440 F.2d 994
SKAGGS TRANSFER, INC., Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 20890.
United States Court of Appeals, Sixth Circuit.
April 12, 1971.

W. Bruce Baird, Louisville, Ky., Matthew W. Westfall, Louisville, Ky., on the brief; Middleton, Seelbach, Wolford, Willis & Cochran, Louisville, Ky., of counsel, for petitioner.
Russell J. Thomas, Jr., N.L.R.B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Frank H. Itkin, Attys., N.L.R.B., Washington, D. C., on the brief, for respondent.
Before WEICK, PECK and KENT, Circuit Judges.

1
PER CURIAM ORDER.

2
Upon consideration of the petition for review and the Board's cross-petition for enforcement, the Court finds that substantial evidence supports the Board's findings that petitioner violated Section 8(a) (1) of the Act, 29 U.S.C.A. § 158(a) (1), by coercively interrogating and threatening with reprisals its employees concerning their union activity, and in granting increased benefits to them in an attempt to restrain and coerce them in the exercise of their right to engage in collective bargaining activities. Substantial evidence also supports the Board's finding that petitioner violated Section 8(a) (1) and (5) of the Act by refusing to bargain with the union.

3
The Court further finds that the Board's finding that petitioner violated Section 8(a) (1) and (3) of the Act by laying off its part-time employee, Patti Mauzey, is not supported by substantial evidence, and its order of reinstatement will not be enforced.

4
Enforcement is therefore granted as to the Order of the Board except insofar as it relates to Patti Mauzey, and as to her the Order is denied.


51 So.3d 1 (2010)
In re PERKINS, Don A. et al.
v.
ENTERGY CORPORATION et al.
No. 2010-C-1902.
Supreme Court of Louisiana.
November 1, 2010.
Writ application withdrawn on relator's motion.


574 N.W.2d 208 (1998)
1998 SD 4
Delores KROUPA, Plaintiff,
v.
Marvin KROUPA, Defendant and Appellant, and
Greg Kroupa and Diane Kroupa, Defendants and Appellees, and
Edwin Kroupa, Robert Kroupa, Marie Kroupa, and Cheryl M. Younkin, Defendants.
No. 19888.
Supreme Court of South Dakota.
Argued October 21, 1997.
Decided January 14, 1998.
James C. Roby of Green, Schulz, Oviatt, Cummings & Linngren, Watertown, for defendant and appellant.
Brent A. Wilbur of May, Adam, Gerdes & Thompson, Pierre, for defendant and appellee Greg Kroupa.
Kimberley A. Mortenson of Mortenson Law Offices, Ft. Pierre, for defendant and appellee Diane L. Kroupa.
MILLER, Chief Justice.
[¶ 1.] In this appeal, Marvin Kroupa asserts that the trial court erred in ruling that it lacked jurisdiction over the trust property *209 interests of Diane Kroupa and Cheryl Younkin when it earlier finalized a settlement agreement. In the alternative, Marvin argues that, even if the court did lack jurisdiction, it erred in vacating only a portion of the settlement agreement. We affirm in all respects.

FACTS
[¶ 2.] The Kroupa family is involved in an extensive farming and ranching operation in various South Dakota counties, including Brule. Otto Kroupa and his wife Marie started the operation in the 1950s. They had one son, Edwin. Edwin and his wife Delores had five children: Marvin Kroupa, Greg Kroupa, Robert Kroupa, Diane Kroupa, and Cheryl Younkin. Edwin assisted Otto in the farming and ranching operation, and they were later joined by Edwin's sons Marvin, Greg, and Robert. Otto died on January 7, 1988, leaving part of his estate to the Otto Kroupa Trust which he created in his will.[1] Marie was appointed executrix of Otto's estate and Edwin was named trustee of the Otto Kroupa Trust.[2]
[¶ 3.] In November of 1991, Delores filed for divorce from Edwin. While the divorce was pending, she filed a second lawsuit making claims against Marie, Edwin, Marvin, Greg, and Robert. In the second lawsuit, Delores alleged that Edwin, Marvin, Greg, and Robert had become partners in the farming and ranching operation even though no formal partnership was ever formed. She claimed that the others had conspired to exclude her from the operation. She sought compensatory and punitive damages on four separate grounds: (1) alleged fraud by Marie, Edwin, Marvin, Greg, and Robert; (2) conversion by Greg; (3) for an accounting of the family operation; and (4) civil assault and battery against Edwin. This lawsuit was ultimately consolidated with the divorce action.
[¶ 4.] After the two suits were consolidated, Robert made a motion, in which Marvin joined, seeking to join Diane and Cheryl as additional parties defendant based on their status as devisees, legatees, and beneficiaries under Otto's last will and testament. Delores then amended her complaint to add Diane and Cheryl as defendants. Diane answered the amended complaint and asserted that it failed to state a claim upon which relief could be granted. She also admitted that she owned an interest in real property in Brule County, South Dakota.
[¶ 5.] Robert filed and served an answer and cross claim to the amended complaint. The cross claim was against all of the defendants and included a claim for compensatory and punitive damages against Greg based on conversion. Robert agreed that an accounting should be had and that, if a partnership did indeed exist, it should be dissolved and its assets distributed. He also claimed that Diane and Cheryl had no rights or interest in any partnership property.
[¶ 6.] Marvin also responded with an answer and cross claim. He agreed that a partnership existed and should be dissolved, and also that an accounting should be had. His cross claim alleged conversion against Greg and claimed that Diane and Cheryl had no interest in any of the property.[3]
[¶ 7.] The consolidated cases were set for trial starting on November 27, 1995. On that date, Delores, Edwin, Greg, Robert, and Marvin all personally appeared. Marie and Cheryl did not appear. Although Diane did not appear, she submitted a stipulation to the court.[4]
[¶ 8.] The parties who appeared entered into a settlement agreement, which was placed on the record. Part of the settlement provided that Diane and Cheryl would retain their real estate interests which they had *210 received by gift during Otto's lifetime. There was some discussion with the trial court as to whether or not Diane's and Cheryl's permission was needed to include their interests in the trust property in the settlement. Upon Marvin's request, the court ordered that their permission was not needed as they failed to appear even though they had sufficient notice of the issues.
[¶ 9.] On March 20, 1996, Diane filed objections to the settlement and proposed judgment based thereon, arguing lack of jurisdiction by the trial court. Specifically, she alleged that the court was without jurisdiction to distribute assets of the Otto Kroupa Trust or Estate as she had no notice that the assets of the Trust or Estate were subject to the court's judgment, and also because the estate and the trustee were not parties to the lawsuit. The final decree of divorce and judgment was filed April 23, 1996. Diane made a motion to vacate a portion of the judgment for the reason that the court lacked jurisdiction over the land in the Otto Kroupa Trust or Estate. Marvin, Robert, and Greg all resisted the motion. Diane's motion was granted and the trial court vacated that portion of the judgment that pertained to Diane's and Cheryl's interests in the Otto Kroupa Trust and Estate. Marvin filed a motion, in which Robert joined, for reconsideration and notice of hearing. This motion was denied and Marvin appeals. We affirm.

STANDARD OF REVIEW
[¶ 10.] The trial court's holdings that it lacked jurisdiction and its decision to vacate a portion of the judgment involve questions of law. We therefore apply a de novo review. Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17. Accordingly, the issues are fully reviewable and we afford no deference to the conclusions reached by the trial court. Kent v. Lyon, 1996 SD 131, ¶ 15, 555 N.W.2d 106, 110.

DECISION

[¶ 11.] I. Whether the trial court erred in determining that it was without jurisdiction to distribute the assets of the Otto Kroupa Trust.
[¶ 12.] Marvin argues that the trial court erred when it ruled it did not have jurisdiction over Diane's and Cheryl's interests in the trust property. We disagree.
[¶ 13.] Marvin argues that Diane and Cheryl were given notice that their interests in the property used in the family operation were going to be part of the litigation. He claims that the pleadings stated that the entire farming and ranching operation was to be included in the litigation. He also claims that the executrix and the trustee do not have to be specifically named in their representative capacities in the pleadings.
[¶ 14.] SDCL 15-6-60(b)(4) states that upon proper motion a court can relieve a party from a final judgment if "[t]he judgment is void[.]" We have held that a judgment is void if "the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law." Crowley v. Trezona, 408 N.W.2d 332, 333 (S.D. 1987) (citation and internal quotations omitted).
[¶ 15.] We hold that the trial court correctly determined it lacked jurisdiction over the assets in the Otto Kroupa Estate and Trust, and thus it properly relieved Cheryl and Diane from the judgment. The trial court also correctly concluded that the pleadings did not afford Diane and Cheryl proper due process protection.
[¶ 16.] SDCL 15-6-8(a) states, in relevant part:
A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain
(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and
(2) a demand for judgment for the relief to which he deems himself entitled.
In reviewing the pleadings, we find no claims made in any manner whatsoever against the Otto Kroupa Trust, or even a demand for relief from Diane or Cheryl so as to invoke the court's jurisdiction over the trust property.
*211 [¶ 17.] We have held that "[t]he purpose of pleadings is to establish the issues to be tried and to advise the opposing party of the allegations and evidence that must be met." Gross v. Gross, 355 N.W.2d 4, 8 (S.D. 1984) (citation omitted). A complaint need not be set out in great detail, but it must provide "fair notice" of the alleged claim "so as to allow the adverse party an opportunity to make an adequate response." Northrup v. Farmland Indus., Inc., 372 N.W.2d 193, 197 (Iowa 1985) (citations omitted); see also Williams v. State, 405 N.W.2d 615, 620-21 (N.D.1987). The notice provided to Diane and Cheryl failed in those regards.
[¶ 18.] Diane based part of her motion on the fact that neither Otto, Marie as executrix, Edwin as trustee, nor Diane as beneficiary of the trust were named parties in the lawsuit. Marvin argues that it is not legally fatal to not specifically plead the capacities of the parties being sued. Marvin is correct in relying on SDCL 15-6-9(a) for this proposition. It states, in relevant part: "It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity[.]" Thus, it was not fatal per se to not name the parties in their representative capacities, however, SDCL 15-6-9(a) is not dispositive of the issue. The parties must still be given "fair notice" of what the litigation entails. See 59 AmJur2d Parties § 244 (1987); see also Northrup, 372 N.W.2d at 197; Williams, 405 N.W.2d at 620-21. When capacity is not alleged, the complaint or cross claim must, in some way, give "adequate notice of the nature of the suit and the fact that recovery [is] sought from the assets of the estate[.]" 31 AmJur2d Executors and Administrators § 1298 (1989).
[¶ 19.] We next examine the pleadings to see if "fair notice" was given to Diane and Cheryl to apprise them that the Otto Kroupa Trust property would be involved in the litigation. The main thrust of Delores' second lawsuit is of a partnership dissolution.[5] Diane and Cheryl are not named as partners, nor are there allegations of any nature made against either of them. Paragraph 8 of the amended complaint does allege: "That Defendants Diane L. Kroupa and Cheryl M. Younkin have claims of ownership which pertain to some of the real estate which has been used and operated by the parties and are includes [sic] as parties defendant in order to vest jurisdiction over them[.]"[6] However, nowhere is Otto, the Otto Kroupa Trust, or any trust property mentioned to be involved in the case.
[¶ 20.] Marvin also argues that Diane and Cheryl had notice of the claims against the trust because they were joined as additional parties for the reason that "they had an interest in some of the operation's property as legatees, devisees and beneficiaries under the Last Will and Testament of their deceased grandfather Otto M. Kroupa." The motion to join parties was never served on Diane or Cheryl. Furthermore, the amended complaint never provided notice that Diane and Cheryl were being sued as "beneficiaries" of the trust, and it never mentioned the trust in any manner.
[¶ 21.] Likewise, the amended cross claims of Robert and Marvin do not make any claims against Diane, Cheryl, or the trust. Both Robert and Marvin alleged that: "Defendants Cheryl M. Younkin and Diane L. Kroupa have no right, title or interest in, or claim against, any property, real or personal, of this Defendant or of the partnership." Neither made any claim against any interests of Diane or Cheryl. They both merely sought an accounting of the partnership, a dissolution of the partnership, and a distribution of the partnership assets. Nowhere is any notice given that Diane's or Cheryl's interests in the Otto Kroupa Trust are to be involved in the case. It is hard to imagine how these amended cross claims in a partnership dissolution could put Diane or Cheryl on notice that their trust property was involved, especially when it is specifically *212 stated that neither one has any interest in any property of the partnership.
[¶ 22.] We conclude that there was not sufficient notice to Diane or Cheryl that their interests in the trust property would be affected. Thus, the trial court was correct in concluding that it lacked jurisdiction to distribute the trust property, and that the settlement was void. See Cooley v. Fredinburg, 144 Or.App. 410, 927 P.2d 124, 128 (1996) (holding that "[i]f the notice of the proposed relief is so defective or lacking that it does not satisfy the requirements of due process, the court is deprived of jurisdiction to enter an order arising out of such a defective procedure.") (citing Hood River County v. Dabney, 246 Or. 14, 423 P.2d 954, 957 (1967)).

[¶ 23.] II. Whether the trial court erred by vacating only a portion of the judgment based on a settlement agreement, rather than vacating the whole judgment.
[¶ 24.] Marvin, in the alternative, argues that the trial court erred in vacating only a portion of the judgment, rather than the entire judgment. He claims that his reasonable expectations were not fulfilled because he did not receive Diane's and Cheryl's interests in the trust property. We disagree.
[¶ 25.] "The law favors the compromise and settlement of disputed claims." Johnson v. Norfolk, 76 SD 565, 572, 82 N.W.2d 656, 660 (1957) (citations omitted). The general rule as to a defective compromise and settlement has been stated as: "Unless a defective compromise and settlement is capable of being reformed so as to comply with the reasonable expectations of the parties, the usual effect of invalidation of a compromise and settlement is to restore the parties to their antecedent positions." 15A Am.Jur.2d Compromise and Settlement § 40 (1976); see also Harrell v. Nash, 192 Okla. 95, 133 P.2d 748 (1942). We must thus determine if, by vacating only a portion of the settlement agreement, the reasonable expectations of the parties were fulfilled.
[¶ 26.] As has been already noted, the settlement process in this matter was long and drawn out, and involved numerous parties and over 10,000 acres of land. During the course of the settlement, the following exchange concerning the trust property took place between the trial court, Marvin, and Marvin's attorney:
Court: The other half that's still in Otto's trust, you need the agreement of your two sisters now. That will be transferred to you. Isn't that right Mr. Roby [Marvin's attorney].
Mr. Roby: Yes.
Court: And we already, from the presentation before, we had the agreement of everyone else involved here that you are going to get the land.
Marvin: Yes.
Court: So, that's the additional item I wanted to point out. That you, in order to make that work, we need the agreement of your two sisters to transfer that to you.
Marvin: Yes.
[¶ 27.] A short time later, the trial court ordered, upon Marvin's request, that Diane's and Cheryl's interests in the trust be transferred without their approval, since they had notice, yet failed to appear. Marvin now points to that portion of the settlement negotiation where the court decided to transfer Diane's and Cheryl's interests as evidence that the whole agreement was dependent on their transferring their interests in the trust property to him:
Mr. Roby: I would further propose since Cheryl and Diane both decided not to come here but they have been made parties, I think the issues are of sufficiency and we're in court in the matter that we'll try to get their agreement, but we ought to have this same authority, too, where they shouldn't be allowed to hold up settlement and if they refuse to sign quitclaim deeds that perhaps the court would also entertain a motion to have the clerk sign deeds for them as we have discussed in this settlement.
* * * * * *
The Court: [ ... ] So, that will be the determination of the court, that this was the time to litigate these issues, they have been agreed to and the parties are in default who have not appeared or are not *213 objecting or contesting these other issues. Nevertheless, the agreement is subject to their interests being transferred in this, I think we're talking about the Otto Kroupa Trust property.
Mr. Roby: Yes
The Court: All right. And, I want everybody to understand that that is part of the whole agreement that everyone has agreed to. And someone, first of all, is going to try to contact them[.]
The trial court later determined that it erred in transferring the trust property because Diane and Cheryl did not receive proper notice. As discussed above, we have also determined that proper notice was not given.
[¶ 28.] At the hearing on Marvin's motion for reconsideration, he presented the same argument to the trial court. The trial court stated that:
[A]s I look at the agreement, you know, I don't reallyI don't really see that the parties presented this agreement and said, you know, up to that point, well, you know, if we don't get [Diane's and Cheryl's] agreement we're going to come back and relitigate this whole thing.[7]
While the trial court's determinations are not dispositive of this issue, upon our review of the entire record, we agree with it. There is some language that indicates that the whole agreement was contingent upon obtaining Diane's and Cheryl's consent but, when the settlement is examined as a whole, it is apparent that the parties knew that Diane and Cheryl needed to consent to the transfer of the trust property. This was a long and complicated settlement and as a means of making it easier, Marvin requested that the trial court transfer Diane's and Cheryl's interests. Marvin's attorney noted, as did the trial court, that someone would try to contact Diane and Cheryl and get their consent to transfer their interests. As the trial court pointed out, everyone knew that their consent was needed, and no one stated that the whole agreement would fall apart if their consent was not obtained.
[¶ 29.] Marvin relies on Mapp v. Snitker, 449 S.W.2d 857 (Tex.Civ.App. 1969), for the proposition that the court cannot contract for the parties, and thus the whole judgment should be set aside. Even were we inclined to adopt its rationale, Mapp involved a situation which is significantly distinguishable from the present case. Mapp involved only two parties and the court reduced one party's property interests from one-fourth as decided in the settlement agreement, to one-eighth. On appeal, it was decided that the court could not change the parties' agreement and subsequently bind the parties to the court's judgment rather than their own. Id. at 858-59.
[¶ 30.] In this case, by vacating only a portion of the judgment, the court is not contracting for the parties and the parties are not being forced to accept the court's decision over their own. Marvin knew that he needed his sisters' approval to acquire their interests in the trust property, and there is nothing preventing him from trying to obtain their approval now. Marvin received what he reasonably expected in the settlement agreement, that is, a right to his sisters' trust property if they approve. This was essentially a partnership dissolution and Diane and Cheryl were not a part of the partnership. Marvin knew this and knew that he could not obtain any interests in their land without their approval.
[¶ 31.] As noted above, the law favors compromise and settlement and we will uphold such agreements if the parties' reasonable expectations are protected upon reformation. Because the parties got what they bargained for, we agree that the entire judgment should not be vacated. To wholly vacate the agreement would be to send the parties back for further litigation which is inappropriate and unnecessary. See Davy v. Davy, 98 A.D. 630, 90 N.Y.S. 242, 244 (1904).
[¶ 32.] Affirmed.
[¶ 33.] AMUNDSON, J., concurs.
*214 [¶ 34.] KONENKAMP, J., concurs in part and concurs in result in part.
[¶ 35.] GILBERTSON, J., concurs on Issue I and joins the dissent of SABERS. J., on Issue II.
[¶ 36.] SABERS, J., dissents in part and concurs in part.
KONENKAMP, Justice (concurring in part and concurring in result).
[¶ 37.] Although I agree with the majority opinion on the jurisdiction question, I write specially on Issue II because both the majority and the dissent misemploy our review standards and consequently fail to give appropriate deference to the trial court's decision to enforce the parties' settlement.
[¶ 38.] Settlements made in open court are generally binding, especially when entered on the record. In re Estate of Eberle, 505 N.W.2d 767, 770 (S.D.1993). Trial courts possess inherent or equitable power to summarily enforce agreements to settle pending cases. See, e.g., Murchison v. Grand Cypress Hotel Corp., 13 F.3d 1483, 1486 (11th Cir.1994); United States v. Hardage, 982 F.2d 1491, 1496 (10th Cir.1993); Brock v. Scheuner Corp., 841 F.2d 151, 154 (6th Cir.1988); Callie v. Near, 829 F.2d 888, 890 (9th Cir.1987); Mid-South Towing Co. v. Har-Win, Inc., 733 F.2d 386, 389-90 (5th Cir.1984); Ozyagcilar v. Davis, 701 F.2d 306, 308 (4th Cir.1983); Autera v. Robinson, 419 F.2d 1197, 1200 (D.C. Cir.1969); Ballato v. General Electric, 147 F.R.D. 95, 97 (E.D.Pa.1993). Power to enforce a settlement is founded in the policy favoring amicable resolution of disputes and avoiding costly, time-consuming trials. See generally Erickson v. Webber, 58 S.D. 446, 237 N.W. 558 (1931); cf. Pugh v. Super Fresh Food Markets, Inc., 640 F.Supp. 1306, 1307 (E.D.Pa.1986) (citations omitted).
[¶ 39.] So long as there is a clear offer and acceptance of the compromise and a meeting of the minds on the essential terms of the agreement, oral settlement agreements made in the presence of the trial court are enforceable as binding contracts. Eberle, 505 N.W.2d at 770; Spercel v. Sterling Indus., Inc., 31 Ohio St.2d 36, 285 N.E.2d 324, 326 (1972), cert. denied, 411 U.S. 917, 93 S.Ct. 1550, 36 L.Ed.2d 309. "Minor points implementing the agreement, though not listed, can be implied as necessary to carry out the terms of the agreement." Eberle, 505 N.W.2d at 770. Even mutual mistakes in making a compromise will not necessarily vitiate a settlement agreement. Fada v. Information Sys. & Networks Corp., 98 Ohio App.3d 785, 792, 649 N.E.2d 904, 908 (1994). We recently stated:
For a contract to be enforceable, it must be possible to ascertain the full meaning with reasonable certainty. An agreement must be sufficiently definite to enable a court to give it an exact meaning. Deadwood Lodge No. 508 Benev. and Protective Order of Elks of U.S. of America v. Albert, 319 N.W.2d 823 (S.D.1982). However, absolute certainty is not required; only reasonable certainty is necessary. 17A AmJur2d Contracts § 196 (1991).
Eberle, 505 N.W.2d at 770. "While an attorney's authority to settle must be expressly conferred, the existence of the attorney of record's authority to settle in open court is presumed unless rebutted by affirmative evidence that authority is lacking." Szymkowski v. Szymkowski, 104 Ill.App.3d 630, 60 Ill.Dec. 310, 312, 432 N.E.2d 1209, 1211 (1982)(citing cases). See also Eberle, 505 N.W.2d at 770. Once counsel agree on the necessary terms for a binding settlement in court with authority from their clients, "a contract is formed even though they intend to adopt a formal document with additional terms at a later date." Capek v. Mendelson, 821 F.Supp. 351, 357 (E.D.Pa.1993)(quoting Courier Times, Inc. v. United Feature Syndicate, Inc., 300 Pa.Super. 40, 445 A.2d 1288, 1295 (1982)). The "four corners" of the transcript may reveal the parties in fact reached a complete, binding agreement in resolution of their lawsuit. Hyde Park Union Church v. Curry, 942 F.Supp. 360, 364 (N.D.Ill.1996).
[¶ 40.] Under our settled rules of construction, "a court should, if possible, ascertain and enforce the mutual intention of the parties as set forth in their agreement." Steffens v. Peterson, 503 N.W.2d 254, 258 (S.D.1993). Even when parties change their minds between the time of oral agreement in court and when it is to be reduced to writing, *215 the settlement is nonetheless binding. Gross, 396 FSupp at 375. Voluntary settlements and stipulations "entered into cannot be repudiated by either party and will be summarily enforced...." Cummins Diesel Michigan, Inc. v. The Falcon, 305 F.2d 721, 723 (7th Cir.1962)(collecting Illinois cases); see also Schneider v. Dumbarton Developers, Inc., 767 F.2d 1007, 1015 (D.C. Cir.1985); Autera, 419 F.2d at 1201 n. 17. Trial courts may enforce only completed settlement agreements, however. Gardiner v. A.H. Robins Co., 747 F.2d 1180, 1189 (8th Cir.1984); Ozyagcilar, 701 F.2d at 308. "Whether the court may summarily enforce such an agreement or should conduct an evidentiary hearing on the disputed issues depends upon the nature of the dispute." Dankese v. Defense Logistics Agency, 693 F.2d 13, 15-16 (1st Cir.1982). Summary enforcement of a settlement agreement is improper if substantial factual disputes exist over the terms of the settlement. See Kukla v. Nat'l Distillers Prod. Co., 483 F.2d 619, 622 (6th Cir.1973). On the other hand, an evidentiary hearing may be unnecessary if the trial court was present to hear the parties' agreement when it was made. Wilson v. Wilson, 46 F.3d 660, 665 (7th Cir.1995).
[¶ 41.] In this case, was there a binding settlement between the parties in open court? Though both the majority and dissent scour the transcript in their de novo examination of this question, at least part of our review should employ the abuse of discretion standard. Fully acquainted with this litigation and the many issues it involved, the trial judge was in a far better position than we to decide what the parties intended, especially since some of their comments though contradictory were not necessarily irreconcilable.
To the extent the court's power to enforce a settlement agreement falls within the court's role as supervisor of litigation, then, as noted by the Supreme Court in Pierce v. Underwood, 487 U.S. 552, 558 n. 1, 108 S.Ct. 2541, 2546 n. 1, 101 L.Ed.2d 490 (1988), this is precisely the type of determination that normally receives a deferential, abuse of discretion review. See also 1 Steven Alan Childress & Martha S. Davis, Standards of Review § 4.01A, at 4-2 (1986)(stating that a district judge's supervision of litigation is a judgment entailing on-the-scene presence and therefore entitled to deference). Therefore, we join with these other circuits and hold that the abuse of discretion standard is the proper guide for our review of a district court's decision to enforce a settlement agreement.
Id. at 664.
[¶ 42.] We can focus on inconsistent remarks from the transcript or we may appropriately defer to the trial court's firsthand assessment of what the parties agreed. Not only did the court hear and receive the settlement, but it also participated to the extent of asking numerous questions to tidy up possible loose ends. At many points, the parties were virtually negotiating their settlement in open court as they recited their lengthy oral stipulation. Nonetheless, at the end of their stipulation, the court stated, with the obvious assent of everyone present, "The agreement has been made right now today." It was only suggested after this point that the court could force a transfer if the two sisters refused to give their consent. What the court apparently concluded was that Marvin's effort to obtain Cheryl's and Diane's future interests in the 200 acres of trust property was merely ancillary to the settlement. Marvin had no lawful claim to his sisters' property; indeed, during the pendency of this case he never made any claim to it. He knew he needed their consent to accomplish a transfer. True, the judge commented after the parties' stipulation that to make this part of the agreement work, Cheryl's and Diane's consent was needed, but at no point in the eighty-six pages of transcript in which the agreement is recited did any party suggest that the deal was contingent on Marvin obtaining his sisters' interest in the trust acreage.
[¶ 43.] Of course, contract interpretation is reviewed de novo, but sorting out what was agreed from multiple representations and enforcing those essential terms falls under the trial court's supervisory powers and thus should be reviewed under the abuse of discretion standard. With that standard, how *216 can we say it was against reason and evidence to refuse to negate a complex and extensive settlement because an appurtenant transaction could not be consummated?
A litigant who enters the judicial process through the agency of freely chosen counsel always assumes a certain risk that the result achieved will not be satisfactory. Defeated expectations do not, therefore, entitle the litigant to repudiate commitments made to opposing parties or to the court.
Petty v. Timken Corp., 849 F.2d 130, 133 (4th Cir.1988)(upholding summary enforcement of settlement agreement).
SABERS, Justice (dissenting in part, concurring in part).
[¶ 44.] I dissent on Issue II. The trial court stated not once, but three times that the agreement was contingent upon Cheryl and Diane transferring their property interests. Additionally, the court ruled that if they did not voluntarily transfer those interests, the court would do it for them. When the trial court later correctly decided it was without jurisdiction to affect their interests in the trust property, there was no longer an agreement and it was error to vacate only part of the judgment.
[¶ 45.] When the parties were in court working out their settlement agreement, there was discussion on the record concerning what action the court could take if any party, including Cheryl and Diane, failed to make the transfers which were required under the agreement.
THE COURT: So, that's the additional item I wanted to point out. That you, in order to make that [land transfers] work, we need the agreement of your two sisters to transfer that to you.

MARVIN: Yes.
...
MR. ROBY: ... I think there's authority, too, for the court, if a party refused to enter into or sign a deed, the court can have the clerk of courts under the statute sign the deeds, and when we walk out of here today we want this binding and the court order that.
COURT: That has been my understanding of the law, yes. So that no matter whom or who wouldn't execute the deed it would be binding upon them and the court would take such action to transfer the titles.
...
COURT: ... So, that will be the determination of the court, that this was the time to litigate these issues, they have been agreed to and the parties are in default who have not appeared or are not objecting or contesting these other issues. Nevertheless, the agreement is subject to their interests being transferred in this, I think we're talking about the Otto Kroupa Trust property .... All right. And, I want everybody to understand that that is part of the whole agreement that everyone has agreed to. And someone, first of all, is going to try to contact them ....
(Emphasis added).
[¶ 46.] The court's decision to order the transfer of Cheryl and Diane's interests if their signatures were not voluntarily given is also evidenced in the judgment:
[I]n the event any party refuses to execute such deeds ... then, pursuant to SDCL 15-6-70, the Court shall direct the Clerk of this Court to execute such deeds ... and... the execution by the Clerk shall have the like effect as if done by the disobedient party.
In the court's memorandum opinion revising the judgment, Judge Anderson acknowledges that his "determination" was to order the transfer of Cheryl and Diane's interests.[8]
*217 [¶ 47.] Judge Anderson's memorandum, coupled with the quoted material, indicates that the parties could rightfully walk out of the courtroom that day thinking that 1) efforts would be made to get Cheryl and Diane to transfer, and if those efforts failed 2) the court would use its power to transfer their interests. Therefore, the majority opinion's statement at ¶ 28 is incorrect and unfair:
As the trial court pointed out, everyone knew that their consent was needed, and no one stated that the whole agreement would fall apart if their consent was not obtained.
No one had a reason to make any such statement, given the judge's decision that he could and would force the transfers.
[¶ 48.] Vacating part of the judgment undermines the entire agreement and it is therefore error to say "the parties got what they bargained for." Ex. A-1 of Appellant's Brief lists the property deleted from Marvin's share by virtue of the revised judgment. The only authority cited in support of vacating only a portion of the settlement is really no support at all:
Unless a defective compromise and settlement is capable of being reformed so as to comply with the reasonable expectations of the parties, the usual effect of invalidation of a compromise and settlement is to restore the parties to their antecedent positions.
15A AmJur2d Compromise & Settlement § 40, at 813 (1976). As noted, this agreement cannot be reformed to comply with the reasonable expectations of the parties; therefore, the parties must be restored to "their antecedent positions." Here, that means starting from scratch.
[¶ 49.] Finally,[9] the majority opinion states, "the law favors compromise and settlement...." (¶ 31). I agree; however, the parties should write their own agreement. The effect of partially vacating the judgment is the rewriting of this agreement. It improperly presupposes what the terms of the agreement would have been if it had been established from the beginning that Cheryl and Diane's interests were not to be considered. That is a mistake. "[I]t is not a function of the court to rewrite the parties' agreements." Hisgen v. Hisgen, 1996 SD 122, ¶ 17, 554 N.W.2d 494, 499 (citations omitted); see also Schlosser v. Norwest Bank South Dakota, 506 N.W.2d 416, 421 (S.D.1993) (Wuest, J., concurring in part & dissenting in part) ("[A] court cannot make a contract for the parties that they did not make for themselves."); accord Amdahl v. Lowe, 471 N.W.2d 770, 777 (S.D.1991) ("[W]e cannot create a contract for the parties which they did not intend."). Without the transfer of Diane and Cheryl's interests, there is no agreement and we should reverse and remand for vacation of the entire judgment.
[¶ 50.] GILBERTSON, J., joins on Issue II.
NOTES
[1]  The trust consisted of five parcels of land totaling approximately 573 acres of the 12,000 total acres used in the family farming and ranching operation. Edwin held the land in trust for the duration of Marie's life, with the remainder to go to Diane, Cheryl, Marvin, Greg, and Robert.
[2]  At the time of the present action, the probate of Otto's estate had not been completed.
[3]  Marie and Edwin filed answers pro se. Cheryl did not file an answer.
[4]  Diane's stipulation listed several parcels of land that Otto and Marie had gifted to her.
[5]  The first lawsuit being a divorce between Edwin and Delores, and Diane and Cheryl obviously not being parties thereto, it is not considered here.
[6]  Diane and Cheryl are only mentioned two other times in the amended complaint. In paragraph 1, it states their places of residence and in paragraph 2, it merely states that they are the children of Delores and Edwin.
[7]  Also, in its memorandum opinion on Diane's motion to vacate a portion of the judgment, the trial court noted: "Having reviewed the entire nature of these proceedings, it appears to this court that the parties who presented the stipulation appreciated the fact that Cheryl and Diane had interests in these properties which could not be divested without their consent."
[8]  The concurring opinion states, "At no point in the eighty-six pages of transcript in which the agreement is recited did any party suggest that the deal was contingent on Marvin obtaining his sisters' interest in the trust acreage." This statement is clearly refuted by the portion reproduced here. The trial court stated the agreement was contingent on those transfersMarvin agreedMarvin's attorney agreedGreg's attorney agreedRobert's attorney agreedEdwin agreednot one party objectednot one attorney objected. It could not be more clear that the agreement hinged on the transfer of their interests.

The concurring opinion incorrectly states that the "end of their stipulation" came prior to the discussion of forcing the transfers. This ignores the court's statement after that discussion.
[T]his was the time to litigate these issues, they have been agreed to and the parties are in default who have not appeared or are not objecting or contesting these other issues. Nevertheless, the agreement is subject to their interests being transferred.... I want everybody to understand that that is part of the whole agreement that everyone has agreed to....
The transcript, and the court's plan to force the transfer of the trust property, further contradicts the concurring opinion's characterization of Diane and Cheryl's interests as "ancillary" and "appurtenant."
[9]  The concurring opinion correctly states the standards of review for interpreting and enforcing settlement agreements. However, the claim that "sorting out what was agreed upon" is an enforcement rather than interpretation function is wrong. Obviously, one must "sort out what was agreed upon," which is an interpretation function, before one enforces it or even reaches the enforcement function.

While it is true that many jurisdictions review the enforcement of settlement agreements under an abuse of discretion standard, the concurring opinion incorrectly lumps together "sorting out what was agreed from multiple representations" and "enforcing those essential terms." While the latter may fall under the court's supervisory powers and is thus reviewed under the abuse of discretion standard, "sorting out what was agreed upon" is synonymous with "contract interpretation" and should be reviewed de novo. Alverson v. Northwestern Nat'l Cas. Co., 1997 SD 9, 559 N.W.2d 234.


332 F.3d 550
UNITED STATES of America, Appellee,v.Steven Curtis MCINTOSH, Appellant.
No. 03-1011.
United States Court of Appeals, Eighth Circuit.
Submitted May 23, 2003.
Decided May 29, 2003.

Gary Lee Hayward, Asst. U.S. Atty., U.S. Atty's Office, Des Moines, IA, for Plaintiff-Appellee.
Steven Curtis McIntosh, Waseca, MN, pro se.
Before MORRIS SHEPPARD ARNOLD, BYE, and RILEY, Circuit Judges.
PER CURIAM.

1
Steven Curtis McIntosh appeals the district court's1 judgment denying his 28 U.S.C. § 2255 motion as untimely. The district court granted a certificate of appealability on the issue whether equitable tolling should extend the limitations period in this case.

2
Mr. McIntosh's conviction became final upon completion of direct review when the Supreme Court denied certiorari on May 14, 2001, and he had one year from that date to file his section 2255 motion. See 28 U.S.C. § 2255(1)-(4) (absent impediment created by governmental action, newly recognized right, or newly discovered facts, one-year period of limitation runs from date on which judgment of conviction becomes final); Sweet v. Delo, 125 F.3d 1144, 1155 (8th Cir.1997) (Supreme Court's denial of certiorari fixes point of finality of conviction), cert. denied, 523 U.S. 1010, 118 S.Ct. 1197, 140 L.Ed.2d 326 (1998); see also United States v. Marcello, 212 F.3d 1005, 1008 (7th Cir.) (conviction became final, thus triggering one-year limitations period for § 2255 motion, on date Supreme Court denied certiorari petition following direct appeal, and not on date denial of certiorari was filed and docketed with court of appeals), cert. denied, 531 U.S. 878, 121 S.Ct. 188, 148 L.Ed.2d 130 (2000); Adams v. United States, 173 F.3d 1339, 1342-43 (11th Cir.1999) (per curiam) (without deciding point at which conviction becomes final, holding that appellate court's receipt of denial of certiorari does not fix finality).

3
At the earliest, Mr. McIntosh filed his motion on May 29, 2002, see Moore v. United States, 173 F.3d 1131, 1135 (8th Cir.1999) (extending application of prison-mailbox rule to pro se § 2255 motions), believing it was not due until June 22, 2002, a year after the district court docketed the Supreme Court's denial of certiorari. Because we agree with the district court that equitable tolling based on Mr. McIntosh's mistake about the deadline is not warranted, we affirm. See Cross-Bey v. Gammon, 322 F.3d 1012, 1015-16 (8th Cir.2003) (unrepresented prisoner's lack of legal knowledge does not support equitable tolling); Jihad v. Hvass, 267 F.3d 803, 805-06 (8th Cir.2001) (equitable tolling affords otherwise time-barred petitioner exceedingly narrow window of relief; equitable tolling is proper only when extraordinary circumstances beyond prisoner's control make it impossible to file petition on time).

4
A true copy.

Notes:

1
 The Honorable Ronald E. Longstaff, United States District Judge for the Southern District of Iowa


859 P.2d 311 (1993)
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
James BOLTON, Defendant-Appellant.
No. 92CA0162.
Colorado Court of Appeals, Div. II.
July 1, 1993.
Rehearing Denied August 26, 1993.
*314 Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Paul Koehler, *315 Asst. Atty. Gen., Denver, for plaintiff-appellee.
John R. Olsen, Boulder, for defendant-appellant.
Opinion by Judge PIERCE.
Defendant, James P. Bolton, appeals from a judgment of conviction entered upon a jury verdict finding him guilty of three counts each of sexual assault on a child and second degree burglary, and one count of second degree kidnapping, stemming from separate incidents during 1990 involving three young girls. We affirm.

I.
On appeal, defendant first contends that the trial court erred in failing to follow the procedural safeguards required by § 13-25-129, C.R.S. (1987 Repl.Vol. 6A), when it permitted the prosecution to present hearsay statements of the victims. Specifically, he contends that the trial court erred by failing to hold a hearing to determine the reliability of the victim's statements and to give the jury cautionary instructions regarding the statements. He concludes that, because of the prejudicial nature of the hearsay statements, these errors mandate reversal. We disagree.
Section 13-25-129 creates an exception to the general exclusion of hearsay for the out-of-court statement of a child describing acts of sexual contact performed "with, by, on, or in the presence of the child declarant." Under the statute, if child hearsay is admitted under this statute, the prosecution must provide the defense with prior notice of its intent to introduce such statements and the trial court must make specific findings of fact concerning the reliability of the statements and provide the jury with cautionary instructions.
In People v. Bolton, 859 P.2d 303 (Colo.App.1993) (Bolton I), we held that:
Section 13-25-129 is controlling only to child hearsay which is not otherwise admissible by a statute or court rule which provides an exception to the objection of hearsay. Section 13-25-129(1), C.R.S. (1987 Repl. Vol. 6A). If the child's hearsay statement is specifically admissible under another statute or court rule which provides an exception to the hearsay rule, § 13-25-129 is not applicable. People v. Diefenderfer, 784 P.2d 741 (Colo.1989); § 13-25-129(1).
....
However, if a child's hearsay statement would be admissible only under § 13-25-129 or the residual hearsay exceptions of CRE 803(24) or CRE 804(b)(5), our supreme court has recognized that the more specific statute, § 13-25-129, is controlling, as the residual exceptions contain different requirements for the admission of hearsay. See People v. Bowers, 801 P.2d 511 (Colo. 1990).
Thus, § 13-25-129 is not controlling if the prosecution seeks to introduce child hearsay under another specific exception to the hearsay rule. See People v. Galloway, 726 P.2d 249 (Colo.App.1986) (in prosecution for sexual assault on a child, victim's statements to his mother were admissible hearsay under either CRE 803(2) or § 13-25-129); cf. People v. Jones, 843 P.2d 67 (Colo. App.1992) and People v. McClure, 779 P.2d 864 (Colo.1989) (procedural safeguards must be followed if prosecutors seek to admit child hearsay only under § 13-25-129 and not under any other statutory exception to the hearsay rule).
Here, prior to trial, prosecutors initially filed a motion in limine to admit hearsay statements of the victims under § 13-25-129 and CRE 803(24). However, before the trial court could rule on the motion, a prosecutor stated that "the People will withdraw any child hearsay statements, so that motion does not need to be addressed."
Subsequently, prosecutors indicated, without objection by defendant, that statements of the victims might be admitted under another exception to the hearsay rule.
*316 Therefore, because it is apparent from our reading of the record that the prosecution did not seek to admit the statements under § 13-25-129, the trial court was not required to follow the procedural requirements of that statute.
We reject defendant's contention that the prosecutor's statement above, standing alone, would, under the doctrine of judicial estoppel, bar the admission of any such statements. The applicability of judicial estoppel was not raised before the trial court. Therefore, we decline to address this issue for the first time on appeal. See People v. Chetelat, 833 P.2d 771 (Colo. App.1991).

II.
Defendant next argues that the trial court erred in admitting hearsay statements of the victims offered through the victims' parents and investigating officers. The People contend that the statements were properly admitted as "excited utterances" under CRE 803(2). We agree with the People.
An "excited utterance" is a "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Cheney v. Hailey, 686 P.2d 808 (Colo.App.1984); CRE 803(2).
Because the trial court is in the best position to consider the effect of the startling event on the declarant, it is afforded wide discretion in determining whether a statement is admissible under the "excited utterance" exception. People in Interest of O.E.P., 654 P.2d 312 (Colo.1982).
A sexual assault may constitute a sufficiently startling event to admit hearsay statements of a child-victim. See People v. Galloway, 726 P.2d 249 (Colo.App. 1986); People v. Sandoval, 709 P.2d 90 (Colo.App.1985). Therefore, in considering the admissibility of the victims' hearsay statements here, we focus our inquiry on whether the statement was a spontaneous reaction to the event or a result of reflective thought. See W.C.L. v. People, 685 P.2d 176 (Colo.1984).

A.
At trial, the grandmother of the first victim testified, over defendant's continuing objection, as to statements made by the victim on the afternoon of the alleged assault. According to the grandmother, the victim stated that a man had grabbed her as she was attempting to enter her home and pulled her into a neighboring apartment. The victim had stated that the man had sexually assaulted her in the basement of the apartment and that he might still be in the apartment. In addition, the victim described her assailant as either a "dark-skinned white man or a light skinned black man."
The record shows that the victim made these statements immediately after the grandmother arrived home from work, within, at most, a few hours of the assault. The grandmother also stated that the victim was "crying and incoherent" as she related what had happened.
In addition, an investigating officer testified at trial as to the victim's description of her assailant and the details of the assault. The officer testified that he had interviewed the victim only a few hours after the assault and that she was "hysterical" during the interview.
Under these circumstances, we conclude that the hearsay statements of the first victim were properly admissible as excited utterances. Each of the statements was made within a short time of the assault, and the testimony of the grandmother and the investigating officer indicate that the victim was still under the stress of the assault when she made the statements. Therefore, the trial court did not err in admitting the statements. See People v. Sandoval, supra.
Moreover, the hearsay statements were cumulative with the victim's in-court testimony during which she described her assailant and the details of the assault. Thus, even if we assume the victim's statements to her grandmother and the investigating *317 officer were inadmissible, the trial court's error, if any, would be harmless. See Williams v. People, 724 P.2d 1279 (Colo.1986).

B.
Defendant also objected to the testimony of the mother of the second victim at trial. She testified that early in the morning on the date of the alleged assault, her child told her that a man had entered her room during the night and sexually assaulted her. In addition, the mother testified that her child had stated that the man had taken her underwear and had threatened to come back and hurt her family if she told anyone what had happened.
An investigating police officer who interviewed the second victim on that same morning, essentially confirmed the mother's testimony.
However, there is no evidence in the record as to the victim's state of mind when the statements were made. Thus, we cannot determine whether the statements were properly admissible as "excited utterances." See W.C.L. v. People, supra.
Nevertheless, the hearsay statements admitted through the testimony of the mother and the investigating officer were cumulative with the second victim's own in-court testimony and the police report prepared by the investigating officer which was offered into evidence by the defense. Therefore, the admission of the victim's hearsay, if error, was harmless. See Williams v. People, supra.
In addition, although neither the mother nor the investigating officer testified on direct examination as to the second victim's description of her assailant, defense counsel interrogated both witnesses extensively on that issue during cross-examination. Thus, because defendant injected the second victim's identification of her assailant into the proceedings, he may not now assert error based upon the admission of those statements at trial. See People v. Valdez, 725 P.2d 29 (Colo.App.1986).

C.
The mother of the third victim also testified at trial, over defendant's objection, that, in the early morning hours of August 17, 1990, her daughter told her that a man had broken into the house that night, assaulted her, and taken her underwear. The mother further testified that her daughter was "standing there with her hands in her mouth crying" as she made these statements to her.
Again, a police officer who interviewed the victim that same morning reported essentially the same statements.
Under such circumstances, the trial court did not err in admitting the challenged statements into evidence. See People v. Sandoval, supra.
Moreover, because defendant offered into evidence the police report of the investigating officer which contained numerous hearsay statements of the third victim, defendant may not now assert error based upon the admission of those statements. See People v. Valdez, supra.

D.
Because each of the remaining hearsay statements admitted at trial was cumulative with evidence that was properly admitted, we conclude that the trial court's error in admitting them, if any, was harmless. See Williams v. People, supra.

III.
Next, defendant contends that the trial court violated his right to self-representation by issuing abusive rulings which were intended to coerce him into accepting counsel at a pre-trial hearing. Because these rulings allegedly denied him "every fair opportunity to defend" himself, he contends that he was forced to retract his previous request to proceed pro se. We perceive no error in the trial court's rulings and, therefore, reject defendant's contention.
A criminal defendant is constitutionally guaranteed the right to self-representation. Faretta v. California, 422 U.S. *318 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); People v. Romero, 694 P.2d 1256 (Colo. 1985); Colo. Const. art. II, § 16.
However, by electing to proceed pro se, a defendant is subject to the same rules, procedures, and substantive law as a licensed attorney. People v. Romero, supra. Moreover, a trial court is not obliged to tolerate disruption or intemperate conduct by a person proceeding pro se. People v. Mogul, 812 P.2d 705 (Colo. App.1991).
Here, at defendant's request, the trial court permitted defendant to proceed pro se after a lengthy advisement as to the nature of the proceedings and the risks of self-representation.
Immediately thereafter, defendant argued that the prosecution could not join the three sexual assaults in one prosecution and requested that he be permitted to call witnesses concerning his motion for severance of counts and the prosecution's motion to admit similar transactions evidence. However, because defendant's argument was not dependent upon factual dissimilarities between the counts, the trial court refused to permit defendant to call witnesses and denied his motion to sever as a matter of law.
Subsequently, defendant sought to address several issues which his defense counsel had not raised, including "several motions and also the renewal of the motions that were denied because of substantially new evidence." The trial court indicated that it had no motions before it and asked the defendant to describe the issues.
The court then temporarily halted the proceedings to address another pending matter, following which defendant repeatedly interrupted the court, insisting that his motions be addressed immediately, stating: "Well, I think, Your Honor, that this matter precedes the resolution of those other issues...." Defendant further stated that he had a motion to require the judge to recuse, but when he failed to produce any supporting affidavits, the trial court denied the motion.
Following this exchange, defendant became uncooperative during the trial court's advisement concerning his right to testify at trial, stating:
I don't understand how I can be denied justice by not being allowed to enter the motions that I have asked to introduce and how I can be denied every fair opportunity to defend myself and enter my motions that are beneficial to me and able to defend myself against some motions that the prosecution is attempting to bring into this trial, including mention of my past criminal record.
Defendant then indicated that he no longer desired to proceed pro se and was permitted representation by counsel.
Each of the trial court's rulings was properly grounded in fact and law, and there is no evidence that the trial court sought to interfere with the defendant's right to self-representation. Therefore, we find no grounds for reversal.

IV.
Defendant next contends that the trial court erred in failing to consider his motion to dismiss counsel or to inquire as to the reasons for his dissatisfaction with his court-appointed counsel. We disagree.
A criminal defendant is guaranteed the right to reasonably effective assistance of counsel. People v. Norman, 703 P.2d 1261 (Colo.1985); Colo. Const. art. II, § 16. However, the burden of establishing ineffectiveness of the assistance of counsel lies with the defendant, and a conviction will not be set aside unless defendant can show a denial of fundamental fairness. See People v. Benney, 757 P.2d 1078 (Colo. App.1987).
On appeal, defendant relies solely on the failure of the trial court to hold a hearing on his motion; he does not contend that he received ineffective representation at trial, nor has he asserted that he was denied fundamental fairness. Therefore, the trial court's error, if any, was harmless.

*319 V.
Next, defendant contends that the trial court erred in admitting evidence of a line-up identification of defendant. In their statements to police, each of the victims described her assailant as a person of mixed parentage, either as a light-skinned black man or a dark-skinned white man. He contends that, in the photographic and in-person line-ups, defendant was the only person of mixed parentage and the only light-skinned black man, causing him to "leap out of the line-up." Thus, he argues, the line-up was impermissibly suggestive and the trial court erred in failing to exclude it from evidence. We disagree.
An out-of-court identification is impermissibly suggestive if, based upon the totality of the circumstances, there is a substantial likelihood of misidentification. People v. Walford, 716 P.2d 137 (Colo.App. 1985). If the line-up procedures are such that a defendant "fairly leaps out" as one who is different from the others, the identification may be so tainted as to require exclusion. See United States v. Sanders, 479 F.2d 1193, 1197 (D.C.Cir.1973).
In considering defendant's motion to suppress the victims' out-of-court identifications, the trial court reviewed both a videotape of the in-person line-up and the photographic line-up. Although defendant was the only person in the line-up of mixed black and white parentage, the trial court concluded that the complexions of all the men involved fell within the range described by the victims. In addition, the officer who conducted the line-up later testified that, in conducting the line-up, he was unable to locate other men of mixed black and white parentage, so he used men meeting the general descriptions provided by the victims. Based on these facts, the trial court concluded that the line-up was not impermissibly suggestive and, therefore, refused to exclude it from evidence at trial.
The state cannot be required to provide exact replicas of the defendant for a line-up; a line-up is proper if the persons are reasonably matched by race, approximate age, and other physical characteristics. See People v. Borrego, 668 P.2d 21 (Colo.App.1983).
Here, the record supports the trial court's conclusion that each of the men fit within the general descriptions provided by the victims. Therefore, we conclude that the trial court did not err in admitting evidence of the line-up identification. See People v. Walford, supra.

VI.
Next, defendant contends that the trial court erred in permitting the jury to consider evidence of each count, and of a prior conviction for sexual assault on a child, as "similar transactions" evidence supporting each of the remaining counts. He concludes that because of the prejudicial nature of the evidence of each criminal episode, the trial court should have severed the counts against him. We disagree.

A.
Evidence of similar transactions may be admitted in a sexual assault prosecution under § 16-10-301(1), C.R.S. (1992 Cum.Supp.) and CRE 404(b), provided that it is offered for the limited purpose of establishing a common plan, scheme, design, identity, modus operandi, motive, guilty knowledge, or intent. People v. McKibben, 862 P.2d 991 (Colo.App.1993).
In determining whether to admit evidence of similar transactions in a sexual assault case, the trial court must consider the remoteness of the prior acts, the strength of the evidence of those acts, the similarities between the acts, the need for the evidence and efficacy of alternative proof, and the degree to which the evidence will rouse the jury to overmastering hostility. Adrian v. People, 770 P.2d 1243 (Colo. 1989).
It is not essential that each of the prior acts replicate in all respects the commission of the charged offense; rather, it is sufficient that the evidence of the other acts and the offense charged, considered in *320 its totality, manifests significant distinctive features making it more likely than not that defendant committed the charged offense. See People v. Garner, 806 P.2d 366 (Colo.1991).
The trial court enjoys substantial discretion in determining the admissibility of similar transactions evidence, and its rulings thereon will not be disturbed absent a clear abuse of that discretion. People v. Czemerynski, 786 P.2d 1100 (Colo. 1990).
Here, the prosecution offered evidence of each count in support of the remaining counts in order to establish the identity of the defendant through a common modus operandi.
In each of the charged offenses, and in the prior conviction, the victim of the assault was a girl in her early teens or preteen years. Each of the victims was assaulted at or near her home and, in each case, the perpetrator had unlawfully entered the home or building where the assault occurred. All of the victims lived in the same general neighborhood and, in the three charged offenses, defendant was reported to have told the victims that he had been watching them.
In each of the charged offenses and the prior conviction, the perpetrator fondled the victims' breasts and genitalia but did not engage in anal or vaginal intercourse. In the three charged offenses, defendant was reported to have forced the victim to fondle his genitals, and, in one of the charged offenses and his prior conviction, he allegedly forced the victims to engage in oral sex. Further, in two of the charged offenses and defendant's prior conviction, the perpetrator took the victim's underwear as a "souvenir."
In each of the charged offenses and in the prior conviction, the perpetrator conversed with the victims and stated that he would return to "marry" them. In addition, the perpetrator told each of the victims his name, although he did not always use the same name. Finally, each of the victims identified defendant as her assailant.
Based upon these facts, we conclude that each of the charged offenses and the prior conviction were sufficiently similar as to be probative on the issue of identity. In particular, the type of sexual contact involved, the common thread of burglary to accomplish the assault, and the statement that he would return to "marry" the victims make the offenses sufficiently distinctive as to make it more likely than not that defendant committed each of the facts. See People v. Garner, supra. Therefore, the trial court did not abuse its discretion permitting the jury to consider evidence of each count as "similar transactions" evidence in support of the remaining counts.

B.
If it appears that a defendant is prejudiced by a joinder of offenses in any indictment or information, the trial court may order separate trials. People v. Early, 692 P.2d 1116 (Colo.App.1984); Crim.P. 14.
The decision to sever a trial is committed to the sound discretion of the trial court, and its ruling will not be disturbed absent a manifest abuse of that discretion. People v. Early, supra.
Because the evidence from each of the counts was properly admissible with respect to the other counts as similar transactions, no unfair prejudice resulted to the defendant from a joint trial of the offenses. Therefore, the trial court did not abuse its discretion in denying defendant's motion to sever.

VII.
Defendant next contends that the trial court erred in refusing to permit him to enter a plea of not guilty by reason of insanity, or to present a defense of impaired mental condition. We disagree.
The defense of not guilty by reason of insanity must be raised by a specific plea at the time of arraignment. However, for good cause shown, the trial court may, in its discretion, permit the plea *321 to be entered at any time prior to trial. People v. Low, 732 P.2d 622 (Colo.1987); § 16-8-103(1), C.R.S. (1986 Repl.Vol. 8A).
The affirmative defense of impaired mental condition is separate and distinct from the defense of insanity; its sole effect is to negate the existence of an element of the crime charged. Hendershott v. People, 653 P.2d 385 (Colo.1982), cert. denied, 459 U.S. 1225, 103 S.Ct. 1232, 75 L.Ed.2d 466 (1983). However, if a defendant intends to raise the defense of impaired mental condition at trial, he must also specially plead the defense at arraignment. People v. Low, supra; § 16-8-103.5, C.R.S. (1986 Repl.Vol. 8A).
If a defendant fails specifically to plead not guilty by reason of insanity or impaired mental condition at arraignment, or is not permitted to do so by the court prior to trial, evidence of insanity or impaired mental condition is irrelevant and inadmissible at trial. See People v. Low, supra.
Here, defendant did not plead not guilty by reason of insanity or impaired mental condition at his arraignment. In fact, defendant did not raise the issue until several months later, at a joint competency hearing held in conjunction with another pending prosecution against him, i.e., Bolton I, supra. Moreover, defendant failed to meet his burden of establishing "good cause" for the plea of not guilty by reason of insanity or impaired mental condition.
After defendant indicated his intent to raise the defenses of insanity and impaired mental condition, the trial court advised defendant as to the pleas of not guilty by reason of insanity and impaired mental condition and appointed a psychiatrist to examine him.
Following the psychiatric examination, the court-appointed psychiatrist concluded that there was no evidence that defendant was insane at the time of the alleged offenses. However, at defendant's request, the trial court appointed a second psychiatrist to examine him.
At a subsequent hearing, the second psychiatrist stated that she was unable to conclude her evaluation because defendant had refused to discuss his mental state during the alleged criminal episodes. Thereafter, defense counsel in the other pending prosecution, Bolton I, indicated that the issues of competency and insanity would no longer be pursued. Defendant's counsel in the case at issue here concurred in the decision to waive the competency issue; however, it is unclear whether he also waived the issue of insanity. No further request for the insanity plea was raised by defendant.
Under these circumstances, the trial court did not abuse its discretion in refusing to permit him to present evidence of his mental condition at trial.

VIII.
Defendant also contends that the trial court erred in refusing to grant a continuance of the sentencing hearing in order to permit him to obtain further evidence of his mental state. Defendant contends that, as a result of this ruling, he was denied the opportunity to present mitigation evidence at the sentencing hearing. We are not persuaded.
A motion for a continuance is addressed to the sound discretion of the trial court, and its ruling thereon will not be disturbed absent a clear abuse of that discretion. People v. Hampton, 758 P.2d 1344 (Colo.1988). In determining whether the trial court abused its discretion, we must examine the totality of the circumstances. People in Interest of D.J.P., 785 P.2d 129 (Colo.1990).
Here, defense counsel moved to have defendant sentenced under the Sexual Offender's Act, § 16-13-201, et seq., C.R.S. (1986 Repl.Vol. 8A), and requested additional time in which to obtain evidence from the second court-appointed psychiatrist who had examined defendant. At a hearing on the motion, defense counsel, in essence, stated that defendant would now cooperate with the psychiatrist and that counsel considered defendant to be suffering from a severe mental impairment and *322 not to be competent to understand the proceedings.
The trial court, finding that the issues of competence and impaired mental condition had previously been resolved, denied the motion.
Defendant previously had been examined by a court-appointed psychiatrist who found no evidence of impaired mental condition. There is no indication that a different conclusion would have been reached if defendant had been reexamined. Therefore, considering the totality of the circumstances here, we find no abuse of discretion in the trial court's refusal to grant a continuance. See People in Interest of D.J.P., supra.

IX.
Finally, defendant contends that the trial court abused its discretion in sentencing him. He contends that the court made inadequate findings to support the aggravated sentence and that it ignored mitigating factors raised by the defense. Further, he contends that a proportionality review is required because of the duration of the sentence, which is, in effect, a life sentence without parole. We perceive no error.

A.
The determination of an appropriate sentence lies within the sound discretion of the trial court, and, because it is more familiar with the defendant and the facts of the case, it enjoys wide latitude in the exercise of that discretion. People v. Vecchio, 819 P.2d 533 (Colo.App.1991).
In sentencing a defendant, the trial court may consider the nature of the offense, the defendant's character, and the needs of society. People v. Huggins, 825 P.2d 1024 (Colo.App.1991). In addition, the trial court may consider prior criminal conduct of the defendant. People v. McGregor, 757 P.2d 1082 (Colo.App.1987). The trial court must then impose a definite sentence within the presumptive range unless it concludes that extraordinary mitigating or aggravating factors are present. People v. Clements, 732 P.2d 1245 (Colo.App. 1986).
If the court imposes a sentence in the aggravated range, it must make specific findings in the record as to the circumstances justifying deviation from the presumptive range. People v. Vela, 716 P.2d 150 (Colo.App.1985).
Here, defendant was sentenced to a total of 172 years imprisonment: 32 years each on the three counts of sexual assault on a child (the maximum permitted in the aggravated range); 40 years on the count of kidnapping (more than the maximum in the presumptive range, but eight years less than the maximum in the aggravated range); eight years on one count of burglary (the maximum in the presumptive range); 12 years on a second count of burglary (the midpoint in the aggravated range for that offense); and 14 years on the third count of burglary (two years less than the maximum in the aggravated range).
In sentencing defendant, the trial court made the following findings of fact: (1) that defendant had prior convictions for the same offense; (2) that the nature of defendant's crimes did not reveal a mental impairment, but rather a disregard for the "rights and the privacy and the emotional and physical well-being of other individuals"; (3) that the crimes involved "compelling circumstances," including the fact that defendant attacked young girls, threatened them, and apparently spent "a significant amount of time stalking his victims and then planning what he [was] to inflict upon them with some degree of premeditation"; and (4) that there was no "specific evidence upon which I could even hope that the defendant is subject to some rehabilitation."
These factual findings are supported by the record and provide ample grounds for the sentence imposed. Cf. People v. Piro, 671 P.2d 1341 (Colo.App.1983).

B.
In Alvarez v. People, 797 P.2d 37 (Colo. 1990), our supreme court held that a defendant who challenges the constitutionality of a life sentence imposed under the habitual *323 offender statute, § 16-13-101(2), C.R.S. (1986 Repl.Vol. 8A), is entitled to a proportionality review.
However, we are not aware of any Colorado authority which holds that a defendant given consecutive sentences that would exceed his anticipated life span is similarly entitled to a proportionality review.
In Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), the United States Supreme Court adopted the doctrine of proportionality review when a life sentence was imposed under the South Dakota habitual criminal statute. In reaching its decision, the Supreme Court noted that in imposing a life sentence under the habitual criminal statute, the trial court was permitted to consider only the fact of the prior convictions, and not the details and circumstances of the prior offenses. Thus, a proportionality review of the sentence imposed was appropriate.
Here, unlike Solem, defendant was convicted of several counts in a single prosecution. Each count was supported by independent evidence, and thus, the trial court was able to consider the circumstances of each offense in imposing its sentence. Moreover, the sentences imposed for each count are permitted, by statute, to run consecutively, resulting in a sentence of 172 years imprisonment. See § 18-1-408(2), C.R.S. (1986 Repl.Vol. 8B).
Because, unlike a sentence under the habitual offender statute, the trial court was permitted to consider the circumstances of each of defendant's convictions in imposing its sentence, we decline to extend the doctrine of proportionality review to the circumstances of this case.
We have considered defendant's remaining contentions on appeal and find them to be without merit.
The judgment of the trial court is affirmed.
REED and BRIGGS, JJ., concur.


                   IN THE SUPREME COURT OF PENNSYLVANIA

OFFICE OF DISCIPLINARY COUNSEL, :            No. 1632 Disciplinary Docket No. 3
                Petitioner      :
                                :            No. 130 DB 2010
           v.                   :
                                :            Attorney Registration No. 43657
ROBERT M. DANENBERG,            :
                Respondent      :            (Allegheny County)

                                      ORDER

PER CURIAM

      AND NOW, this 16th day of December, 2014, upon consideration of the Report and

Recommendations of the Disciplinary Board dated August 20, 2014; it is hereby

      ORDERED that Robert M. Danenberg is suspended from the Bar of this

Commonwealth for a period of five years retroactive to September 27, 2010, and he shall

comply with all the provisions of Rule 217, Pa.R.D.E.

      It is further ORDERED that respondent shall pay costs to the Disciplinary Board

pursuant to Rule 208(g), Pa.R.D.E.


     Case: 12-41416       Document: 00512315872           Page: 1    Date Filed: 07/22/2013

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                              FILED
                                                                             July 22, 2013
                                     No. 12-41416
                                   Summary Calendar                          Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE GUTIERREZ-LANDEROS,

                                                   Defendant-Appellant

                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:12-CR-70-1

Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Jose Gutierrez-Landeros pleaded guilty to one count of possession with
intent to distribute 100 kilograms or more of marijuana. After determining
that Gutierrez-Landeros was subject to the career offender enhancements of
the Sentencing Guidelines, the district court downwardly departed and
sentenced him to 168 months of imprisonment and five years of supervised
release. Gutierrez-Landeros appeals, arguing that his prior 1988 and 1995

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 12-41416    Document: 00512315872      Page: 2    Date Filed: 07/22/2013

                                 No. 12-41416

drug conspiracy convictions do not constitute controlled substance offenses for
purposes of the career offender provisions of U.S.S.G. §§ 4B1.1 and 4B1.2.
Specifically, he contends that because a conviction for conspiracy under federal
statutory conspiracy law does not require proof of an overt act, it does not meet
the generic definition of conspiracy and does not constitute a controlled
substance offense for purposes of §§ 4B1.1 and 4B1.2.
      As    Gutierrez-Landeros       concedes,     we      rejected    materially
indistinguishable arguments in United States v. Rodriguez-Escareno, 700 F.3d
751, 754 (5th Cir. 2012), cert. denied, 133 S. Ct. 2044 (2013).         Although
Rodriguez-Escareno involved the definition of a drug trafficking offense under
U.S.S.G. § 2L1.2, we discern no reason that its analysis should not apply to the
nearly identical definition of a controlled substance offense for purposes of §
4B1.1. See, e.g., United States v. Henao-Melo, 591 F.3d 798, 803 & n.7 (5th Cir.
2009) (comparing the two definitions and noting that, given their similarities,
this court cites decisions interpreting them interchangeably).
      In light of the foregoing, Gutierrez-Landeros’s unopposed motion for
summary affirmance is GRANTED. The judgment of the district court is
AFFIRMED.

                                       2


313 F.Supp. 667 (1970)
Norris S. GOFF and Thomas G. Swisher
v.
AAMCO AUTOMATIC TRANSMISSIONS, INC.
Civ. No. 21390.
United States District Court, D. Maryland.
June 8, 1970.
Hal Lackey and Garland E. Lowe, Silver Spring, Md., for plaintiffs.
H. Paul Rome and Carl Bassett, Baltimore, Md., for defendant.
THOMSEN, Chief Judge.
This action was filed in the Circuit Court for Montgomery County, Maryland, by two citizens of Maryland against defendant, a Pennsylvania corporation, with its principal place of business in Pennsylvania. Plaintiffs seek damages for the alleged failure and refusal by defendant to perform a contract between plaintiffs and defendant entered into in Pennsylvania in February 1968. The case was removed to this Court by defendant under 28 U.S.C.A. § 1332.
*668 On November 25, 1969, defendant filed a motion to dismiss for lack of proper venue or for change of venue. That motion was accompanied by an affidavit and a memorandum of law. Oral argument was heard and, pursuant to leave granted at the hearing, plaintiffs filed a reply memorandum accompanied by several affidavits.
On March 13, 1970, defendant filed a motion to quash the service of process, accompanied by an affidavit and a memorandum. Plaintiffs have moved to strike or deny that motion for failure to comply with Rule 12(g), which provides:
"(g) Consolidation of Defenses in Motion. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to him. If a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h) (2) hereof on any of the grounds there stated."

I
The exception to 12(g) provided in 12(h) does not apply, and 12(g) should be enforced. 2A Moore's Federal Practice, 2d Ed., ¶ 12.22 and ¶ 12.23; 1A Barron & Holtzoff, Federal Practice & Procedure, Rules Ed. (Wright), § 370, p. 519 et seq.
The motion to quash the service must be denied for failure to comply with Rule 12(g).[1]

II
The motion to dismiss for lack of proper venue under Rule 12, or for change of venue under § 1404(a), requires consideration of the contract and the several affidavits.
The contract, a franchise agreement on defendant's printed form, between plaintiff Goff as licensee and defendant as licensor, was entered into in Pennsylvania. An amendment to the agreement added Swisher as a licensee. By the contract, so amended, defendant granted plaintiffs a franchise for the operation of an AAMCO Automatic Transmission repair shop, to "be located within the following designated area: Wheaton, Maryland  within Washington, D. C. Standard Metropolitan Statistical Area as revised by Bureau of Budget dated Oct. 18, 1963." The contract further provided: "The exact location must be approved in writing by AAMCO. AAMCO specifically reserves the right to grant additional franchises in the same area. However, AAMCO agrees that the number of franchised shops shall be limited to a maximum of one shop for each 20,000 motor vehicle registrations in the standard metropolitan statistical area or county in which the shop franchised hereunder is located."
Plaintiffs deposited $7,500 with defendant, which has never been returned. AAMCO agreed to furnish plaintiffs with certain equipment at agreed prices, to make available to plaintiffs its customary training and indoctrination course, to make recommendations for a suitable location for licensee's shop, to assist in shop layout and to provide consulting services.
Plaintiffs aver that they entered into negotiations with the owners of a site within the designated area, and that the site was approved by defendant; but that after plaintiffs had reached a satisfactory agreement with the owners for a lease with option to purchase, and after plaintiff Goff had sold his business and plaintiff Swisher had resigned from *669 his employment, defendant rejected the location as being too near another licensee. Plaintiffs claim damages for the alleged breach of contract.
Defendant's motion is two-pronged:
(A) A motion to dismiss or to transfer the case to the Eastern District of Pennsylvania, based upon the following provision in the contract:
"22. Jurisdiction. This Agreement shall be deemed to have been made in the Commonwealth of Pennsylvania and shall be construed according to the laws of that State. LICENSEE consents to the jurisdiction of any court of general jurisdiction of any state or federal court in either Phila. County, Pennsylvania, Montgomery County, Pennsylvania or the county in which AAMCO has its principal place of business with respect to any proceedings arising out of this Agreement and further, agrees that the mailing to his last known address by registered mail of any process shall constitute lawful and valid process. LICENSEE further agrees that it will bring any legal proceedings arising out of this Agreement only in the courts mentioned above. AAMCO agrees to accept service lawfully issued by any such court."
(B) A motion for transfer under 28 U.S.C.A. § 1404(a) based upon the location of defendant's witnesses in the Eastern District of Pennsylvania and defendant's claim that a transfer to that district would be for the convenience of the parties and witnesses and in the interest of justice.

The Contract Provision
In a diversity case a federal court must follow the conflict of laws rules prevailing in the state in which it sits. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). The Maryland conflicts rule is that questions as to the construction and legality or validity of a contract are ordinarily governed by the law of the place where the contract was made. Scott v. First Nat. Bank of Baltimore, 224 Md. 462, 168 A.2d 349 (1962); Union Trust Co. of New Jersey v. Knabe, 122 Md. 584, 89 A. 1106 (1914); Mandru v. Ashby, 108 Md. 693, 71 A. 312 (1908).
The contract involved in this case was made in Pennsylvania and was to be performed partly in Maryland and partly in Pennsylvania. The Maryland Courts would apply the Pennsylvania law in construing paragraph 22, quoted above, and in determining its validity, unless the application of such law would be contrary to a fundamental policy of the State of Maryland. Restatement, Conflict of Laws, §§ 332, 347; Restatement Second, Conflict of Laws, Proposed Official Draft, Part II, §§ 186, 187.
The old law in Pennsylvania, as in many other jurisdictions, was that a provision attempting to limit the place where suit might be brought was illegal. See discussion by Judge Harvey in United States for Use of Ray Gains, Inc. v. Essential Construction Co., 261 F.Supp. 715, 719 (D.Md.1968). Maryland, however, enforced a somewhat similar provision in Stockley v. Thomas, 89 Md. 663, 668, 43 A. 766 (1899).
In Central Contracting Co. v. C. E. Youngdahl & Co., 418 Pa. 122, 209 A. 2d 810 (1965), the Supreme Court of Pennsylvania, after reviewing earlier cases, stated:
"* * * The modern and correct rule is that, while private parties may not by contract prevent a court from asserting its jurisdiction or change the rules of venue, nevertheless, a court in which venue is proper and which has jurisdiction should decline to proceed with the cause when the parties have freely agreed that litigation shall be conducted in another forum and where such agreement is not unreasonable at the time of litigation. See Restatement of Contracts § 558; L. Hand, J., concurring in Krenger v. Pennsylvania R. Co., 174 F.2d 556, 560-561, (2d Cir. 1949); Wm. H. Muller & Co., Inc. v. Swedish American *670 Line Ltd., 224 F.2d 806 (2d Cir. 1955); Cerro De Pasco Copper Corp. v. Knut Knutsen, O.A.S., per Frank, J., 187 F.2d 990 (2d Cir. 1951); Euzzino v. The London & Edinburgh Insurance Company Ltd., 228 F.Supp. 431 (N.D. Ill.1964); Takemura & Company v. The S.S. Tsuneshima Maru, 197 F. Supp. 909 (S.D.N.Y.1961). Such an agreement is unreasonable only where its enforcement would, under all circumstances existing at the time of litigation, seriously impair plaintiff's ability to pursue his cause of action. Mere inconvenience or additional expense is not the test of unreasonableness since it may be assumed that the plaintiff received under the contract consideration for these things. If the agreed upon forum is available to plaintiff and said forum can do substantial justice to the cause of action then plaintiff should be bound by his agreement. Moreover, the party seeking to obviate the agreement has the burden of proving its unreasonableness." 418 Pa. at 133-134, 209 A.2d at 816.
The Third Circuit applied those principles in Central Contracting Co. v. Maryland Casualty Co., 3 Cir., 367 F.2d 341, 344 et seq. (1966). They should be applied in this case.
The question, then, is whether the provision in paragraph 22 requiring that suit be brought in Pennsylvania is unreasonable under all the circumstances. In the Comment to § 187 of the Proposed Official Draft of the Restatement Second, Conflict of Laws, it is said:
"b. Impropriety or mistake. A choice of law provision, like other contractual provisions, will not be given effect if the consent of one of the parties to its inclusion in the contract was secured by misrepresentation, duress, undue influence, or mistake. A factor which the forum may consider is whether the choice of law provision is contained in an `adhesion' contract, namely one that is drafted unilaterally by the dominant party and then presented on a `take-it-or-leave-it' basis to the weaker party who has no real opportunity to bargain about its terms. Such contracts are usually prepared in printed form, and frequently at least some of their provisions are in extremely small print. Common examples are tickets of various kinds and insurance policies. Choice of law provisions contained in such contracts are usually respected. Nevertheless, the forum will scrutinize such contracts with care and will refuse to apply any choice of law provision they may contain if to do so would result in substantial injustice to the adherent."
This case is not so strong as the examples cited in the Comment, but the contract was on defendant's printed form, and defendant was the dominant party.
Moreover, defendant's alleged breach dealt with matters entirely within the State of Maryland; the property involved is in Maryland; the property owners with whom plaintiffs were dealing are in Maryland; and most, if not all of plaintiffs' witnesses are beyond the 100-mile subpoena reach of Federal Courts in Pennsylvania, and beyond the reach of process in Pennsylvania State courts. Defendant's Pennsylvania witnesses are its own employees. Plaintiffs would suffer more than inconvenience and additional expense in presenting their case in Pennsylvania; their ability to pursue their cause of action would probably be seriously impaired. Under all the circumstances, the enforcement of paragraph 22 would be unreasonable.

Transfer
A fortiori, the motion to transfer the case to the Eastern District of Pennsylvania should be denied.

*   *   *   *   *   *
Defendant's motion to quash is hereby denied.
Defendant's two-pronged motion to dismiss or to transfer is hereby denied.
NOTES
[1]  It is therefore unnecessary to decide whether defendant agreed to supply services in Maryland within the meaning of Maryland Code, Art. 75, § 96(a) (2). Defendant's affidavit denies that it did so agree and plaintiffs have not filed a counter affidavit in view of their motion to strike based on defendant's failure to comply with Rule 12(g). If plaintiffs' motion to strike had been denied, a hearing on the facts would have been necessary to decide the question.