366 S.W.3d 808 (2012)
TEXAS REAL ESTATE COMMISSION, Appellant,
v.
Joyce I. BAYLESS, Appellee.
No. 02-11-00005-CV.
Court of Appeals of Texas, Fort Worth.
April 19, 2012.
*809 Greg Abbott, Texas Attorney General, Daniel T. Hodge. First Assistant Attorney General, Bill Cobb, Deputy Attorney General for Civil Litigation, Barbara B. Deane, Chief, Environmental Protection and Administrative Law Division, Ted A. Ross, Assistant Attorney General, Environmental Protection and Administrative Law Division, Austin TX, for Appellant.
Martin S. Wozniak, Martin S. Wozniak, P.C., Bedford TX, for Appellee.
PANEL: WALKER, MEIER, and GABRIEL, JJ.

OPINION
BILL MEIER, Justice.

I. INTRODUCTION
Appellant Texas Real Estate Commission (TREC) appeals an order directing it to pay $50,000 from the Real Estate Recovery Trust Account (the "trust account") to Appellee Joyce I. Bayless. The primary issue that we address in this appeal is whether the two-year limitations period in occupations code section 1101.605(a) applies to an action against a real estate license holder upon which an uncollectible judgment is based or to a verified claim for payment from the trust account of the unpaid amount of the uncollectible judgment. See Tex. Occ.Code Ann. § 1101.605(a) (West 2004). We hold that section 1101.605(a) applies to an action against a real estate license holder upon which an uncollectible judgment is based. Therefore, we will reverse and render.

II. BACKGROUND
Bayless filed her original petition against Jack Erwin Bunton in May 2008. In an amended pleading, she alleged that *810 in May 2006, TREC determined that Bunton was guilty of engaging in "misrepresentation or dishonest or fraudulent action when selling real property in his own name in violation of ... § 1101.652(a)(3) of the Texas Occupations Code." TREC revoked Bunton's real estate broker license and made supporting fact findings, including the following: on or about August 29, 2002, Bunton executed a contract for the sale of real property to Bayless; Bunton made false representations to Bayless that there were no liens against the property; Bayless made a $30,000 down payment on the seller-financed purchase of the property, took possession of the property, and made monthly payments to Bunton; Bayless began receiving notices of foreclosure of the property from a financial institution that held an undisclosed mortgage on the property; Bunton did not make any payments on the undisclosed mortgage and retained all of the funds that Bayless paid to him; Bayless agreed to pay the financial institution an additional $30,000, but the property was foreclosed on in February 2004; and Bunton's misrepresentations, dishonesty, and fraud caused Bayless to lose $37,524.66. Bayless alleged claims against Bunton for common law and statutory fraud and for violations of occupations code section 1101.652(a)(3) and the DTPA, and she sought damages of $37,524.66 and attorney's fees.
Bayless moved for summary judgment on her claims against Bunton and on Bunton's counterclaims against her. The trial court granted Bayless's motions for summary judgment and in April 2010, awarded her damages in the amount of $37,534.66; exemplary damages in the amount of $5,000; attorney's fees in the amount of $10,000; and prejudgment and postjudgment interest.
Approximately five months later, in September 2010, Bayless filed a claim and application for an order directing a payment from the trust account. She alleged that she had given notice of the claim to TREC, that she had obtained a final judgment against Bunton based on his commission of acts constituting a violation of occupations code section 1101.652(a)(3), that a writ of execution was issued but returned nulla bona, and that she had caused to be issued an abstract of judgment and perfected a judgment lien. Bayless prayed that the trial court enter an order directing TREC to pay to her "an amount found to be payable on the claim" from the trust account.
TREC objected to Bayless's application for an order directing a payment out of the trust account, arguing that the claim is time-barred under occupations code section 1101.605(a), which, according to TREC, required Bayless to bring her underlying suit against Bunton no later than two years from February 2004, the date of the subject property's foreclosure. TREC argued that Bayless could not recover from the trust account because the limitations period had expired when she sued Bunton more than two years after February 2004. After a hearing, the trial court denied TREC's challenge and ordered it to pay Bayless $50,000 from the trust account. TREC appeals.

III. SECTION 1101.605(A)
In its only issue, TREC argues that the two-year limitations period in section 1101.605(a) applies to an action against a real estate license holder upon which an uncollectible judgment is based. Therefore, TREC contends that the trial court erred by ordering TREC to pay Bayless $50,000 from the trust account because the limitations period expired several years before Bayless brought suit against Bunton in May 2008. In addition to several other arguments, Bayless replies that section *811 1101.605(a) instead applies to a claim against the trust account for payment of the unpaid amount of an uncollectible judgment and that the limitations period accrues once (1) a final judgment in the underlying suit is entered, (2) a writ of execution is returned nulla bona, and (3) a judgment lien is perfected, as section 1101.606(a) contemplates. Because she sought payment from the trust account within two years of meeting section 1101.606(a)'s claim-filing prerequisites, Bayless contends that the trial court did not err by ordering a payment from the trust account. TREC confirmed at the hearing on Bayless's application that its sole challenge to her claim was its limitations argument.

A. Standard of Review and Statutory Construction
Statutory construction is a question of law that we review de novo. Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002). In construing a statute, our primary objective is to determine and give effect to the legislature's intent, which we do by looking to the plain and common meaning of the statute's words, unless such a construction leads to an absurd result. Harris Cnty. Hosp. Dist. v. Tomball Reg'l Hosp., 283 S.W.3d 838, 842 (Tex. 2009); City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex.2008). Disputed provisions of a statute are to be considered in context, not in isolation. Harris Cnty. Hosp. Dist., 283 S.W.3d at 842. Further, if a statute is unambiguous, rules of construction or other extrinsic aids cannot be used to create ambiguity:
There are sound reasons we begin with the plain language of a statute before resorting to rules of construction. For one, it is a fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent. Also, ordinary citizens should be able to rely on the plain language of a statute to mean what it says. Moreover, when we stray from the plain language of a statute, we risk encroaching on the Legislature's function to decide what the law should be.
Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex.1999) (citations omitted); see Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 652 n. 4 (Tex.2006) (stating that "[i]f the text is unambiguous, we must take the Legislature at its word and not rummage around in legislative minutiae").

B. The Trust Account
The Real Estate License Act (the RELA) is found in chapter 1101 of the occupations code. See Tex. Occ.Code Ann. §§ 1101.001-.806 (West 2004 & Supp. 2010). Its overall purpose is "to eliminate or reduce fraud that might be occasioned on the public by unlicensed, unscrupulous, or unqualified persons," and it contains seventeen subchapters addressing matters ranging from the meaning of "broker" to the liabilities of a broker. Henry S. Miller Co. v. Treo Enters., 585 S.W.2d 674, 675-76 (Tex.1979); see Tex. Occ.Code Ann. §§ 1101.001, .801-.806.
TREC is charged with the administration and enforcement of the RELA. See Tex. Real Estate Comm'n v. Nagle, 767 S.W.2d 691, 693 (Tex.1989); see also Tex. Occ.Code Ann. § 1101.151. Among other responsibilities, TREC must "maintain a real estate recovery trust account." Tex. Occ.Code Ann. § 1101.601(a). The purpose for the trust account, which is funded in part by license and certificate of registration fees, "is to reimburse persons who have been damaged by certain acts of a real estate broker or salesman, but who cannot collect their damages from the broker." Nagle, 767 S.W.2d at 693; Tex. Occ.Code Ann. § 1101.603(a)-(c).
*812 Under subchapter M of the RELA, "an aggrieved person who obtains a court judgment against a license or certificate holder for an act described by Section 1101.602[[1]] may, after final judgment is entered, execution returned nulla bona, and a judgment lien perfected, file a verified claim in the court that entered the judgment." Tex. Occ.Code Ann. § 1101.606(a). After twenty days' notice of the "claim" to TREC and the judgment debtor, the aggrieved person "may apply to the court that entered the judgment for an order for payment from the trust account." Id. § 1101.606(b). A hearing is conducted on the application, and TREC may "appear at the hearing, defend the action, or take any other action the commission considers appropriate," but it may do so only to "ensure compliance with the requirements for recovery under this subchapter" or to "protect the trust account from spurious or unjust claims." Id. § 1101.608(a), (b). The trial court "shall order" TREC "to pay from the trust account the amount the court finds payable on the claim" if the court is satisfied about the matters detailed in section 1101.609(1) and (2). Id. § 1101.609.

C. Section 1101.605(a) Applies to an Underlying Action Upon Which an Uncollectible Judgment is Based
Section 1101.605(a), titled in part, "Deadline for Action," provides that "[a]n action for a judgment that may result in an order for payment from the trust account may not be brought after the second anniversary of the date the cause of action accrues." Id. § 1101.605(a). When we consider the words that the legislature chose there in light of the language used in other statutes contained in subchapter M of the RELA, as we must, we observe (1) that the legislature consistently used the term "judgment" to refer to the final judgment that an aggrieved person must obtain against a license or certificate holder before filing a claim against the trust account, (2) that the legislature used the term "claim" to refer to a verified claim that an aggrieved person must file after a final judgment is entered in order to recover from the trust account, and (3) that the legislature used the term "order" to refer to the order for payment from the trust account that an aggrieved person must apply for after giving notice to TREC and the judgment debtor of the claim against the trust account. See id. §§ 1101.606, .607, .609, .610, .611; see also TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 441 (Tex.2011) ("It is a fundamental principle of statutory construction and indeed of language itself that words' meanings cannot be determined in isolation but must be drawn from the context in which they are used."). The legislature did not substitute the term "claim" for the term "judgment" in any part of subchapter M, nor did the legislature use the term "judgment" in any context other than to refer to the final judgment that an aggrieved person must obtain against a license or certificate holder before filing a claim against the trust account. The legislature also did not use the term "order" in any context other than to refer to the order for payment from the trust account that an aggrieved person must apply for after giving notice to TREC and the judgment debtor of the claim against the trust account. Therefore, we must construe the term "judgment" as it is used in section *813 1101.605(a) to refer to a final judgment that an aggrieved person must obtain against a license or certificate holder before filing a claim against and application to recover from the trust account.
Another operative term in section 1101.605(a) is "action." Section 1101.608(c) also uses the term "action," and it provides that "[t]he commission may relitigate in the hearing any material and relevant issue that was determined in the action that resulted in the judgment in favor of the aggrieved person." Tex. Occ. Code Ann. § 1101.608(c) (emphasis added). The legislature thus used the term "action" in section 1101.608(c) to refer to the underlying cause of action against the license or certificate holder that resulted in the final judgment in favor of the aggrieved person. The legislature used the term "action" twice in section 1101.605(a), once even in conjunction with the term "judgment." Id. § 1101.605(a). We therefore construe the term "action" in section 1101.605(a) to refer to the underlying cause of action against the license or certificate holder that resulted in the final judgment in favor of the aggrieved person.
Section 1101.605(a) goes on to describe the term "judgment" as one "that may result in an order for payment from the trust account." Id. Sections 1101.606 and 1101.607 reveal exactly what the legislature intended by including such a description. Under those statutes, a judgment "that may result in an order for payment from the trust account" is one in which a person (1) obtains a final judgment against a license or certificate holder for an act described by section 1101.602; (2) files a claim against the trust account after the execution is returned nulla bona and a judgment lien is perfected; (3) applies for an order for payment from the trust account after notice to TREC and the judgment debtor; and (4) attempts to show at the hearing on the application the matters described by section 1101.607 to the satisfaction of the trial court. See id. §§ 1101.606(a), .607, .609. There is no reason to speculate about the legislature's intent when it described the term "judgment" in section 1101.605(a) as one "that may result in an order for payment from the trust account."
In addition to the actual words chosen by the legislature, interpreting section 1101.605(a) one way over the other affects the meaning of several other statutes contained in subchapter M of the RELA. For example, section 1101.605(b) describes a license or certificate holder as a person "against whom the action is brought," but section 1101.606(b) alters that description to refer to a license or certificate holder as a "judgment debtor." Construing section 1101.605(a) to apply to an action against a real estate license or certificate holder upon which an uncollectible judgment is based, as TREC contends, comports with the legislature's decision to refer to the license or certificate holder as a person "against whom the action is brought" in section 1101.605(b) because, at that point in time  when "an aggrieved person brings an action for a judgment that may result in an order for payment from the trust account" against the license or certificate holder  he is merely a person who has been sued; there is no judgment entered against him yet. But after a final judgment has been obtained, execution has been returned nulla bona, a judgment lien has been perfected, and an application to recover from the trust account has been filed, the license or certificate holder is no longer just someone "against whom the action is brought"; he is instead now a "judgment debtor." The legislature's decision to implement chronologically varying descriptions of the license or certificate holder is rendered meaningless if we construe section 1101.605(a) as applying to a *814 claim against the trust account for payment of the unpaid amount of an uncollectible judgment, as Bayless argues.
Another result of interpreting section 1101.605(a) one way over the other concerns how notice is given. Both subsections (a) and (b) of section 1101.605 contain the identical language "an action for a judgment that may result in an order for payment from the trust account." Id. § 1101.605(a), (b). Therefore, whether we adopt TREC's proposed construction or Bayless's proposed construction of section 1101.605(a), that same construction should be given to the identical language found in subsection (b). See Lewis v. Funderburk, 253 S.W.3d 204, 207-08 (Tex.2008) (holding that legislature's use of terms "has not been served" applies equally to cases in which a report has been served but is inadequate). Construing section 1101.605(a) to apply to an action against a real estate license or certificate holder upon which an uncollectible judgment is based, as TREC contends, means that, under subsection (b), the license or certificate holder against whom an action is brought must notify TREC of the action when it is brought  at the outset of the underlying action. Id. § 1101.605(b). Then, under section 1101.606(b), after obtaining a final judgment, when the aggrieved person files a verified claim against the trust account, he  not the license or certificate holder  must give notice of the claim to both TREC and the judgment debtor. Id. § 1101.606(b). Under Bayless's proposed construction of section 1101.605(a), however, there is no provision for notice to TREC at the outset of the underlying action, and both the license or certificate holder and the aggrieved person must give notice to TREC when a verified claim is filed against the trust account. Unlike Bayless's construction, TREC's construction of section 1101.605(a) accounts for notice to TREC at all stages of the litigation contemplated by subchapter M and does not result in redundant notices of the same claim against the trust account being given to TREC by both the license or certificate holder and the aggrieved person.
In Williams v. Khalaf, the supreme court cited the predecessor statute of section 1101.605(a) in a footnote and stated in a parenthetical, "limitations period of two years for collection from real estate recovery fund." 802 S.W.2d 651, 654 n. 3 (Tex. 1990). The supreme court, however, did not perform a statutory construction of the statute, and we decline to consider its statement in the footnote as binding precedent that the legislature intended section 1101.605(a) to apply to a claim against the trust account for payment of the unpaid amount of an uncollectible judgment, to the extent it can be construed as such.
Bayless argues that TREC is prohibited from raising a limitations challenge on appeal because it merely raised a jurisdictional challenge to Bayless's claim against the trust account. TREC filed a pleading challenging Bayless's right to recover from the trust account on the ground of limitations. It is the same argument that TREC now raises on appeal. That TREC captioned the pleading a "plea to the jurisdiction" does not affect the nature of the complaint raised therein. See State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) ("We look to the substance of a plea for relief to determine the nature of the pleading, not merely at the form of title given to it.").
Bayless further argues that TREC's issue should be overruled because it "failed to offer any evidence by way of oral testimony, discovery, affidavits, exhibits or stipulations in support of the affirmative defense of limitations" at the trial court. TREC filed a pleading with supporting *815 exhibits challenging Bayless's claim against the trust account, and the trial court held a hearing on the matter, considered TREC's arguments, and ruled in favor of Bayless. TREC thus defended the trust account against Bayless's claim, as section 1101.608(a) contemplates. See Tex. Occ.Code Ann. § 1101.608(a).
Relying on occupations code section 1101.608(c), Bayless also argues that TREC's limitations challenge must fail because "TREC has no statutory right to re-litigate an issue that was not decided in the underlying action." As noted, section 1101.608(c) provides that "[t]he commission may relitigate in the hearing any material and relevant issue that was determined in the action that resulted in the judgment in favor of the aggrieved person." Tex. Occ.Code Ann. § 1101.608(c) (emphasis added). Bayless seems to contend that because the limitations argument that TREC now raises on appeal was not determined during the underlying action against Bunton, then TREC was prohibited from raising the limitations argument in its challenge to Bayless's claim against the trust account. But section 1101.608(c) merely permits TREC to relitigate a material and relevant issue that was determined in the action against the license or certificate holder. It does not prohibit TREC from raising matters in response to Bayless's claim against the trust account if those matters were not determined in the underlying action against the license or certificate holder. Indeed, in Nagel, the supreme court recognized that "seldom will direct intervention [by TREC] be possible. [TREC] ordinarily will be relegated to a post-judgment hearing." 767 S.W.2d at 694-95. Prohibiting TREC from raising an issue in the hearing on Bayless's application for payment that was not determined in the action against the license or certificate holder would deprive TREC of the opportunity to comply with its statutory obligation under section 1101.608(b).
Bayless contends that TREC's construction of section 1101.605(a) would lead to absurd results, "thwart the legislative purpose," and "create financial uncertainty and chaos" for the trust account. We do not see that happening. Construing section 1101.605(a) to apply to an action against a real estate license or certificate holder upon which an uncollectible judgment is based provides uniformity for all claims against a license or certificate holder that may result in an order for payment from the trust account because it requires that those claims be brought within two years of the date the actions accrue. To the extent Bayless relies on the considerations detailed in government code section 311.023 to support her construction of section 1101.605(a), "[w]hen a statute's language is clear and unambiguous, it is inappropriate to resort to rules of construction or extrinsic aids to construe the language." See City of Rockwall, 246 S.W.3d at 626; see also Molinet v. Kimbrell, 356 S.W.3d 407, 414 (Tex.2011).
Accordingly, construed in context, the plain and common meaning of the terms used in section 1101.605(a) suggest that the legislature intended for the statute to apply to an "action" against a real estate license or certificate holder upon which an uncollectible "judgment" is based. If the legislature had instead intended for section 1101.605(a) to apply to a claim against the trust account for payment of the unpaid amount of an uncollectible judgment and for the limitations period to accrue once a final judgment in the underlying action is entered, a writ of execution is returned nulla bona, and a judgment lien is perfected, then it could have simply stated as much, but it did not, and we must presume that the legislature chose the words that it used for a purpose, and we must not engage *816 in a forced or strained construction of the statute. St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997); Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981) (reasoning that every word of a statute must be presumed to have been used for a purpose, and every word excluded from a statute must be presumed to have been excluded for a purpose). Because the limitations period to bring "[a]n action for a judgment that may result in an order for payment from the trust account" expired, at the latest, several years before Bayless brought suit against Bunton in May 2008, she failed to comply with section 1101.605(a)'s two-year limitations requirement, and she therefore may not recover from the trust account. We sustain TREC's only issue.

IV. CONCLUSION
We reverse the trial court's order directing TREC to pay Bayless $50,000 out of the trust account and render judgment that Bayless take nothing on her claim against the trust account.
NOTES
[1]  "An aggrieved person is entitled to reimbursement from the trust account if a person described by Section 1101.601 engages in conduct described by Section 1101.652(a)(3)...." Tex. Occ.Code Ann. § 1101.602. Section 1101.652(a)(3) refers to "misrepresentation, dishonesty, or fraud when selling ... real property" in the license holder's own name. Id. § 1101.652(a)(3).


209 N.W.2d 345 (1973)
190 Neb. 466
STATE of Nebraska, Appellee,
v.
Lewis MYERS, Appellant.
STATE of Nebraska, Appellee,
v.
Jim BRODRICK, Appellant.
Nos. 38797, 38796.
Supreme Court of Nebraska.
July 6, 1973.
*346 Fisher & Fisher, Charles A. Fisher, Chadron, for appellants.
Clarence A. H. Meyer, Atty. Gen., Bernard L. Plackett, C. C. Sheldon, Asst. Attys. Gen., Lincoln, for appellee.
Heard before WHITE, C. J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.
McCOWN, Justice.
The defendants in these two cases, Lewis Myers, and Jim Brodrick, after separate jury trials, were found guilty of unlawful delivery and distribution of a controlled substance, and sentenced to terms of imprisonment. Each defendant appealed and the cases have been consolidated on appeal in this court. Both appeals involve the procedure of impaneling multiple juries at one time from a single jury panel for the subsequent trial of criminal cases which may be interrelated.
On May 30, 1972, the District Court for Dawes County, four juries were impaneled *347 for the trial of four criminal cases involving the possession and sale of controlled substances. The four juries were all passed for cause, impaneled, and sworn on May 30. The multiple impaneling was an innovation in procedure motivated by the court's desire to economize on jury expenses. There was no objection to the procedure at the time of the original impaneling on May 30. Following impaneling, the cases were set for trial in sequence.
The first of the four cases tried was against Dale (Spike) Myers, a brother of the Lewis Myers involved here. The second case tried was a joint trial involving Kathy Shimp and Dan Clark. The cases involving the two defendants here were the third and fourth cases tried. The trial of defendant Lewis Myers began on June 2, 1972, and the trial of defendant Jim Brodrick began on June 5, 1972.
In each of the two cases now before the court, the defendant moved the court for a reexamination of the jurors previously examined and impaneled and requested further voir dire. The motion also included a request for a continuance. The basis for the motions was that some jurors had served on previous juries in the series, had heard the evidence in those trials, and all previous defendants had been found guilty of the drug offenses charged. The record establishes that the jury for the trial of defendant Lewis Myers included eight jurors who had served on the jury for the first trial in the series. The jury for the trial of the defendant Brodrick included one juror from the first trial, seven jurors from the second trial, and one juror from the third trial in the series.
The same undercover agent for the Nebraska State Patrol was the principal witness for the State in all four trials. Max B. Ibach was also a witness for the State in both the third and fourth trials. Violet Woodrum and Steve Crow were also defense witnesses common to both the third and fourth trials. Dale (Spike) Myers, the defendant in the case tried first, was a witness for himself at the first trial as well as a witness for the defendants in both of the trials here. As an example of the possible interrelationship of the various cases, the undercover agent for the State who was the principal witness in all four cases, in the fourth case testified to a conversation involving himself, the defendant in the fourth case, and the defendant in the first case. The conversation dealt with the sale and payment for controlled substances.
Before either of the two trials involved here commenced, the court, out of the presence of the jury, held a hearing on the motion to reexamine the jurors. At that hearing the jury lists of the preceding trials in the series were presented and it was stipulated that the principal undercover agent was a witness in all previous cases and would be a witness in the case about to be tried. No evidence was presented to support the allegations of the motions that the principal undercover agent had appeared before service clubs where the testimony had been generally discussed. It was also stipulated that there had been guilty verdicts from the juries in all the previous cases in the series. The court then overruled the motions for reexamination and additional voir dire, and a continuance, called the jury, and the trials proceeded.
Article I, section 11, of the Constitution of Nebraska, provides in part: "In all criminal prosecutions, the accused shall have the right to * * * a speedy public trial by an impartial jury * * *." Challenges for cause against prospective jurors are unlimited in number while peremptory challenges are limited in number by statute. See, §§ 29-2005, 29-2006, R.R. S.1943.
Section 29-2006, R.R.S.1943, provides, among other things, that it shall be good cause for challenge to any person called as a juror "that he has formed or expressed an opinion as to the guilt or innocence of the accused." Other portions *348 of that statute indicate clearly that if any such opinion of a juror was founded upon "conversations with witnesses of the transactions or reading reports of their testimony or hearing them testify" the dismissal of such a juror is mandatory. It has been so interpreted. See Flege v. State, 93 Neb. 610, 142 N.W. 276. In that case a prospective juror who had read reports of a witness' testimony was held to be disqualified without reference to what he might say as to his ability to render an impartial verdict.
Section 29-2003, R.R.S.1943, specifically provides that a juror having heard the evidence as to one defendant tried separately under a joint indictment, where the same evidence is later required, is incompetent to sit in further causes in the same indictment or information. It must be noted here that section 29-2007, R.R.S.1943, requires that all challenges for cause "shall be made before the jury is sworn, and not afterward."
In the normal course of events trial to the jury follows immediately upon the impaneling and swearing of the jury. For that reason this court has consistently held that: "A party who fails to challenge the jurors for disqualification and passes the jurors for cause waives any objection to their selection." See, Thorpe v. Zwonechek, 177 Neb. 504, 129 N.W.2d 483; Regier v. Nebraska P. P. Dist., 189 Neb. 56, 199 N.W.2d 742. Those holdings are not applicable to the factual situation under the experimental procedure used here. A challenge for cause at the time the juries were impaneled and sworn based upon the mere possibility that a juror sitting on an early case might form an opinion about the guilt or innocence of a defendant to be tried later would have been purely speculative and unauthorized by statute. The failure to object at that time should certainly not be treated as a voluntary waiver of the constitutional right to be tried by an impartial jury.
In State v. Eggers, 175 Neb. 79, 120 N.W.2d 541, we held that by passing the jurors for cause the defendant waived any objection to their selection as jurors and that the defendant is not permitted to change his mind after an unfavorable verdict. In that same case it should be noted this court specifically approved the following language from Seaton v. State, 106 Neb. 833, 184 N.W. 890: "It is the duty of a trial court to see that defendants in criminal cases are tried by a jury such that not even the suspicion of bias (leaning) or prejudice (prejudgment) can attach to any member thereof. Unless the jury be absolutely impartial, the jury system becomes an awkward instrument of justice and the constitutional guaranty that every person charged with an offense against the laws of this state * * * shall have a public and speedy trial by an impartial jury * * * is worthless."
The first sentence of the above quotation was also quoted in one of the dissents in Bufford v. State, 148 Neb. 38, 26 N.W.2d 383, followed by the statement: "It was the duty of the trial court under the clear circumstances of this case and under this authority to see to it that this defendant had a trial to a fair and impartial jury, and no amount of discussion of waiver or failure to further object by counsel for defendant can wipe out the failure of the trial court to accord to the defendant his constitutionally guaranteed right to a trial by a fair and impartial jury."
Ordinarily, juries in criminal cases are impaneled and sworn one case at a time and do not hear other cases in any recessed time interval. Because the procedure involved here was experimental, this court has never passed on the specific issues involved. Analogous comparison may be made to situations in which juror disqualification arises after the jury has been impaneled, passed for cause, and sworn. In Fetty v. State, 119 Neb. 619, 230 N.W. 440, for example, the jury had been impaneled and sworn, opening statements of counsel had been made, some witnesses had testified, and the court adjourned for the day. Before trial resumed the next day, *349 one juror was arrested for drunkenness and was in jail at the time for resumption of the trial. The trial court held a hearing and discharged the juror. This court held that under such circumstances it is the duty of the trial court to determine whether the juror's condition was such as to require his disqualification and if it was, the discharge of the entire jury was required. This court also clearly indicated that the trial court should not only hear the evidence as to disqualification but also examine the allegedly disqualified juror. The court in Fetty held that the disqualification of a juror after the jury had been impaneled and sworn required the discharge of the jury and the reexamination of the eleven remaining jurors for cause.
In the cases now before us, the trial court's failure to examine the jurors himself at the time of the motion for reexamination made it impossible to determine whether or not the witnesses and evidence the jurors had heard in the other trials had caused any of them to form or express an opinion as to the guilt or innocence of the defendants in the cases about to be tried. If even one juror could no longer be impartial, the Constitution and the statutes demanded the discharge of the jury and the impaneling of a new jury. At that point no evidence had been heard and a reimpaneling would have been relatively uncomplicated. The statute requiring that all challenges for cause shall be made before the jury was sworn was obviously designed for the normal procedure in which trial regularly proceeds after the jury is sworn and without time intervals of several days during which the jury is hearing other criminal cases which may be interrelated.
The impaneling of multiple juries from a single jury panel for the subsequent trial of a series of criminal cases creates difficult substantive and procedural problems whenever individual jurors are selected on more than one jury and the cases to be tried may be interrelated. The possible saving of some jury expense cannot outweight the constitutionally mandated requirements of a fair trial by an impartial jury. Where a jury has been impaneled and sworn as one of several juries selected from a single jury panel for the subsequent trial of a series of criminal cases, if the court is informed before the presentation of evidence begins of matters which might reasonably constitute grounds for a challenge for cause of one or more jurors, which grounds arose out of matters occurring after the jury was sworn, it is the duty of the court to hear evidence and examine the jurors and determine whether any juror might be subject to disqualification for cause. A failure to inquire under such circumstances constitutes such fundamental unfairness as to jeopardize the constitutional guaranty of the right to trial by an impartial jury. Any lowering of those constitutional standards strikes at the very heart of the jury system.
In view of the disposition made, the remaining assignments of error have not been considered.
The convictions and sentences in each case are vacated and the causes remanded for further proceedings.
Reversed and remanded for further proceedings.
NEWTON, Justice (concurring).
I concur in the result reached in this case and in the opinion generally. Where multiple defendants have been apprehended and are tried for the same criminal offense, jurors who have sat upon and determined one case are disqualified to sit upon a second or third case necessarily tried upon the same facts. This does not, however, disqualify other members of the jury panel.


804 S.W.2d 602 (1991)
COMMUNITY MUTUAL INSURANCE COMPANY, Appellant,
v.
William R. OWEN, Appellee.
No. 01-90-00542-CV.
Court of Appeals of Texas, Houston (1st Dist.).
January 31, 1991.
Rehearing Denied February 28, 1991.
*603 Dwayne Newton, Houston, for appellant.
David S. Ross, Warren W. Harris, Houston, for appellee.
Before EVANS, C.J., and O'CONNOR and HUGHES, JJ.

OPINION
O'CONNOR, Justice.
The resolution of this case depends on the legal effect of mistake of fact and mistake of law. We reverse the summary judgment granted to William Owen and remand the cause for further proceedings.
William Owen's wife was hospitalized at Memorial City General Hospital for three months in 1986, where she died on October 24, 1986. During the hospitalization, Mrs. Owen incurred charges of $49,820.30. On September 4, 1987, plaintiff, Community Mutual Insurance Company, Owen's insurer, issued a check to Owen in the amount of $49,820.30. Later the same month, the insurance company issued another check to the hospital for the same amount for the same charges.
After making unsuccessful demands for payment from both Owen and the hospital, the insurance company filed suit against Owen, asserting he did not pay the hospital and refused to refund the money. The insurance company claimed Owen converted the funds and his retention of the funds unjustly enriched him. Owen generally denied these assertions.
The insurance company filed a motion for summary judgment asserting the uncontroverted summary judgment evidence established, as a matter of law, its allegations of unjust enrichment and conversion. In his response, Owen claimed the insurance company's claims were barred because it had made a mistake of law, and on the same grounds, moved for summary judgment. After considering both motions for summary judgment, the trial court denied the insurance company's motion and granted Owen's motion. The trial court did not state its reasons for granting the summary judgment in its order. The insurance company appeals.
*604 I. Standard of review
The trial court granted summary judgment for Owen, the defendant. A defendant who moves for summary judgment assumes the burden of showing, as a matter of law, that plaintiff cannot prove at least one element of its cause of action. Citizens First Nat'l Bank v. Cinco Exploration Co., 540 S.W.2d 292, 294 (Tex.1976); Babe v. Guaranty Nat'l Ins. Co., 787 S.W.2d 575, 577 (Tex.App.Houston [1st Dist.] 1990, writ requested).
When the defendant moves for a summary judgment on the plaintiff's cause of action, the defendant assumes the burden of showing as a matter of law the plaintiff has no cause of action. Rogers v. R.J. Reynolds Tobacco Co., 761 S.W.2d 788, 793 (Tex.App.Beaumont 1988, writ denied). The defendant must disprove the plaintiff's cause of action as pled. Rogers, 761 S.W.2d at 795. If the defendant cannot meet that burden, the defendant is not entitled to a summary judgment. Griffin v. Rowden, 654 S.W.2d 435, 436 (Tex.1983).
In deciding whether defendant met his burden, we apply the following rules: (1) the movant for summary judgment has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference will be indulged in favor of the nonmovant and any doubts will be resolved in the nonmovant's favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).
When, as here, a summary judgment does not specify the ground upon which the court granted it, we will affirm the judgment if there is any ground that will support the judgment. Rabe, 787 S.W.2d at 576; McCrea v. Cubilla Condominium Corp., 685 S.W.2d 755, 757 (Tex. App.Houston [1st Dist] 1985, writ refd n.r.e.).
Owen, the defendant, moved for summary judgment on the grounds that when the insurance company paid for his wife's hospitalization twice, it was a mistake of law, and thus the insurance company could not recoup payment from defendant. The insurance company asserts the summary judgment proof did not prove it made a mistake of law, and, in fact, there was no evidence indicating what manner of mistake it made in paying Owen. The insurance company claims that for Owen to prevail on his mistake of law theory, he was required to prove the insurance company made the double payment with full knowledge of all the facts. Finally, the insurance company claims Owen failed to offer any summary judgment evidence to negate its causes of action for conversion and unjust enrichment.
II. Summary judgment proof
Because both the insurance company and Owen moved for summary judgment, the trial court could consider all the summary judgment evidence filed with the motions. Dallas County Appraisal Dist. v. Institute for Aerobics Research, 766 S.W.2d 318, 319 (Tex.App.Dallas 1989, writ denied).
A synopsis of the summary judgment evidence is: The insurance company paid both the hospital and Owen for the same charges; Owen endorsed the check for $49,820.30, deposited it into his account, and did not pay the hospital; the insurance company wrote a number of letters to first, the hospital and then, to Owen, asking them to return the funds; in the letters, the insurance company said it issued the check to the hospital "in error," and later in a letter to Owen, it said it issued the check to him "in error."
III. Mistake of fact distinguished from one of law
In points of error one and two, the insurance company asserts the trial court erred in granting summary judgment because Owen's summary judgment evidence did not establish the insurance company committed a mistake of law in paying the hospital.
The general rule is that the courts will not relieve a party of the effects of a mistake of law. Furnace v. Furnace, 783 *605 S.W.2d 682, 686 (Tex.App.Houston [14th Dist.] 1989, writ dism'd w.o.j.). The courts will, however, relieve a party of the effects of a mistake of fact. Annotation, Right of Insurer Under Health or Hospitalization Policy to Restitution of Payments Made Under Mistake, 79 A.L.R.3d 1113, 1116 (1977). A mistake of fact means any mistake except a mistake of law. RESTATMENT OF RESTITUTION § 7 (1936). A mistake of law means a mistake as to the legal consequences of an assumed state of facts. Id. The RESTATEMENT § 6 defines a mistake as a "state of mind not in accord with the facts."
The general rule is that a party who has paid funds due to a mistake of fact is entitled to restitution, if the receiving party has not materially changed its position in reliance on the payment. Bryan v. Citizens Nat'l Bank in Abilene, 628 S.W.2d 761, 763 (Tex.1982); Singer v. St. Paul Mercury Ins. Co., 478 S.W.2d 579, 583 (Tex.App.San Antonio 1972, writ ref'd n.r.e.). In Bryan, citing the RESTATMENT OF RESTITUTION § 1 (1936), the supreme court said the purpose of restitution is to prevent unconscionable loss to the party paying out the funds and unjust enrichment to the party receiving the funds. 628 S.W.2d at 763.[1]
It is clear the insurance company made the double payment under the mistaken impression the debt was still outstanding. The letters included in the transcript as part of the summary evidence all attest to a mistake of fact. Owen believes that the mistake inures to his benefit. We do not agree.
We sustain the insurance company's points of error one and two.
IV. The third point of error
In point of error three, the insurance company contends the trial court erred in granting the summary judgment because Owen did not negate the alternatively pled cause of action of conversion. Because we sustained points one and two, we do not need to reach point three.
V. The insurance company's motion for summary judgment
In point of error four, the insurance company contends the trial court should have granted its motion for summary judgment on the theory of unjust enrichment. The denial of a motion for summary judgment, generally, is not subject to appellate review. Novak v. Stevens, 596 S.W.2d 848, 849 (Tex.1980). When, however, both parties file motions for summary judgment and one motion is granted and the other is denied, a review of the trial court's action is permitted. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400 (Tex.1958). In such a case, the appellate court may determine all questions presented, including the propriety of the order overruling the losing party's motion. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988); Teledyne Isotopes, Inc. v. Bravenec, 640 S.W.2d 387, 389 (Tex. App.Houston [1st Dist.] 1982, writ ref'd n.r.e.).
*606 The insurance company asserts the summary judgment evidence establishes its right to summary judgment under the doctrine of unjust enrichment and its entitlement to a constructive trust. As the movant, the insurance company was required to prove all the essential elements of its cause of action as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Dallas County Appraisal Dist, 766 S.W.2d at 320.
For a party to be entitled to restitution, it must show the person sought to be charged wrongfully secured a benefit or passively received one which it was unconscionable to retain. Corpus Christi v. S.S. Smith & Sons Masonry, Inc., 736 S.W.2d 247, 250 (Tex.AppCorpus Christi 1987, writ denied). If the insurance company has grounds for either, it is that Owen passively accepted a benefit he should not have retained.
We hold that on this record, Owen passively accepted a benefit he should not have retained. Owen received the funds he knew were for the payment of his wife's hospital bill, he made no attempt to use the funds to pay the bill, and he retained the funds when he learned that the hospital had been paid by the insurance company. We do not find, however, that the insurance company proved that retaining the proceeds was, as a matter of law, unconscionable. A fact issue remains on that issue. We overrule the insurance company's fourth point of error.
NOTES
[1]  An insurer, having paid the same debt twice, is faced with a difficult questionfrom whom should it seek repayment, the hospital or the insured? That problem was recently played out in two companion cases that began as one lawsuit. See Lincoln Natl Life Ins. Co. v. Brown Schools, Inc., 757 S.W.2d 411, 413 (Tex.App. Houston [14th Dist.] 1988, no writ), and Lincoln Natl Life Ins. Co. v. Rittman, 790 S.W.2d 791, 793 (Tex.App.Houston [14th Dist.] 1990, no writ). In the beginning, the insurance company filed suit against both the hospital and the insured for overpayment. The suit against the hospital was resolved by partial summary judgment in favor of the hospital, which the trial court severed and the insurance company appealed (Lincoln I). In the Lincoln I appeal, the court of appeals held that, as between the hospital who provided the services and the insurance company, the insurance company should bear the loss. 757 S.W.2d at 413. Following the issuance of Lincoln I, the insurance company proceeded to judgment in a non jury trial suit against the insured, and again lost (Lincoln II). The court of appeals again affirmed against the insurance company, this time for a combination of reasons: The stipulated evidence from the earlier hearings was not included in the record in this appeal, and general concepts of equity required a holding against the insurance company.


107 Mich. App. 377 (1981)
309 N.W.2d 556
PEOPLE
v.
STARKS.
Docket No. 46509.
Michigan Court of Appeals.
Decided May 8, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.
Lynn Chard, Assistant State Appellate Defender, for defendant on appeal.
Before: D.C. RILEY, P.J., and D.E. HOLBROOK, JR., and M.B. BREIGHNER,[*] JJ.
PER CURIAM.
In this case defendant appeals as of right from his conviction by a jury of receiving or concealing stolen property over the value of $100, MCL 750.535; MSA 28.803.
Eugene Woods, the owner of a 1977 Chevrolet pickup truck, testified that on March 8, 1978, at about 5:40 a.m., he parked the vehicle in his employer's parking lot. Approximately ten minutes later, he was informed that the truck was gone. After his own investigation confirmed that fact, he reported the disappearance to the police.
About 3:30 p.m. that same day, Highland Park police officers Edwin Ostrand and Tyrone Foster drove to 154 West Buena Vista in Highland Park after receiving a radio report of "auto strippers in a garage" at that location. Officer Ostrand proceeded to the garage itself on foot and observed three men working on a Chevrolet pickup truck. One person was removing the front bumper while the other two leaned into the engine compartment from the sides of the vehicle. When Ostrand identified *380 himself and ordered the subjects to freeze, they all ran. Officer Ostrand gave chase and radioed descriptions to other officers. An hour and a half later, Officer James Francisco observed defendant walk up to the Buena Vista address. Because defendant fit one of the radio descriptions, Francisco detained him until Officer Ostrand returned to the scene. Ostrand identified defendant as one of the persons seen stripping the truck. Eugene Woods verified that the truck was the same one reported missing earlier in the day.
Defendant initially argues that this identification procedure violated his constitutional right to counsel. He further contends that his defense attorney's failure to object to Officer Ostrand's identification testimony at trial evidences a denial of effective assistance of counsel.
Generally, once a suspect is in custody, there is a right to counsel during any corporeal identification procedure. People v Anderson, 389 Mich 155, 180-187; 205 NW2d 461 (1973), People v Jackson, 391 Mich 232, 337-340; 217 NW2d 22 (1974). An exception to this rule is that an on-the-scene identification necessary to determine whether a suspect should be formally arrested may take place without counsel. People v Dixon, 85 Mich App 271, 279-281; 271 NW2d 196 (1978), Russell v United States, 133 US App DC 77; 408 F2d 1280 (1969). Such identification is considered a reasonable police practice which helps expedite the release of innocent suspects. For this reason, the exception does not apply where the police clearly suspect that the person held committed the crime. Dixon, supra, 281.
The justification for an on-the-scene identification was met in this case. When defendant was detained, the police did not have more than a *381 mere suspicion that he was involved with the crime. The description broadcast was a general one, indicating race, sex, height, and clothing of the suspect, and could have fit numerous persons within the area. The officers at the scene had good reason to call Officer Ostrand back to the location to observe defendant. Although the identification was not literally within minutes of the offense, it did occur relatively soon afterwards.
Further, the danger of misidentification was less in this case than in other on-the-scene situations. Generally, when a victim or civilian witness views a suspect at the scene, the suspect is handcuffed and surrounded by police. This may create a somewhat prejudicial atmosphere in that the suspect looks like an offender. Here, the identification was made by another police officer, who would be less prone to allow such circumstances to detract from his observation skills. We are convinced that the on-the-scene identification of defendant was proper despite the absence of counsel.
In any event, defendant was not prejudiced since it was certain that Officer Ostrand had a basis for his trial identification of defendant independent of the on-the-scene procedure. People v Kachar, 400 Mich 78; 252 NW2d 807 (1977). Those factors relevant to the existence of such an independent basis are:
"1. Prior relationship with or knowledge of the defendant.
"2. The opportunity to observe the offense. This includes such factors as length of time of the observation, lighting, noise or other factor affecting sensory perception and proximity to the alleged criminal act.
"3. Length of time between the offense and the disputed identification * * *.
*382 "4. Accuracy or discrepancies in the pre-lineup or showup description and defendant's actual description.
"5. Any previous proper identification or failure to identify the defendant.
"6. Any identification prior to lineup or showup of another person as defendant.
"7. Still another consideration, not mentioned in [United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967)], but essential to a determination of judging the reliability of the witness's perceptions is the nature of the alleged offense and the physical and psychological state of the victim. `In critical situations perception will become distorted and any strong emotion (as opposed to mildly emotional experiences) will affect not only what and how much we perceive, but also will affect our memory of what occurred.' 389 Mich 211. (Emphasis in original.)
"Factors such as `fatigue, nervous exhaustion, alcohol and drugs', 389 Mich 213 (emphasis in original), and age and intelligence of the witness are obviously relevant. Levine and Tapp, The Psychology of Criminal Identification: The Gap from Wade to Kirby, 121 U Pa L Rev 1079, 1102-1103 (1973).
"8. Any idiosyncratic or special features of defendant." Id., 95-96.
Here, while Officer Ostrand had no prior relationship with defendant, his opportunity to observe was sufficient. He stated that he viewed defendant for four or five seconds from a distance of from 15 to 20 feet before giving chase. It was daylight, and he was able to see defendant's face. The on-the-scene identification took place within an hour and a half, and there was no evidence of dehabilitating factors such as fatigue, nervous exhaustion, alcohol, or drugs. Further, the officer, as a trained observer, was not likely to have been affected adversely by the stress inherent in the situation. Cf. United States v Butler, 405 F2d 395, 396 (CA 4, 1968). Finally, there was no evidence of *383 a previous failure to identify defendant or the erroneous identification of another person.
Because the identification of defendant was proper, counsel's failure to move for suppression was not a decisive error evincing ineffective representation. A defendant is entitled to a new trial if counsel did not perform "at least as well as a lawyer with ordinary training and skill in the criminal law" and did not conscientiously protect his client's interests undeflected by conflicting considerations. People v Garcia, 398 Mich 250, 264; 247 NW2d 547 (1976). Further, defense counsel must not have made a serious mistake without which defendant would have had a reasonable likelihood of acquittal. Garcia, supra, 266, People v Degraffenreid, 19 Mich App 702, 718; 173 NW2d 317 (1969). Defense counsel's failure to move for suppression reasonably cannot be seen as having denied defendant the likelihood of acquittal.
Defendant also argues that trial counsel was remiss in failing to object to testimony regarding the radio report received by Officers Ostrand and Foster. Officer Foster testified that the report was of "male subjects stripping a vehicle".[1] The content of an informant's tip generally is inadmissible as hearsay. Admission is not justified for the purpose *384 of showing an officer's state of mind, since the state of mind is not relevant. Therefore, testimony of radio reports should be limited to a statement that the officer was responding to a tip. People v Wilkins, 408 Mich 69; 288 NW2d 583 (1980). In Wilkins, the testimony revealed an informant's statement that pointed to the defendant's guilt of carrying a concealed weapon:
"Q. Now, Officer Lutz, what did the informant tell you?
"A. I was informed at 8 o'clock p.m. that evening that a black male, late twenties, wearing a gray suit, would be in a gray Cadillac `75 sedan, license George Paul X-ray 233. He was supposed to be at 14009 Mendota, and that he's carrying a gun, informant seen that gun with him earlier in the evening." Id., 71-72.
The testimony in the instant case is readily distinguishable. The brief reference to "male subjects stripping a vehicle" did not point directly to defendant's guilt. Since Officer Ostrand testified regarding his own observations of the three men, little prejudice is apparent. While an objection may have limited the testimony to the fact that a tip was received, such a limitation hardly would have afforded defendant a reasonably likely chance of acquittal. Defendant was not denied effective assistance of counsel.
Defendant also argues that the trial court erred in denying his motion for a directed verdict. At the close of the prosecution's case, defense counsel argued that there was no proof that defendant was aware that the truck was stolen. People v Tantenella, 212 Mich 614, 619; 180 NW 474 (1920). The standard for ruling on a motion for directed verdict was set forth in People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979).
"In summary, the trial judge when ruling on a motion *385 for a directed verdict of acquittal must consider the evidence presented by the prosecution up to the time the motion is made [People v Garcia, 398 Mich 250; 247 NW2d 547 (1976)], People v Vail, 393 Mich 460, 463; 227 NW2d 535 (1975), and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt, Jackson, supra, p 319."
Guilty knowledge need not be proven directly but may be inferred from other facts and circumstances. Tantenella, supra. At the time of defendant's motion, the prosecutor had presented evidence that the truck was stolen on the day of the offense charged. Defendant and the others were observed dismantling the vehicle, as opposed to repairing it. The door locks were jammed, and the ignition system was broken. Finally, when Officer Ostrand identified himself, defendant fled. From these facts a rational trier of fact could have inferred beyond a reasonable doubt that defendant knew that the truck was stolen.
Defendant's final argument on appeal is that the trial court erred by omitting portions of the standard jury instructions relating to reasonable doubt, the presumption of innocence, and the prosecution's burden of proof. Although the record reveals that certain portions of the instructions dealing with those concepts were inadvertently omitted, prejudicial error did not occur. Jury instructions must be read as a whole and not extracted piecemeal in an effort to establish error requiring reversal. People v Choate, 88 Mich App 40, 45; 276 NW2d 862 (1979). The concepts of reasonable doubt, the presumption of innocence, and the burden of proof were related to the jury by a reading of CJI 3:1:02, 3:1:03(2), and 3:1:05. Defendant's claim of instructional error is therefore without merit.
Affirmed.
NOTES
[*]  Circuit judge, sitting on the Court of Appeals by assignment.
[1]  "Q. Did you have occasion to go to the area of 154 West Buena Vista?

"A. We did, sir.
"Q. And is that in the City of Highland Park?
"A. Yes, sir.
* * *
"Q. Were you in uniform and a marked scout car?
"A. I was in uniform and a marked scout car.
"Q. What, if anything, did you do after you got there?
"A. We received a run on male subjects stripping a vehicle at that location. We pulled up in front of 151 Tyler, I let my partner out, he went between the houses at 151 Tyler, going southbound to the northwest Buena Vista alley."


                                UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA

    MARIO MENJIVAR GARCIA, et al.,

                            Plaintiffs,

           v.                                                              Civil Action No.
                                                                      1:17-cv-0629 (RMC/GMH)
    SKANSKA U.S.A. BUILDING INC,
    et al.

                            Defendants.

                              MEMORANDUM OPINION AND ORDER

          This action has been referred to the undersigned to resolve discovery disputes. The case

concerns the wages that Plaintiffs were paid for work they performed for Defendants on certain

public construction contracts in the District of Columbia. Plaintiffs allege that Defendants failed

to pay their prevailing wages, fringe benefits, and overtime pay in violation of the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., the D.C. Minimum Wage Act Revision Act

(“DCMWA”), D.C. Code § 32-1001 et seq., and the D.C. Wage Payment and Collection Law

(“DCWPCL”), D.C. Code § 32-1301 et seq. Defendants have moved to dismiss the complaint,

but Plaintiff seeks to take certain discovery during the pendency of the motion. Upon considera-

tion of the parties’ submissions and the entire record herein, 1 Plaintiffs’ request for discovery is

denied.

1
  For the purposes of this Memorandum Opinion and Order, the relevant docket entries are: (1) First Amended Com-
plaint (“Am. Compl.”) [Dkt. 13]; (2) Defendants’ Motion to Amended Dismiss (“Def. Mot.”) [Dkt. 17] (3) Plaintiffs’
Opposition to Defendants’ Motion to Dismiss the Amended Complaint (“Pl. Opp.”) [Dkt. 20]; (4) Defendants’ Reply
to Plaintiffs’ Opposition to Defendants’ Motion to Dismiss the Amended Complaint (“Def. Reply”) [Dkt. 23]; (5)
Letter of Omar Vincent Melehy dated Oct. 23, 2017 (“Pl. Ltr.”) [Dkt. 24]; and (6) Letter of Albert Wilson, Jr., dated
Oct. 25, 2017 (“Def. Ltr.”) [Dkt. 25]. All citations to page numbers within a particular document are to the ECF
docket page numbers for the document.
                                         BACKGROUND

       Defendant Skanska U.S.A. Inc. (“Skanska”) was the general contractor performing con-

struction work on a number of public schools and other public buildings in the District of Colum-

bia. Am. Compl., ¶¶ 1, 8, 111. Defendant P.O.S.T. LLC, a limited liability company of which

defendant Alvin Smith is the sole member, served as a labor broker for Skanska. Am. Compl., ¶¶

3, 17–18. Plaintiffs are five carpenters who Defendants hired to work on those public projects.

Id., ¶¶ 2, 19, 23, 38, 42, 56, 60, 75, 79, 93, 97, 111–112. Each Plaintiff alleges that he was not

paid an overtime wage for hours worked in excess of 40 per workweek, and that he was not paid

the prevailing wage and fringe benefits that he was promised and to which he was entitled as a

carpenter. Am Compl., ¶¶ 27, 33, 36, 46, 52, 54, 64, 70, 73, 83, 89, 91, 101, 107, 109. The three-

count Amended Complaint alleges violations of the FLSA, DCMWA, and DCWPCL. Am.

Compl. ¶¶ 136–156.

       This discovery dispute arose prior to the commencement of discovery, during the briefing

on Defendants’ motion to dismiss the Amended Complaint; it is therefore necessary to understand

the parties’ arguments regarding dismissal. Defendants seek to dismiss this case for failure to state

a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. They contend that the

Amended Complaint must be dismissed because Plaintiffs’ claims are covered by the Davis-Bacon

Act (“DBA”), 40 U.S.C. § 3141 et seq. According to Defendants, the DBA “requires that all

laborers working on construction projects to which the federal [g]overnment or the District of

Columbia is a party must be paid not less than the prevailing wage in the locality where the work

is performed.” Def. Mot. at 8. The regulations promulgated under the DBA allow the govern-

ment’s contracting officer to withhold payments to the employer where the employer has not paid

its laborers the prevailing wage. Id. at 8–9. However, the Defendants assert that the DBA does

                                                 2
not confer a private right of action on an affected laborer until after there has been an administrative

determination by the Department of Labor that money is owed and that any money withheld is

insufficient to compensate him or her. Id. at 9-10. Plaintiffs conceded that there has been no such

determination here. Pl. Opp. at 13. Accordingly, Defendants argue that Plaintiffs are trying to

“circumvent the DBA” by seeking unpaid wages under the FLSA, DCMWA, and DCWPCL. Id.

at 11. Defendants rely, in part, on Danielson v. Burnside-Ott Aviation Training Ctr., 941 F.2d

1220, 1227–29 (D.C. Cir. 1991), in which the D.C. Circuit held that administrative proceedings

under the Service Contract Act, a statute similar to the DBA, provided the exclusive remedy for

violations of the statute. Def. Mot. at 8–9. They similarly cite Johnson v. Prospect Waterproofing

Co, 813 F. Supp. 2d 4, 5 (D.D.C. 2011), which dismissed claims under the DCMWA and

DCWPCL seeking prevailing wages established under the DBA because the plaintiffs had not

exhausted their administrative remedies. Def. Mot. at 11–12.

        In their opposition to the motion to dismiss, Plaintiffs contend, among other things, that

the DBA does not supplant the FLSA or the D.C. wage laws under which they have sued, but

rather “operate[s] in concert” with them. Pl. Opp. at 8–11. Plaintiffs assert that Danielson and

Johnson are distinguishable because those cases were based on allegations that the defendants had

misclassified the plaintiff laborers in order to pay them a lower prevailing wage than they were

entitled to, rather than claims, like those asserted here, that Plaintiffs were correctly classified, but

were not paid what they were promised. Id. at 13–14. Misclassification cases are, they claim,

what the regulatory scheme of the DBA was designed to address, whereas claims that an employee

was not paid his promised wage are what the FLSA and similar statutes were enacted to remedy.

Id. at 14. Plaintiffs further insist that they “have not and do not intend to challenge the classifica-

tion decisions in this case.” Id.

                                                   3
         In light of the fact that Defendants cite misclassification cases in their motion papers, Plain-

tiffs, in their opposition to the motion, request discovery of Defendants’ certified payroll records.

Pl. Opp. at 21–22; Pl. Ltr. at 1. These, they assert, “will show how the contractors classified the

workers,” as well as the pay rate that Defendants informed the government they were paying. Pl.

Opp. at 21. This, in turn, will purportedly help to resolve the motion to dismiss by clarifying

whether the classification of Plaintiffs is in fact at issue here. Pl. Ltr. at 2.

                                                  DISCUSSION

         Generally, “[i]n evaluating the sufficiency of Plaintiff’s Complaint under Rule 12(b)(6),

the Court may consider ‘the facts alleged in the complaint, any documents either attached to or

incorporated in the complaint[,] and matters of which [the court] may take judicial notice.’” Va-

saturo v. Peterka, 177 F. Supp. 3d 509, 511 (D.D.C. 2016) (quoting Equal Emp’t Opportunity

Comm'n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)). Because such

a motion “does not require a court to ‘assess the truth of what is asserted or determine whether a

plaintiff has any evidence to back up what is in the complaint,’” a plaintiff is typically “not entitled

to discovery before [a] court rule[s] on [a] motion to dismiss.” Herron v. Fannie Mae, 861 F.3d

160, 173 (D.C. Cir. 2017) (quoting Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)).

There is, however, authority supporting the notion that a court has discretion to allow limited dis-

covery to aid in determining the sufficiency of a complaint. 2 See, e.g., Menard v. CSK Transp.,

Inc., 698 F.3d 40, 45 (1st Cir. 2012) (“Where modest discovery may provide the missing link, the

2
  Plaintiffs also contend that, because Defendants’ Rule 12(b)(6) motion to dismiss for failure to state a claim relies
on whether Plaintiffs exhausted their administrative remedies, it is more akin to a motion to dismiss for lack of juris-
diction under Rule 12(b)(1). Pl. Ltr. at 1. And a “district court has discretion to allow discovery if it ‘could produce
[facts] that would affect [its] jurisdictional analysis.’” de Csepel v. Republic of Hungary, 75 F. Supp. 3d 380, 385
(D.D.C. 2014) (quoting Al Maqaleh v. Hagel, 738 F.3d 312, 325 (D.C. Cir. 2013)). There is no need to address the
procedural question of whether this motion is more properly characterized as a 12(b)(1) motion because, as explained
below, the application fails on its merits.

                                                           4
district court has discretion to allow limited discovery and, if justified, a final amendment of the

complaint.”).

       Assuming the undersigned has that authority, Plaintiffs’ request still fails on its merits.

Plaintiffs assert that the limited discovery they seek will allow them to learn whether Plaintiffs

were classified as carpenters. Pl. Ltr. at 2. If Plaintiffs were so classified, then there is no classi-

fication issue, “and Defendants’ arguments on this subject are a red herring.” Id. That ignores a

number of salient points.

       First, Defendants do not argue that this case must be dismissed because it is a classification

case. Defendants’ position is that any action by a private party that (explicitly or implicitly) im-

plicates the DBA cannot be sustained unless the Department of Labor has completed the adminis-

trative procedures outlined in the regulations. See, e.g., Def. Mot. at 5 n.6 (noting regulation set-

ting out administrative procedure “for resolution of disputes of fact or law concerning payment of

prevailing wage rates, overtime pay, or proper classification” (emphasis in original) (quoting 29

C.F.R. § 5.11)); id. at 6 (“The DBA does not confer a private right of action.”); Def. Reply at 16

(same). Knowledge gained from the requested records would not, then, “eliminate one of Defend-

ants’ arguments,” Pl. Ltr. at 2, because classification is irrelevant to those arguments. Moreover,

the cases Defendants cite, like Danielson and Johnson, make clear that the question of whether the

DBA provides a private right of action is a purely legal question that does not require development

of facts outside the Complaint. See Danielson, 941 F.2d at 1227 (“[T]he question whether a private

right of action is conferred by a federal statute is essentially one of interpreting congressional

intent.” (quoting Miscellaneous Serv. Workers v. Philco-Ford Corp., 661 F.2d 776, 780 (9th Cir.

                                                   5
1981)); Johnson, 813 F. Supp. 2d at 6–9 & n.5 (“[N]either the language, the history, nor the struc-

ture of the statute supports the implication of a private right of action in this case.” (quoting United

States ex rel. Glynn v. Capeletti Bros., 621 F.2d 1309, 1317 (5th Cir. 1980)).

           Second, if the Court were to accept Plaintiffs’ argument that only misclassification cases

require administrative exhaustion,3 the discovery would still be irrelevant because Plaintiffs

have—repeatedly and explicitly—disavowed that this is a misclassification case. See Pl. Opp. at

13 (“In this case . . . Plaintiffs are neither alleging that they were misclassified nor challenging the

rates set by DOL for their classifications . . . .”); id. at 14 (Plaintiffs in this case have not and do

not intend to challenge the classification decisions in this case.”); Pl. Ltr. at 2 (noting that “this is

not one of th[e] cases” that “challenges the classification of the plaintiffs”). Confirmation of the

fact that Plaintiffs were properly classified, then, would put Plaintiffs in no better a position than

if they merely rested on their Amended Complaint (as is typical in the case of a 12(b)(6) motion

to dismiss), which itself indicates that they were properly classified. See, e.g., Am. Compl., ¶¶

21–23 (stating that plaintiff Mario Menjivar Garcia was hired as a carpenter, worked as a carpenter,

and was to be paid as a carpenter); Def. Ltr. at 2 (“Plaintiffs did not allege misclassification in their

Amended Complaint. Instead, in their Amended Complaint, Plaintiffs allege . . . that they were

not paid the [promised] wages of a carpenter”). Learning that Plaintiffs were misclassified would

similarly have no effect: Plaintiffs have alleged that they will not pursue any such claims and,

again, the allegations in the Amended Complaint, which are taken as true for the purposes of this

motion, indicate that Plaintiffs were properly classified. The requested discovery is therefore un-

necessary to resolve the motion to dismiss. 4

3
    The undersigned expresses no view on that assertion, as it is outside the purview of this discovery motion.
4
 Plaintiffs also assert that the certified payroll records will assist in the ongoing settlement discussions by allowing
counsel to more accurately value the case. Pl. Ltr. at 2. Plaintiffs have cited no authority, and the undersigned is

                                                            6
                                                    ORDER

        For the reasons stated above, it is hereby

        ORDERED that Plaintiffs’ request to engage in limited discovery during the pendency of

Defendants’ Motion to Dismiss is DENIED.
                                                                                Digitally signed by
        SO ORDERED.                                                             G. Michael Harvey
                                                                                Date: 2017.11.01
                                                                                11:39:49 -04'00'
Date: November 1, 2017                                        ___________________________________
                                                              G. MICHAEL HARVEY
                                                              UNITED STATES MAGISTRATE JUDGE

aware of none, that supports the proposition that a Court should compel discovery during the pendency of a motion to
dismiss to aid in mediation.

                                                         7


285 S.W.2d 160 (1955)
John MAY, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
Court of Appeals of Kentucky.
December 16, 1955.
*161 W. W. Burchett, Joseph P. Tackett, A. J. May, Clifford B. Latta, Prestonsburg, for appellant.
J. D. Buckman, Jr., Atty. Gen., W. Owen Keller, Asst. Atty. Gen., for appellee.
*162 STEWART, Chief Justice.
John May was indicted in the Floyd Circuit Court at its January term, 1955, charged with the offense of assault and battery on the person of Burnis Martin. From a judgment of conviction and a fine assessed against him of $1,000, May moves for an appeal.
On the day the altercation arose between these two men, Martin was Commonwealth's attorney of the 31st Judicial District, composed solely of Floyd County, and May was justice of the peace of Magisterial District No. 2 in that county. The testimony discloses there had existed an antagonism of long standing between them, and each, on prior occasions, had sought to embarrass the other whenever their paths crossed.
According to Martin, he was in the office of the circuit court clerk making inquiry as to whether May had satisfied an alleged "cold" check he had given the clerk in payment of fines and forfeitures he had collected. It was his intention, he asserted, to submit the matter to the grand jury if the check had not been honored. While talking to the clerk on the subject, he was struck four or five times in the back of the head without his knowing anyone had come up behind him and without a word having been spoken. After he had been knocked around the corner of a table before which he had been standing, he recognized his assailant as May, and he then heard the latter say: "By God, I'll knock the hell out of you." He afterwards went to the county judge and procured a warrant for May's arrest. The clerk gave substantially the same version of the affray. The clerk added, however, Martin had said nothing derogatory about May in his presence and he had made no effort to return the assault.
May, testifying for himself, stated that when he walked into the clerk's office Martin and the clerk were discussing the check. As he entered, he claimed Martin was accusing the clerk of covering up for him. This excerpt from his testimony described what followed: "I said: `Burnis, I have the check in may pocket, I have already paid it,' and I reached in my coat pocket, like that (demonstrating), and pulled the check out and showed it to him, and he said something else. Of course, it just flew all over me when he said that, and he was looking at me when I went to hit him." He further stated he hit Martin two or three times and "didn't use nothing but my fist."
When this case was called for trial a motion to remove Martin as Commonwealth's attorney was filed but overruled by the court. The trial then proceeded with Martin as prosecuting witness and as Commonwealth's attorney. We believe this dual capacity in which Martin acted was perhaps permissible. However, looking at the whole proceeding objectively, we have a strong feeling that another attorney should have tried the action, in order to remove the self-interest factor and thereby reduce to a minimum the display of passion and prejudice that can scarcely be kept in abeyance where, as here, the same person was the victim of the offense and the prosecutor.
Three grounds are relied upon in seeking a reversal of the judgment: (1) That the fine of $1,000 was unreasonable and excessive; (2) that the court erred in failing to instruct the jury on breach of peace; and (3) that the argument of the Commonwealth's attorney to the jury was improper in that it created passion and prejudice in the minds of the jurors.
We are of the opinion that the first contention is without merit. The crime committed can hardly be considered a mere assault upon an individual. If we accept as true the testimony of Martin and that of the circuit court clerk, as no doubt the jury did, the assault was an unwarranted interference with a public official at a time when he was engaged in the performance of his duty, and this fact alone makes the offense a far more serious one than a mere resort to fisticuffs by two private citizens. Furthermore, gravity is added to the offense because May's attack was directed at one of the most important offices in the Commonwealth, at one whose duty it is to uphold law and order. Because of these reasons and because Martin testified he suffered *163 much embarrassment and humiliation personally as a result of the incident we cannot say that the fine was unreasonable or excessive.
The second objection asserting error for not instructing the jury on breach of the peace is likewise untenable. An assault has been defined as "any attempt or offer with force or violence to do a corporeal hurt to another, whether from malice or wantonness, with such circumstances as denote at the time an intention to do it coupled with the present ability to carry such intention into effect." See Hixson v. Slocum, 156 Ky. 487, 161 S.W. 522, 51 L.R.A.,N.S., 838. A battery is "an assault whereby any force, however slight, is actually applied to the person of another, directly or indirectly." See Gregory's Kentucky Criminal Law Procedure and Forms, Section 131, page 148. Assault and battery constitute a common-law misdemeanor that formerly was punishable by fine or imprisonment, or both, in the discretion of the jury. Cornelison v. Commonwealth, 84 Ky. 583, 2 S.W. 235. However, in 1950 the Legislature limited the maximum punishment for an offense of this kind by enacting KRS 431.075, which reads: "Any person convicted of a common-law offense the penalty for which is not otherwise provided by statute shall be imprisoned in the county jail for a term not exceeding twelve months or fined a sum not exceeding five thousand dollars or both."
For a breach of the peace one may be fined "not more than one hundred dollars or imprisoned for not less than five nor more than fifty days, or both." See KRS 437.010. A breach of the peace is incident to, and embraced in, every assault and battery, March v. Commonwealth, 12 B.Mon. 25, and a conviction or acquittal for breach of the peace is a bar to a prosecution for assault and battery. See Commonwealth v. Foster, 3 Metc. 1; Commonwealth v. Hawkins, 11 Bush. 603, and Commonwealth v. Gill, 90 S.W. 605, 28 Ky.Law Rep. 879. Where the indictment is for assault and battery it is thus apparent there can be no basis whatsoever to justify an instruction on breach of the peace, since the punishment embodied in the lower court's assault and battery charge to the jury always covers the punishment which can be inflicted had a breach of the peace instruction been actually given. In view of the foregoing, this Court has laid down the rule that breach of the peace is not a degree of the crime of assault and battery. See Bottom v. Commonwealth, 98 Ky. 17, 32 S.W. 140; Cornelison v. Commonwealth, supra.
In this case there was an actual assault with force and violence, as has been shown, and the trial judge did not err when he refused to instruct on breach of the peace.
The third ground urged for reversal concerns the argument of the Commonwealth's attorney in his closing speech to the jury. Complaint is leveled at three separate portions of the argument which the lower court allowed to be made over the objection and exception of May. In addition, at the conclusion of the whole speech, May by counsel moved to set aside the swearing of the jury and continue the case. This motion was overruled, to which an exception was taken.
The first statement was: "Why, every time a county attorney or Commonwealth attorney starts to look into some records for the welfare of the county * * * No, those juries will let them beat upon me; they will assault me, and those juries may, by their verdicts, encourage other incidents of like nature. Ladies and gentlemen, I say this is a test case and if you get by with this one, there will be no investigations in this county, there will be no duties performed by the Commonwealth attorney who is under oath to do them."
The second statement was: "Of course, as this jury can readily recognize, there might be some others involved in this besides Mr. May, because the jury knows sometimes a man don't even have to pay his own fine. Sometimes it don't cost him a dime. Somebody would pay his fine for him and be glad to."
The third statement was: "If you can assault the Commonwealth attorney and get by with it by paying a little fine, why, in a *164 little while you can assault a bigger official than that and get by with it. You weigh your responsibilities."
The first and third statements were, first of all, ranting pleas for personal revenge and certainly served to plant in the minds of the jury the idea that justice can only be upheld by harsh measures of punishment rather than by a conviction arrived at after a sober consideration of all the evidence. Furthermore, coercion is implicit in the language contained in the latter part of the first statement, because the jury was told to inflict a substantial penalty upon May, otherwise "there will be no duties performed by the Commonwealth attorney" in the future in any case. We believe such statements were so highly inflammatory that they had no place in this trial.
When Martin told the jury in the second statement that whatever fine might be assessed against May some one would come to his rescue and assume the payment of it, he went completely outside the record. Such an insinuation of personal knowledge voiced by a Commonwealth's attorney carries with it much weight against the accused. In any light we might choose to regard this assertion, we can only conclude that it was inexcusable, and we believe it was so damaging in its consequences that it, considered alone, warrants a reversal of this case.
We have written many times that it is the duty of the Commonwealth's attorney in his argument before a jury to make no statement that builds up prejudice in their minds. Moreover, he should refer only to evidence heard from the witness stand. See East v. Commonwealth, 249 Ky. 46, 60 S.W.2d 137, and the numerous cases cited therein. In Bowling v. Commonwealth, Ky., 279 S.W.2d 23, 24, our most recent case on the subject, we set forth what we conceive the responsibility of the Commonwealth's attorney to be in his conduct of a criminal case, and we believe that responsibility was not adhered to here. We said in that case, "* * * it is the obligation of the prosecuting attorney to conduct himself with due regard to the proprieties of his office and to see that the legal rights of the accused, as well as those of the Commonwealth, are protected. It is his duty to prosecute but not persecute. He should endeavor to see that justice is moted out and that the accused is dealt with fairly. Above all, there is an obligation that truth and right shall prevail."
Wherefore, the motion for an appeal is sustained, the appeal is granted, and the judgment is reversed for further proceedings consistent with this opinion.