claims that the May 25, 2005 joint motion was neither served on Receiver Timoney nor Hankin, and that counsel who had jointly represented Hankin and Realen in the Additional Actions deliberately concealed the joint motion from Hankin.