463 S.W.2d 222 (1970)
Robert SMITH et al., Appellant,
v.
Sarah Laverne BOWERS, Appellee.
No. 4965.
Court of Civil Appeals of Texas, Waco.
December 31, 1970.
*223 Akin, Vial, Hamilton, Koch & Tubb, C. L. Mike Schmidt, Robert H. Frost, Dallas, for appellant.
Pemberton & Green, Bill Pemberton, Greenville, for appellee.

OPINION
McDONALD, Chief Justice.
This is an appeal by plaintiffs Smith, et al. from a take nothing judgment against defendant Bowers, in a suit for permanent injunction to enjoin defendant from continuing the use of an alleged mobile home on lots 152 and 153 Shawnee Shores Estates, Hunt County.
Plaintiff Smith individually and as an officer of South Tawokoni Homeowners Association sued defendant Bowers alleging she had placed a mobile home upon lots 152 and 153 in Shawnee Shores Estates in direct violation of restrictions against same, of record in Volume 603, page 635 of the Deed Records of Hunt County. Plaintiffs sought injunction requiring defendant to remove such mobile home from the property.
Defendant answered that she took her land by general warranty deed, without knowledge actual or constructive of the asserted restrictions; and further denied that her home was a mobile home.
Trial was to the court without a jury which entered judgment denying plaintiffs' injunction.
The trial court filed Findings of Fact and Conclusions of Law, pertinent of which are summarized.
FINDINGS OF FACT
1) Defendant Bowers purchased lots 152 and 153 of Shawnee Shores Estate from W. V. Mitchell and wife on February 12, 1968, obtaining a warranty deed therefor.
2) W. V. Mitchell and wife purchased lots 152 and 153 of Shawnee Shores Estates from L. J. Rentz and wife on March 18, 1965, obtaining a Warranty Deed therefor, which stated the conveyance was made subject to the property restrictions of record in Vol. 603, p. 635 Deed Records of Hunt County.
3) The property restrictions in Vol. 603, p. 635 Deed Records Hunt County which prohibit mobile homes from being accepted in Shawnee Shores Estate were contained in defendant Bowers chain of title to lots 152 and 153 of Shawnee Shores Estate.
4) Motor vehicle title certificate #53899754 was issued defendant Bowers September 17, 1969 naming her as owner of the mobile home in question.

*224 5) Defendant Bowers is in fact the owner of the mobile home which is subject of this suit.
6) Defendant Bowers moved her mobile home into Shawnee Shores Estate June 13, 1969.
CONCLUSIONS OF LAW
1) The plat of Shawnee Shores Estate was not entitled to be recorded because it did not meet the requirements of Article 6626 and 6626a in not being executed or acknowledged by the owners; does not tie to an original survey; and was not approved by the Commissioner's Court.
2) The restrictions recorded in Vol. 603, p. 635 do not prohibit mobile homes in Shawnee Shores Estates because the restrictions do not refer to any plat that may be found.
3) Defendant Bowers did not have actual or constructive notice of the restrictions.
4) The home defendant moved onto the property was a mobile home at the time it was moved onto the property.
5) Such mobile home's characteristics were so changed that it became attached to the realty and was the homestead of defendant.
6) The defendant's home is not movable or portable in its present condition.
7) The home has a permanent foundation for year round living; is connected to utilities; and is on a foundation the construction of which is permanent.
Plaintiffs appeal on 4 points contending:
1) The trial court erred in holding defendant did not have constructive notice of the deed restrictions in Volume 603 p. 635 Deed Records of Hunt County, which restrictions were in defendant's chain of title prohibiting existence of mobile homes in Shawnee Shores Estate.
2) The trial court erred in holding defendant's dwelling does not constitute a "mobile home" in violation of the restrictions.
3) The trial court erred in holding defendant's dwelling does not constitute a "mobile home" because there is no evidence to support such holding.
4) The trial court erred in holding defendant's dwelling does not constitute a "mobile home" because there is insufficient evidence to support such holding.
Contention 1 asserts defendant had constructive notice of the deed restrictions in Vol. 603, p. 635.
These restrictions provide that "no mobile homes will be accepted" * * * "in the residential area of Shawnee Shores as designated in the plat filed in the Courthouse of Hunt County, Greenville, Texas." There is a plat in Vol. 400, p. 199 Deed Records of Hunt County which was not referred to by Volume and Page in the restrictions and which was not entitled to be recorded, as it did not meet the requirements of Articles 6626 and 6626a as found by the trial court's conclusion 1.
Defendant Bowers purchased her property from Mitchell and wife and received a general warranty deed. Mitchell and wife purchased the property from the Rentz's, and their deed stated the conveyance was subject to "property restrictions of record in Vol. 603, p. 635 Deed Records of Hunt County". The Rentz to Mitchell deed is in defendant's chain of title, and refers to the restrictions against mobile homes on the property.
A purchaser is charged with notice of the existence, contents, and legal effects of all instruments contained in his chain of title or connected therewith. He is bound by every description, recital, reference and reservation, and by every other matter contained in or fairly disclosed by any instrument which forms an essential link in the chain of title under which he claims, *225 irrespective of whether the instrument is recorded, or whether he has actually seen or read it, or has any knowledge of its contents.
And a purchaser is charged with knowledge of any other instrument to which the conveyance refers. Gulf Pro. Co. v. Continental Oil Co., 139 Tex. 183, 132 S.W.2d 553; Williams v. Harris County Houston Ship C. Nav. Dist., 128 Tex. 411, 99 S.W. 2d 276; Bein v. McPhaul, Tex.Civ.App., (NWH) 357 S.W.2d 420; Steed v. Crossland, Tex.Civ.App., err. ref., 252 S.W.2d 784.
The recordation or non-recordation of instruments such as here involved is not material to the issue of constructive notice where the restrictions are as here, specifically referred to in chain of title.
Point 1 is sustained. Defendant under the authorities cited, had constructive notice of the deed restrictions in Vol. 603, p. 635 Deed Records of Hunt County.
Plaintiffs' 2nd, 3rd and 4th points assert the trial court erred in holding defendant's dwelling does not constitute a mobile home; that there is no evidence; or insufficient evidence to support such holding.
Defendant's dwelling was initially a mobile home. After being brought on defendant's property it underwent changes which the trial court held altered its character so that it was no longer a mobile home. The evidence as to the "changed" character of the mobile home was: 1) it was connected to sewage, water and electric lines; 2) there are cement blocks supporting it which is a permanent foundation; 3) the wheels of the structure have been removed; 4) it has a metal strip around the base concealing the void space between the dwelling and the ground. There are photographs of the structure in its present form in the record. The evidence reflects that to remove the dwelling from the location: 1) the utilities would have to be disconnected; 2) the wheels replaced; 3) and the blocks removed.
We think the evidence insufficient to support the trial court's finding that the dwelling does not constitute a mobile home. See 96 A.L.R.2d 226 et seq. Point 4 is sustained.
The judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.
WILSON, Justice.
I concur in the result, but I am inclined to the opinion there is no evidence to support the finding the dwelling is not a "mobile home".


                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                            FOR THE TENTH CIRCUIT                       November 30, 2015
                        _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
WADE GREELY LAY,

     Petitioner - Appellant,

v.                                                        No. 15-5067
                                              (D.C. No. 4:15-CV-00353-TCK-PJC)
MAURICE WARRIOR,* Warden, OSP;                            (N.D. Okla.)
OKLAHOMA STATE PENITENTIARY,

     Respondents - Appellees.
                      _________________________________

                            ORDER AND JUDGMENT†
                        _________________________________

Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.
                  _________________________________

      State prisoner Wade Lay appeals from the denial of his motions for the

appointment of counsel and in forma pauperis (“ifp”) status. Exercising our

jurisdiction under 28 U.S.C. § 1291, we affirm.

      * Under Fed. R. App. P. 43(c)(2), Deputy Maurice Warrior is substituted for
Anita Trammell as Interim Warden of the Oklahoma State Penitentiary, effective
October 28, 2015.
      †
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                 I. BACKGROUND

                 A. Mr. Lay’s 2005 Conviction and 2009 Habeas Petition

      In 2005, an Oklahoma jury convicted Mr. Lay of first degree murder and

attempted robbery with a firearm. Lay v. Trammell, No. 08-CV-617-TCK-PJC, 2015

WL 5838853, at *1-2 (N.D. Okla. Oct. 7, 2015). Mr. Lay had waived his right to

counsel and proceeded pro se at trial. Id. at *2. He was sentenced to death for the

murder conviction and 25 years in prison for the conviction of attempted robbery with

a firearm. Id.

      In 2008, Mr. Lay initiated habeas proceedings in the Northern District of

Oklahoma by filing a pro se motion for the appointment of counsel to assist in filing a

petition under 28 U.S.C. § 2254. The court granted his motion under 18 U.S.C.

§ 3599, which provides for appointment of counsel to indigent petitioners seeking

federal habeas relief from a capital sentence. 18 U.S.C. § 3599(a)(2). The district

court’s order appointed the Federal Public Defender’s Office to represent Mr. Lay.

      In 2009, Mr. Lay’s attorneys filed a habeas corpus petition under 28 U.S.C.

§ 2254, contending, in relevant part, that Mr. Lay’s convictions were invalid because

he was mentally incompetent to stand trial or to waive counsel. The district court

denied Mr. Lay’s petition in October 2015 and granted a certificate of appealability as

to certain issues raised in the petition. Lay, 2015 WL 5838853, at *56-57. Mr. Lay’s

attorneys subsequently filed an appeal.

                                           2
                                B. Mr. Lay’s 2015 Motions

        In June 2015, while his habeas petition was pending, Mr. Lay, acting pro se,

initiated a separate action in the Eastern District of Oklahoma. He filed motions (1) for the

appointment of counsel and (2) to proceed ifp. The first motion alleged that his attorneys

had fraudulently asserted he was mentally ill in the 2009 petition. It explained that Mr.

Lay therefore sought the appointment of counsel to assist him in filing an accurate petition,

which would assert additional grounds for relief absent from the earlier petition.

        The district court transferred this case under 28 U.S.C. § 2241(d) to the Northern

District of Oklahoma, where Mr. Lay had been convicted.1 The case was eventually

assigned to the same judge who was presiding over Mr. Lay’s 2009 habeas petition, but the

two cases were not consolidated.

        The district court denied both of Mr. Lay’s 2015 motions, finding no factual or legal

basis for Mr. Lay’s assertion that the 2009 petition was fraudulent. It then terminated the

case.

                                     II. DISCUSSION

        Under 18 U.S.C. § 3599(a)(2), an indigent petitioner seeking federal habeas relief

from a capital sentence is entitled to the appointment of counsel. A petitioner may move to

        1
         Under 28 U.S.C. § 2241(d), a state prisoner may file a habeas petition “in the
district court for the district wherein such person is in custody or in the district court
for the district within which the State court was held which convicted and sentenced
him and each of such district courts shall have concurrent jurisdiction to entertain the
application.” A court “in the exercise of its discretion and in furtherance of justice
may transfer the application to the other district court for hearing and determination.”
Id.

                                              3
replace appointed counsel, see 18 U.S.C. § 3599(e), and a court may grant such a motion

when substitution is in the “interests of justice.” Martel v. Clair, 132 S. Ct. 1276, 1281

(2012). We construe Mr. Lay’s 2015 motion for the appointment of counsel as a motion to

replace the attorneys who represent him in his habeas proceedings that were filed in 2009.

       “Because a trial court’s decision on substitution is so fact-specific, it deserves

deference; a reviewing court may overturn it only for an abuse of discretion.” Id. at 1287.

We also review the district court’s denial of ifp status for an abuse of discretion. Lister v.

Dep’t of Treasury, 408 F.3d 1309, 1312-13 (10th Cir. 2005).

       We affirm the district court’s decisions denying both motions. Mr. Lay’s motion for

the appointment of counsel asserted that his attorneys fraudulently alleged he was mentally

ill in the 2009 petition. But as the district court concluded, Mr. Lay failed to provide any

factual or legal basis for this allegation. Accordingly, the district court did not abuse its

discretion in determining that the substitution of counsel was not in the interests of justice

or that a grant of ifp status was unwarranted. For these reasons, we affirm.

                                               ENTERED FOR THE COURT

                                               Scott M. Matheson, Jr.
                                               Circuit Judge

                                               4


888 F.2d 1387Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Adam STARCHILD, Plaintiff-Appellant,v.UNITED STATES PAROLE COMMISSION, Defendant-Appellee.
No. 89-6588.
United States Court of Appeals, Fourth Circuit.
Submitted Aug. 30, 1989.Decided Oct. 20, 1989.

Adam Starchild, appellant pro se.
Before PHILLIPS and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:

1
Adam Starchild, a federal inmate incarcerated at the federal correctional institution at Sandstone, Minnesota, appeals the order of the district court dismissing his civil action seeking declaratory relief under the Administrative Procedures Act, 5 U.S.C. Sec. 701.  In his complaint Starchild challenged the manner in which the United States Parole Commission has interpreted the regulation providing for valuation of property in thefts, forgeries, frauds, and similar offenses.  The district court concluded that Starchild's action sought to ultimately reduce the time that Starchild would have to serve on his sentence;  therefore, his claim was one for habeas corpus relief.  As such, the action must be brought in the district court in the judicial district where Starchild is incarcerated.  The court dismissed the complaint without prejudice for that reason.  We agree and affirm the order.

2
Because Starchild is essentially seeking to challenge a regulation affecting his length of incarceration, his remedy is under the habeas corpus provisions of 28 U.S.C. Sec. 2241.  In fact, section 703 of the Administrative Procedures Act specifically contemplates the use of habeas corpus actions for challenges to agency actions.

3
Although it is true that Starchild complains of actions taken by the United States Parole Commission, it is the warden at the federal correctional institution in Sandstone--not the Parole Commission--who holds Starchild in custody.    See Billiteri v. United States Board of Parole, 541 F.2d 938, 948 (2d Cir.1976).  Because this warden cannot be reached by service of process within the District of Maryland, the district court correctly determined that it was without jurisdiction.    See also Chatman-Bey v. Thornburgh, 864 F.2d 804, 810-14 (D.C.Cir.1988) (Sec. 2241 habeas corpus is the exclusive remedy for challenges to the allegedly erroneous calculation of parole eligibility dates;  moreover, the petition must be brought in the judicial district of the court having personal jurisdiction over the petitioner's custodian) (en banc);  Guerra v. Meese, 786 F.2d 414 (D.C.Cir.1986) (rejecting the proposition that the United States Parole Commission is the petitioner's "custodian" for challenges to parole commission actions).

4
Accordingly, we affirm the order dismissing the APA complaint without prejudice.  We dispense with oral argument because the dispositive issues recently have been decided authoritatively.

5
AFFIRMED.


Order filed December 15, 2015

                                      In The

                     Fourteenth Court of Appeals
                                   ____________

                              NO. 14-15-00884-CV
                                   ____________

                           ALEX ERAZO, Appellant

                                         V.

LOUIS A. SANCHEZ, CHIEF MEDICAL DIRECTOR FOR THE HARRIS
         COUNTY INSTITUTE OF FORENSIC SCIENCES; MIKE
      ANDERSON, DISTRICT ATTORNEY FOR HARRIS COUNTY,
     TEXAS; DALE M. GORCZYNSKI, JUSTICE OF THE PEACE IN
                   HOUSTON, TEXAS, Appellees

                    On Appeal from the 270th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2014-71507

                                    ORDER

      The notice of appeal in this case was filed October 15, 2015. To date, the
filing fee of $205.00 has not been paid. No evidence that appellants are excused by
statute or the Texas Rules of Appellate Procedure from paying costs has been filed.
See Tex. R. App. P. 5. Therefore, the court issues the following order.
      Appellant is ordered to pay the filing fee in the amount of $205.00 to the
clerk of this court on or before December 28, 2015. See Tex. R. App. P. 5. If
appellant fails to timely pay the filing fee in accordance with this order, the appeal
will be dismissed.

                                   PER CURIAM


728 F.2d 77
Rocco MESSINA and Charles J. Arico, a/k/a "Charles J. Pido,"Appellants,v.UNITED STATES of America, Appellee.
Cal. Nos. 641, 642, Dockets 83-2336, 83-2338.
United States Court of Appeals,Second Circuit.
Argued Dec. 8, 1983.Decided Feb. 7, 1984.

Kenneth A. Reiver, Cedarhurst, N.Y., for appellant Messina.
Louis M. Freeman, New York City (Freeman, Nooter & Ginsberg, New York City, of counsel), for appellant Arico.
Reena Raggi, Asst. U.S. Atty., Brooklyn, N.Y.  (Raymond J. Dearie, U.S. Atty. and Allyne R. Ross, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y., of counsel), for appellee.
Before TIMBERS, VAN GRAAFEILAND and NEWMAN, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge:

1
Rocco Messina and Charles Arico appeal from an order of the United States District Court for the Eastern District of New York (Glasser, J.) denying appellants' petitions for writs of habeas corpus.  Pursuant to the Treaty on Extradition between the United States and Italy, Italy had requested the extradition of appellants for committing the crimes of aggravated attempted extortion and aggravated private violence, in violation of Italian law.  After conducting an extradition hearing and finding probable cause to believe that appellants had committed the crimes with which they were charged, Judge Glasser certified their extraditability.  Appellants' petitions for writs of habeas corpus were denied, and this appeal is from that denial.

2
Because it appeared at the hearing before us that there might have been a misunderstanding whether tapes of certain telephone calls had been forwarded from Italy with the other documents requesting extradition, we remanded the matter to the district court for clarification on this point.  We now have been informed by Judge Glasser that he had the tapes before him on the original hearing and that he listened to them.  His decision, however, was based on the transcripts of the tapes which also were before him.  Insofar as the district judge was concerned, there was no misunderstanding.  Accordingly, we may proceed to the merits.

3
Michele Sindona was an Italian financier whose "massive, complicated, and unscrupulous" machinations played a major role in the collapse of the Franklin National Bank.    See United States v. Sindona, 636 F.2d 792, 795 (2d Cir.1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1984, 68 L.Ed.2d 302 (1981).  Many of these machinations involved the improper use of deposits in Italian banks which Sindona controlled.    Id. at 796-97.  Although Sindona currently is serving a twenty-five year sentence as a result of his 1980 conviction in the United States District Court for the Southern District of New York, Italy has sought and continues to seek his extradition so that he can be tried for his criminal activities in that country.    See, e.g., Matter of Sindona, 450 F.Supp. 672 (S.D.N.Y.1978).

4
One of the problems that has faced both American and Italian authorities has been the murder or intimidation of potential prosecution witnesses.  For example, after the murder of one Giorgio Ambrosoli who was scheduled to testify in the 1980 trial, four Italian witnesses refused to come to New York and testify.    United States v. Sindona, supra, 636 F.2d at 802-04.

5
Giorgio Ambrosoli was the liquidator of Banca Privata Italiana, one of the Italian banks controlled by Sindona, which was forced into liquidation.  Sindona wanted to work out a settlement plan for this bank and tried to force Enrico Cuccia, a prominent Italian banker, to help him secure governmental approval of the proposed plan.  Cuccia reported to Italian authorities that, between 1977 and 1980, he had received numerous threats directed against both him and members of his family.  These included a series of anonymous telephone calls which were accompanied by demands for both cooperation and money.

6
Two such calls, which were received on March 28, 1980, were taped by the Italian police.  The tapes were played for Henry Hill, an American who knew appellants.  Hill identified the anonymous caller on the first tape as Messina and the caller on the second tape as Arico.  Ronald Ehnes, a Deputy United States Marshal, also identified the second caller as Arico.  Relying in part on the sworn affidavits of these two men and transcripts of the taped threats, Judge Glasser certified that appellants were extraditable to Italy to answer the charges against them in that country.  Those charges, which were based on the March 28 telephone calls, accused appellants of aggravated attempted extortion, aggravated private violence, and complicity in the commission of those crimes.

7
On this appeal from the denial of habeas corpus, we are concerned only with whether appellants' alleged offenses were covered by an extradition treaty and whether an official with jurisdiction was presented with any evidence warranting a finding that there was reasonable ground to believe appellants guilty.    Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925);  Simmons v. Braun, 627 F.2d 635, 637 (2d Cir.1980).  We are satisfied that both questions must be answered in the affirmative.

8
We find no merit in appellants' contention that the offenses for which they are being extradited are "not punishable by the laws of both Contracting Parties", as required by the terms of the Extradition Treaty between the United States and Italy.  The requirement of the Treaty is met if the particular acts charged are criminal in both jurisdictions, regardless of whether the crimes bear the same names.    Collins v. Loisel, 259 U.S. 309, 312, 42 S.Ct. 469, 470, 66 L.Ed. 956 (1922).  The Italian offenses with which appellants are charged are in the nature of extortion.  Looking to both federal and state law, as he was permitted to do, see Hu Yau-Leung v. Soscia, 649 F.2d 914, 918-19 (2d Cir.), cert. denied, 454 U.S. 971, 102 S.Ct. 519, 70 L.Ed.2d 389 (1981), the extraditing judge had no difficulty in finding similar federal and state statutes.  See, e.g., 18 U.S.C. Sec. 1952;  N.Y.Penal Law Sec. 135.65.

9
We likewise find no merit in appellants' contention that the extradition proceedings were defective in some manner because the district court did not grant appellants' motion for discovery of the tapes.  As has been pointed out repeatedly, "[a]n extradition hearing is not the occasion for an adjudication of guilt or innocence."    Melia v. United States, 667 F.2d 300, 302 (2d Cir.1981).  The evidentiary rules of criminal litigation are not applicable.  Id.;  Simmons v. Braun, supra, 627 F.2d at 636;  Fed.R.Crim.P. 54(b)(5);  Fed.R.Evid. 1101(d)(3).  As in the case of a grand jury proceeding, a defendant has no right to cross-examine witnesses or introduce evidence to rebut that of the prosecutor.    Charlton v. Kelly, 229 U.S. 447, 462, 33 S.Ct. 945, 57 L.Ed. 1274 (1913);  see United States v. Y. Hata & Co., 535 F.2d 508, 512 (9th Cir.), cert. denied, 429 U.S. 828, 97 S.Ct. 87, 50 L.Ed.2d 92 (1976).  In the exercise of the extraditing judge's discretion, a fugitive may be permitted to offer explanatory testimony, but may not offer proof which contradicts that of the demanding country.    United States ex rel. Petrushansky v. Marasco, 325 F.2d 562, 567 (2d Cir.1963), cert. denied, 376 U.S. 952, 84 S.Ct. 969, 11 L.Ed.2d 971 (1964).  However, the "wrongful exclusion of specific pieces of evidence, however important, does not render the detention illegal."    Collins v. Loisel, supra, 259 U.S. at 316, 42 S.Ct. at 472;  see United States ex rel. Hughes v. Gault, 271 U.S. 142, 151, 46 S.Ct. 459, 460, 70 L.Ed. 875 (1926).

10
Appellants' argument that the affidavits of Hill and Ehnes, sworn to before a Notary Public, were not statements under oath as required by the Treaty, is specious.  See N.Y.Penal Law Sec. 210.00(1);  N.Y.Civ.Prac.Law Sec. 2309(a);  N.Y.Real Prop.  Law Sec. 298(1)(d).  Appellants' attack on the adequacy of the Certification of Authenticity by the United States Ambassador to Italy is equally meritless.    See Galanis v. Pallanck, 568 F.2d 234, 240 (2d Cir.1977);  18 U.S.C. Sec. 3190.

11
Being satisfied that, upon competent and satisfactory proof submitted to the certifying judge, the Italian government made out a case which justified holding appellants to answer the charges against them, see Sindona v. Grant, 619 F.2d 167, 175 (2d Cir.1980), we affirm.

12
Mandate shall issue forthwith.


NOTE: ThiS order is nonprecedential
United States Court of Appeals
for the FederaI Circuit
ACROW CORPORATI()N OF AMERICA,
Plaintiff-Appellant, ~'
V.
UNITED STATES,
Defen,dant-Appellee,
AND
MABEY BRIDGE & SHORE, INC.,
Defen,dant-Appellee. '
2011-5035
Appeal from the U11ited States C0u1't of Federal
Claims in case n0. 10-CV-682, Judge Christine O.C.
Mil1er.
ON MOTION
Bef0re GAJARSA, MAYER and PROST, Circuit Judges.
GAJARSA, C'ircuit Judge.
0 R D E R

ACROW CORP 0F AMERICA V. US 2
Acrow Corporation of America moves for an injunction
pending appeal or alternatively for an expedited consid-
eration of this appeal. The United States opposes. Acrow
replies. The United States moves to dismiss the motion
for an injunction as moot. Acrow opposes. The United
States replies.
Rule 8(a)(1)(C),(2) of the F ederal Rules of Appellate
Procedure authorize this court to grant an injunction
pending appeal in our discretion. Similar to a motion to
stay a judgment or injunction pending appeal, which is
authorized under the same rule, our determination is
governed by four factors, the first two of which are the
most critical: (1) whether the stay applicant had made a
strong showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will sub~
stantially injure the other parties interested in the pro-
ceeding; and (4) where the public interest liest Hilton u.
Braunskill, 481 U.S. 770, 776 (1987).
Upon consideration thereof
lT IS ORDERED THATf
(1) The motion for an injunction is denied.
(2) The motion to dismiss the motion for an injunc-
tion is denied.
(3) The case will be placed on the next available oral
argument calendar after the briefing is completed, which
is the usual course
FoR THE CoURT
HAY 25 2011
/s/ J an Horbaly
Date J an Horbaly
Clerk
FILED
U.S. COURT OF APPEM.S FOR
THE FEDERAL CIRGUfT
MAY 25 2011
1AnuoPaALY
tim

3
CC'
S
ACROW CORP OF AMERICA V. US
Thomas A. Coulter, Esq.
Lartease M. Tiff1th, Esq.
David Z. Bodenheimer, Esq.


655 S.E.2d 858 (2008)
In re I.D.G., A Minor Juvenile.
No. COA07-1107.
Court of Appeals of North Carolina.
February 5, 2008.
Elizabeth Myrick Boone for petitioner-appellee Gaston County Department of Social Services; Heather Adams for Guardian ad Litem.
*859 Winifred H. Dillon, Garner, for respondent-appellant father.
HUNTER, Judge.
Respondent-father appeals the order terminating his parental rights to the minor child, I.D.G. On 21 April 2005, the Gaston County Department of Social Services ("DSS") filed a juvenile petition alleging that I.D.G. was a neglected and dependent juvenile. The basis for these allegations included respondent-mother's ("mother") drug use, her failure to provide a stable home and financial support to the child due to her incarceration during most of the child's life. The petition further alleged that mother's husband, the legal father of I.D.G. ("legal father"), and respondent-appellant father ("respondent-father"), the biological father of the child, were incarcerated during most of the child's life and had each failed to provide support in any form to I.D.G.
On the date the juvenile petition was filed, DSS was granted non-secure custody, and a Guardian ad Litem was appointed for the child. While I.D.G. was initially placed with the child's maternal grandmother with whom he had resided for most of his life, DSS placed the child in foster care on 29 May 2005.
On 13 September 2005, the trial court adjudicated I.D.G. as neglected and dependent. Following a permanency planning hearing in March of 2006, the trial court changed the permanent plan to adoption. On 12 September 2006, mother's parental rights were terminated. On 11 October 2006, the legal father signed a release for adoption. While respondent-father initially requested to relinquish his parental rights, he subsequently rescinded.
On 29 November 2006, DSS filed a petition to terminate respondent-father's parental rights. A hearing was conducted on the petition on 16 May 2006. On 5 June 2007, the trial court entered an order terminating respondent-father's parental rights. Respondent-father now appeals.
The dispositive argument raised by respondent-father on appeal is that the trial court lacked subject matter jurisdiction over the termination of parental rights proceeding because DSS failed to issue a summons to the juvenile pursuant to N.C. Gen.Stat. § 7B-1106(a)(5) (2005). The appellees have conceded that neither the juvenile nor the Guardian ad Litem appointed for the juvenile were served with a summons as required by statute.
As we have most recently held, upon the filing of a petition to terminate parental rights, a summons must be properly issued to the juvenile as required by N.C. Gen.Stat. § 7B-1106. Without the issuance of such summons, "an order terminating parental rights must be vacated for lack of subject matter jurisdiction." In re K.A.D., ___ N.C.App. ___, ___, 653 S.E.2d 427, 429 (2007) (citing In re C.T. & R.S., ___ N.C.App. ___, ___, 643 S.E.2d 23, 25 (2007)). Accordingly, as no summons was issued to the juvenile in this case, we conclude that the trial court lacked subject matter jurisdiction, and vacate the order terminating respondent-father's parental rights.
While DSS's failure to serve a summons on the juvenile compels our ruling in this case, we note that had DSS filed a motion to terminate in the ongoing juvenile abuse, neglect, and dependency case as provided by N.C. Gen.Stat. § 7B-1102, the issuance of a summons would not have been required. In such pending cases, a party seeking termination is only required to serve notice of the motion to terminate on the parties which are specified in N.C. Gen.Stat. § 7B-1106.1. Section 1106.1(a)(6) requires service of the notice on the juvenile only where the juvenile is age twelve or older. Furthermore, even where service of the required notice is not made on the necessary parties, such service can be waived by appearance and failure to raise an objection. See In re J.S.L., 177 N.C.App. 151, 155, 628 S.E.2d 387, 389-90 (2006) (holding that a party who is entitled to notice under N.C. Gen.Stat. § 7B-1106.1 waives that notice by attending and participating in the hearing of the motion without objecting to the lack of notice) (citing In re B.M., 168 N.C.App. 350, 355, 607 S.E.2d 698, 702 (2005)). From a review of the record in this case, it appears that DSS had an option to file a motion in the *860 ongoing juvenile cause under N.C. Gen.Stat. § 7B-1102, thereby avoiding the lack of subject matter jurisdiction resulting from the failure to serve the summons required by N.C. Gen.Stat. § 7B-1106.
Vacated.
Judges McGEE and ARROWOOD concur.


 No

                                                                  No. 98-465

                               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                1999 MT 158

                                                               295 Mont. 120

                                                                983 P.2d 300

COLIN G. PATERSON,

Petitioner and Appellant,

v.

MONTANA CONTRACTOR

COMPENSATION FUND,

Respondent and Insurer,

and

DICK ANDERSON CONSTRUCTION,

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Employer.

APPEAL FROM: Workers' Compensation Court

State of Montana

The Honorable Mike McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Richard J. Martin; Linnell, Newhall, Martin & Schulke, Great Falls, Montana

For Respondent:

Bradley J. Luck; Garlington, Lohn & Robinson, Missoula, Montana

                                                                                Submitted on Briefs: December 17, 1998

Decided: July 8, 1999

Filed:

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__________________________________________

Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

¶1. Colin G. Paterson (Paterson) appeals from the findings of fact, conclusions of law
and judgment of the Workers' Compensation Court denying his claim for temporary
total disability benefits relating to a nonwork-related incident in July of 1996. We
affirm.

¶2. The dispositive issue on appeal is whether the Workers' Compensation Court's
finding that Paterson's 1995 work-related injury reached maximum healing prior to
his 1996 nonwork-related injury is supported by substantial credible evidence.

¶3. We also address, briefly, whether the Workers' Compensation Court applied the
correct burden of proof and whether the Workers' Compensation Court's finding
that the incident of July 4, 1996, was a permanent aggravation of Paterson's back
condition is supported by substantial credible evidence.

BACKGROUND¶4. Paterson is a carpenter who had been a professional artist in the past. In March of
1995, Dick Anderson Construction (Anderson) hired Paterson as a commercial carpenter, a position which
generally involves heavier labor than residential carpentry. On April 13, 1995, Paterson injured his back at
work when he slipped while carrying two steel forms, causing him to "twist and jerk" in an effort to keep his
balance.

¶5. Paterson left work early the day of the injury, but did not file a workers'
compensation claim with Anderson's insurer, the Montana Contractor
Compensation Fund (MCCF). He did experience pain in his left buttocks, the back of
his left thigh and his lower back, however, and received five chiropractic treatments

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in April and May of 1995. Anderson laid Paterson off on April 24, 1995, due to lack
of work.

¶6. Paterson subsequently worked for Rosenbaum Construction in May of 1995.
Later that month, Paterson returned to work for Anderson as a commercial
carpenter and again was laid off due to lack of work in September of 1995. In
October of 1995, Talcott Construction (Talcott) hired Paterson as a commercial
carpenter and laid him off the following month. During the winter and spring of
1995-96, Paterson remodeled a bar and helped perfa tape and paint a friend's house.

¶7. Talcott reemployed Paterson on July 1, 1996. On July 4, 1996, Paterson injured
his back while working in his yard. He sought treatment at Columbus Convenience
Care, received a shot of Demerol and a prescription for pain pills, and did not return
to work for Talcott. Following his nonwork-related injury on July 4, 1996, Paterson
continued to experience lower back pain and, in November of 1996, an MRI disclosed
that he had a "moderately-sized right posterior disc protrusion at L4/5 level . . . [and]
a small posterior protrusion at L1/2."

¶8. Paterson saw several physicians--including Dr. Paul Gorsuch, a neurosurgeon--in
the months after his 1996 nonwork-related injury. Dr. Gorsuch later referred
Paterson to Dr. Ronald Peterson, a specialist in occupational and sports medicine,
who became and remained Paterson's treating physician. Prior to the hearing, Dr.
Peterson opined via letter that Paterson's 1995 work-related injury had not reached
maximum healing prior to his 1996 nonwork-related injury. His opinion was based in
part on Paterson's subjective reports to him.

¶9. In December of 1996, Paterson filed a workers' compensation claim with the
MCCF alleging that his 1996 nonwork-related injury was an exacerbation of his 1995
work-related injury and, therefore, compensable. The MCCF accepted liability for
the 1995 work-related injury. With regard to the 1996 nonwork-related injury,
however, the MCCF disputed liability, asserting that Paterson's subsequent wage loss
and medical expenses resulted from a new injury or aggravation suffered on July 4,
1996.

¶10. Paterson ultimately filed a petition in the Workers' Compensation Court
seeking compensation and benefits for the 1996 nonwork-related injury. During the
two-day hearing on his petition, Paterson testified he experienced ongoing back pain

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after the 1995 work-related injury and was able to perform only light labor
thereafter. Two witnesses corroborated his testimony. The MCCF presented
numerous witnesses who testified Paterson performed heavy labor without
complaining of back pain after his April 13, 1995, work-related injury.

¶11. Dr. Peterson was the only physician to testify in person at the hearing. He
testified after Paterson presented his case and before the MCCF presented all its
witnesses. Because his opinion would be based in part on subjective reports, both
parties asked Dr. Peterson for his opinion on whether Paterson had reached
"maximum healing" after the work-related injury in April of 1995 in light of their
significantly different versions of events following that injury. Since the MCCF had
not yet called its witnesses, it presented Dr. Peterson with a hypothetical scenario
consisting of three components which it intended to establish through its witnesses'
subsequent testimony. Based on the MCCF's hypothetical, Dr. Peterson agreed that
Paterson did reach maximum healing prior to his 1996 nonwork-related injury.
Paterson then paraphrased his version of events based on his witnesses' testimony
and Dr. Peterson opined that Paterson had not reached maximum healing prior to
his 1996 nonwork-related injury.

¶12. After the hearing, the Workers' Compensation Court entered extensive findings
of fact, including findings that Paterson reached maximum healing prior to the 1996
nonwork-related injury and that the latter injury was a permanent aggravation of
his back condition. Those findings were based on the Workers' Compensation
Court's determinations that the MCCF's witnesses were credible and its three-
component hypothetical scenario had been proven, as well as the court's reliance on
Dr. Peterson's opinions. The Workers' Compensation Court also entered conclusions
of law, together with its judgment denying Paterson benefits for his 1996 nonwork-
related injury. Paterson appeals.

DISCUSSION¶13. Is the Workers' Compensation Court's finding that Paterson's 1995 work-related
injury reached maximum healing prior to his 1996 nonwork-related injury supported by substantial
credible evidence?

¶14. Workers' compensation benefits are determined by the statutes in effect on the
date of injury. King v. State Compensation Ins. Fund (1997), 282 Mont. 335, 337, 938
P.2d 607, 608 (citation omitted). Here, Paterson's work-related injury occurred in
April of 1995, and, as a result, the 1993 workers' compensation statutes are
applicable.

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¶15. In this case, Paterson sought temporary total disability benefits. Temporary
total disability means "a condition resulting from an injury . . . that results in total
loss of wages and exists until the injured worker reaches maximum medical healing."
Section 39-71-116(28), MCA (1993). "[A] worker is eligible for temporary total
disability benefits when the worker suffers a total loss of wages as a result of an
injury and until the worker reaches maximum healing" and the determination of
temporary total disability "must be supported by a preponderance of medical
evidence." Section 39-71-701(1) and (2), MCA (1993). In addition,

[i]f a claimant who has reached maximum healing suffers a subsequent nonwork-related
injury to the same part of the body, the workers' compensation insurer is not liable for any
compensation or medical benefits caused by the subsequent nonwork-related injury.

Section 39-71-407(5), MCA (1993). Maximum healing is the "point in the healing process
when further material improvement would not be reasonably expected from primary
medical treatment." Section 39-71-116(14), MCA (1993).

¶16. At the outset of the hearing, the Workers' Compensation Court stated that the
primary issue before it was "whether or not [Paterson] reached maximum medical
healing with respect to the injuries of '95." In other words, it was "just an issue of
whether or not [Paterson] had reached maximum medical healing before this
exacerbation or aggravation of July of 1996." Paterson's counsel agreed.

¶17. As mentioned above, the MCCF presented Dr. Peterson with a hypothetical
scenario consisting of three components during the hearing. In the first component,
the MCCF set forth a factual scenario pertaining to Paterson's work history
subsequent to the 1995 work-related injury, including for whom he worked and the
type of work he performed. The MCCF emphasized Paterson's ability to engage in
heavy labor involving bending, lifting, stooping and twisting, and that Paterson
engaged in such labor for extended periods of time without exhibiting any apparent
back problems or seeking additional medical care for his back after May of 1995.
The second component involved an assumption that Paterson was not fearful of
losing current--or obtaining future--employment if he mentioned an ongoing back
problem. The third component involved an assumption that medical care was
affordable and available after Paterson's final chiropractic treatment in May of 1995.
Assuming those three components to be true, Dr. Peterson agreed that Paterson
reached maximum healing prior to his 1996 nonwork-related injury. The MCCF

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then put on its witnesses in an effort to establish the facts contained in its
hypothetical.

¶18. The Workers' Compensation Court found that each of the three components
contained in the MCCF's hypothetical had been established. Relying on Dr.
Peterson's opinion premised on those facts, the court ultimately found that Paterson
reached maximum healing prior to his nonwork-related injury in July of 1996, and,
on that basis, concluded pursuant to § 39-71-407(5), MCA (1993), that the MCCF
was not liable for compensation or medical benefits.

¶19. We review the Workers' Compensation Court's findings of fact to determine
whether they are supported by substantial credible evidence. Kuntz v. Nationwide
Mut. Fire Ins. Co., 1998 MT 5, ¶ 16, 287 Mont. 142, ¶ 16, 952 P.2d 422, ¶ 16 (citation
omitted). Accordingly, we address the Workers' Compensation Court's findings that
each of the three components in the MCCF's hypothetical scenario was proven and
its ultimate finding that Paterson reached maximum healing prior to his 1996
nonwork-related injury.

A. Paterson's work history and back symptomology after the April 13, 1995, work-related injury

¶20. The MCCF presented five witnesses who testified about Paterson's work history
and back symptomology after his work-related injury in April of 1995. Terry Gibson,
Scott Watson and Greg Schermele (Schermele) observed Paterson's work activities
while employed by Anderson from May to September of 1995, the months
immediately following Paterson's work-related injury. In essence, they all testified
that Paterson's work was heavy labor involving bending, lifting, stooping and
twisting. They also testified that Paterson did not complain of ongoing back pain.

¶21. Larry Dravecky (Dravecky) and Pat Laabs (Laabs), both superintendents for
Talcott, observed Paterson's work activities in October and November of 1995. They
testified that Paterson engaged in heavy labor on a daily basis and did not complain
of back pain. Laabs also testified that Paterson reported no back problems in a
health screening taken before he began working for Talcott.

¶22. The Workers' Compensation Court expressly found the testimony of Schermele,
Dravecky and Laabs credible. Based on that testimony, the Workers' Compensation
Court found that Paterson's work history and back symptomology were consistent

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with the factual scenario set forth in the first component of the MCCF's hypothetical
to Dr. Peterson; namely, that Paterson continued to engage in heavy labor after his
1995 work-related injury and did so without apparent back problems. The
referenced testimony constitutes substantial credible evidence supporting the
Workers' Compensation Court's finding and we do not substitute our judgment for
that of the Workers' Compensation Court, as the trier of fact, concerning witness
credibility. See Walls v. Travelers Indem. Co. (1997), 281 Mont. 106, 111, 931 P.2d
712, 715 (citation omitted).

¶23. It is true that Paterson presented his own testimony--as well as that of several
other witnesses--in support of his contentions that he performed only light carpentry
duties and supervisory work for which he had an assistant after his injury in April of
1995. Thus, there was conflicting evidence on these matters. Our standard in
reviewing the Workers' Compensation Court's findings, however, is whether
sufficient evidence exists to support those findings. See Kuntz, ¶ 16 (citation omitted).
We do not determine whether evidence exists to support contrary findings. Walls, 281
Mont. at 110-11, 931 P.2d at 715 (citation omitted). Nor will we substitute our
judgment for that of the Workers' Compensation Court regarding the weight to be
given to the evidence. Walls, 281 Mont. at 111, 931 P.2d at 715 (citation omitted).

¶24. Here, faced with conflicting evidence regarding Paterson's work history and
back symptomology after his work-related injury in April of 1995, the Workers'
Compensation Court accepted the testimony presented by the MCCF and rejected
that introduced by Paterson. In addition, the Workers' Compensation Court
expressly found that three of the MCCF's witnesses were credible and characterized
portions of the testimony of Paterson and his supporting witnesses as fabricated,
false, unpersuasive and unconvincing. We conclude that substantial credible evidence
supports the Workers' Compensation Court's finding that Paterson's work history
and back symptomology were as presented in the MCCF's hypothetical to Dr.
Peterson.

B. Fear of losing current--or not obtaining future--employment

¶25. Jeff Albrecht (Albrecht), a carpenter for Anderson, worked with Paterson in the
autumn of 1995. He testified that Paterson occasionally complained of back
problems, but did not complain more than anyone else Paterson's age. In addition,
Paterson's own testimony indicated that he did not forego reporting ongoing back

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pain because he was fearful of not obtaining future employment. According to
Paterson, when superintendent Dravecky hired him to work for Talcott in July of
1996, they agreed that Paterson would work only three days a week and would have
an assistant to help him with the heavier work because of his ongoing back pain. The
Workers' Compensation Court found that Paterson was not "deterred from
reporting back pain to his current or prospective employers on account of any fear
that he might lose employment or might not be able to obtain employment."

¶26. The referenced testimony supports the court's finding. Moreover, the
determination of whether Paterson was "fearful" was within the province of the
Workers' Compensation Court as the trier of fact and we will not substitute our
judgment on review. See Walls, 281 Mont. at 111, 931 P.2d at 715 (citation omitted).
We conclude that substantial credible evidence supports the Workers' Compensation
Court's finding that Paterson was not fearful of losing current--or not obtaining
future--employment if he reported ongoing back pain.

C. Affordable and available medical care

¶27. Dr. Peterson testified that Paterson reported discontinuing his chiropractic
treatments after April and May of 1995, notwithstanding ongoing back pain, because
the treatment was a financial strain and he felt it aggravated his symptoms. As a
result of Paterson's report, Dr. Peterson testified that, in order to agree Paterson
reached maximum healing before the 1996 nonwork-related injury, he would have to
be assured Paterson knew medical care was affordable and available.

¶28. The Workers' Compensation Court was not persuaded that Paterson did not
seek medical care after his chiropractic treatments in April and May of 1995 because
of the cost or unavailability of care. Paterson's chiropractic records indicate that he
sought treatments immediately after his April 1995 work-related injury and his July
1996 nonwork-related injury. In addition, Paterson testified he was aware workers'
compensation insurance was available after his 1995 work-related injury which
would have allowed him to explore different treatments. Paterson also was aware he
had access to medical insurance after his 1995 work-related injury through the
Montana Contractors Association Trust.

¶29. The Workers' Compensation Court was faced with deciding whether Paterson
discontinued his treatments because his back pain had subsided or because of the

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cost and unavailability of medical care. It was within the court's province, as the trier
of fact, to weigh the evidence and assess Paterson's credibility. See Walls, 281 Mont.
at 111, 931 P.2d at 715 (citation omitted). We conclude that substantial credible
evidence supports the Workers' Compensation Court's finding that Paterson did not
fail to seek medical care after his chiropractic treatments in April and May of 1995
because of the cost or unavailability of care.

¶30. Having found that each of the three components of the MCCF's hypothetical
was established, the Workers' Compensation Court ultimately found that Paterson
reached maximum healing after his 1995 work-related injury and before his 1996
nonwork-related injury. The court's maximum healing finding was based on Dr.
Peterson's opinion that, if the three components were established, Paterson had
reached maximum healing. Dr. Peterson's opinion constitutes substantial credible
evidence supporting the Workers' Compensation Court's finding that Paterson
reached maximum healing prior to his 1996 nonwork-related injury.

¶31. Paterson contends, however, that the MCCF presented no affirmative medical
testimony on the issue of maximum healing. He asserts that the only substantial
credible evidence on the issue was Dr. Peterson's unequivocal prehearing opinion
that "I do not believe that Mr. Paterson was at maximum medical improvement
prior to the permanent exacerbation of his back experienced on 7/04/96." We
disagree.

¶32. As discussed above, Dr. Peterson's prehearing medical opinion on the absence of
maximum healing was based in part on Paterson's subjective reports. Presented with
the MCCF's three-component hypothetical and asked to assume that the facts were
true, Dr. Peterson changed his opinion and testified that, under those facts, Paterson
had reached maximum healing prior to his 1996 nonwork-related injury. His revised
opinion is no less "affirmative medical testimony" than the original opinion on which
Paterson premises his argument.

¶33. Paterson next contends that returning to work does not, in and of itself, resolve
the issue of maximum healing. We agree. See, e.g., O'Brien v. Central Feeds (1990),
241 Mont. 267, 273, 786 P.2d 1169, 1172 (citation omitted). As discussed above,
however, the Workers' Compensation Court's finding that Paterson reached
maximum healing was based on a number of factors.

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¶34. Paterson also contends that the Workers' Compensation Court's finding that he
was not credible is misplaced because the maximum healing determination was not
dependent on his credibility. This contention is incorrect.

¶35. As discussed above, Paterson's credibility was relevant to the maximum healing
determination because Dr. Peterson's prehearing opinion that Paterson had not
reached maximum healing before the nonwork-related injury on July 4, 1996, was
based on Paterson's report of his work history and back symptomology after the
April 13, 1995, work-related injury. Once the Workers' Compensation Court
rejected Paterson's version of those matters and found that the facts presented by the
MCCF regarding subsequent work and back symptomology were established, a
significant portion of the basis for Dr. Peterson's initial opinion was negated.

¶36. On the record before us, we conclude that the Workers' Compensation Court's
findings regarding Paterson's work history and back symptomology, his lack of fear
of losing current--or not obtaining future--employment, and the affordability and
availability of medical care are supported by substantial credible evidence. We
further conclude that the Workers' Compensation Court's finding that Paterson
reached maximum healing prior to his 1996 nonwork-related injury is supported by
substantial credible evidence.

¶37. Did the Workers' Compensation Court apply the correct burden of proof?

¶38. Paterson contends that the Workers' Compensation Court erred by failing to
shift the burden to the MCCF, pursuant to such cases as EBI/Orion Group v. Blythe,
1998 MT 90, 288 Mont. 356, 957 P.2d 1134, Caekaert v. State Comp. Mut. Ins. Fund
(1994), 268 Mont. 105, 885 P.2d 495, and Belton v. Carlson Transport (1983), 202
Mont. 384, 658 P.2d 405, after he established his entitlement to compensation by
showing a clear connection between his current condition and the April 13, 1995,
work-related injury accepted by the MCCF. According to Paterson, the MCCF did
not meet its burden under those cases and, therefore, a reversal of the Workers'
Compensation Court's decision is required. We disagree.

¶39. In response to Paterson's petition for temporary total disability benefits, the
MCCF relied on § 39-71-407(5), MCA (1993), in asserting it was not liable for
Paterson's July 4, 1996, nonwork-related injury because he reached maximum
healing before his subsequent nonwork-related back injury. The MCCF maintained

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its position in the pretrial order by contending it was not liable for Paterson's
claimed disability and medical benefits following the "non-industrial aggravation,
pursuant to § 39-71-407, MCA . . . ." The pretrial order also stated that whether
Paterson had attained medical stability at any time prior to the July 4, 1996,
nonwork-related injury was at issue. Thus, it is clear that the MCCF sought to avoid
liability under § 39-71-407(5), MCA (1993), from the outset of the proceeding in the
Workers' Compensation Court.

¶40. In addition, while Paterson's Proposed Findings of Fact and Conclusions of Law
raised Belton and Caekaert, he conceded therein that § 39-71-407(5), MCA (1993),
was at issue and that the burden on the MCCF effectively was the same under either
analysis: to establish that he had reached maximum healing and had sustained an
injury after doing so. Paterson's stated position was that the MCCF had not met its
burden of proving he attained "maximum healing at any time from the initial injury
to the present" and, therefore, the MCCF was liable. The Workers' Compensation
Court determined that § 39-71-407(5), MCA (1993), applied and that, on the basis of
its findings that Paterson suffered a "subsequent nonwork-related injury" to his
back on July 4, 1996, and reached maximum healing prior to that nonwork-related
injury, the MCCF was not liable for Paterson's subsequent medical expenses or
compensation benefits pursuant to "the express and plain terms of [§ 39-71-407(5),
MCA (1993)]."

¶41. On the record before us, it is clear that the Workers' Compensation Court did
not err in concluding that § 39-71-407(5), MCA (1993), applies in this case and that
the MCCF met its burden thereunder. Nor need we address the Caekaert and EBI/
Orion line of cases here. Those cases are factually distinguishable from the present
case in that, unlike the present case, they involved subsequent insurers and did not
involve § 39-71-407(5), MCA (1993), which expressly governs maximum healing
prior to a subsequent nonwork-related injury.

¶42. Moreover, since Paterson's position in the Workers' Compensation Court was
that the MCCF's burden was essentially the same under § 39-71-407(5), MCA (1993),
and Caekaert, and that the MCCF's burden was to establish that he reached
maximum healing prior to his 1996 nonwork-related injury, Paterson is asking us to
address a new legal theory on appeal. We do not address for the first time on appeal
a party's change in legal theory. Unified Industries, Inc. v. Easley, 1998 MT 145, ¶
15, 289 Mont. 255, ¶ 15, 961 P.2d 100, ¶ 15 (citation omitted).

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¶43. We conclude that Paterson has not established error by the Workers'
Compensation Court relating to the burden of proof.

¶44. Is the Workers' Compensation Court's finding that the incident of July 4, 1996, was a permanent
aggravation of Paterson's back condition supported by substantial credible evidence?

¶45. The Workers' Compensation Court found that Paterson's 1996 nonwork-related
injury was a permanent aggravation and that Dr. Peterson's opinion in that regard
was not seriously disputed. Paterson contends that the Workers' Compensation
Court erred in determining that his 1996 nonwork-related injury was a permanent
aggravation rather than a temporary exacerbation which did not materially and
permanently alter his condition. We review the record to determine whether
substantial credible evidence exists to support the Workers' Compensation Court's
findings. See Kuntz, ¶ 16 (citation omitted).

¶46. Dr. Peterson agreed on direct examination that he previously had rendered an
opinion that the events of July 4, 1996, "permanently aggravated" Paterson's back
condition. His opinion did not change during his testimony and it constitutes
substantial credible evidence supporting the Workers' Compensation Court's finding
that Paterson's 1996 nonwork-related injury was a permanent aggravation.

¶47. The Workers' Compensation Court's finding that there was "no serious
dispute" that Paterson's 1996 nonwork-related injury permanently aggravated his
back condition also is supported by the record. As mentioned above, Dr. Peterson
testified he had previously rendered an opinion that the events of July 4, 1996,
"permanently aggravated" Paterson's back condition and Paterson did not cross-
examine Dr. Peterson on the question of "permanent aggravation."

¶48. Finally, we reject Paterson's effort on appeal to distinguish between a
permanent "aggravation" and a temporary "exacerbation" on the basis that he did
not rely on such a distinction in the Workers' Compensation Court. While Paterson
repeatedly used the term "exacerbation" in the pretrial order and his Proposed
Findings of Fact and Conclusions of Law, he relied on Dr. Peterson's prehearing
determination that the 1996 nonwork-related injury was a "permanent"
exacerbation of the 1995 work-related injury. In addition, his Proposed Findings of
Fact and Conclusions of Law requested a conclusion that Paterson's 1996 nonwork-

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related injury was a "permanent exacerbation" of the 1995 work-related injury.
Thus, the distinction Paterson attempts to draw on appeal between a "temporary
exacerbation" and a "permanent aggravation" is essentially a change in theory from
that presented in the Workers' Compensation Court, and we do not address new
theories raised for the first time on appeal. See Unified Industries, Inc., ¶ 15 (citation
omitted).

¶49. Affirmed.

/S/ KARLA M. GRAY

We Concur:

/S/ J. A. TURNAGE

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER

/S/ WILLIAM E. HUNT, SR.

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269 S.C. 107 (1977)
236 S.E.2d 419
The STATE, Respondent,
v.
Maxie Lee DIXON, Appellant.
20468
Supreme Court of South Carolina.
July 14, 1977.
*108 Michael P. O'Connell, of Columbia, for Appellant.
Daniel R. McLeod, Atty. Gen., Joseph R. Barker and Richard P. Wilson, Asst. Attys. Gen., and James C. Anders, Sol., of Columbia, for Respondent.
July 14, 1977.
LITTLEJOHN, Justice.
The appellant Dixon was tried and convicted of possession of contraband by a prisoner, in violation of § 55-383, Code of Laws of South Carolina (1962). He was, at the time, an inmate of Central Correctional Institution in Columbia. The contraband charge arose when a guard discovered eight (8) one-half pint bottles of Vodka in a box of groceries appellant was carrying while performing his job as canteen manager in his cell block.
The trial court allowed the appellant to represent himself. Before permitting such, the court asked the appellant questions *109 as to his education and work eperiences, as well as certain questions concerning the nature of the crime with which he was charged, possible punishment, etc. The court found that Dixon had a sixth grade education and had done automobile repair work.
Appellant submits that the trial court erred in accepting Dixon's purported waiver of assistance of counsel. There can be no doubt that he was offered, and did waive the court's offer to appoint counsel. It is beyond question that an accused person may waive counsel and represent himself. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L.Ed. (2d) 562 (1975). However, it is the responsibility of the trial judge to determine whether there is or is not an intelligent and competent waiver. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Whether or not such waiver was intelligently made in this case is a subject of debate.
Although we have chosen to consider it now, this is an issue which could have been, and perhaps more properly should have been raised by way of post-conviction relief because the issue now submitted to this Court was not presented to the trial court. The justice of the case does not require a new trial, but the appellant is entitled to a factual determination by the lower court on the "intelligent waiver" issue. The case is remanded to the lower court for a determination of whether the waiver was intelligently made. At the hearing both the prosecution and the appellant will be permitted to introduce evidence.[1] If it be found by the lower court that the waiver was intelligently made, an order dismissing the appeal shall be made by this Court. If it is determined that the waiver was not intelligently made, an order reversing the appellants conviction and granting him a new trial shall be issued.
*110 After a full consideration of the remaining questions raised by the appellant, we are of the opinion that no error of law appears and that a full written opinion would have no precedential value. Accordingly, they are dismissed pursuant to Rule 23 of the Rules of Practice of this Court.
Remanded.
LEWIS, C.J., and NESS, RHODES and GREGORY, JJ., concur.
NOTES
[1]  For precedent see State v. Hamilton, 251 S.C. 1, 159 S.E. (2d) 607 (1968), and State v. Cannon, 248 S.C. 506, 151 S.E. (2d) 752 (1966).


132 Cal.App.2d 25 (1955)
Estate of JONAS E. YOUNG, Deceased. PER ALGOT WEST, Appellant,
v.
PATRICIA F. MOORE, Respondent.
Civ. No. 8430.
California Court of Appeals. Third Dist.
Mar. 29, 1955.
 Alfred E. Frazier for Appellant.
 Pugh & Webster and Stanley Pugh for Respondent.
 VAN DYKE, P. J.
 This is an appeal from that portion of a decree which adjudges that respondent Patricia F. Moore was the natural child of the deceased, Jonas E. Young, and entitled to inherit and succeed to his estate in equal shares with appellant, whom the same decree adjudged likewise to be the natural child of said deceased. Both appellant and respondent had petitioned the trial court for letters of administration upon the estate of Young who had died intestate. *26 Each claimed to be the natural child of decedent and disputed the like claims of the other. It was stipulated that the trial court in determining which of the two was entitled to letters could determine the right of each as an heir. After a trial upon the facts the court found that each of the petitioners was a child and an heir of decedent, but found that neither ought to receive letters of administration because of the enmity between them and a third person was appointed as such personal representative. Patricia Moore did not appeal from that part of the decree which adjudges that Per Algot West, appellant herein, was entitled as a child of decedent to share equally with her.
 We will state the facts within the scope of the rule that where proof is conflicting that which supports the trial court's determination must be taken as true. Joseph H. Baker and Isabelle Mary Baker were married in 1907 and remained husband and wife until the death of Baker at a time when respondent Patricia was about 13 years of age. She was born during this marriage, on September 9, 1926. Baker and a partner conducted a contracting and building business in San Francisco. In 1923 he moved his family to Tehama County and located them upon a parcel of farming and range land which he had purchased and which lay about 20 miles westerly from Red Bluff. It was mountain or foothill land and somewhat isolated. Having settled his family on the property, Baker returned to San Francisco and went on with his business there. From that time on he spent most of his time in San Francisco, visiting his family only occasionally, sometimes twice, sometimes three or four times, a year. Mrs. Baker was never in San Francisco after moving to Tehama County and the evidence shows that Baker was absent from Tehama County from August of 1925 to late in February, 1926. The evidence supports the inference that during this period Baker and his wife were not together. The normal date of conception of Patricia must be placed somewhere in the forepart of December. Decedent Jonas Young was, when the Baker family moved to Tehama County, an unmarried man, about six years older than Mrs. Baker, who lived on a neighboring ranch which he operated. Commencing shortly after Mrs. Baker came to Tehama County, Young became a frequent visitor in her home. The two rode after stock together and became close companions. When Patricia attained school age she was sent to a convent at Santa Rosa and the evidence supports the inference that she was there mainly supported *27 by Young for a period of seven years. Joseph Baker died October 22, 1939, and within a few months thereafter Mrs. Baker married Young. She immediately moved to his ranch home about a mile distant from her own, and Patricia was taken from the convent at Santa Rosa and brought to the new home where she resided, except for brief intervals, until Young's death in March, 1952. When she came to live with Young and her mother, Patricia was told by her mother that Young was her father. At her birth Patricia was normally developed for a 9 months' baby. While she was at school in Santa Rosa Young visited Patricia on a number of occasions. When she was 8 years old her mother told Mary, Patricia's older sister, that Young was Patricia's father, and she asked the older girl not to blame her mother too much nor to hold Patricia's illegitimacy against the child, but to be kind to her and to do whatever she could for her, all of which the older girl promised she would do. It was shown that upon Patricia's birth there was gossip in the neighborhood concerning her paternity, rumor having it that Young was her father. On many occasions during the years following the death of Joseph Baker, Young openly acknowledged respondent to be his child. Thus, in September, 1940, when Young, being an alien, was required to register as such, Patricia accompanied him to the place of registration wherein he answered to a question as to whether he had any children that he had one child, Patricia. In March, 1943, Patricia was before the juvenile court and Young was called as a witness on her behalf, the minutes of the court showing that "upon inquiry by said counsel witness [Young] acknowledged Patricia ... as his daughter and that said minor was born on September 9, 1926." At that time he told the probation officer that Patricia was his daughter. Patricia's mother was in court during the proceedings referred to. Patricia was involved in a divorce action against her first husband in March, 1948, and Young then testified on her behalf that she could live in his home, that he would assist her to the best of his ability, that he had theretofore publicly acknowledged that she was his daughter and that he intended to leave his property or a substantial part of it to her. In April, 1950 he stated to an official census taker that Patricia was his child.
 [1] Appellant first contends that this case falls within the provisions of section 1962, subdivision 5, of the Code of Civil Procedure, which reads: "The issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed *28 to be legitimate." While, of course, Patricia is disputably presumed to be legitimate, having been born in wedlock during the existence of the marriage of Baker and her mother, we think that the foregoing facts permit the trial court to treat the situation as not falling within the conclusive presumption classification. Estate of Walker, 180 Cal. 478 [181 P. 792], Dazey v. Dazey, 50 Cal.App.2d 15 [122 P.2d 308], and other cases, lay down the rule that a conclusive presumption may be removed by proper and sufficient evidence showing that the husband, though not impotent, was "entirely absent at the period during which the child must in the course of nature have been begotten." From the testimony in this case that Joseph Baker was absent from August, 1925, through the major part of February, 1926, that during that period his wife, living on an isolated mountain ranch about 200 miles away from San Francisco where Baker lived, did not go to San Francisco, the court could infer that as a matter of fact he had no access and that within the meaning of the cited code section he and his wife were not during that period cohabiting. This evidence was strengthened by a showing that during this period the financial conditions obtaining both at San Francisco and in Tehama County with respect to the Bakers were such that the parties were struggling to make ends meet; that Mrs. Baker seldom went even to the nearby town of Red Bluff, and that the family was closely confined to the Tehama County ranch. The trial court could consider that it would be extremely unlikely under all the conditions obtaining that Mr. and Mrs. Baker would meet other than in San Francisco or in Tehama County. We hold that the trial court's findings that "said Isabelle M. Baker, the undisputed mother of said Patricia F. Moore, intermarried with one Joseph H. Baker in the City of Martinez, California, on October 26, 1907, and from that date until the death of said Joseph H. Baker, on September 30, 1939, the said parties continued to be husband and wife, and lived and cohabited together as husband and wife excepting during such times as Joseph H. Baker lived and worked away from home," and the further findings, "That continuously from the month of August, 1925, until the month of February, 1926, said Joseph H. Baker lived and resided in the City of San Francisco, California, and continuously during said period, and for several years prior thereto and continuously thereafter until the time of her death said Isabelle M. Baker lived and resided in the County of Tehama, *29 California," and the further finding, "That between said month of August, 1925, and the month of February, 1926, said Joseph H. Baker did not visit or see said Isabelle M. Baker, his wife, and during said period said Isabelle M. Baker did not see or visit said Joseph H. Baker," and the further finding, "That said Joseph H. Baker and Isabelle M. Baker did not at any time during said period from August, 1925, to February, 1926 have sexual intercourse or have any opportunity whatever for sexual intercourse, and said Joseph H. Baker did not conceive or is not the father of said Patricia F. Moore," are all supported by the evidence. (See Estate of McNamara, 181 Cal. 82 [183 P. 552, 7 A.L.R. 313], holding that the conclusive presumption of legitimacy is not applicable to a case where the child was born 304 days after the husband last had sexual intercourse with the mother, such period of gestation being exceptional, and not according to the usual laws of nature. (See also Cinders v. Lewis, 93 Cal.App.2d 90 [208 P.2d 687].)
 [2] Appellant finally contends that even if the case be not one of conclusive presumption, nevertheless the evidence is insufficient to justify a finding against the presumptions of legitimacy declared in code sections such as Code of Civil Procedure, section 1963, subdivision 31, and Civil Code, section 193. We think it apparent and hold that the evidence substantially supports the trial court's findings as against said disputable presumptions of legitimacy. Giving these presumptions full scope, they do no more as evidence than conflict with the evidence we have related. The fact of paternity in a case lying without the conclusive presumption classification is to be proven as any other fact. The preponderance of evidence governs the decision in the trial court and on appeal that decision must be upheld if substantially supported.
 That portion of the decree appealed from is affirmed.
 Peek, J., and Schottky, J., concurred.