94 F.3d 648
NOTICE:  Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.Victor KESSELL, Appellant,v.UNITED STATES of America, Appellee.
No. 96-1116.
United States Court of Appeals, Eighth Circuit.
Submitted July 25, 1996.Decided Aug. 12, 1996.

PER CURIAM.

1
Victor Kessell pleaded guilty to distributing crack cocaine, in violation of 21 U.S.C. § 841(1) and (b)(1)(B).  The district court1 sentenced him to 235 months in prison and four years supervised release.  We affirmed Kessell's sentence on direct appeal, rejecting his challenge to the district court's drug-quantity finding.  See United States v. Kessell, No. 94-1140, 1994 WL 399563 (8th Cir.  Aug. 3, 1994) (unpublished per curiam).  Kessell then brought this 28 U.S.C. § 2255 motion to vacate his sentence.  The district court denied the motion.  Kessell appeals, and we affirm.

2
Kessell argues that his three prior burglary convictions constituted one "related" case for purposes of calculating his criminal history, because they were not separated by "intervening" arrests and he received concurrent sentences on the same day;  that he was not responsible for much of the crack cocaine attributed to him for sentencing;  and that the district court failed to make specific findings on the drug quantity issue, in violation of Federal Rule of Criminal Procedure 32.  These issues were raised or should have been raised in Kessell's unsuccessful direct appeal.  In any event, they are without merit.

3
Kessell also argues that he received ineffective assistance of counsel during sentencing and on direct appeal because counsel failed to raise and adequately argue the above issues.  However, as these claims are without merit, Kessel cannot show he was prejudiced by the counsel's alleged deficiencies.  See Strickland v. Washington, 466 U.S. 668, 687, 690 (1984).

4
Accordingly, we affirm.

1
 The HONORABLE FERNANDO J. GAITAN, JR., United States District Judge for the Western District of Missouri


983 F.2d 1065
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.David L. AULD, Plaintiff-Appellee,v.Johnny VINSON, Defendant-Appellant.
No. 92-3153.
United States Court of Appeals, Sixth Circuit.
Jan. 6, 1993.

Before DAVID A. NELSON and SILER, Circuit Judges, and MILES, Senior District Judge.*
PER CURIAM.

1
This action arises from a breach of contract by the defendant.   Granting a motion for partial summary judgment, the district court awarded the plaintiff judgment for $3.9 million plus prejudgment interest.   Although a claim for declaratory relief and a counterclaim remain pending, the award of damages has been certified for an interlocutory appeal.

2
One of the arguments advanced by the defendant on appeal is that the award creates a double recovery.   The district court said that such a recovery would not be permitted, however, and we see no reason not to take the court at its word.   Accordingly, and because it is clear on the undisputed facts that the plaintiff is entitled to be paid $3.9 million plus interest from the date on which the money was due, we shall affirm the award.

3
* The plaintiff and the defendant, each of whom owned a one-half interest in a 2000 acre tract of land in Texas, formed a joint venture to take title to the property.   Article Five of the joint venture agreement provided that the parties' interests in the joint venture were personal property.   Article Ten of the agreement gave the plaintiff a contractual right to "put" his joint venture interest to the defendant on certain contract anniversary dates.  (The complete text of the relevant portion of Article Ten is set forth as an appendix to this opinion.)

4
Exercise of the put as of the third anniversary, April 30, 1990, would obligate the defendant to buy the plaintiff's joint venture interest for $3.9 million in cash, payable not later than April 30.   If for any reason the defendant proved unable to acquire the plaintiff's interest after exercise of the put, the agreement further provided, the joint venture would be terminated and in addition to all other rights to be paid the option price the plaintiff would be authorized to cause the sale of the real estate and divide the proceeds.

5
The plaintiff gave proper notice of his exercise of the put as of April 30, 1990.   The defendant was unable to come up with the agreed purchase price, and the plaintiff filed suit in a state court in Ohio.

6
The defendant removed the case to federal court on diversity grounds and moved for a change of venue to Texas under 28 U.S.C. § 1404.   The plaintiff filed a motion for partial summary judgment six weeks later.

7
After denying the motion for a change of venue, the district court entered summary judgment for the plaintiff on Count One of the complaint, wherein the plaintiff had claimed damages of $3.9 million plus interest.   Count Two of the complaint--wherein the plaintiff had sought a declaratory judgment on his right to cause a sale of the real estate--remained pending, as did a counterclaim asserted by the defendant.   Finding no just reason for delay, the district court directed entry of a final judgment on Count One pursuant to Rule 54(b), Fed.R.Civ.P.

8
The defendant promptly moved to vacate the judgment and to amend the Rule 54(b) order.   Soon thereafter the defendant filed a petition for protection under Chapter 11 of the Bankruptcy Code.   While the automatic stay prescribed by 11 U.S.C. § 362 was in effect, and as permitted by 11 U.S.C. § 108(b)(2), the defendant filed various motions to alter or amend the judgment or for alternative relief from judgment.   When the bankruptcy stay was subsequently lifted, the plaintiff moved to correct the entry of judgment to reflect the award of interest from April 30, 1990.  (As originally entered, the judgment awarded "$3,900,000, plus interest and costs," without specifying that interest should run from the date as of which the agreement specified that the $3.9 million would be paid.)

9
By order entered on December 17, 1991, the district court (1) explained the basis of its Rule 54(b) certification;  (2) overruled the various motions in which the defendant had sought relief from the partial summary judgment;  and (3) granted the plaintiff's motion for amendment of the judgment entry to provide for prejudgment interest.   This appeal followed.

II

10
In response to requests for admissions served shortly after the filing of the complaint, the defendant admitted, among other things,

11
--that the joint venture agreement accompanying the complaint was a true and accurate copy of the parties' contract;

12
--that the agreement was supported by sufficient and valid consideration;

13
--that the plaintiff had given fair and proper notice of the exercise of the put option created by Article Ten of the agreement;

14
--that the defendant had not paid the plaintiff the $3.9 million requested in the letter exercising the put;  and

15
--that the defendant was obligated to pay the plaintiff $3.9 million pursuant to the terms and conditions of the joint venture agreement.

16
In his answer to the complaint, the defendant asserted that because he had made good faith efforts to raise the $3.9 million, he was not in breach of the agreement.   This argument--which we are unable to reconcile with the plain language of Article Ten--was not pressed in the brief filed by the defendant in opposition to the plaintiff's motion for partial summary judgment.1  The defendant argued instead that only a court in Texas would have jurisdiction to resolve the issues raised by Count Two of the complaint, and that the action should therefore be transferred to Texas for reasons of judicial economy.   The district court rejected this argument, and the court's resolution of the jurisdictional issue is not being challenged on appeal.

17
Despite his earlier concession that he was obligated to pay the plaintiff $3.9 million pursuant to the terms and conditions of the joint venture agreement, the defendant argues now

18
--that the proper measure of damages is the difference between $3.9 million and the fair market value of a one-half interest in the joint venture as of April 30, 1990;

19
--that summary judgment was inappropriate because of the existence of a genuine issue as to what the fair market value was;

20
--that because the quantum of damages remains to be determined, prejudgment interest is not available under Ohio law;  and

21
--that the summary judgment results in double recovery because it awards the plaintiff $3.9 million for his joint venture interest while allowing him to retain ownership of that interest.

22
We address the last of these arguments first.   In footnote 6 at page 9 of the opinion entered on December 17, 1991, the district court noted that:

23
"The Court's award of $3,900,000 to the Plaintiff clearly assumes that upon receipt, [the plaintiff's] interest in the Joint Venture will be transferred to [the defendant].  Any problem of 'double recover[y]' will be confronted at the appropriate time."

24
We read this as saying that the plaintiff will not be allowed to collect the cash and keep the joint venture interest too.   The defendant argues, however, that judgment for the purchase price should not have been entered before there was a formal tender of the joint venture interest.   Because no such tender was made, he says, "the judgment results in double recovery because it awards [the plaintiff] the purchase price for his joint venture interest and at the same time permits him to retain title to the interest."   While acknowledging footnote 6 in one breath, the defendant says in the next breath that

25
"there is nothing ... the district court's judgment requiring [the plaintiff] to convey the interest to [the defendant] upon satisfaction of the $3.9 million judgment.   The judgment, as presently worded, erroneously allows [the plaintiff] to execute the judgment against [the defendant] and retain his interest in the joint venture after the judgment is satisfied."

26
We do not find this argument persuasive.   In the first place, although the plaintiff might have been required to tender a deed of conveyance and keep the tender good with a deposit of the deed in court if the joint venture agreement had been a contract for the sale of real estate, see  Fairlawn Heights Co. v. Theis, 133 Ohio St. 387, 14 N.E.2d 1 (1938) (second paragraph of the court's syllabus), the joint venture agreement was not a real estate contract.   Article Five of the agreement confirms the obvious fact that the plaintiff's joint venture interest was "personal property."   By certified letter mailed to the defendant within the time prescribed in Article Ten of the joint venture agreement, the plaintiff gave notice under that article of the exercise of his option "to sell you my interest in the Joint Venture [i.e., the intangible personal property interest created by the contract] for $3,900,000.00."   The defendant admits that the option was properly exercised and admits that he never requested any further tender.   He has cited no authority for the proposition that some further tender of the plaintiff's intangible property interest was required, and we are aware of none.

27
In the second place, the district court's opinion clearly says that the plaintiff's interest in the joint venture will be transferred upon receipt by the plaintiff of the money due him.2  The plaintiff has acknowledged on the record, through counsel, that he would have no right to pocket the money and keep the joint venture interest too.   If we were to ask the district court whether the plaintiff could nonetheless exercise such a right, we have no doubt what the answer would be:  "Not while this court sits."

28
The defendant's remaining arguments turn on the proposition that because of the absence of a formal tender, the plaintiff was not entitled to judgment for the full $3.9 million that the defendant admittedly was obligated to pay on April 30, 1990.   Without passing on the question whether the defendant waived the right to assert this proposition by failing to raise it in timely fashion, we reject the proposition on its merits;  no tender, beyond that contained in the letter exercising the put, was required.   We also reject the proposition that the full $3.9 million contract price is not the proper measure of damages.   We fail to see how any sum less than the full contract price could fully compensate Auld for his damages, particularly in view of the fact that the parties' agreement contains transfer restrictions which limit Auld's ability to realize the value of his joint venture interest by selling it to a third party.   Under the joint venture agreement the plaintiff was clearly entitled to receive $3.9 million in cash on or before April 30, 1990, and the judgment entered by the district court gave the plaintiff nothing more nor less than what the defendant had promised.

29
Because the defendant's obligation to pay the plaintiff $3.9 million in cash on April 30, 1990, was clear and certain, the plaintiff is entitled to recover interest from the date as of which the money ought to have been paid.   Nursing Staff of Cincinnati, Inc. v. Sherman, 13 Ohio App.3d 328, 330;  469 N.E.2d 1031, 1034 (Hamilton Co. 1984);  Ohio Rev.Code Ann. § 1343.03(A) (Baldwin 1992).   Without prejudgment interest, the plaintiff obviously could not be made whole.

30
With respect to the decision of the district court to direct the entry of final judgment on Count One pursuant to Rule 54(b), Fed.R.Civ.P., we note that the court's original decision was defective because it did not state the reason for the determination that there was no just reason for delay.   See  Solomon v. Aetna Life Ins. Co., 782 F.2d 58, 61 (6th Cir.1986) (district court should give a reasoned statement explaining a Rule 54(b) certification;  absent such a statement the certification is entitled to no deference on appeal).   The district court cured this defect by giving a full explanation in the opinion and order entered on December 17, 1991.   Giving the district court's explanation the deference to which it is entitled, we accept jurisdiction over the appeal from the judgment on Count One.   For the reasons stated above, the judgment is

31
AFFIRMED.

APPENDIX
Article Ten--Options

32
At the third, fourth and fifth anniversaries of this Agreement Auld and Vinson shall have the following options with respect to the Real Estate:

33
(1) Auld shall have the option on such anniversary to sell Auld's interest in the Joint Venture to Vinson, and if Auld elects to exercise such option, Vinson shall be required to purchase not less than all of Auld's interest in the Joint Venture.   If the option is exercised on the third anniversay, the purchase price will be $3,900,000.   If the option is exercised on the fourth anniversary, the option price will be $4,200,000;  and if the option is exercised on the fifth anniversary, the option price will be $4,500,000.   An option granted under this Article 10 is exercisable by notice in writing to such effect by Auld to Vinson no later than 90 days prior to the anniversary on which such option is to be exercised.   The purchase price must be paid in cash not later than the anniversary to which the notice relates.   Auld and Vinson agree to use good faith efforts to accomplish the sale if the option is exercised.   If Auld exercises its option and Vinson for any reason is not able to acquire the Auld interest as described herein, this Joint Venture will be terminated and in addition to all other rights Auld has against Vinson to be paid the option price, Auld will be authorized to cause the sale of the Real Estate and divide the proceeds as described in Article 7.

*
 The Honorable Wendell A. Miles, Senior United States District Judge for the Western District of Michigan, sitting by designation

1
 Although the defendant had denied a request to admit that the plaintiff had complied with his own obligations under the joint venture agreement, the defendant did not oppose the motion for partial summary judgment on this ground either

2
 Technically, perhaps, the joint venture interest would not be transferred, but the joint venture would be terminated and the defendant, having paid his indebtedness in full, would acquire title to the entire tract of land.   The net result would be the same as a transfer


356 Mass. 28 (1969)
248 N.E.2d 5
EVELYN R. HALLEY & another
vs.
HUGH NAWN, INCORPORATED, & others.
Supreme Judicial Court of Massachusetts, Suffolk.
April 10, 1969.
May 6, 1969.
Present: WILKINS, C.J., SPALDING, CUTTER, KIRK, & SPIEGEL, JJ.
Michael B. Latti for the plaintiffs.
Francis L. Swift for Hugh Nawn Incorporated, & another (Ralph F. Martino, City Solicitor, for the City of Revere, with him).
SPIEGEL, J.
In this action of tort the plaintiff wife seeks to recover damages for personal injuries sustained by her when *29 she fell into a trench excavated by the defendant Hugh Nawn, Incorporated, for the defendant New England Telephone and Telegraph Company. She also seeks to recover damages from the defendant city of Revere. The plaintiff husband seeks consequential damages. The case was tried to a jury in the Superior Court. At the conclusion of the evidence the judge allowed motions for directed verdicts filed by the defendants. The case is here on the plaintiff's exceptions to the allowance of those motions.
We summarize the evidence most favorable to the plaintiffs. On October 19, 1964, the plaintiff Evelyn Halley (plaintiff) visited her daughter who lived at 12 School Street, Revere. She approached the dwelling from the rear, through an empty lot, and arrived at approximately 3:30 P.M. A younger daughter arrived by the same route at approximately 4:15 P.M. The two of them subsequently left at approximately 1:00 A.M. by the front entrance. When the plaintiff reached the bottom of the front steps she observed a trench in the middle of the sidewalk which ran parallel to the street. The trench was about two feet wide and extended to the left as far as the next dwelling and to the right for about ten feet. Directly in front of the steps, a metal plate covered the trench. Between the trench and the street, except for an opening in front of the metal plate, earth was piled three to four feet high. Toward the right, earth was piled on both sides of the trench. An automobile was parked across the opening in the earthen pile with its tires on the pile, completely blocking the opening.
The plaintiff started to cross the metal plate and saw the automobile. She saw that she could go neither forward nor to the right, so she looked to the left for a place to cross the trench. When she had taken seven or eight steps toward the left, about two feet from the edge of the trench, "the dirt crumbled under ... [her] right foot" and she fell into the trench, her head striking the side of the trench as she fell.
At the time of the accident the trench was "well lighted." The weather "was good and it was dry." There were "no horses, warning signals, barriers, or blinking lights in the *30 area where she fell, or next to or around the trench or near the metal plate." The placement of such barriers next to and around a trench was "customary and usual." She did not leave by the back of the dwelling because the empty lot had high hedges and "was full of stones, cans, bushes, twigs and everything."
The defendant city of Revere did not file a brief with this court. See S.J.C. Rule 1:13, 351 Mass. 738. The issues argued by Hugh Nawn, Incorporated and New England Telephone and Telegraph Company are that the injured plaintiff assumed the risk and was contributorily negligent in that she left "a place of safety" and "voluntarily exposed herself to a danger which she ... had to appreciate."
Under G.L.c. 231, § 85, the defendants had the burden of proving contributory negligence. They also had the burden of proving that the plaintiff assumed the risk. Manning v. Prouty, 260 Mass. 399, 402. Only in rare cases can it be ruled as a matter of law that these burdens have been sustained. Joyce v. New York, N.H. & H.R.R. 301 Mass. 361, 363. Summering v. Berger Realty, Inc. 344 Mass. 38, 42. Lindgren v. Marraffa, 350 Mass. 376, 379. We do not think that the instant case is one of those "rare cases." The mere fact that the plaintiff knew of the existence of the trench is not conclusive proof of her negligence. See Sullivan v. Saugus, 305 Mass. 127, 131; Mello v. Peabody, 305 Mass. 373, 375. Nor is it conclusive proof that she assumed the risk. See Frost v. McCarthy, 200 Mass. 445, 447-448. The plaintiff was not injured attempting to cross the trench, but was injured as she walked along in search of a place to cross. The evidence quite clearly indicates that the direction which the plaintiff took was the only reasonably safe path for her to walk. See Winchester v. Solomon, 322 Mass. 7, 11. The questions of contributory negligence and assumption of the risk were for the jury to determine.
Exceptions sustained.


579 N.W.2d 460 (1998)
228 Mich. App. 674
CITY OF ANN ARBOR, Plaintiff-Appellee,
v.
Mark Eugene McCLEARY, Defendant-Appellant
Docket No. 196565.
Court of Appeals of Michigan.
Submitted October 8, 1997, at Detroit.
Decided March 17, 1998, at 9:25.
Released for Publication June 29, 1998.
*462 Susan L. Cameron, Assistant City Attorney, Ann Arbor, for plaintiff.
Dykema Gossett, PLLP by Jonathan D. Rowe and Steven A. Susswein, Ann Arbor, for defendant.
Lawrence J. Bunting, Troy, amicus curiae for Mich. Municipal League.
Martha G. Mettee, Bay County Asst. Pros. Atty., Bay City, amicus curiae for Prosecuting Attorneys Ass'n of Mich.
Before FITZGERALD, P.J., and MARKEY and J.B. SULLIVAN[*], JJ
*461 MARKEY, Judge.
Defendant appeals by leave of this Court from his conviction under Ann Arbor City Code § 10:87(1) of operating a vehicle under the influence of intoxicating liquor (OUIL).[1] We affirm.
Early in the morning of May 27, 1994, an Ann Arbor police officer observed defendant drive through a flashing red light without attempting to stop or even slow his car, leading the officer to initiate a traffic stop. The officer testified that defendant exhibited various signs of drunkenness, including smelling strongly of alcohol. The officer administered several field sobriety tests, which defendant failed; consequently, the officer took defendant into custody for further proceedings. This appeal arises from what happened after defendant's arrest.
Defendant initially declined to submit to a Breathalyzer test, because he first wished to consult with his attorney. The police allowed defendant a brief telephone call to his lawyer but kept him under observation at the station pursuant to policy. Shortly after that call, defendant's lawyer came to the police station and asked to speak privately with defendant. The police declined the request, but, again consistent with policy, allowed defendant and his lawyer to speak by telephone from different parts of the facility.
Defendant's lawyer testified that during this conversation he spoke within "earshot" of a police officer in a hectic and congested environment and that under these circumstances he "did not have the opportunity to give [defendant] any instruction or advice" concerning whether to take the Breathalyzer test. He did not, however, elaborate regarding how he was precluded from providing effective assistance to his client. Nonetheless, after this second telephone conversation with his attorney, defendant chose to take the Breathalyzer test.
M.C.L. § 257.625c(1); M.S.A. § 9.2325(3)(1) provides that drivers on Michigan roads are presumed to consent to alcohol testing when suspected of drunk driving. Persons who do not voluntarily take such tests remain subject to court-ordered testing and to automatic license suspension in addition to other penalties imposed on a person found guilty of driving under the influence of alcohol.
Before trial, defendant moved to suppress the results of the Breathalyzer test on the ground that the police had not afforded him a proper opportunity to elect whether to take the test. The district court denied the motion. The court admitted into evidence the results from the Breathalyzer test showing *463 that defendant's blood alcohol level was twice the legal limit when he was arrested. The jury convicted defendant of operating a vehicle under the influence of intoxicating liquor "and/or operating a motor vehicle with an unlawful blood alcohol level." Defendant appealed to the circuit court on the ground that the Breathalyzer results were improperly admitted at trial. The circuit court upheld the district court's ruling in the matter.
Defendant now presents to this Court the question whether, if the police allow an OUIL suspect in custody to confer with his attorney before deciding whether to submit to a Breathalyzer test, the police must endeavor to provide the suspect and attorney an opportunity for a private conference. Defendant further asks this Court to dismiss the charges against him if we find constitutional error or, alternatively, to declare that Breathalyzer test results must be suppressed at trial when obtained under the circumstances of the instant case.
Defendant frames his argument exclusively as one implicating the right to counsel provision of the Michigan Constitution, art. 1, § 20, arguing that the Michigan Constitution provides a broader right to counsel than does the Sixth Amendment of the United States Constitution. Defendant declines to invoke the due process provisions of either the Michigan or federal constitutions.
This Court has stated repeatedly that there is no right to counsel in deciding whether to submit to a Breathalyzer test. Underwood v. Secretary of State, 181 Mich.App. 168, 172, 448 N.W.2d 779 (1989) ("the police could require petitioner to make his decision to take the test in the absence of counsel"); People v. Burhans, 166 Mich.App. 758, 764, 421 N.W.2d 285 (1988) ("[t]his Court has held that there is no right to counsel prior to the taking of the Breathalyzer test due to the minimal risk that defense counsel's absence will harm a defendant's right to a fair trial"); People v. Jelneck, 148 Mich.App. 456, 460-461, 384 N.W.2d 801 (1986) ("[n]or does the Sixth Amendment right to counsel attach prior to the taking of the Breathalyzer test"); Holmberg v. 54-A Judicial Dist. Judge, 60 Mich.App. 757, 760, 231 N.W.2d 543 (1975) ("denial of the right to consult with counsel before an accused decides whether to take the Breathalyzer test does not violate the Sixth Amendment"). See also McVeigh v. Smith, 872 F.2d 725, 728 (C.A.6, 1989) (declaring that there is no Sixth Amendment right to counsel, or Fifth or Fourteenth Amendment due process right to counsel, when deciding whether to submit to a blood alcohol test).[2]
This Court has also stated generally that "art. 1, § 20 of the Michigan Constitution affords no greater rights than those guaranteed by the federal constitution." People v. Justice, 216 Mich.App. 633, 636, n. 2, 550 N.W.2d 562 (1996). In another 1996 case, this Court held that "`"[u]nless there is a compelling reason to afford greater protection under the Michigan Constitution, the Michigan and federal [right to counsel] provisions will be treated as affording the same protections."'" People v. Richert (After Remand), 216 Mich.App. 186, 193, 548 N.W.2d 924 (1996), quoting People v. Hellis, 211 Mich.App. 634, 648, 536 N.W.2d 587 (1995), *464 quoting People v. Perlos, 436 Mich. 305, 313, n. 7, 462 N.W.2d 310 (1990).
The Supreme Court found such a "compelling reason" in one particular case, having declared that the Michigan Constitution "imposes a stricter requirement for a valid waiver of the rights to remain silent and to counsel than imposed by the federal constitution." People v. Bender, 452 Mich. 594, 611, 551 N.W.2d 71 (1996), citing People v. Wright, 441 Mich. 140, 147, 155, 170, 490 N.W.2d 351 (1992). In contrast to the federal constitution as interpreted by the federal courts, our Supreme Court held that under the Michigan Constitution, "in order for a defendant to fully comprehend the nature of the right being abandoned and the consequences of his decision to abandon it, he must first be informed that counsel, who could explain the consequences of a waiver decision, has been retained to represent him." Bender, supra at 612-613, 551 N.W.2d 71. While Bender buttresses defendant's argument that the Michigan Constitution provides a broader right to counsel than does the federal constitution, the exception articulated in Bender involves identifying a knowing and intelligent waiver of the right to counsel during custodial interrogation, a question not at issue in the instant case.
Defendant cites Hall v. Secretary of State, 60 Mich.App. 431, 231 N.W.2d 396 (1975), as establishing a "qualified right to counsel" for drunk-driving suspects. In Hall, the plaintiff challenged his license revocation in a civil proceeding after he refused to take a Breathalyzer test because the police would not permit him to contact either his attorney or his wife for seven hours after his arrest. Contrary to defendant's assertions, it is the opportunity to make a telephone call, not the opportunity for privacy, that Hall protects. Nevertheless, defendant attempts to extend Hall to require that if police allow an OUIL suspect access to counsel before administering a Breathalyzer test, they must also provide accommodations for privacy beyond those ordinarily provided for detained OUIL suspects and their visitors. Any such extension of Hall is unwarranted and unsupportable.
The great weight of authority establishes that there is no right to counsel under U.S. Const., Am. VI, or Const.1963, art. 1, § 20. Thus, for a defendant deciding whether to take a Breathalyzer test, neither of these provisions entitles a defendant to successfully protest police refusal to permit an OUIL suspect and his attorney to privately confer over that decision. The Michigan Supreme Court's broadening of Michigan's right to counsel beyond the provisions of the United States Constitution, Bender, supra, involves waiver of that right, not attorney-client communications that take place before the right has attached.
Defendant also cites M.C.L. § 767.5a(2); M.S.A. § 28.945(1)(2), which provides in pertinent part that "[a]ny communications between attorneys and their clients ... are hereby declared to be privileged and confidential when those communications were necessary to enable the attorneys... to serve as such attorney...." This provision of the Code of Criminal Procedure does not entitle defendant to a private conversation with his attorney, however. Rather, assuming that defendant's telephone conversation with his attorney cannot be held in private, M.C.L. § 767.5a(2); M.S.A. § 28.945(1)(2) guarantees that the content of their conversation is protected by the attorney-client privilege. Thus, whether held in a private or public place, defendant's conversation with his attorney cannot be used against him because it is confidential under the attorney/client privilege. Further, M.C.L. § 767.5a; M.S.A. § 28.945(1) protects selected types of communications from compelled disclosure in subsequent criminal proceedings. Indeed, the Legislature, in providing these protections to ensure the sanctity of a client's communications with his attorney, obviously did not intend to also grant such communicators an absolute right to demand privacy whenever and wherever they choose to communicate.
Accordingly, if the police have a reasonable policy that disallows private meetings between arrested OUIL suspects and visitors before the police administer blood alcohol tests, neither Hall nor any other case cited to us requires different or private accommodations *465 when the visitor happens to be an attorney hoping to advise the suspect. Likewise, M.C.L. § 767.5a(2); M.S.A. § 28.945(1)(2) does not override these reasonable police policies and create a right to exercise the attorney-client relationship where no right to counsel exists.
Notably, defendant does not argue that the Ann Arbor police withheld from defendant and his attorney accommodations that police normally allowed suspects and their visitors. Defendant instead insists that if an OUIL suspect's visitor happens to be a lawyer, then police are obliged to afford additional accommodations out of respect for the attorney-client privilege. We find no support for this assertion and refuse to impose such an obligation.
Moreover, even assuming that the police erred in not granting defendant and his attorney privacy while they discussed whether defendant would submit to the Breathalyzer, we find that this preserved, nonconstitutional error was harmless. People v. Mateo, 453 Mich. 203, 206-207, 214-215, 221, 551 N.W.2d 891 (1996), requires us to examine the record as a whole and determine the actual prejudicial effect of the error on the factfinder, considering the likely effect of the error in light of the other evidence. "Simply stated, and employed in both federal rule and case law and state statute and court rule, reversal is only required if the error was prejudicial. That inquiry focuses on the nature of the error and assesses its effect in light of the weight and strength of the untainted evidence." Id. at 215, 551 N.W.2d 891.
By the time defendant spoke to his attorney, a police officer had obtained a warrant to transport defendant to the University of Michigan Hospital to have his blood drawn and blood alcohol level tested. Thus, the police would have obtained the same incriminating information from defendant no matter how his counsel had advised him.
Because we find that defendant failed to establish a legal error in the circumstances leading to his taking of the Breathalyzer test, we need not reach the question regarding the proper remedy should evidence from such a test improperly be admitted at trial.
Affirmed.
NOTES
[*]  Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
[1]  Defendant was charged and, as seen on the jury verdict form, convicted of both OUIL and unlawful blood alcohol level (UBAL), Ann Arbor City Code § 10:87(2). The judgment of sentence reflects only the OUIL conviction, however. We believe that this oversight was a clerical error of little or no import.
[2]  Defendant cites Arizona v. Holland, 147 Ariz. 453, 456, 711 P.2d 592 (1985), in support of his assertion that if a person suspected of driving while under the influence is permitted to consult with his attorney, he has a right to do so in private even though he is not entitled to the consultation in deciding whether to take a Breathalyzer test. He also cites other cases from foreign jurisdictions where similar results are reached, based in part on state statutes explicitly ensuring the privacy of detainee/attorney conversations. See Dobbins v. Ohio Bureau of Motor Vehicles, 75 Ohio St.3d 533, 535, 664 N.E.2d 908 (1996). We find these cases unpersuasive and nonbinding on this Court. Notably, defense counsel did not testify, as in Holland, regarding how he was precluded from offering assistance to defendant merely because the two had to speak to each other over the telephone. Moreover, Michigan does not have a statute ensuring private communications with an attorney after arrest or detention as in Dobbins, supra. Finally, defendant's decision to take or not take the Breathalyzer test was irrelevant in light of the warrant that the police possessed enabling them to have defendant's blood drawn. Thus, any claimed effect on the right to effective assistance of counsel is without merit because the police would have obtained defendant's blood alcohol reading by one of two methods, i.e., any claimed error was harmless.


993 So.2d 1123 (2008)
Tobias ROLLE, Petitioner,
v.
STATE of Florida, Respondent.
No. 1D08-4843.
District Court of Appeal of Florida, First District.
October 27, 2008.
Tobias Rolle, pro se, Petitioner.
Bill McCollum, Attorney General, Tallahassee, for Respondent.
Prior report: 865 So.2d 486.
PER CURIAM.
The petition alleging ineffective assistance of appellate counsel is denied on the merits.
KAHN, VAN NORTWICK, and PADOVANO, JJ., concur.


729 F.2d 1465
Perez (Ruben Paramo)v.Immigration and Naturalization Service, Smith (WilliamFrench), Moyer (A.D.)
NO. 83-1160
United States Court of Appeals,Seventh Circuit.
FEB 29, 1984

1
Appeal From:  B.I.A.

2
DISMISSED.


Order                                                                                Michigan Supreme Court
                                                                                Lansing, Michigan

  December 3, 2010                                                                                Marilyn Kelly,
                                                                                Chief Justice

  141505                                                                                Michael F. Cavanagh
                                                                                Maura D. Corrigan
                                                                                Robert P. Young, Jr.
                                                                                Stephen J. Markman
                                                                                Diane M. Hathaway
  STACEY R. COLEMAN,                                                                                Alton Thomas Davis,
            Plaintiff-Appellant,                                                                                Justices

  v                                                                 SC: 141505
                                                                    COA: 288878
                                                                    Oakland CC: 2008-088486-NO
  APPLEBEE’S OF MICHIGAN, INC.,
           Defendant-Appellee,
  and

  ROSS PROPERTIES, INC.,
           Defendant.

  _________________________________________/

        On order of the Court, the application for leave to appeal the June 29, 2010
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the question presented should be reviewed by this Court.

        KELLY, C.J., and HATHAWAY, J., would grant leave to appeal.

                           I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           December 3, 2010                    _________________________________________
           1124                                                                Clerk


848 F.2d 1243
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

PLM, INC.;  PLM Railcar Maintenance Company;  PLM FinancialServices, Inc.;  PLM Transportation Equipment Corporation;PLM Investment Management, Inc.;  PLM Securities, Inc.;Mark G. Hungerford;  Steven L. Pease;  George Tedesco;James Dawe;  Herbert Montgomery, Plaintiffs-Appellants,v.NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, acapital stock company, Defendant-Appellee.
No. 87-1590.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 12, 1987.Decided May 31, 1988.
Before SNEED, POOLE and BOOCHEVER, Circuit Judges.

1
MEMORANDUM*

2
Appellants (collectively "PLM") appeal from the District Court's grant of summary judgment in favor of defendant-appellee, National Union Fire Insurance Company ("National"), in an action alleging breach of director and officer liability insurance contracts, breach of the implied covenant of good faith and fair dealing, and violation of Sec. 790.03 of the Cal.Ins.Code.  We affirm.

I.

3
National issued director and officer liability insurance policies to two of the corporate appellants.  The policies had separate insuring provisions for (1) director and officer liability ("D & O provision") and (2) corporate reimbursement ("reimbursement provision").  When five of PLM's directors and officers were named among the twelve defendants in a lawsuit brought by Pillsbury Company, National provided interim defense funding at the rate of 5/12 of the total defense costs.  The corporate appellants, who were also named defendants, eventually negotiated a $1.75 million settlement with Pillsbury, without the participation or approval of National.  Tax considerations dictated the form of the settlement, which contemplated merger of two of the corporate appellants.  PLM, Inc. made an immediate payment of $250,000 and issued a promissory note for $1.5 million.  The note was guaranteed by the individual directors and officers, but no obligations arose under the guarantees because the note was eventually paid by one of the other corporate appellants.

4
PLM informed National of the contemplated settlement in a letter mailed to National's office in New York, from California, 15 days before the settlement was consummated.  The letter stated that a settlement demand had been made, gave the amount of the demand, stated that a counteroffer was being formulated, and sought National's agreement to contribute.  Having received no response, PLM sent a telegram and another letter to National during the week prior to the August 30 settlement.  The telegram stated that PLM would proceed under the assumption that National did not object to contributing 5/12 of the settlement payment.  At no time during this period did PLM refer to a settlement deadline, disclose the agreed upon settlement amount, or attempt to contact National by telephone.  On September 13, National's counsel, unaware that a settlement agreement had been reached, informed PLM by telegram that National did not agree to contribute to the settlement on the proposed basis.  PLM filed this action 10 days later.

II.

5
We review a grant of summary judgment de novo and will uphold it if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.   Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir.1986).

III.

6
PLM contends that the district court erred in finding that the insureds did not suffer a covered loss.  In the reimbursement provision of the policies "loss" was defined as "any amount the Company shall be required or permitted by law to pay to a Director or Officer as indemnity for a claim ... which payment by the Company may be required or permitted according to the applicable law...."  In order to recover under this provision, PLM had to comply with Cal.Corp.Code Sec. 317 which requires that indemnification be authorized by (1) majority vote of disinterested directors, or (2) majority vote of disinterested shareholders, or (3) court order.  It is undisputed that PLM did not meet any of these requirements.  The District Court correctly found that the settlement payments were not a covered loss under the reimbursement provision.

7
In the D & O provision of the policies loss was defined as "any amount which the [Directors and Officers] are legally obligated to pay for a claim ... made against them for wrongful acts...."  PLM contends that the guarantees obligated the directors and officers to pay, even though the condition precedent to payment--default by the corporations--never occurred.  The cases cited by PLM to support this proposition, Oakland Bank of Commerce v. Wash., 6 Cal.App.3d 793, 799 (1970) and Palm Springs S. & S., Inc. v. Bering, 213 Cal.App.2d 177, 181 (1963), are inapposite.  In neither case did the court address the question whether a guarantor is legally obligated to pay if the guarantee is extinguished prior to occurrence of the condition precedent for payment.  We think it clear that in this case execution of the guarantees created only a contingent obligation on the part of the directors and officers.  It was not an obligation to pay, and it never became an obligation to pay.  Hence, there was no loss as defined by the D & O provision.

8
PLM claims that the words "legally obligated to pay" include situations in which a payment is made by third persons on behalf of a director or officer.  Since the payments made by the corporate appellants eliminated potential liability of all defendants in the Pillsbury lawsuit, a portion of the payments arguably was made on behalf of the directors and officers.  Nonetheless, PLM's argument fails because potential liability is not equivalent to a legal obligation to pay.  The directors and officers were not legally obligated to make payments to Pillsbury and therefore the payments made on their behalf were not recoverable under the D & O provision.

IV.

9
The district court did not err in not finding as a matter of law that National was estopped from asserting that there was no loss as defined by the policies, or that there existed genuine issues of fact material to the estoppel claim.  The elements of estoppel are:  the party to be estopped (1) knew the true facts, and (2) intended that his conduct be acted upon, or acted in such a manner that the party asserting estoppel could reasonably believe that the party to be estopped intended his conduct to be acted upon;  the party asserting estoppel was (3) ignorant of the true facts, and (4) relied, to his detriment, on the conduct of the party to be estopped.   Driscoll v. Los Angeles, 67 C.2d 297, 305 (1967).

10
We need not decide whether the first three elements were met, because we find that PLM failed to raise any genuine issues of fact concerning its reliance on National's delay in voicing its specific objections to the proposed settlement contribution.  PLM acknowledged that it considered the terms of the settlement offer attractive and was prepared to accept the offer even if National did not contribute.  It suggests, however, that had it known the precise grounds on which National would ultimately deny coverage, it could have taken steps to transform the settlement payments into a loss which would have been covered by the policies.

11
First PLM suggests it could have structured the settlement so that the directors and officers were required to make part of the payments.  But Pease's deposition reveals that the tax aspects of the arrangement made the settlement attractive and were what motivated the structuring of the agreement so that the corporations, rather than the individuals, undertook the entire settlement obligation.  No evidence shows either that these tax benefits would have been preserved had the individuals made the payments or that PLM would have sacrificed the tax benefits in order to recover some portion of the settlement under the insurance policies.  Consequently, PLM has failed to carry its burden of showing reliance on National's silence in structuring the agreement.

12
Next PLM suggests that it could have complied with Cal.Corp.Code Sec. 317, had National notified it earlier that it was necessary to do so.  However, a letter by PLM's counsel on October 4, 1984, implicitly acknowledged that PLM would have to comply with Sec. 317 following final adjudication of the Pillsbury action if it wished to collect under the reimbursement provision of the policies.  PLM thus was not induced to believe that compliance was unnecessary.

13
Nor does the record show that as a result of National's silence the corporations forbore the possibility of creating a covered loss by suing the individual directors and officers for part of the settlement.   See Nat'l Union Fire Ins. Co. v. Continental Illinois Corp., 666 F.Supp. 1180 (N.D.Ill.1987).  The telegram sent by National less than two weeks after the settlement was completed informed PLM that nothing in the policies "would indicate that a 5/12 allocation is remotely relevant to the involvement of the directors and officers."    This statement should have put the corporations on notice that some action was required.  Thus there is no basis upon which to infer reliance from the mere fact that the corporations did not seek recovery from the individuals.

14
PLM's suggestion that the corporate appellants could have claimed under the D & O provision as subrogees of the directors and officers, pursuant to Atlantic Permanent Federal Savings & Loan Ass'n v. Am.  Casualty Co., 670 F.Supp. 168 (E.D.Va.1986), is incorrect.  As subrogees, the corporations could have asserted only those claims which the individuals could have asserted in their own right.   Id. at 171.  Since the directors and officers were not legally obligated to make the settlement payments, neither they nor their subrogees could have collected under the D & O provision.  In Atlantic the officers had entered into a settlement agreement themselves and therefore had a right to proceed against the insurer for the settlement costs they incurred.   Id. at 171.

V.

15
PLM's final claim against National was for breach of the duties summarized by the California Supreme Court in Frommoethelydo v. Fire Ins. Exch., 42 Cal.3d 208, 214-15 (1986).  PLM contends that National breached the implied covenant of good faith and fair dealing by failing to communicate with PLM and failing to assist in settling the Pillsbury action, and that it breached its fiduciary duty by failing to pass on information which PLM needed in order to obtain benefits under the policies.  PLM further contends that National violated Cal.Ins.Code Sec. 790.03 by failing to act promptly on communications with respect to the claim, by failing to affirm or deny coverage within a reasonable time after proof of loss, and by failing to promptly explain the basis for denying the claim.

16
Contrary to PLM's contention, the district court did not hold that either the absence of coverage or PLM's own bad faith barred the bad faith claims against National.  We construe the holding to be that because of PLM's conduct, the duties which National allegedly breached actually never arose.

17
All of PLM's bad faith arguments fail.  The facts are virtually undisputed, and the only valid inference which can be drawn from those facts is that National did not act in bad faith or breach its statutory or common law duties to PLM.  National responded to PLM's communications about the Pillsbury suit and asked to be kept informed.  PLM did not keep National informed about the progress of the suit, about the details of settlement discussions which were taking place, or about the terms of the proposed settlement and the negotiation timetable, even while making a demand for contribution.  The district court did not err in granting summary judgment on the bad faith claims.

18
The judgment is AFFIRMED.

*
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


126 Cal.Rptr.2d 283 (2002)
102 Cal.App.4th 1356
CITY OF HOPE et al., Plaintiffs and Respondents,
v.
Bryan CAVE, L.L.P., et al., Defendants and Appellants.
City of Hope et al., Plaintiffs and Respondents,
v.
Weil, Gotshal & Manges et al., Defendants and Appellants.
No. B155411.
Court of Appeal, Second District, Division Seven.
October 21, 2002.
As Modified November 13, 2002.
*284 O'Melveny & Myers, James W. Colbert III and Paula E. Ambrosini, Los Angeles, for Defendants and Appellants Bryan Cave and Lynn K. Thompson.
Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, Patricia L. Glaser, Mark G. Krum, Los Angeles, and Stephen Y. Ma; Arnold & Porter, and Shauna Avrith for Defendants and Appellants Weil, Gotshal & Manges, Richard Ben-Veniste, Robert C. Odle, Jr.
Jones, Day, Reavis & Pogue, Alan E. Friedman and Gregory D. Schetina, Los Angeles, for Plaintiffs and Respondents City of Hope, City of Hope National Medical Center, and Beckman Research Institute of City of Hope.
AURELIO MUNOZ, J.[*]
In this appeal we hold that that failure of appellants, the law firm of Bryan Cave, *285 L.L.P., Lynn Thompson, a lawyer in that firm (collectively Bryan Cave), and the law firm of Weil, Gotshal & Manges, Richard Ben-Veniste and Robert C. Odle, Jr. lawyers in that firm (collectively WGM),[1] to prove they were third party beneficiaries of a contract containing an arbitration clause justified denial of a request to refer the matter to arbitration. Accordingly, we affirm the order of the trial court denying arbitration.

FACTUAL BACKGROUND UNDERLYING THE PRESENT LAWSUIT[2]
Respondents City of Hope, City of Hope National Medical Center and Beckman Research Institute of City of Hope (collectively City of Hope) own and operate a biomedical research facility and a cancer treatment facility located in Duarte, California. In 1994 the then Chief Executive Officer of City of Hope, Dr. Sanford Shapero, fired the then Chief Operating Officer, Doe 3.[3] Shapero then promoted Mr. Andrew Leeka to replace Doe 3. Doe 3 responded by accusing Leeka and Shapero of sexual harassment. After an investigation by outside counsel, City of Hope settled the matter by paying money in exchange for a Release and Confidentiality Agreement.
In March 1995, Doe 3's former administrative assistants, Doe 1 and Doe 2, were transferred out of City of Hope's Administrative Offices. They also retained Doe 3's attorney, who proceeded to file yet another accusation against City of Hope. Those matters were apparently resolved without extensive litigation.
During this time relations between City of Hope's Board of Directors (the Board) and Shapero and Leeka (hereafter sometimes Former Officers) had deteriorated. In July 1995, Shapero arranged for Leeka's contract of employment to be renegotiated with a "golden parachute" for Leeka. On January 12, 1996, City of Hope and Shapero executed a Settlement Agreement and Mutual Release and Shapero formally resigned from City of Hope. As part of the Settlement and Mutual Release, Shapero agreed not to disparage or disclose City of Hope confidences.
On April 8, 1996, less than 90 days after Shapero's departure, Leeka informed City of Hope he was resigning his position. Leeka further informed City of Hope that, since this was within 90 days of Shapero's departure, he was entitled to his "golden parachute"a payment in excess of $1 million within 30 days. Negotiations ensued and on September 17, 1996, new agreements were signed between Shapero, Leeka and City of Hope. Among other benefits to Shapero were payments of $554,000 over a three-year period and a $1 million life insurance policy to be paid by City of Hope with Shapero's sister as the named beneficiary. Leeka's renegotiated agreement provided for him to receive in excess of $173,000.
The problems at City of Hope did not end with the departure of Shapero and Leeka. In November 1996, City of Hope *286 was sued by Pat Nichols, Shapero's former executive secretary, who alleged she had been wrongfully terminated because she had been friendly with Shapero and Leeka and had spoken truthfully about wrongful activities on the part of the new City of Hope officers.[4] Thereafter, at least four more complaints were filed against City of Hope. Additionally, allegations were made against City of Hope by Shapero and Leeka. Also, one of Shapero's friends spoke to the Attorney General's Office, which commenced an inquiry about City of Hope.

1. The WGM, Fairfax Group Lawsuit

On July 17, 1998, City of Hope filed suit against the Fairfax Group, Ltd., Decision Strategies/Fairfax International, L.L.C., and Michael J. Hershman (collectively Fairfax)[5] and against WGM, alleging fraud, breach of contract, constructive fraud, and legal malpractice. Two months later, on September 14, 1998, a first amended complaint was filed against the same entities.

A. The Fairfax Allegations (Fraud, Constructive Fraud, Breach of Fiduciary Duty, Aiding and Abetting Breach of Fiduciary Duty, Rescission and Restitution)
City of Hope alleged that, in July 1995, Fairfax had been hired to act as an independent confidential monitor to investigate compliance with applicable laws and to develop internal policies relating to compliance. Unknown to the Board, Hershman had a prior relationship with Shapero and soon joined the Former Officers in their attempt to discredit the Board and also discredit City of Hope. The Former Officers' scheme to discredit included, among other things, using misleading facts to create distorted, incomplete stories about members of the Board and disseminating those stories to the local and national media. Additionally, the Former Officers intended to provoke an investigation by the California Attorney General of groundless charges and instigate groundless lawsuits based upon those charges. Hershman was aware of the scheme and failed to disclose to the Board: (1) the prior relationship with Shapero; (2) that the Former Officers had a conflict of interest with City of Hope; and (3) that the true purpose of his agreeing to serve as a compliance monitor was to assist the Former Officers in their scheme to discredit City of Hope.
When tensions between the Former Officers and the Board intensified in late 1995 and the first part of 1996, Hershman and Fairfax continued to align themselves with the Former Officers and obtained confidential information from City of Hope that they passed on to Shapero and Leeka. Because of the duplicitous conduct of Fairfax, City of Hope allowed the Former Officers to enter into generous settlement agreements, which included substantial excess compensation. Had City of Hope known the true facts, it would have terminated the Former Officers.
City of Hope further alleged Fairfax's conduct continued even after the Former Officers' departure in early 1996. Fairfax, in its position as an independent monitor, *287 continued to receive confidential information for City of Hope. This information was then passed on to the Former Officers. As part of the ongoing plan to discredit City of Hope, Fairfax prepared a report (Fairfax Report) concerning alleged wrongdoings of the Board that was based on twisted, misleading and distorted facts. As part of the vindictive efforts towards the Board, drafts of the Fairfax Report were distributed to the CBS television program "60 Minutes," the Los Angeles Times and the California Attorney General's Office. These actions had the effect of creating an expensive and time-consuming public relations problem for City of Hope. Additionally, based in part upon information obtained from Fairfax, the Nichols action had been wrongfully and maliciously filed in order to exact vengeance against City of Hope.
During the course of the Fairfax contract, City of Hope paid Fairfax in excess of $1 million in fees, even though Fairfax's conduct was, for the most part, aimed at harming its own client, City of Hope. City of Hope further alleged the plan to discredit City of Hope had finally been foiled. There had been two arbitrations with different judges between the Former Officers and City Of Hope. In each arbitration, a respected former Superior Court Judge of the Los Angeles Superior Court had found the two Former Officers engaged in a scheme of vengeance against City of Hope. As a result, money judgments and injunctions had been entered against the Former Officers prohibiting the Former Officers from disparaging City of Hope.
However, City of Hope further alleged, it was still uncompensated for the more than $1 million it had paid Fairfax for services it incurred while Fairfax was breaching its duties to City of Hope. City of Hope had also incurred substantial expenses defending against the baseless negative media campaign and groundless lawsuits. Finally, City of Hope had paid substantial excess compensation to the Former Officers because of, among other things, the Fairfax defendants' concealment of the scheme to disparage City of Hope. In the prayer, City of Hope requested rescission of the Fairfax contract, damages and punitive damages.

B. The WGM Allegations (Fraud, Legal Malpractice, Breach of Fiduciary Duty, Aiding and Abetting a Breach of Fiduciary Duty and Petition for Writ of Mandate)
In that portion of the complaint directed at WGM, City of Hope alleged that it had hired WGM at the urging of Hershman, Fairfax's principal. WGM was engaged to provide counsel in connection with the evaluation of the Fairfax investigations that were to occur. City of Hope further alleged that, from the very beginning, WGM conferred with Hershman and the Former Officers about and assisted the Former Officers with their hidden agenda. In particular, Ben-Veniste, a WGM partner, received, from one of the Former Officers, a document which described the Board as the "enemies" and spoke of threatening litigation against City of Hope as a way for the Former Officers to gain some leverage in negotiating for their own self-interests.
WGM was also privy to documents revealing that the Fairfax defendants were not acting as independent neutral monitors of City of Hope but were instead helping the Former Officers in their actions against City of Hope. Ben-Veniste also reviewed documents from counsel for the Former Officers in connection with the Former Officers' ongoing battles with the Board. WGM had refused to, and is still refusing to give those documents to City of Hope. WGM never disclosed to City of *288 Hope the apparent conflicts of interest between the Former Officers and City of Hope, nor did WGM ever disclose any information about the activities and intentions of the Former Officers. Instead, WGM advised and counseled the Former Officers in their war against City of Hope, while billing City of Hope for more than $160,000 in attorneys' fees.
City of Hope further alleged WGM had violated its ethical obligations by: (1) representing City of Hope while at the same time giving legal advice to the Former Officers; (2) failing to advise City of Hope of the conflicts between the Former Officers and City of Hope; (3) continuing to represent City of Hope without having disclosed the legal conflicts to City of Hope; and (4) failing to disclose to anyone at City of Hope, other than the Former Officers, what it knew about the actions and intentions of the Former Officers, Fairfax and others acting in concert with them.
Against WGM, City of Hope requested general damages, punitive damages, and a writ of mandate directing WGM to allow City of Hope to copy all of its client files.
All defendants answered; and WGM filed a cross-complaint seeking unpaid attorneys' fees.

2. The Bryan Cave Complaint

Two and one-half months later, on November 30, 1998, City of Hope filed a separate complaint against Bryan Cave. The complaint alleged that, since 1992, Bryan Cave had been on a retainer to provide legal services to City of Hope. In 1995 when the sexual misconduct charges were made against the Former Officers, the Former Officers made plans for Leeka to get a new employment contract with City of Hope as a reward for his loyalty to Shapero. Neither of the Former Officers advised the Board or the outside counsel who usually drafted executive employment contracts of the new intended contract.
It was further alleged that in April or May of 1995, before the completion of the investigation of the sexual misconduct charges, Shapero approached Thompson at Bryan Cave and asked her to draft Leeka's new employment contract. Shapero stated he did not want to lose Leeka and a new contract would secure Leeka's loyalty. The new contract was intended to provide Leeka with, among other benefits, increased tenure and a "golden parachute" provision. Neither Thompson nor anyone else at Bryan Cave had previously been asked to draft an executive employment contract for a City of Hope employee; up until that time Thompson's primary duties for City of Hope had been in dealing with union matters.
Thompson was aware of the investigation on the sexual misconduct charges and that the jobs of the Former Officers might be in jeopardy. She was therefore aware, or should have been aware, that until the investigation was completed, it was not in the best interest of City of Hope to give Leeka a contract that would provide him extra tenure or a "golden parachute." Although Thompson advised Shapero to reevaluate the appropriateness of the request and recommended that Shapero wait, she did not inform the Board or City of Hope's counsel in charge of the Former Officers investigations.
About a month later, in June 1995, Thompson was again approached by Shapero, who once again asked her to draft a new contract for Leeka. At that time, Leeka's personal attorney expressed concern to Thompson about proceeding with the new contract in light of the pending charges against the Former Officers. Even though she knew the Former Officers' futures with City of Hope were uncertain, Thompson agreed and drafted a *289 new employment contract for Leeka. Bryan Cave and Thompson billed City of Hope for their consultations with Shapero and Leeka, but once again Thompson failed to inform the Board or counsel that she had been asked to draft a new contract for Leeka.
In secretly drafting Leeka's new contract, Thompson added several provisions that were adverse to the best interests of City of Hope and were also a conflict of interest on her part since she had been retained by and was being paid by City of Hope. The provisions that were adverse to City of Hope's best interest included: (1) lengthening the term of the contract from two to five years; (2) eliminating a termination-for-cause provision so that Leeka could no longer be terminated for acts or omissions that damaged the reputation or standing of City of Hope; (3) adding a "change in control" (the golden parachute) provision which allowed Leeka to terminate his employment if Shapero left City of Hope; and (4) removing, as an entity to be notified should Leeka resign, the law firm which was representing City of Hope, but not the Former Officers, in the sexual misconduct action. The lengthening of Leeka's term from two to five years was unusual in that no executive other than Shapero, the CEO, was allowed to have a contract term longer than two years. The golden parachute, in addition to allowing Leeka to quit if Shapero left City of Hope, also allowed Leeka to accelerate all of the amounts due under the terms of the contract and collect as much as $1 million, even if Shapero was terminated for cause.
On July 7, 1995, before Leeka's contract had been finalized, Thompson met with the incoming Chairman of the Board of Directors and counsel for City of Hope on the sexual misconduct claims. The subject of the meeting was the status of the claims against the Former Officers. Thompson was advised City of Hope was planning to hire an independent investigator who was going to report directly to the Board. When the chairman would not guarantee that the Former Officers would not suffer negative repercussions, Thompson began to personally attack him. At that point, Thompson had to be reminded that the City of Hope was her client, not the Former Officers. At the July meeting, Thompson did not inform either the Chairman or counsel that she was in the process of redrafting Leeka's employment contract with its golden parachute provision.
Within a day or two of the July 7 meeting, Thompson telephoned Shapero and expressed her concerns about her role in drafting the Leeka contract and stated she had to cover herself. Shapero advised her to put her concerns in a letter to him. Four days later, on July 11, 1995, Thompson forwarded the final drafts of the Leeka contract to Shapero and Leeka. She also wrote the letter suggested by Shapero. She recommended disclosure to the Board and stated she was concerned because "... I would consider the `change in control' provision to be important for Sandy [Shapero] to disclose to the Board in the event there are any discussions about his departure before the expiration of his contract. Otherwise, this provision could result in substantial economic consequences which are unforeseen by the institution at the time such decisions are made."
Once again Thompson did not inform the Board or any counsel of the secret contract and specifically did not forward any copies of the agreement to any counsel or the Board. On July 19, 1995, Leeka signed his contract and Shapero signed on behalf of City of Hope. At the time of the signings, both Former Officers knew their jobs were in jeopardy and Thompson knew or should have known that unless Shapero obtained *290 the Board's approval, Shapero's conduct was ultra vires.
Later that year, around October 1995, Thompson drafted two other secret agreements for employees that Shapero signed for City of Hope without obtaining Board approval. Neither Thompson nor Shapero notified the Board or its counsel about the additional contracts. Had City of Hope known about the secret agreements, it would have fired the Former Officers. Instead, and because Thompson had not informed the Board or counsel, Former Officers assembled information and documents that they later used in their attempts to harm the City of Hope.
In December 1995, Thompson knew the investigator had made his report and the Board had decided Shapero should leave the City of Hope. Thompson also knew City of Hope and Shapero were negotiating Shapero's severance agreement. Although Thompson knew no relevant City of Hope fiduciary was aware of Leeka's $1 million golden parachute provision, she did not notify either the Board or counsel of its existence.
On January 12, 1996, Shapero entered into a settlement agreement with the Board. The settlement was an attempt to resolve all issues arising from the allegations of misconduct, as well as other disputes. Not knowing of Leeka's golden parachute and Shapero's role in its execution, the City of Hope provided Shapero with a severance package that included a lump sum payment of $545,000 and monthly payments totaling another $545,000 for the remainder of Shapero's contract period. Additionally, there were other fringe benefits that totaled more than $1.25 million in value. Had City of Hope known of the secret agreements, it would have terminated Shapero for cause.
Shortly after Shapero left City of Hope, Leeka called Thompson asking for an interpretation of his contract. Under the golden parachute provision, Leeka had 90 days within which to trigger the golden parachute and collect the entire cash sum due for his five-year term. Thompson did not report this inquiry to anyone at City of Hope nor did she advise anyone of the material terms of Leeka's contract.
About 87 days after Shapero's departure, and at a time when Leeka knew City of Hope's Chairman of the Board was out of the country, Leeka disclosed his golden parachute contract to another Board member. The Board took the position that the contract was ultra vires, beyond Shapero's authority and therefore City of Hope was not bound by its terms. On the 90th day following Shapero's departure, Leeka resigned and attempted to exercise the secret golden parachute clause for over $1 million.
Even after the Former Officers departed City of Hope, Thompson was included in their continuing actions against City of Hope's interests. When Leeka's former secretary, Pat Nichols, was terminated by City of Hope on June 25, 1996, Leeka called Thompson and sought her advice about Nichols's potential claims against City of Hope. Thompson, once again, failed to inform her client, City of Hope, of this contact.
On September 17, 1996, Leeka settled his claim against City of Hope for $173,000 in cash and insurance benefits. On that same day, Shapero and City of Hope entered into a supplemental agreement costing an additional $50,000. Had Thompson informed City of Hope about the secret employment contract, City of Hope would not have had to enter into these settlements.
City of Hope further alleged the Former Officers continued their attempts to harm City of Hope long after they had left. Using information and documents obtained *291 while Thompson was concealing the secret agreement, the Former Officers caused City of Hope to expend substantial amounts of money to hire experts and professionals to assist in correcting the harm. Even though City of Hope has sued the Former Officers and obtained arbitration judgments against the Former Officers, City of Hope still remains uncompensated for millions of dollars in damages caused by Bryan Cave's actions. In addition to general, special, and incidental damages, City of Hope also sought punitive damages.

3. The Proceedings Leading to This Appeal

Between 1998 and 2001, the case was litigated as two separate lawsuits (BC194474 and BC201535). On June 21, 1999, the two cases were deemed related and assigned to the same judge.
On September 4, 2001, City of Hope filed a motion to consolidate the two cases and file amended complaints. Opposition to the motion was overruled; and, on October 15, 2001, the court granted City of Hope leave to file amended complaints. One week later, on October 22, 2001, Bryan Cave demurred to the complaint, filed a purported petition for arbitration, and requested a stay. Three weeks later, on November 14, 2001, the WGM defendants also filed a demurrer and a petition for arbitration and stay. Opposition was filed on the grounds that the moving defendants, by contesting the matters for three years, had waived whatever rights they had to compel arbitration.
Following a contested hearing, the court took the matter under submission. Four days later, on December 11, 2001, the court sustained the demurrers with leave to amend and denied the request for arbitration. This appeal followed.[6] (Code Civ. Proc., § 1294, subd. (a).)

4. The Effect of the Amendments by City of Hope

For more than three years the case was prosecuted under several theories of breach of fiduciary duty, legal malpractice and fraud. The initial complaints also contained allegations of aiding and abetting. Discovery was apparently conducted based upon that theory. After three years, City of Hope requested permission to file amended complaints to add an allegation of conspiracy and to modify some language in the operative pleadings. According to City of Hope, the proposed amendments corrected factual allegations based upon information disclosed in discovery and added the conspiracy claim. The conspiracy count, it was argued, was a direct outgrowth of the aiding and abetting allegations that had already been pleaded and was essentially an attempt by City of Hope to conform the pleadings to the state of the evidence as disclosed by discovery. When permission was granted and the amended complaints were filed, each contained identical language: "Each of the defendants committed acts in furtherance of this conspiracy, ... In committing the foregoing acts, each of defendants [sic] acted as the agent of the other and all of the co-conspirators, including without limitation the Former Officers."
Once the amended complaints were filed, WGM and Bryan Cave claimed the agency allegations made them third party beneficiaries of the settlement agreements signed by the Former Officers in 1996. Those settlement agreements provided that any disputes under the agreements were to be submitted to arbitration. The settlement agreements also contained a provision releasing all parties and their agents from any and all acts that had occurred prior to the date of the signing of the agreements, September *292 17, 1996. Because the complaints now alleged that WGM and Bryan Cave had acted as agents of the Former Officers, WGM and Bryan Cave argued they were entitled to have the matters arbitrated pursuant to the settlement agreements. In a classic case of "chutzpah" and "Gotcha!" gamesmanship, Bryan Cave even demurred to the amended complaint, claiming that because the settlement agreements waived any misconduct of the Former Officers or their agents prior to 1996, the complaint should be dismissed against Bryan Cave even though Bryan Cave claims to have been representing City of Hope during this period of time.
It is the agency amendment and the release provisions that are central to this appeal. All sides have argued extensively about the effect of the agency allegations and specifically whether this language amounted to such a change in theory from the aiding and abetting allegations that WGM and Bryan Cave were entitled to demand arbitration once that allegation was made or whether WGM and Bryan Cave had waived their right to arbitrate by contesting the matter for three years. (See, e.g., People v. McCoy (2001) 25 Cal.4th 1111, 108 Cal.Rptr.2d 188, 24 P.3d 1210; People v. Solis (1993) 20 Cal.App.4th 264, 25 Cal.Rptr.2d 184; Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 28 Cal.Rptr.2d 475, 869 P.2d 454; People v. Morante (1999) 20 Cal.4th 403, 84 Cal.Rptr.2d 665, 975 P.2d 1071; People v. Prettyman (1996) 14 Cal.4th 248, 58 Cal.Rptr.2d 827, 926 P.2d 1013; People v. Brigham (1989) 216 Cal. App.3d 1039, 265 Cal.Rptr. 486; Groom v. Health Net (2000) 82 Cal.App.4th 1189, 98 Cal.Rptr.2d 836; People v. Miles & Sons Trucking Service Inc. (1968) 257 Cal. App.2d 697, 65 Cal.Rptr. 465.) We need not resolve this issue because we find that WGM and Bryan Cave have not proved they were intended beneficiaries under the settlement agreements.

A PARTY SEEKING ARBITRATION AS A NON-PARTY MUST PROVE IT IS AN INTENDED BENEFICIARY UNDER THE CONTRACT

1. A Formal Petition Requesting Arbitration' is Required

The problem in this case, as in many cases before the trial courts of this state, is that a request to compel arbitration requires the court to make a legal determination of the rights under a contract involving non-parties as well as the parties before it. Had a proper petition been filed, resolution of the issue would have been simpler.
First of all, "A petition to compel arbitration `"is in essence a suit in equity to compel specific performance of a contract."' (Spear v. California State Auto. Assn. (1992) 2 Cal.4th 1035, 1040, 9 Cal.Rptr.2d 381, 831 P.2d 821; Freeman v. State Farm Mut. Auto. Ins. Co. (1975) 14 Cal.3d 473, 479, 121 Cal.Rptr. 477, 535 P.2d 341; Trubowitch v. Riverbank Canning Co. (1947) 30 Cal.2d 335, 347, 182 P.2d 182.)" (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 411, 58 Cal.Rptr.2d 875, 926 P.2d 1061.) Therefore, the rules covering complaints are applicable to petitions to arbitrate. These rules include Code of Civil Procedure section 425.10, subdivision (a), which requires that a complaint in a civil action contain "[a] statement of the facts constituting the cause of action, in ordinary and concise language." (Graphic Arts Internal Union v. Oakland Nat. Engraving Co. (1986) 185 Cal.App.3d 775, 781-782, 230 Cal.Rptr. 95.) In a case where the person asserting the demand is claiming as a third party beneficiary, a minimal requirement would appear to be an allegation of a controversy *293 between the parties, facts demonstrating the existence of an arbitrable controversy, the existence of the written agreement, and an allegation that the other party has refused to arbitrate. (Code Civ. Proc., § 1281.2; Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 105 Cal.Rptr.2d 597.) The petition should also set forth the written agreement and the arbitration provision verbatim. (See 6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, § 496, pp. 925-926; but see Condee v. Longwood.) Inclusion of the arbitrations provision is necessary because, in addition to determining whether an arbitration agreement exists, the court needs to determine who has standing to demand arbitration. (American Builder's Assn. v. AuYang (1990) 226 Cal.App.3d 170, 178-179, 276 Cal.Rptr. 262; Coopers & Lybrand v. Superior Court (1989) 212 Cal.App.3d 524, 260 Cal.Rptr. 713.)
The petition to compel arbitration is heard in the same manner as any other motion. Factual issues are resolved by the trial court based on conflicting affidavits or declarations and, at the court's discretion, even oral testimony. (Brookwood v. Bank of America (1996) 45 Cal. App.4th 1667, 1670, 53 Cal.Rptr.2d 515.) "The determination of standing to arbitrate as a party to the contractual arbitration agreement is a question of law for the trial court in the first instance. (Unimart v. Superior Court (1969) 1 Cal.App.3d 1039, 1045-1047, 82 Cal.Rptr. 249.)" (Valley Casework, Inc. v. Comfort Construction, Inc. (1999) 76 Cal.App.4th 1013, 1017, 90 Cal.Rptr.2d 779.) Because WGM and Bryan Cave were claiming rights under the contract, it was their duty to demonstrate the promises applied to them personally. (Neverkovec v. Fredericks (1999) 74 Cal.App.4th 337, 348, 87 Cal.Rptr.2d 856; Vahle v. Barwick (2001) 93 Cal. App.4th 1323, 113 Cal.Rptr.2d 793.)
As explained in Vahle v. Barwick, supra, 93 Cal.App.4th 1323, 113 Cal. Rptr.2d 793, in dealing with releases that are basically third party beneficiary contracts, "A release agreement containing boilerplate language that purports to excuse everyone in the world from liability can be enforced by persons who are not parties to the agreement. (Lama v. Comcast Cablevision (1993) 14 Cal.App.4th 59, 63, 17 Cal.Rptr.2d 224; General Motors Corp. v. Superior Court (1993) 12 Cal. App.4th 435, 439-440, 15 Cal.Rptr.2d 622.) But as explained in a thorough and wellreasoned opinion from Division Three of this court, Neverkovec v. Fredericks (1999) 74 Cal.App.4th 337, 87 Cal.Rptr.2d 856 (Neverkovec), the burden is on the third party to prove the parties to the release agreement intended to benefit the third party.
"Release agreements are governed by the generally applicable law of contracts. (Neverkovec v. Fredericks, supra, 74 Cal.App.4th at p. 348, 87 Cal. Rptr.2d 856.) A third party's right to enforce covenants of a contract is predicated on the contracting parties' intent to benefit the third party. (Ibid.) It is not enough that a literal interpretation of the contract would result in a benefit to the third party. (Ibid.)" (Vahle v. Barwick, supra, 93 Cal.App.4th at p. 1328, 113 Cal. Rptr.2d 793.)

2. The Informal Petition In this Case Improperly Tried to Shift the Burden of Proof

Here, given the allegations of the complaints, WGM and Bryan Cave could not, without substantial risk to their position, afford to have a hearing on the issue of whether, as agents of Shapero and Leeka, they were intended third party beneficiaries *294 under the settlement agreements. While purportedly filing petitions for arbitration, each chose not to file formal petitions. Instead, they filed pleadings that relied upon an estoppel theory. Bryan Cave stated, "As the alleged agent of Shapero and Leeka, and hence, also an express third party beneficiary of the Settlement Agreements, Bryan Cave is entitled to enforce the arbitration agreements against COH [City of Hope]." WGM acted in a somewhat similar manner stating, "Now that City of Hope pleads that the Weil Gotshal Defendants `acted as agents' of Shapero and Leeka in the course of the alleged misdeeds at issue in this action, the Weil Gotshal Defendants are entitled to enforce the mandatory arbitration provisions of the Settlement Agreements."
Estoppel may sometimes allow non-signatories to a contract to demand arbitration. (See Rogers v. Peinado (2000) 85 Cal.App.4th 1, 9, fn. 6, 101 Cal.Rptr.2d 817.) However, as pointed out by the Rogers court, the linchpin of equitable estoppel is fairness. Here, there is no fairness principle upon which WGM and Bryan Cave can rely. Both Bryan Cave and WGM deny they were ever the agents of the Former Officers, just as they deny they ever did anything wrong in their representations of City of Hope. Fairness in enforcing the arbitration agreement is of no aid or comfort to either Bryan Cave or WGM.
WGM and Bryan Cave tried to finesse their way into arbitration even though they had not shown they were third party beneficiaries under the contracts. Given the circumstances and atmosphere under which the settlement agreements were negotiated, this was probably an almost insurmountable task. (See Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 524, 117 Cal.Rptr.2d 220, 41 P.3d 46.) Since WGM and Bryan Cave did not prove they were intended beneficiaries under the settlement agreements, there was no error in denying their petitions for arbitration. (Ibid.)

DISPOSITION
The order appealed is affirmed. City of Hope is entitled to costs on appeal.
We concur: JOHNSON, Acting P.J., and PERLUSS, J.
NOTES
[*]   Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[1]  Another defendant, The Fairfax Group Ltd., has also petitioned to have the matter referred to arbitration. Even though its petition was also denied, it has not appealed.
[2]  Because the case presents a complicated factual pattern involving at least three law firms, it is necessary to have a detailed recitation of the facts.
[3]  By a stipulation in the trial court, several of the people involved in the original events are referred to as Does 1, 2 and 3. This quest for secrecy and anonymity has reached almost paranoiac levels. The record before this court, consisting of over 130 exhibits and four bankers boxes, is mostly sealed.
[4]  City of Hope alleged in its complaint that this action was wrongfully brought and had been terminated by Nichols's dismissing of the action, an issuance of public apologies, the payment of City of Hope's costs and a continuing non-disparagement agreement.
[5]  Decision Strategies was alleged to be the successor to the Fairfax Group. Hershman was alleged to be an attorney and a principal of Fairfax. It was later discovered Hershman was not an attorney. This factual discrepancy was corrected in the second amended complaint.
[6]  The Fairfax defendants have not appealed.