J-S18037-20

                                    2020 PA Super 159

    C.L.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                  v.                           :
                                               :
                                               :
    M.P.                                       :
                                               :
                        Appellant              :   No. 1958 MDA 2019

               Appeal from the Order Entered November 15, 2019
      In the Court of Common Pleas of Lackawanna County Civil Division at
                            No(s): 2019-FC-41210

    C.L.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                  v.                           :
                                               :
                                               :
    M.P.                                       :
                                               :
                        Appellant              :   No. 1959 MDA 2019

                Appeal from the Order Entered October 29, 2019
      In the Court of Common Pleas of Lackawanna County Civil Division at
                            No(s): 2019-FC-41210

BEFORE:        KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                               FILED JULY 08, 2020

           Appellant, M.P. (“Mother”), files these consolidated appeals from the

trial court’s October 29, 2019, order appointing a guardian ad litem (“GAL”)

pursuant to Pa.R.C.P. 1915.11-2, and including access to mental health

____________________________________________

*   Former Justice specially assigned to the Superior Court.
J-S18037-20

records, as well as the trial court’s November 15, 2019,1 order granting in

part, and denying in part, Mother’s Petition for Emergency Special Relief

Seeking Reconsideration, providing the GAL access to mental health records

from the last three years for both Mother and Appellee, C.L. (“Father”),

pursuant to 23 Pa.C.S. § 5334, with restrictions as to disclosure and

dissemination by the GAL, as well as the ability to object to the GAL’s

testimony and/or report or recommendation. After review, we affirm.

       The trial court has set forth the relevant procedural history as follows:

              On August 23, 2019, [Father] filed a Petition for Custody
       and a Petition for Emergency Special Relief in Custody pro se.
       [Father] alleged in both petitions that “[t]he mother of our child,
       [Mother] has become increasingly prone to erratic and hostile
       outbursts toward me in front of our child.” [Father] also alleged
       that “[Mother] had an extensive mental health history . . . and has
       refused to seek any further treatment.” Additionally, [Father]
       alleged that [Mother] “refused a suggested consultation . . . for
       post-partum depression/psychosis.” Further, [Mother] “has been
       regularly dissociating to the point of forgetting big stretches at a
       time or where she is. . .” according to [Father]’s averments.
       [Father]’s Petition for Emergency Special Relief in Custody was
       granted ex parte . . . and scheduled for a hearing. Under [the]
____________________________________________

1 While the docket reflects a filed date of October 29, 2019, and November
15, 2019, there is no notation on the docket that notice was given and that
the orders were entered for purposes of Pa.R.C.P. 236(b). See Frazier v.
City of Philadelphia, 557 Pa. 618, 621, 735 A.2d 113, 115 (1999) (holding
that “an order is not appealable until it is entered on the docket with the
required notation that appropriate notice has been given”); Pa.R.A.P. 108(a)
(entry of an order is designated as “the day on which the clerk makes the
notation in the docket that notice of entry of the order has been given as
required by Pa.R.C.P. 236(b)”). Thus, the orders were not entered and the
appeal period not triggered. Although we consider the matter on the merits,
we caution the Court of Common Pleas of Lackawanna County as to
compliance with the rules with regard to the entry of orders.

                                           -2-
J-S18037-20

     Order, [Father] enjoyed temporary sole physical and legal custody
     of [Child].
           Through counsel, [Mother] filed a Petition for Emergency
     Special Relief in Custody on August 27, 2019. [Mother] likewise
     alleged serious concerns regarding [Father]’s mental health and
     alleged physical, mental, and emotional abuse. Among [Mother]’s
     allegations of abuse were that: 1) [Father] was emotionally
     controlling and manipulative regarding who could see [Child]; 2)
     [Father] coerced [Mother] into severing ties with her parents; 3)
     [Father] talked to [Mother] in a degrading and manipulative
     manner in front of [Child]; 4) [Father] threatened to leave
     [Mother] and take [Child] as punishment for visiting her family;
     and 5) [Father] locked [Mother] out of the marital home and
     attempted to have her committed.
            [Mother] also alleged that [Father] suffered from mental
     health conditions and was playing psychiatrist or gaslighting her.
     For example, [Mother] alleged that [Father] diagnosed [Mother]
     with “dissociative identity disorder” and tried to convince [Mother]
     that she suffered from this condition. Moreover, [Mother] put
     forth allegations that [Father] suffers from schizotypal personality
     disorder and was not taking medication or treating. [Father]’s
     disorder manifested itself in bizarre alleged behavior, including
     telling [Mother] that Maternal Grandfather “pimped [Mother] out
     to his friends while she was unconscious[,]” and that [Father] was
     jealous of the sexual relationship [Mother] enjoyed with Maternal
     Grandfather according to [Mother]’s petition. [Mother] further
     alleged at one point that [Father] threw himself on the ground and
     ripped at his clothing over a dispute as to whether Maternal
     Grandparents could see [Child] and carved the letter M into his
     arm for “no apparent reason” while [Mother] was otherwise caring
     for [Child]. “All of the above behaviors exhibited by [Father,]”
     [Mother] alleged, “call into question his mental health and his
     ability to adequately and safely care for the minor child.”
           [The court] denied [Mother]’s Petition for Emergency
     Special Relief in Custody ex parte and the matters were
     consolidated for hearing before the [c]ourt. The parties, however,
     agreed to allow [Mother] periods of partial physical custody with
     no overnight periods pending the hearing on the petitions. The
     parties agreed that [Child] should have no contact with Maternal
     Grandparents.

                                    -3-
J-S18037-20

Trial Court Opinion (“T.C.O.”), 12/17/19, at 2-3 (citations to the record

omitted).

       Hearings were held on the parties’ cross-petitions on September 10,

2019,2 and October 28, 2019.           Both Mother and Father were present and

represented by counsel. Father testified on his own behalf and presented the

testimony of his sister, as well as that of Mother, as of cross-examination.

Additionally, Mother testified on her own behalf.

             [Mother]’s testimony was not concluded. After the October
       28, 2019[,] hearing, [the court] appointed Andrew Phillips, Esq.[,]
       as Guardian ad Litem (“GAL”) of [Child] pursuant to 23 Pa.C.S. §
       5334 due to the high conflict in the family and the sensitive nature
       of the allegations against each party and others associated. The
       Order appointing the GAL was a form order pursuant to Rules
       1915.11-2 and 1915.21 and contained language that allowed the
       GAL to access both parties’ psychological or psychiatric charts,
       including evaluations, progress notes, test evaluations, and
       discharge summaries.
             [Mother] then filed a Petition for Emergency Special Relief
       Seeking Reconsideration to Entry of the October 29, 2019[,] Order
       Appointing a Guardian ad Litem in the Nature of a Motion for the
       Court to Strike Language from Said Order Pertaining to Mother’s
       Release of Mental Health Records & Mental Health Treatment
       Records to the Guardian ad Litem & Motion to Strike Mother’s
       10/28/2019 Mental Health Testimony from the Record (“Petition
       for Reconsideration”) citing the Mental Health Procedures Act, the
       Psychologist-Patient Privilege, and relevant case law. Following

____________________________________________

2 We observe that the cover sheet for the Notes of Testimony of this hearing
indicates a date of August 15, 2019. An amended cover sheet reflecting a
date of September 10, 2019, is contained in the certified record. We further
note that Plaintiff’s (Father’s) Exhibit 1 was not included as part of the certified
record, or the reproduced record. Nevertheless, the exhibit was summarized
on the record. See Notes of Testimony (“N.T.”), 9/10/19, at 36.

                                           -4-
J-S18037-20

       oral argument on [Mother]’s Petition for Reconsideration,[3] [the
       court] issued two Orders on November 15, 2019[,] granting
       [Mother]’s Petition for Reconsideration in part and sealing this
       docket. Specifically, [the court] limited the Guardian ad Litem’s
       access to three years of both parties’ mental health records and
       ordered non-disclosure of such records, tailoring the Order to the
       testimony in the case. [The court] also directed that [Father] and
       [Mother] submit to mental health evaluations and/or testing
       through one of two different providers pursuant to Pennsylvania
       Rule of Civil Procedure 1915.8. In that Order, no limits were
       placed on the evaluator’s ability to obtain prior mental health
       treatment records of the parties. [The court] later issued Orders
       in compliance with Pa.R.Civ.P. 1915.18, limiting the parties’
       access to the evaluator’s file without authorization from [the
       court].[4]

T.C.O. at 9-10 (citations to the record omitted) (footnotes added).

       Thereafter, Mother, through counsel, filed timely notices of appeal on

November 25, 2019, along with concise statements of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), with respect to the

October 29, 2019, order appointing a GAL pursuant to Pa.R.C.P. 1915.11-2

and allowing access to mental health records, and the November 15, 2019,

order granting in part and denying in part Mother’s Petition for Emergency

____________________________________________

3 While the notes of testimony from this hearing are not included as part of
the certified record, they are included as part of the reproduced record. As
their veracity is not in dispute, we rely on the copy contained within the
Reproduced Record. See Commonwealth v. Barnett, 121 A.3d 534, 544
n.3 (Pa.Super. 2015) (“While this Court generally may only consider facts that
have been duly certified in the record, where the accuracy of a document is
undisputed and contained in the certified record, we may consider it.”)
(citations omitted)).

4 Mother does not challenge the order as it relates to the psychological
evaluations and/or testing.

                                           -5-
J-S18037-20

Special Relief Seeking Reconsideration and providing the GAL access to mental

health records from the last three years for both Mother and Father. 5,        6

Pursuant to order of December 2, 2019, Mother was granted leave to amend

her concise statement and such amended concise statement was treated as

timely filed.7,   8   This Court consolidated Mother’s appeals sua sponte on

January 27, 2020.

       On appeal, Mother raises the following issues for our review:

       1. Did the trial court err or abuse its discretion in directing
       disclosure to the Guardian ad Litem, over the objection of counsel,
       of confidential mental health records, based upon 23 Pa.C.S.[] §
       5334, where the Mental Health Procedures Act [(“MHPA”)], 50 P.S.
       § 7111(a), controls the disclosure of such records and supersedes
       any other statute to the contrary?

Mother’s Brief at 2 (suggested answer omitted).9

____________________________________________

5As indicated, this order additionally imposed restrictions as to disclosure and
dissemination by the GAL, and the ability to object to the GAL’s testimony
and/or report or recommendation.

6We find such orders are appealable as collateral orders pursuant to Pa.R.A.P.
313. See M.M. v. L.M., 55 A.3d 1167, 1168 (Pa.Super. 2012).

7Mother’s Amended Concise Statement made corrections as to citations. See
Amended Concise Statement of Errors Complained of on Appeal Pursuant to
Pa.R.A.P. 1925, 11/27/19.

8Upon motion of Mother, pursuant to order of December 3, 2019, the orders
on appeal were stayed by the trial court. See Order, 12/3/19.

9 Mother failed to preserve a claim as to the striking of her testimony from
October 28, 2019, pertaining to confidential mental health information, as she
failed to raise such a challenge in the statement of questions involved section
of her brief or present any argument and/or discussion with regard thereto.

                                           -6-
J-S18037-20

       Initially, for background purposes, we note that in any custody action

brought under the Child Custody Act, (“the Act”), 23 Pa.C.S. §§ 5321-5340,

the paramount concern is the best interests of the child. See 23 Pa.C.S. §§

5328, 5338. In fashioning a custody award, the trial court must consider the

following best interest factors set forth in Section 5328(a), which provides as

follows:

       § 5328. Factors to consider when awarding custody

       (a) Factors.—In ordering any form of custody, the court shall
       determine the best interest of the child by considering all relevant
       factors, giving weighted consideration to those factors which
       affect the safety of the child, including the following:
              (1) Which party is more likely to encourage and permit
       frequent and continuing contact between the child and another
       party.
              (2) The present and past abuse committed by a party or
       member of the party’s household, whether there is a continued
       risk of harm to the child or an abused party and which party can
       better provide adequate physical safeguards and supervision of
       the child.
             (2.1) The information set forth in section 5329.1(a)(1) and
       (2) (relating to consideration of child abuse and involvement with
       protective services).
             (3) The parental duties performed by each party on behalf
       of the child.

____________________________________________

See In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa.Super. 2017); Krebs v.
United Refining Co., 893 A.2d 776, 797 (Pa.Super. 2006) (stating that a
failure to preserve issues by raising them both in the concise statement of
errors complained of on appeal and statement of questions involved portion
of the brief on appeal results in a waiver of those issues). Any such challenge
is, therefore, waived. Moreover, we note that Mother, while arguing against
waiver, concedes that she abandoned such a claim. Mother’s Reply Brief at
1-2.

                                           -7-
J-S18037-20

          (4) The need for stability and continuity in the child’s
     education, family life and community life.
           (5) The availability of extended family.
           (6) The child’s sibling relationships.
            (7) The well-reasoned preference of the child, based on the
     child’s maturity and judgment.
          (8) The attempts of a parent to turn the child against the
     other parent, except in cases of domestic violence where
     reasonable safety measures are necessary to protect the child
     from harm.
           (9) Which party is more likely to maintain a loving, stable,
     consistent and nurturing relationship with the child adequate for
     the child’s emotional needs.
           (10) Which party is more likely to attend to the daily
     physical, emotional, developmental, educational and special
     needs of the child.
           (11) The proximity of the residences of the parties.
          (12) Each party’s availability to care for the child or ability
     to make appropriate child-care arrangements.
            (13) The level of conflict between the parties and the
     willingness and ability of the parties to cooperate with one
     another. A party’s effort to protect a child from abuse by another
     party is not evidence of unwillingness or inability to cooperate with
     that party.
         (14) The history of drug or alcohol abuse of a party or
     member of a party’s household.
         (15) The mental and physical condition of a party or
     member of a party’s household.
           (16) Any other relevant factor.

23 Pa.C.S. § 5328(a).

     Additionally, relevant to Mother’s specific appellate issue, we note that

“the interpretation and application of a statute is a question of law that

compels plenary review to determine whether the court committed an error

of law.” Wilson v. Transport Ins. Co., 889 A.2d 563, 570 (Pa.Super. 2005).

                                     -8-
J-S18037-20

“As with all questions of law, the appellate standard of review is de novo and

the appellate scope of review is plenary.” In re Wilson, 879 A.2d 199, 214

(Pa.Super. 2005) (en banc).

      We have stated:

      [We] are constrained by the rules of statutory interpretation,
      particularly as found in the Statutory Construction Act.            1
      Pa.C.S.[] §§ 1501-1991. The goal in interpreting any statute is
      to ascertain and effectuate the intention of the General Assembly.
      Our Supreme Court has stated that the plain language of a statute
      is in general the best indication of the legislative intent that gave
      rise to the statute. When the language is clear, explicit, and free
      from any ambiguity, we discern intent from the language alone,
      and not from the arguments based on legislative history or “spirit”
      of the statute. We must construe words and phrases in the statute
      according to their common and approved usage. We also must
      construe a statute in such a way as to give effect to all its
      provisions, if possible, thereby avoiding the need to label any
      provision as mere surplusage.

Cimino v. Valley Family Medicine, 912 A.2d 851, 853 (Pa.Super. 2006)

(quotation omitted). See 1 Pa.C.S.[] § 1921(b). Under Section 1921(c), the

court resorts to considerations of “purpose” and “object” of the legislature

when the words of a statute are not explicit. Sternlicht v. Sternlicht, 583

Pa. 149, 876 A.2d 904, 909 (2005) (referring to consideration of matters such

as: (1) occasion and necessity for statute; (2) circumstances under which it

was enacted; (3) mischief to be remedied; (4) object to be attained; (5)

former law, if any, including other statutes upon same or similar subjects; (6)

consequences of particular interpretation; (7) contemporaneous legislative

history; (8) legislative and administrative interpretations of such statute).

      Moreover,

                                      -9-
J-S18037-20

     [I]t is presumed that the legislature did not intend an absurd
     or unreasonable result. In this regard, we. . .are permitted to
     examine the practical consequences of a particular
     interpretation.

Commonwealth v. Diakatos, 708 A.2d 510, 512 (Pa.Super. 1998).

     Likewise, pursuant to 1 Pa.C.S. § 1933:

     Whenever a general provision in a statute shall be in conflict with
     a special provision in the same or another statute, the two shall
     be construed, if possible, so that effect may be given to both. If
     the conflict between the two provisions is irreconcilable, the
     special provisions shall prevail and shall be construed as an
     exception to the general provision, unless the general provision
     shall be enacted later and it shall be the manifest intention of the
     General Assembly that such general provision shall prevail.

1 Pa.C.S. § 1933.

     As to the confidentiality of mental health records, 50 Pa.C.S. § 7111

provides:

     (a) All documents concerning persons in treatment shall be kept
     confidential and, without the person’s written consent, may not be
     released or their contents disclosed to anyone except:
            (1) those engaged in providing treatment for the
            person;
            (2) the county administrator, pursuant to section 110;
            (3) a court in the course of legal proceedings
            authorized by this act; and
            (4) pursuant to Federal rules, statutes and regulations
            governing disclosure of patient information where
            treatment is undertaken in a Federal agency.
     In no event, however, shall privileged communications, whether
     written or oral, be disclosed to anyone without such written
     consent. . . .

50 Pa.C.S. § 7111.

                                    - 10 -
J-S18037-20

       Moreover, as to the appointment of a GAL in a custody matter, 23

Pa.C.S. § 5334 states:

       (a) Appointment.--The court may on its own motion or the
       motion of a party appoint a guardian ad litem to represent the
       child in the action. The court may access the cost upon the parties
       or any of them or as otherwise provided by law. The guardian ad
       litem must be an attorney at law.
       (b) Powers and duties.--The guardian ad litem shall be charged
       with representation of the legal interests and the best interests of
       the child during the proceedings and shall do all of the following:
                                          ...
              (2) On a timely basis, be given access to relevant
              court records, reports of examination of the parents
              or other custodian of the child and medical,
              psychological and school records.
                                          ...
              (6) Make specific recommendations in a written report
              to the court relating to the best interests of the child,
              including any services necessary to address the child’s
              needs and safety. The court shall make the written
              report part of the record so that it may be reviewed
              by the parties. The parties may file with the court
              written comments regarding the contents of the
              report. The comments filed by the parties shall also
              become part of the record.[10]

23 Pa.C.S. § 5334 (bold in original) (footnote added).

____________________________________________

10As reflected by the Editors’ Notes:
      23 Pa.C.S. § 5334 was suspended insofar as it (1) requires that a
      guardian ad litem be an attorney, (2) permits the guardian ad
      litem to represent both the best interests and legal interests of
      the child, (3) provides the guardian ad litem the right to examine,
      cross-examine, present witnesses and present evidence on behalf
      of the child, and (4) prohibits the guardian ad litem from
      testifying, pursuant to Pa.R.C.P. No. 1915.25.
Editors’ Notes 23 Pa.C.S. § 5334.

                                          - 11 -
J-S18037-20

      In addition, Pa.R.C.P. 1915.11-2 states:

      (a) The court may, on its own motion or the motion of a party,
      appoint a guardian ad litem to represent the best interests of the
      child in a custody action. The guardian ad litem shall be a licensed
      attorney or licensed mental health professional. The guardian ad
      litem shall not act as the child’s counsel or represent the child’s
      legal interests. Prior to appointing a guardian ad litem, the court
      shall make a finding that the appointment is necessary to assist
      the court in determining the best interests of the child.

Pa.R.C.P. 1915.11-2.

      Lastly, Pa.R.C.P. 1915.21 provides that the order appointing a guardian

ad litem shall provide, in part:

      The child’s guardian ad litem shall represent the best interests of
      the child. The guardian ad litem shall not act as the child’s
      attorney or represent the child’s legal interests.
      It is ordered and decreed that all relevant schools, police
      departments, hospitals and social service agencies including home
      and school agencies, who have records, reports and/or
      information pertaining to the child relevant to the custody of the
      the child, shall allow the guardian ad litem access to all files and
      records in its possession, custody or control and shall cooperate
      in responding to all relevant inquiries. These files/records may
      include but are not limited to medical, psychological or psychiatric
      charts including evaluations and progress notes and records, X-
      rays, photographs, tests, test evaluations, intake and discharge
      summaries, police records, and school records including report
      cards, educational assessments and educational plans, relevant to
      this custody dispute and/or relevant to any special needs or
      requirements of the child. The guardian ad litem shall have the
      right to copy any part of the files and records maintained in
      connection with the child.
      It is further ordered and decreed that the guardian ad litem shall
      be permitted to see and speak with the child, and family, medical
      and/or social service providers connected with this case, and take
      all steps appropriate to and consonant with this order.
      The guardian ad litem shall provide copies of any reports prepared
      by the guardian ad litem to each party, or to their counsel, and to

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J-S18037-20

      the court not later than 20 days prior to trial. The guardian ad
      litem shall attend all proceedings and be prepared to testify. The
      guardian ad litem shall be subject to cross-examination if called
      to testify by either party or the court.

Pa.R.C.P. 1915.21.

      In M.M. v. L.M., 55 A.3d 1167 (Pa.Super. 2012), the trial court ordered

the father, over objection, to disclose to the mother mental health records

relating to his in-patient hospitalization and post-hospitalization treatment. In

reversing in part and remanding, this Court held that the MHPA “is equally

applicable in a custody dispute as it is in a civil matter. We hold so especially

where, as here, less intrusive alternatives exist to determine the effect of a

party’s mental health upon the child’s best interest.” Id. at 1173. Important

to this Court was the “expectation of confidentiality.” Id. at 1174. This Court

stated, “[T]he importance of confidentiality cannot be overemphasized [and]

[t]he purpose of the [MHPA] . . . would be severely crippled if a patient’s

records could be the subject of discovery in a panoply of possible legal

proceedings.”    Id.   Instead, noting the “chilling effect” of disclosure of

statutorily privileged mental health records, the Court expressed its

preference for and existence of a less intrusive means, an updated

psychological evaluation. “As the court-ordered psychological evaluation is

the least intrusive means to determine how a parent’s mental health condition

will affect a child’s best interest, it is the preferred method of evaluation.” Id.

at 1175 (citation omitted).

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     Moreover, in Octave ex rel Octave v. Walker, 628 Pa. 128, 103 A.3d

1255 (2014), our Supreme Court addressed waiver. The Court recognized the

importance of the privilege and protection provided by Section 7111 and held:

     The MHPA, 50 P.S. § 7101 et seq., establishes the rights and
     procedures for inpatient psychiatric treatment and involuntary
     outpatient care with the purpose of assuring availability of
     adequate treatment to mentally ill persons. The confidentiality
     protections for mental health records afforded by § 7111 exist to
     enable effective treatment “by encouraging patients to offer
     information about themselves freely and without suffering from
     fear of disclosure of one’s most intimate expressions to others and
     the mistrust that the possibility of disclosure would engender.” To
     this end, 7111(a) requires a patient’s “written consent” before his
     mental health records are released or disclosed, except under
     certain limited circumstances inapplicable here. The Superior
     Court has held this statutory provision can be “waived,” however,
     if the patient places his mental health at issue in a case.

Octave ex rel Octave, supra, 103 A.3d at 1259. Nonetheless, the Court

found the existence of waiver and held:

     We cannot believe that the Pennsylvania General Assembly
     intended to allow a plaintiff to file a lawsuit and then deny a
     defendant relevant evidence, at plaintiff’s ready disposal, which
     mitigates defendant’s liability. Rather[,] the General Assembly
     must have intended the privileges to yield before the state’s
     compelling interest in seeing that truth is ascertained in legal
     proceedings and fairness in the adversary process. . . .
                                    ...
     It must be emphasized that evidentiary privileges have been
     viewed by this Court to be in derogation of the search for truth,
     and are generally disfavored for this reason. The effect of that
     concern is obvious. Accordingly, we hold a patient waives his
     confidentiality protections under the MHPA where, judged by an
     objective standard, he knew or reasonably should have known his
     mental health would be placed directly at issue by filing the
     lawsuit.

Id. at 1260-61.

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J-S18037-20

     In the case sub judice, in appointing the GAL and allowing access to the

parties’ mental health records for the previous three years, the trial court

reasoned as follows:

            The confidentiality protections of the Mental Health
     Procedures Act can be waived where, “judged by an objective
     standard, [a party] knew or reasonably should have known [their]
     mental health would be placed directly at issue by filing the
     lawsuit.”    This [c]ourt notes that in filing his Petition for
     Emergency Special Relief, [Father] raised [Mother]’s mental
     health conditions and [Mother] raised [Father]’s mental health
     conditions in her responsive Petition for Emergency Special Relief.
     By filing custody petitions, both parties in this case knew or
     reasonably should have known that their own mental health would
     be placed directly at issue at a custody trial. A strong argument
     can be made that both parties placed their mental health directly
     at issue and waived confidentiality protections. However, the
     Supreme Court has urged that this form of implicit waiver of
     Section 7111 be applied with great caution.
                                   ...
           Understanding this irreconcilable conflict, this [c]ourt chose
     to apply the Guardian ad Litem statute Section 5334 of the Child
     Custody Act, to the instant dispute, but in a manner that respects
     both parents have concerns about the disclosure of their mental
     health history. On one hand, the Guardian ad Litem needs access
     to records to represent [Child]’s best interests and to make a
     statutorily-mandated report and recommendations to this [c]ourt.
     On the other hand, there appears to be over a decade of mental
     health treatment potentially available here, most of which does
     not necessarily encompass the present issues.
           Upon consideration of the incomplete testimony of the
     parties and [Mother]’s Petition for Reconsideration, this [c]ourt
     determined that access to the parties’ records by the Guardian ad
     Litem should be limited to three years given [Mother]’s specific
     testimony that she began abusing alcohol at the end of 2016 and
     spent ten months in inpatient treatment for both alcohol abuse
     and an eating disorder in 2017. Moreover, during that inpatient
     treatment, [Mother] admitted that she overdosed on prescription
     medication. Given that drug and alcohol abuse and mental health
     conditions must be fully considered under 23 Pa.C.S.

                                    - 15 -
J-S18037-20

      5328(a)(14)-(15), disclosure of records is warranted in this case
      despite the broadness of Section 7111 of the [MHPA].
            Although disclosure of records was ordered, this [c]ourt did
      not permit the Guardian ad Litem full, unfettered access to the
      parties’ mental health records in consideration of Section 7111.
      This [c]ourt also specifically limited the Guardian ad Litem’s ability
      to disseminate the records or the information contained therein
      and stated that the parties retained their ability to object to the
      Guardian ad Litem’s report or his testimony during the custody
      hearing. Furthermore, the Guardian ad Litem was precluded from
      sharing those records obtained with any party or with counsel.
            Additionally, this [c]ourt took an additional, extraordinary
      step to seal the trial court record sua sponte without objection
      from either party.
                                     ...
             “Whenever the provisions of two or more statutes enacted
      finally by different General Assemblies are irreconcilable, the
      statute latest in date of final enactment shall prevail.” “The
      Legislature has made clear [. . .] that tension between statutes
      enacted on different dates is generally to be resolved in favor of
      giving the greatest effect to [the] later-enacted provision.”
            Section 7111 of the [MHPA] was enacted on July 9, 1976[,]
      and made effective sixty days later. In 1996, Section 7111 was
      amended by P.L. 481, No. 77 and has remained effective as
      drafted since July 2, 1996. Section 5334 of the Child Custody Act
      was enacted on November 23, 2010[,] and made effective on
      January 24, 2011. Clearly, Section 5334 was enacted later in time
      and is to be given the greatest effect. . . .

T.C.O. at 12, 24-25, 31 (citations omitted).

      Mother, however, argues that her mental health records are privileged

and protected by the MHPA, which supersedes the Custody Act and any

corresponding rules of civil procedure. Mother’s Brief at 7-8. Mother contends

that Section 7111 supersedes Section 5334 because Section 7111 is specific

in its provisions, while Section 5334, as well as the related Pennsylvania Rules

                                     - 16 -
J-S18037-20

of Civil Procedure, are general.     Id. at 12.    She further highlights that,

although Section 5334 is the later enacted statute, there is no intent revealed

for Section 5334 to “trump” Section 7111. Id. at 8-9, 13. Section 7111,

when amended, was not amended or even suspended to the extent of any

conflict with Section 5334. Id. 10, 13. Mother argues:

            Under statutory interpretation, where conflict exists, a
      specific provision governs over a general provision. First, review
      of § 5334 reveals that its language, providing the powers and
      duties to a Guardian ad Litem, is general. . . . The generality of §
      5334 is expanded by the rules of civil procedure, not by specific
      language in a statute itself. Even in the rules of civil procedure,
      Pa.R.C.P. 1915.11-2(a) is no more specific, and even with
      reference to the language to be contained in the order granting
      powers to the Guardian ad Litem by reference to Pa.R.C.P.
      1915.21 is just general. Thus, the language of § 5334 speaks in
      broad and general terms. Neither § 5334 nor the rules of civil
      procedure identify any limit on the dissemination of content of the
      mental health information acquired or to whom that information,
      through the Guardian ad Litem, whether in court or otherwise,
      may be disseminated.
            In contrast, the MHPA is specific. The MHPA specifies that
      it applies to mental health records generated and concerning “all
      involuntary treatment. . . ., whether inpatient or outpatient, and
      for all voluntary inpatient treatment.” The MHPA specifically
      delineates to whom the mental health records may be disclosed
      and under what circumstances. The MHPA becomes even more
      specific through the definition of its terms. Because the MHPA is
      the more specific of the two provisions, it governs over § 5334 of
      the Child Custody Act.
            Next, while the MHPA predates § 5334, which would seem
      to lean in favor of § 5334, a specific statute takes precedent over
      a general statute. However, this is not the sole factor for the older
      statute to take precedent over the newer statute. When reviewing
      the two (2) statutes, there must appear to be a “manifest intent”
      that the more recent statute trumps the elder statute.
             Comparing both § 7111 and § 5334 reveals that the
      legislature has made no amendments which would weaken its
      strength, despite the enactment of 5334. However, modifications

                                     - 17 -
J-S18037-20

      have been made to § 7111. . . . Though § 7111 could have been
      amended, or even suspended, after the effective date of § 5334,
      to the extent that it was inconsistent with § 5334, it was not.
      Thus, it is submitted that the lack of suspension or amendments
      to § 7111 demonstrates that a “manifest intent” for § 5334 to take
      precedent over § 7111 is not present and the more specific
      statute, § 7111, takes precedent over § 5334 and is the controlling
      statute under the circumstances.
             Such a conclusion dove-tails and is consistent with
      Pennsylvania jurisprudence in the field of custody, where lesser
      intrusive means for the disclosure of records falling within the
      MHPA are available and would not lead to offending or causing
      conflict within the MHPA.

Mother’s Brief at 12-13.

      Discussing M.M. v. L.M., supra, and Gormley v. Edgar, 995 A.2d 1197

(Pa.Super. 2010), Mother further maintains that the trial court erred in

directing such disclosure to the GAL as there is a less intrusive means to

evaluate the status of her mental health and any possible impact with respect

to the custody and best interest of Child. Mother’s Brief at 13-17.

      Moreover, differentiating the instant case from Octave ex rel Octave,

supra, Mother asserts that she did not waive the protection of the MHPA as

she did not commence the within proceedings. Mother’s Brief at 16-19. She

contends:

      Procedurally, . . . [Mother] did not commence the present action,
      rather [Father] did. Because [Mother] did not commence the
      custody action, she could not have reasonably known that her
      mental health would be called into question before the action had
      begun. Also, . . ., this case possesses a less intrusive means to
      evaluate [Mother]’s mental health and its possible impact on the
      best interest of the minor child. Therefore, this Court should
      reject the assertion that [Mother] waived the protection or
      privilege of the MHPA.

                                    - 18 -
J-S18037-20

Id. at 18.

       For the reasons stated by the trial court above and in its thorough and

exhaustive opinion, we do not disturb the trial court’s determinations.11 Unlike

in M.M., where the records in question were being disseminated to the other

party, instantly, they are being disseminated to the GAL.

       Moreover, and importantly, here, “less intrusive alternatives exist to

determine the effect of a party’s mental health upon the child’s best interest.”

M.M., 55 A.3d at 1173. The trial court fashioned less intrusive alternatives

by restricting the GAL’s access to records from the last three years, restricting

the GAL’s disclosure of the records, allowing objections to the GAL’s testimony

and/or report or recommendation, and sealing the record.

       We further observe that the court additionally ordered mental health

examination and/or testing of the parties. Accordingly, we affirm.

       Orders affirmed.

       Judge King joins the Opinion.

       Judge Kunselman files a Dissenting Opinion.

____________________________________________

11 We do not rely on Octave ex rel Octave, supra, to conclude that Mother
waived her claim of confidentiality by putting her own mental health records
at issue. Rather, we rely on the trial court’s analysis that the court did not
violate Mother’s rights under the MHPA where the trial court properly
appointed a GAL under the Custody Act and utilized the least intrusive means.

                                          - 19 -
J-S18037-20

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 07/08/2020

                          - 20 -


923 F.2d 53
Roy BARNES and wife, Bonnie Lee Barnes, Plaintiffs-Appellants,v.MISSION INSURANCE COMPANY, Defendant-Third Party Plaintiff,v.HOUSTON GENERAL INSURANCE COMPANY, Third Party Defendant-Appellee.
No. 90-4145.
United States Court of Appeals,Fifth Circuit.
Feb. 4, 1991.

Gregory A. Hoover and Nicholas H. Patton, Young, Patton & Folsom, Texarkana, Tex., for plaintiffs-appellants.
Phillip W. Gilbert, Brenda Neel High and Bern A. Mortberg, Riddle & Brown, Dallas, Tex., for third-party defendant-appellee.
Appeal from the United States District Court for the Eastern District of Texas.
Before GOLDBERG, KING and DUHE, Circuit Judges.
GOLDBERG, Circuit Judge:

1
This is a diversity action in contract.  Appellants, an injured worker and his wife, settled with two insurers for $750,000.  Appellants pledged in the settlement agreement that they would not settle with a third insurer unless the third agreed to release its claims against the first two.  The appellants breached their agreement, settling with the third insurer for $450,000 without obtaining a release.  The third insurer was then reimbursed by the second, and the latter sought reimbursement from the appellants (the injured worker and his wife).  The district court held for the insurer, and we affirm.

Facts and Prior Proceedings1

2
Roy Barnes, an employee of Seven-O Corporation, was injured while working on the premises of Lone Star Steel.  He and his wife Bonnie Lee Barnes filed suit against Lone Star in the Eastern District of Texas, seeking $3.7 million in actual damages and $3 million in punitives.  Lone Star had three insurers, one primary and the others excess.2   The Barneses settled with the primary and first excess insurers, receiving $750,000 in return for a settlement agreement which provided, among other things, that the Barneses would not settle with the third unless it agreed to release its claims against the first two.  See Transaction 1.3

3
Subsequently, the Barneses settled with the third insurer for $450,000, see Transaction 2, but they did not obtain the release that they had pledged to obtain.  Later, Barnes' employer, Seven-O, reimbursed the first two insurers from its workers compensation policy.  See Transactions 3 and 4.  The third insurer, Mission Insurance Co., then sued the second, Houston General Insurance Co., seeking Houston General's share of the reimbursement (since Mission's policy was excess to Houston General's).  Mission and Houston General subsequently settled, with Houston General paying over its $450,000 share.  See Transaction 5.  Houston General then sought this money from the Barneses, claiming breach of contract.  The company prevailed in the district court, and the Barneses now appeal.

Discussion

4
Central to this case is the settlement agreement that the Barneses signed with the first two insurers, Employer's Casualty and Houston General.  This settlement agreement was the expression of what we denote Transaction 1, in which Barneses received $750,000.  In return for this sum, the Barneses agreed, inter alia, that they would not settle with Mission unless Mission agreed to release its claims against Employers Casualty and Houston General.  This covenant by the Barneses is contained in paragraph five of the settlement agreement, which reads as follows:4

5
The [Barneses] further agree that they shall not enter into any settlement or agreement for settlement with Mission Insurance Company which does not provide for a release by Mission Insurance Company of all claims, demands, actions and causes of action of any kind or nature whatsoever which Mission Insurance Company may now have or may have or own in the future against ... Houston General Insurance Company [or others] arising out of [the Barneses'] claims herein, the various policies of insurance, the judgment or any amended or revised judgment herein, this settlement, and any and all actions of said parties taken in connection with, or in effectuating, this settlement and agreement.

6
As the district judge remarked, this provision is "as plain as day":  it directs that the Barneses not settle with Mission without obtaining a release in favor of Houston General.  The Barneses received valuable consideration in return for their agreement to abide by this provision.  It is clear that the Barneses breached this agreement, when they subsequently settled with Mission for $450,000 without obtaining a release.  The Barneses do not dispute these conclusions.

7
It is equally clear to us that Houston General suffered a loss of $450,000 as a result of the breach.  As the table of transactions shows, when all was said and done, Houston General was out of pocket $450,000.  Whereas, if the Barneses had adhered to their agreement, either Mission would not have settled with them or it would have signed a release.  Either way, Mission would have had no claim against Houston General, and Transaction 5 would not have occurred.  Houston General would have been $450,000 better off.  The loss flowed from the breach like water down a stream.

8
The Barneses attempt to refute the laws of contractual physics by arguing that the $450,000 "belonged" to Seven-O, not Houston General.  This argument amounts to little more than an invitation to a judicial shell game.  It is an invitation we decline.  No sleight of hand can conceal the causation of damages here, any more than one can hide a hare under the Ace of Spades.  Unlike Elmer Fudd, this court recognizes a rabbit when it has one by the ears.

The judgment below is AFFIRMED.5

1
 See also facts recited in Barnes v. Lone Star Steel Co., 642 F.2d 993, reh. denied, 650 F.2d 282 (5th Cir. Unit A 1981) (related case)

2
 Lone Star was covered by $5.3 million of liability insurance, issued as follows:
Insurer             Type of policy                Amount
------------------------------------------------------------
Employers Casualty  primary                       $  300,000
Houston General     excess to Employers Casualty  $1,000,000
Mission             excess to Houston General     $4,000,000

3
 References to Transaction ___ are to the numbered transaction in the following table.  Amounts are in thousands of dollars ($000's).  Amounts paid to a party are shown as positives;  amounts paid by a party are (negatives).  The table shows amounts exclusive of interest and costs, although some of the actual monies paid did include interest and costs
No.      Date        Barnes  Employers   Houston  Mission  Seven  O   Court  *
-------------------------------------------------------------------------------
1        10/30/79       750      (300)     (450)
2         7/10/81       450                         (450)
3        12/28/81**                                          (750)     750
4        12/28/81**                300       450                     (750)
5        11/14/88**                        (450)      450
-------------------------------------------------------------------------------
Net                    1200          0     (450)        0    (750)       0
Notes :

*
 "Court" denotes the registry of the U.S. District Court, Eastern District of
Texas.

**
 Approximate date

4
 The Barneses have expended much time disputing the applicability of another provision of the agreement, paragraph four, in which the Barneses agreed to indemnify Employers Casualty and Houston General against claims by Mission.  We do not discuss the indemnification provision, as the non-execute provision (paragraph five) is quite clear.  No darkening of the skies over paragraph four can render paragraph five any less pellucid

5
 The Barneses also present an equitable argument based on estoppel or unclean hands.  It is without merit


                                                                    FILED BY CLERK
                          IN THE COURT OF APPEALS                      SEP 30 2011
                              STATE OF ARIZONA
                                DIVISION TWO                            COURT OF APPEALS
                                                                          DIVISION TWO

ANTHONY JACKSON and LETICIA            )            2 CA-CV 2011-0001
JACKSON, a married couple,             )            DEPARTMENT B
                                       )
                Plaintiffs/Appellants, )            OPINION
                                       )
                v.                     )
                                       )
NATIONWIDE MUTUAL INSURANCE )
COMPANY, a foreign insurance           )
company; AMCO INSURANCE                )
COMPANY, a foreign insurance company, )
                                       )
              Defendants/Appellees. )
                                       )

           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                               Cause No. C20086091

                           Honorable Paul E. Tang, Judge

                                   AFFIRMED

Goldberg & Osborne
 By David J. Diamond and D. Greg Sakall                                        Tucson
                                                    Attorneys for Plaintiffs/Appellants

Goering, Roberts, Rubin, Brogna, Enos
& Treadwell-Rubin, P.C.
 By William L. Rubin and Elizabeth L. Warner                                 Tucson
                                                    Attorneys for Defendant/Appellee
                                               Nationwide Mutual Insurance Company

K E L L Y, Judge.
¶1            Anthony and Leticia Jackson appeal from the trial court‟s grant of Appellee

Nationwide Mutual Insurance Company‟s motion for summary judgment and the denial

of the Jacksons‟ motion for new trial in this declaratory action against Nationwide and its

subsidiary AMCO Insurance Company (collectively “Nationwide”).1 The Jacksons argue

the court erred in concluding that A.R.S. § 20-259.01, Arizona‟s Uninsured Motorist Act

(UMA), did not require Nationwide to offer uninsured motorist coverage under the

Businessowner‟s Policy it had provided to an automobile service and repair station. They

contend that because Nationwide failed to offer such coverage, it must be imputed to the

policy, providing uninsured motorist coverage for injuries Anthony Jackson sustained

while riding as a passenger in his own vehicle, when it was being driven by a service

station employee and was struck by another vehicle. For the following reasons, we

affirm.

                                      Background

¶2            Although we view the facts in the light most favorable to the party against

whom summary judgment was granted, Andrews v. Blake, 205 Ariz. 236, ¶ 12, 69 P.3d 7,

11 (2003), here the parties filed a joint stipulated statement of facts in connection with

their separate motions for summary judgment. The facts set forth below are taken from

that stipulation. In January 2005, Anthony Jackson had mechanical problems with his

automobile and stopped at a Chevron repair station. Jackson had planned to leave his

          1
        Consistent with the parties‟ arguments, we treat the two policies at issue in this
case as having been issued by Nationwide.

                                            2
vehicle at the station, but, as the parties stipulated, a Chevron employee “offered to show

Jackson how to drive the [vehicle] with its mechanical problems.” Jackson accepted, and

the employee drove Jackson‟s vehicle with Jackson in the passenger seat.             After

Jackson‟s vehicle entered a roadway adjacent to the Chevron station, it was struck by

another vehicle driven by Eduardo Martinez and Jackson was injured. Neither Martinez,

who was at fault, nor his vehicle was insured.

¶3            Chevron carried two insurance policies, a Business Auto Policy (BAP)

issued by Nationwide and a Businessowner‟s Policy (BOP) issued by AMCO. The

policies were issued by the same agent at the same time as part of the same transaction,

and were effective for the same time period.

¶4            The BAP provided coverage for a wide range of risks for motor vehicles

used in Chevron‟s business. Under the policy, Nationwide provided liability coverage for

bodily injury or property damage caused by an accident involving a “covered „auto.‟”2

The policy also contained an uninsured motorist (UM) endorsement under which

Nationwide agreed to “pay all sums the „insured‟ is legally entitled to recover as

compensatory damages from the owner or driver of an „uninsured motor vehicle.‟”

¶5            The BOP is a commercial general liability (CGL) policy.          It provides

coverage for losses such as damage to Chevron‟s building and premises, loss of property,

and equipment breakdown. It also provides liability and medical payment coverage,

       2
        Chevron was a named insured “for any covered „auto.‟” “Covered auto” includes
automobiles Chevron did not “own, lease, hire, rent or borrow that are used in connection
with [the] business.”

                                               3
subject to a general exclusion for losses arising out of the use of automobiles. Section

2(g) of the BOP specifies that the policy does not apply to “„[b]odily injury‟ or „property

damage‟ arising out of the ownership, maintenance, use or entrustment to others of any

. . . „auto‟ . . . owned or operated by or rented or loaned to any insured.” But, this

exclusion is replaced by a garage liability endorsement that extends limited automobile

coverage for Chevron‟s garage operations.3 Specifically, it provides that the bodily

injury and property damage liability coverages in the BOP would apply to “[t]he

operation by an insured of your „customer‟s auto‟ in the course of your „garage

operations.‟” The BOP did not contain a UM endorsement, and Nationwide did not offer

UM coverage to Chevron for the BOP.

¶6            After the Jacksons recovered damages under the UM endorsement to

Chevron‟s BAP,4 they filed a complaint for declaratory judgment seeking a judicial

determination that UM coverage should be imputed to the BOP. As previously noted, the

Jacksons and Nationwide filed motions for summary judgment and stipulated that the

only issue to be decided was “whether [Nationwide] was required to offer UM coverage

to [Chevron] on the BOP.” After a hearing, the trial court granted Nationwide‟s motion

for summary judgment and denied the Jacksons‟ motion. The Jacksons filed a motion for

       3
        “„Garage operations‟ means the ownership, maintenance or use of premises for
the purpose of a business of servicing, repairing, parking or storing „customer‟s autos.‟”
“Customer‟s auto” means a customer‟s motor vehicle left with the garage business for
“service, repair, storage or safekeeping.” “„Garage operations‟ also includes all
operations necessary or incidental to the performance of garage operations.”
       4
      Nationwide concedes that Jackson‟s vehicle was covered under the BAP as a non-
owned auto. Uninsured motorist benefits were paid in accordance with the policy.

                                            4
new trial, in which they argued the court erred in finding Nationwide was not required to

offer UM coverage on the BOP and essentially reurged the arguments they had made on

summary judgment. The court denied the motion and this appeal followed.

                                      Discussion

¶7           In its lengthy minute entry granting Nationwide‟s motion for summary

judgment, the trial court concluded Nationwide was not required to offer Chevron UM

coverage when it issued the BOP, relying, in part, on § 20-259.01(L) and case law

interpreting that provision. See, e.g., Petrusek v. Farmers Ins. Co. of Ariz., 193 Ariz.

552, 975 P.2d 142 (App. 1998) (interpreting former § 20-259.01(K), now renumbered as

subsection (L)). The court concluded the BOP was a general commercial liability policy

that provided excess5 liability coverage and was not a primary automobile liability

insurance policy. On appeal, the Jacksons contend the court erred, arguing the BOP was

a primary motor vehicle insurance policy subject to the requirements of § 20-259.01(A).

¶8           “We review the denial of a motion for new trial . . . for an abuse of

discretion.” Mullin v. Brown, 210 Ariz. 545, ¶ 2, 115 P.3d 139, 141 (App. 2005). We

review de novo a grant of summary judgment and must decide whether the trial court

correctly applied the law. See Valder Law Offices v. Keenan Law Firm, 212 Ariz. 244,

¶ 14, 129 P.3d 966, 971 (App. 2006). We likewise review the interpretation of a statute

de novo. State v. Wilson, 200 Ariz. 390, ¶ 4, 26 P.3d 1161, 1164 (App. 2001). Similarly,

      5
        Although the BOP had a clause indicating its coverage was excess, the parties
agreed at oral argument that because the BAP had a similar clause, the two clauses
invalidated each other and should not be considered.

                                           5
interpretation of an insurance contract is a question of law we review de novo. First Am.

Title Ins. Co. v. Action Acquisitions, LLC, 218 Ariz. 394, ¶ 8, 187 P.3d 1107, 1110

(2008).

¶9            We begin with the UMA. Section 20-259.01(A) provides, in relevant part,

as follows:

              Every insurer writing automobile liability or motor vehicle
              liability policies shall make available to the named insured
              thereunder and by written notice offer the insured and at the
              request of the insured shall include within the policy
              uninsured motorist coverage which extends to and covers all
              persons insured under the policy, in limits not less than the
              liability limits for bodily injury or death contained within the
              policy. The selection of limits or rejection of coverage by a
              named insured or applicant on a form approved by the
              director is valid for all insureds under the policy. . . .

“[T]he purpose of the [UMA] is „to guarantee that responsible drivers will have an

opportunity to protect themselves and their loved ones as they would others.‟” Estate of

Ball v. Am. Motorists Ins. Co., 181 Ariz. 124, 127, 888 P.2d 1311, 1314 (1995), quoting

Ormsbee v. Allstate Ins. Co., 176 Ariz. 109, 112, 859 P.2d 732, 735 (1993). To carry out

this purpose, § 20-259.01(A) mandates that insurers offer UM coverage to their insureds

in the form of “written notice.”

¶10           Because the UMA mandates that an insurer offer UM coverage for every

automobile liability policy issued to an Arizona insured, the proper remedy for failing to

do so is “to include the coverage in the policy by operation of law.” Ins. Co. of N. Am. v.

Superior Court, 166 Ariz. 82, 85-86, 800 P.2d 585, 588-89 (1990).            However, the

legislature has excepted from this provision “any general commercial liability policy,

                                             6
excess policy, umbrella policy or other policy that does not provide primary motor

vehicle insurance.” § 20-259.01(L).

¶11           “When interpreting statutes, our primary goal is to give effect to” the

legislature‟s intent in enacting the provisions. Bither v. Country Mut. Ins. Co., 226 Ariz.

198, ¶ 8, 245 P.3d 883, 885 (App. 2010). And, “[t]he best indication of legislative intent

is the plain language of the statute.” Id. Here the language of § 20-259.01 is clear; it

requires the insurer issuing automobile or motor vehicle liability policies to offer UM

coverage unless certain exceptions apply.

¶12           Nationwide contends the BOP policy falls within the exception set forth in

§ 20-259.01(L), and it was not, therefore, required to offer UM coverage to Chevron

when it issued that policy.    The Jacksons concede the BAP provided primary auto

insurance for Chevron and they agree the BOP is a general commercial policy, or CGL

policy. But, they argue, “by virtue of the [garage liability] endorsement, the BOP is not a

standard CGL policy” as contemplated by § 20-259.01(L). Rather, they contend the

endorsement converted the BOP to a second policy providing “primary automobile

liability coverage for [Chevron]‟s garage operations.” They insist the BOP “was written

and intended . . . as a primary automobile liability policy when an employee is driving a

customer‟s automobile.” Thus, the Jacksons maintain, “under A.R.S. § 20-259.01(A) and

(L), Nationwide was obligated to offer UM coverage under both primary policies,” and,

because no such offer was made under the BOP, coverage should be imputed by law.

See id.

                                            7
¶13          The Jacksons rely on St. Paul Fire and Marine Insurance Co. v. Gilmore,

168 Ariz. 159, 812 P.2d 977 (1991), in support of their argument that the BOP provided

primary automobile insurance. In Gilmore, an employee driving in the course of her

employment was injured by a negligent motorist. Id. at 161, 812 P.2d at 979. After she

exhausted her own insurance, she sought to recover from her employer‟s CGL policy. Id.

The CGL policy contained automobile insurance but uninsured motorists coverage had

not been offered on the policy. Id. Our supreme court held that because the policy

provided automobile liability insurance, § 20-259.01(A) required the insurer to offer UM

coverage. Id. at 167, 812 P.2d at 985.

¶14          Following Gilmore, the legislature amended § 20-259.01 to include the

exception now contained in § 20-259.01(L).6 See 1993 Ariz. Sess. Laws, ch. 207, § 1.

Division One of our court concluded in Petrusek, 193 Ariz. 552, ¶ 17, 975 P.2d at 146,

that the legislature intended the exception to overrule Gilmore‟s requirement that insurers

offer UM coverage when general commercial liability policies include automobile

liability coverage. In Petrusek, an employee was injured while driving during the course

of business. Id. ¶ 2. Her employer carried a BAP as well as a CGL policy. Id. ¶ 3. The

employee sought to recover from the CGL policy, which provided auto coverage only as

excess insurance.   Id. ¶¶ 3-5, 12.      She argued that because her personal insurance

      6
        At the time it was enacted the exception was contained in § 20-259.01(I). See
1993 Ariz. Sess. Laws, ch. 207, § 1. We refer to the exception by its current designation
as § 20-259.01(L).

                                             8
coverage had lapsed,7 her employer‟s CGL policy became primary insurance. Id. ¶ 13.

We rejected this argument, noting that the legislative history of § 20-259.01(L)

“indicates that the legislature intended to overrule Gilmore‟s holding that required

insurers to offer UIM coverage in connection with general commercial liability policies

providing automobile liability insurance.”8 Id. ¶ 17. We reasoned that

             [t]he plain language of the statute shows an intent to eliminate
             the requirement that insurers offer [underinsured motorist]
             coverage when selling automobile liability coverage provided
             „in connection with‟ a broad range of „non-primary‟ type
             policies, including but not limited to commercial general
             liability, excess, and umbrella policies. Thus, the exception
             applies as long as the policy is not intended to be the first or
             only source of insurance coverage.

Id. ¶ 15.

¶15           Here the BOP issued to Chevron provides typical commercial general

liability coverage. The BAP, issued at the same time, provides the type of coverage

typically found in a motor vehicle liability policy, including UM coverage. The BAP was

issued to Chevron at the same time as the BOP, it covered the same policy period and the

insured was offered UM coverage in connection with the transaction.             Under these

circumstances, we conclude the BOP was not “intended to be the first or only source of

[automobile liability] insurance coverage” and the UMA does not apply to it.9 Id.

       7
        We agree with the Jacksons that Petrusek‟s argument differs from their own. But,
as discussed below, we find the reasoning of Petrusek equally applicable here.
       8
       The Jacksons agree the legislature intended to overrule Gilmore by enacting the
language contained in § 20-259.01(L).
       9
       Although Petrusek addressed underinsured motorist (“UIM”) coverage, its
reasoning is equally applicable to UM coverage. See § 20-259.01 (exception contained in
                                            9
¶16           The Jacksons also argue that, “consistent with . . . [A.R.S.] § 28-4010, the

[garage liability] endorsement set forth that the [BOP] provides primary automobile

liability coverage in situations such as when an employee is driving a customer‟s

vehicle.” Section 28-4010(A) sets forth the following presumption:

              If two or more policies affording valid and collectible motor
              vehicle liability insurance apply to the same motor vehicle
              that is involved in an occurrence out of which a liability loss
              arises and one of the policies affords coverage to a named
              insured engaged in the business of selling, repairing,
              servicing, delivering, testing, road testing, parking or storing
              motor vehicles, both of the following are conclusively
              presumed:

              1. If at the time of loss the motor vehicle is being operated
              by a person engaged in one of the businesses or by the
              person‟s employee or agent, the insurance afforded by the
              policy issued to the person engaged in the business is primary
              and the insurance afforded by any other policy is excess.

¶17           In support of their argument that § 28-4010 establishes the BOP provided

primary automobile insurance in this situation, the Jacksons rely on Nationwide Mutual

Insurance v. CNA Insurance Co., 159 Ariz. 368, 767 P.2d 716 (App. 1988), and State

Farm Mutual Automobile Insurance Co. v. Fireman’s Fund Insurance Co., 149 Ariz.

179, 717 P.2d 858 (1986).10        But neither case addresses a situation involving a

determination of priority between two policies held by the same garage owner. To the

subsection L applies to both UM and UIM coverage). And, although the Jacksons are
correct that Petrusek did not involve a garage liability endorsement, its statement of what
the statute requires is equally applicable in this context.
       10
         These decisions refer to A.R.S. § 28-1170.01, the predecessor to § 28-4010. See
1997 Ariz. Sess. Laws, ch. 87 § 12 (renumbering as § 28-4010); 1995 Ariz. Sess. Laws,
ch. 132, § 3; 1978 Ariz. Sess. Laws, ch. 183, § 2.

                                            10
contrary, in Nationwide, we held that § 28-4010 is intended to apply “where there are

multiple carriers” to “requir[e] that the insurer for the negligent driver will usually be the

primary carrier.” 159 Ariz. at 370, 767 P.2d at 718.

¶18           The trial court concluded, and we agree, that “the statutory dictates of

[§ 28-4010] are inapposite” here. We find nothing in the plain language of § 28-4010

that suggests the legislature intended the provision to apply to determine priority between

two policies issued to the same garage owner. See City of Tucson v. Clear Channel

Outdoor, Inc., 209 Ariz. 544, ¶ 71, 105 P.3d 1163, 1178 (2005) (in interpreting statutes,

we look first to language of statute and give words used their plain meaning). Rather, the

conclusive presumptions of § 28-4010 were intended to “plac[e] primary liability on the

party who is most responsible for the loss and thus encourag[e] the negligent party to use

due care.” John Deere Ins. Co. v. W. Am. Ins. Group, 175 Ariz. 215, 218, 854 P.2d 1201,

1204 (App. 1993). These considerations would not be served where both policies are

issued to the same party “engaged in the business of . . . repairing . . . motor vehicles.”

§ 28-4010.    And, as Nationwide pointed out at oral argument, because § 28-4010

addresses only priority of payment for a motor vehicle accident when an insured is

involved in certain automobile businesses, it is not relevant to our determination of

whether the BOP offered primary automobile insurance.

¶19           In sum, because the BOP is a CGL policy “not intended to be the first or

only source of insurance coverage,” Petrusek, 193 Ariz. 552, ¶ 15, 975 P.2d at 146, it

“does not provide primary motor vehicle insurance,” and falls within the exception

created by § 20-259.01(L). Accordingly, the policy is not subject to the written notice

                                             11
requirement of § 20-259.01(A), and UM coverage is not imputed based on Nationwide‟s

not having offered it. As previously noted, the Jacksons‟ motion for new trial essentially

repeated the arguments that had been made on summary judgment. For the reasons stated

above, the court did not abuse its discretion in denying either that motion or the Jacksons‟

motion for summary judgment.

                                       Disposition

¶20           We affirm the trial court‟s grant of Nationwide‟s motion for summary

judgment and its denial of the Jacksons‟ motions for summary judgment and new trial.

                                              /s/ Virginia C. Kelly
                                              VIRGINIA C. KELLY, Judge

CONCURRING:

/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge

/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge

                                            12


317 F.Supp.2d 152 (2004)
CAYUGA INDIAN NATION OF NEW YORK, Plaintiff,
v.
VILLAGE OF UNION SPRINGS; Town of Springport; and County of Cayuga New York, Defendants.
No. 5:03-CV-1270.
United States District Court, N.D. New York.
May 20, 2004.
*153 Sonnenschein Nath & Rosenthall LLP (Raymond J. Heslin, Esq., of counsel), New York City, for Plaintiff.
Hiscock & Barclay, LLP (Alan R. Peterman, Esq., of Counsel), Syracuse, NY, for *154 Defendants Village of Union Springs, Town of Springport and County of Cayuga.

MEMORANDUM-DECISION AND ORDER
HURD, District Judge.

I. INTRODUCTION

On April 27, 2004, the Village of Union Springs, Town of Springport, and County of Cayuga, New York ("Defendants") filed a Notice of Appeal regarding, among other things, the Memorandum-Decision and Order filed on April 23, 2004, permanently enjoining them from enforcing local zoning and land use laws against the Cayuga Indian Nation of New York ("the Nation)" regarding use of property it owns within Defendants' municipal boundaries ("the Property"). Defendants now move, pursuant to Fed.R.Civ.P. 62(c), for an injunction pending appeal enjoining the Nation from further construction, demolition, and/or renovation work at the Property. The Nation opposes. In the alternative, the Nation requests that the Defendants be required to post a substantial bond in the event a stay is granted.
Oral argument was heard on May 13, 2004 in Utica, New York. Decision was reserved. Familiarity with the April 23, 2004 decision, as well as the Memorandum-Decision and Order issued on November 28, 2003, is assumed. See Cayuga Indian Nation of New York v. Village of Union Springs, 317 F.Supp.2d 128, 2004 WL 884589 (N.D.N.Y.2004); Cayuga Indian Nation of New York v. Village of Union Springs, et al., 293 F.Supp.2d 183 (N.D.N.Y.2003).

II. DISCUSSION

A. Standard

Fed.R.Civ.P. 62(c) provides, in relevant part:
When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.
Although generally, "once a notice of appeal has been filed, `it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal,'" Kidder, Peabody & Company, Inc. v. Maxus Energy Corp., 925 F.2d 556, 564 (2d Cir.1991), quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982), pursuant to Fed.R.Civ.P. 62(c), "a district court may grant injunctive relief after a proper notice of appeal has been filed, but only when it is necessary to preserve the status quo pending appeal," id., citing International Ass'n of Machinists & Aerospace Workers v. Eastern Air Lines, Inc., 847 F.2d 1014, 1018 (2d Cir.1988).[1]
*155 Pursuant to Rule 62(c), in order "[t]o determine whether a stay of an order pending appeal is appropriate, a court must evaluate the following factors:
(1) whether the stay applicant has 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 substantially injure the other parties interested in the proceeding; and (4) where the public interest lies."
Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir.1999), quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 2119, 95 L.Ed.2d 724 (1987). Defendants, as movants, have the heavy burden of establishing that the aforementioned factors weigh in favor of a stay. See Handberry v. Thompson, No. 96 Civ. 6161, 2003 WL 1797850, at *1 (S.D.N.Y. April 4, 2003), citing Cooper v. Town of East Hampton, 83 F.3d 31, 36 (2d Cir.1996). See also Juan v. Rowland, No. Civ. H-89-859, 2001 WL 263395 (D.Conn Feb. 9, 2001); Schwartz v. Dolan, 159 F.R.D. 380, 383 (N.D.N.Y.1995), vacated in part on other grounds, 86 F.3d 315 (2d Cir.1996).
When deciding whether a stay is warranted, it is important to keep in mind that "[t]he necessary `level' or `degree' of possibility of success will vary according to the court's assessment of the other [stay] factors." Mohammed v. Reno, 309 F.3d 95, 101 (2d Cir.2002), quoting Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977). That is to say, where, for example, the stay applicant's showing of a likelihood of success is not very strong, a higher quantum of irreparable injury is required, and conversely, a strong showing of a likelihood of success is required where irreparable injury is not very evident. See id. For this reason, the likelihood of success factor will be discussed last.

B. Analysis

1. Irreparable Injury to Defendants

Defendants must establish that, in the absence of a stay pending appeal, they will be irreparably injured. Here, Defendants argue, citing New York v. Shinnecock Indian Nation, 280 F.Supp.2d 1 (E.D.N.Y.2003), that the Nation's construction and operation of a gaming facility on the Property will have a substantial impact on the quality of life in the Village of Union Springs (the Village) and that such harm is imminent. Defendants also argue, citing Kansas v. United States, 249 F.3d 1213 (10th Cir.2001), that they will be irreparably harmed by the prospect of losing sovereignty over the Property.[2] Both *156 of these cases, however, are distinguishable.
In Shinnecock, the court enjoined a non-federally recognized Indian tribe from construction of a Class III gaming facility on a parcel of land it owned in the Town of Southampton that was not within the tribe's reservation and was not taken into trust by the United States. See 280 F.Supp.2d at 3. In finding that the plaintiff there established irreparable harm, the court recognized that the "likely harm to the pristine community of Southampton could be devastating" if the tribe were not required to adhere to state and local environmental laws, specifically noting plaintiffs' argument that the tribe may need to install a waste water treatment facility on the property. See id. at 5. No such concern has been raised here. In fact, Defendants only argue that increased traffic congestion threatens to harm the quality of life in the Village, and refer to arguments advanced in a previous motion regarding the "possible problems with utility services and the possible adverse effect that the location of the gaming facility, 300 yards from the high school, would have on the Village." See Mem. of Law in Supp. of Defs.' Mot. for an Inj. Pending Appeal, at 2-3, citing Aff. of Edward A. Trufant, Oct. 29, 2003, at ¶ 21 (emphasis added). Moreover, the court in Shinnecock expressed concern regarding the tribe's intent to conduct class III gambling on the property when to do so without a tribal-state compact would be a violation of state law as well as the Indian Gaming Regulatory Act (IGRA). See id. Here, the Nation plans to operate a class II gaming facility, which, unlike a class III facility, will not require such a compact. See 25 U.S.C. § 2710(d)(1)(C). Also, the Nation, unlike the tribe in Shinnecock, is a federally recognized tribe and is in possession of a gaming ordinance issued by the National Indian Gaming Commission (NIGC) pursuant to IGRA. See § 2710(b)(2). It is also important to note that, unlike the proposed facility at issue in Shinnecock, which included plans for a casino with, at the very least, 900 to 1000 gaming machines and 60 table games,[3] here, the Nation plans to operate only 100 electronic bingo machines in its facility. See Shinnecock, 280 F.Supp.2d at 3 n. 1. Moreover, Defendants fail to adequately explain how the Nation's facility will generate more traffic than any other business in the Village.
The Tenth Circuit's holding in Kansas v. United States is likewise distinguishable. There, the court affirmed a district court's order granting a motion for a preliminary *157 injunction to stay all activities by an Indian tribe relating to gaming on the property at issue. See Kansas, 249 F.3d at 1221. The underlying lawsuit arose after the NIGC determined that said property was "Indian land" within the meaning of IGRA. See id. at 1220. In deciding the motion for a preliminary injunction, the district court found that plaintiff met the "likelihood of success on the merits" element, ostensibly because it concluded that the NIGC's determination was "arbitrary and frivolous." Id., at 1221. Before reaching that element of plaintiff's motion, the Tenth Circuit found that plaintiff there made the required showing of irreparable harm, stating that "because the State of Kansas claims the NIGC's decision places its sovereign interests and public policies at stake, we deem the harm the State stands to suffer as irreparable if deprived of those interests without first having a full and fair opportunity to be heard on the merits." Id. at 1227. The procedural posture of this case is very different. On a motion for summary judgment, the Property here was declared Indian Country pursuant to 18 U.S.C. § 1151(a) and Defendants were enjoined from enforcing their zoning laws or ordinances to regulate the Nation's activities thereon. See Village of Union Springs, at 151-52, 2004 WL 884589 at *18. Unlike in Kansas, where the court was concerned about a deprivation of the state's sovereignty interests without affording it a full and fair opportunity to be heard on the merits of its claim, here, defendants had such an opportunity when they opposed the Nation's motion for summary judgment.
Most importantly, twice previously in this litigation Defendants failed to make the requisite showing of irreparable harm in order to prevail on their separate motions for a preliminary injunction. See Village of Union Springs, at 150, 2004 WL 884589, at *16; Village of Union Springs, 293 F.Supp.2d at 195-198. Where, as here, the order stayed involves an "injunction, a principal element of which is a finding of irreparable harm that is imminent, it is logically inconsistent, and in fact a fatal flaw, to subsequently find no irreparable nor even serious harm to the [p]laintiff [] pending appeal." Rodriguez, 175 F.3d at 234-235.
For the foregoing reasons, Defendants have failed to show that they will be irreparably injured absent a stay.

2. Substantial Injury to the Nation

Defendants must also establish that, in the event of a stay pending appeal, the Nation will not be substantially injured. Defendants aim to meet this burden by arguing merely that the Nation will suffer "minimal economic loss" since construction activities have only recently restarted. Not surprisingly, the Nation claims it will suffer "enormous" injury in the event of a stay, via economic loss as well as the loss of its sovereignty rights relating to their use of the Property.
In a letter submission regarding the Nation's previous motion for a preliminary injunction, counsel for the Nation indicated that gaming activities to be conducted on the Property would net the Nation a minimum daily profit of $14,000 to $17,000. See Aff. of Alan Peterman, Jan. 20, 2004, Ex. U. Defendants cited this letter, without disputing the accuracy of its contents, in support of one of their arguments against the Nation's motion for summary judgment. See Village of Union Springs, at 146-47, 2004 WL 884589, at *14.
It is important to keep in mind that Defendants, as the movants, bear the burden of establishing that the Nation will not be substantially injured in the event of a stay. Defendants sole argument in this regard is refuted by their own prior submissions in this matter. Moreover, Defendants have not addressed the issue of the *158 effect a stay would have on the Nation's sovereignty over the Property.
Under these circumstances, Defendants have not made the requisite showing of a lack of substantial injury to the Nation in the event of a stay.

3. The Public Interest

Defendants argue the public interest here weighs in favor of a stay, citing the policy of the State of New York to prohibit gambling except in certain circumstances, the need to preserve the quality of life in the Village, and the prevention of an increase in public expenditures which will result if the Nation is allowed to operate a gaming facility on the Property.
The Nation, on the other hand, cites the federal policy of encouraging tribal self governance and economic development through gaming. Moreover, the Nation disputes the relevance of the state's policy regarding gambling since federal, not state law, clearly applies to govern its gaming activities on the Property.
Finally, the Nation argues that Defendants' contentions regarding increased public expenditures are irrelevant, citing Schwartz, supra. Schwartz and the cases it follows found that economic loss was insufficient evidence of irreparable harm, not that economic loss was not to be considered when weighing the public interest.[4]
Nonetheless, it is clear that the public interest here lies with the Nation. As a federally recognized tribe, the Nation's gambling activities will be governed by federal law, and thus, the "overriding goals" of the United States government to further tribal self sufficiency and economic development should control. See New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 335, 103 S.Ct. 2378, 2386-87, 76 L.Ed.2d 611 (1983). See also California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216, 107 S.Ct. 1083, 1092, 94 L.Ed.2d 244 (1987). Defendants have not established that the quality of life in the Village will be significantly harmed by the Nation's activities to warrant setting aside the overriding federal goal of encouraging tribal economic development, albeit temporarily, to enjoin it from continuing activities on the Property.
Likewise, Defendants' reference to the public's interest in preventing an expenditure increase does not overcome the federal interest in encouraging tribal economic development. Defendants have not identified with any specificity the amount of the anticipated increase in expenditures, and only define such expenditures as those which relate to policing the traffic that will allegedly be generated by the Nation's facility. As previously noted, Defendants do not adequately explain how the facility will generate more traffic than any other business in the Village, see supra at 156, further weakening their current argument.
Therefore, the public interest here weighs in favor of denying Defendants' motion for a stay.

4. Likelihood of Success on the Merits

A brief discussion of the arguments regarding the appropriate standard for evaluating this last factor is in order, as the parties have placed a great deal of emphasis on same in their written submissions and at the hearing regarding the pending motion.
*159 Citing Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841 (D.C.Cir.1977), Defendants argue that they do not need to demonstrate the likelihood that their appeal will be successful, only that the determination being appealed involves substantial and novel legal questions. See also Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir.1953) (footnote omitted). In Holiday Tours, the D.C. Circuit Court of Appeals recognized that "tribunals may properly stay their own orders when they have ruled on an admittedly difficult legal question and when the equities of the case suggest that the status quo be maintained." Id. at 844-845.
Defendants argue that, in particular, the issue of whether exceptional circumstances exist to warrant imposition of their local zoning and land use laws to regulate the Nations' activities on the Property, decided against them in the April 23, 2004 order, is one of first impression. See Village of Union Springs, at 144-48, 2004 WL 884589 at *12-15. Moreover, defendants correctly note that the City of Sherrill decision, upon which determinations at issue in the April 23, 2004 order were based, is presently pending before the Supreme Court on a petition for certiorari. See Oneida Indian Nation of New York v. City of Sherrill, 337 F.3d 139 (2d Cir.2003). Moreover, many rulings in the Cayuga Land Claim, also relied on in the April 23, 2004 order, are currently pending an appeal before the Court of Appeals for the Second Circuit. See Cayuga Indian Nation of New York v. Pataki, 188 F.Supp.2d 223 (N.D.N.Y.2002).
However, the Nation argues that the appropriate standard, set forth by the Supreme Court in Hilton and followed overwhelmingly by courts in this circuit, is a strong likelihood of success on appeal, and not, as Defendants contend, substantial and novel legal questions presented on appeal. See Hilton, 481 U.S. at 776, 107 S.Ct. at 2119; Mohammed, 309 F.3d at 100-102; Spargo, 2003 WL 2002762 at *1. But see Cayuga Indian Nation of New York v. Pataki, 188 F.Supp.2d 223, 253 (N.D.N.Y.2002), quoting Holiday Tours, 559 F.2d at 844-845. The Nation also contends that since Defendants have not advanced any new arguments for injunctive relief in support of the present motion, they cannot establish a strong showing of a likelihood of success on appeal. See Schwartz, 159 F.R.D. at 383.
Nonetheless, whatever the appropriate standard is under this prong of the four factor analysis, it is not to be considered in a vacuum. An order maintaining the status quo is only appropriate when, in addition to a likelihood of success on appeal, "when little if any harm will befall other interested persons or the public and when denial of the order would inflict irreparable injury on the movant." Holiday Tours, 559 F.2d at 844 (emphasis added). See also Mohammed, 309 F.3d at 101. Despite Defendants' argument that the determinations being appealed present significant and novel legal questions, they are unable to establish that they will be irreparably harmed unless their motion for a stay is granted, nor have they established that the Nation would not be substantially injured in the event of a stay. Finally, the public interest here weighs in favor of denying a stay.

III. CONCLUSION

Regardless of the significance of the legal questions presented on appeal, or the likelihood of success on the merits, consideration of all four factors in deciding whether to grant a stay overwhelmingly requires rejection of same.
Defendants' motion for an order staying the underlying injunction pending the outcome *160 of an appeal will be denied. The Nation's request for a bond is moot.
Therefore, it is
ORDERED that Defendants, the Village of Union Springs, Town of Springport, and County of Cayuga, New York's motion pursuant to Fed.R.Civ.P. 62(c) for an order enjoining plaintiff, the Cayuga Indian Nation of New York, from performing any additional construction work and/or construction related work on the Property pending a determination of Defendants' appeal regarding this matter to the United States Court of Appeals for the Second Circuit is DENIED.
IT IS SO ORDERED.
NOTES
[1]  The Nation argues that this motion should be denied outright because a stay would result in (1) Defendants receiving all the relief requested by their counterclaim, and (2) a dissolution of the injunction being appealed from. The cases that support the Nation's first argument deal primarily with situations where, unlike here, granting a stay would result in some affirmative measure that could not be revoked, such as, for example, the deportation of a non-citizen. See Jimenez v. Barber, 252 F.2d 550, 553 (9th Cir.1958). See also McHale v. Cornell University, No. 85-CV-1281, 1985 U.S. Dist. LEXIS 14541, at *4 (N.D.N.Y. Oct. 25, 1985). But see Reynolds Metals Co. v. Secretary of Labor, 453 F.Supp. 4, 7 (W.D.Va.1977) (court refused to grant a stay where to do so would allow indefinite suspension of a warrant to inspect movant's plant for OSHA violations, and where none of the factors for granting a stay weighed in movant's favor). The Nation's second argument, that the stay would effectively dissolve the injunction appealed from, thereby exceeding this court's jurisdiction under Rule 62(c), also does not carry much force. It is true that Rule 62(c) "has been narrowly interpreted to allow district courts to grant only such relief as may be necessary to preserve the status quo pending an appeal." See International Ass'n of Machinists & Aerospace Workers v. Eastern Air Lines, 847 F.2d 1014, 1018 (2d Cir.1988). Here, the underlying injunction enjoins defendants from enforcement of their local zoning and land use laws against the Nation regarding their use of the Property. A stay of the injunction would not result in its dissolution, but merely suspend construction or renovation activities on the Property pending appeal, thereby preserving the status quo in accordance with Rule 62(c). Therefore, for the foregoing reasons, further analysis is necessary before deciding whether a stay is warranted here.
[2]  In their reply papers, Defendants note their disagreement with language from the April 23, 2004 decision which stated, in support of the finding that Defendants failed to make the requisite showing of irreparable harm regarding their cross motion for a preliminary injunction, that "Defendants' contention that the Village will be deprived of `possible regulation and control' of the Property is speculative." Village of Union Springs, at 150, 2004 WL 884589, at *16. Defendants argue that, to the contrary, the threat of deprivation of their jurisdiction over the Property was clearly not speculative, especially considering that the effect of that very decision was to make such deprivation a reality. This argument misconstrues the quoted language, the basis of which Defendants are well aware. In support of their cross motion, Defendants cited a section of IGRA which prohibits gaming on lands acquired by the Secretary of the Interior (the Secretary) in trust for the benefit of an Indian tribe after October 17, 1988, unless certain exceptions apply. See 25 U.S.C. § 2719. Defendants went on to note that both a decision by the Secretary to take land into trust as well as a decision regarding any exceptions to the cited IGRA provision require input from the state and local governments involved. Although Defendants admitted that the Nation had not applied for trust status regarding the Property, they nonetheless argued that they were threatened with a deprivation of "possible regulation and control" over the Property due to their inability to be heard at some future date should the Nation ever submit such an application. The speculative nature of that argument was, and still is, very apparent. The trust status of the Property was not an issue to be decided by the April 23, 2004 decision, and as such, was wholly irrelevant to the conclusion reached therein, to wit, that Defendants do not have jurisdiction to regulate the Nation's activities on the Property because it is Indian Country pursuant to 18 U.S.C. § 1151(a).
[3]  In its complaint, the State of New York contended that the Shinnecock Nation planned "as many as 1,000 slot machines, more than 100 gaming tables, a food court, an entertainment stage, and a high-stakes bingo hall." Shinnecock, 280 F.Supp.2d at 3.
[4]  "Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough to show irreparable harm." Schwartz, 159 F.R.D. at 384, quoting Mowbray v. Kozlowski, 725 F.Supp. 888, 890-891 (W.D.Va.1989) (internal quotation and citation omitted). See also Reynolds Metals Co. v. Secretary of Labor, 453 F.Supp. 4, 7 (W.D.Va.1977).


5 A.3d 1246 (2010)
204 N.J. 3
In the Matter of Sharon S. TERRELL, an Attorney at Law (Attorney No. XXXXXXXXX).
D-6 September Term 2010, 066954
Supreme Court of New Jersey.
September 27, 2010.

ORDER
The Disciplinary Review Board having filed with the Court pursuant to Rule 1:20-15(k) a recommendation that SHARON S. TERRELL of CHERRY HILL, who was admitted to the bar of this State in 1986, be suspended from the practice of law and compelled to pay a monetary sanction to the Disciplinary Oversight Commit tee for failure to comply with the determination of the District IV Fee Arbitration Commit tee in District Docket No. IV-2010-0004F, and good cause appearing;
It is ORDERED that SHARON S. TERRELL be temporarily suspended from the practice of law, effective October 27, 2010, and until respondent satisfies the award in respect of the District IV Fee Arbitration Commit tee in District Docket No. IV-2010-0004F and pays a sanction of $500 to the Disciplinary Oversight Committee; provided, however, this Order shall be vacated automatically if prior to the effective date of the suspension, the Disciplinary Review Board reports to the Court that respondent has satisfied all financial obligations under this Order; and it is further
ORDERED that if respondent seeks to be heard on this matter, she shall file with the Clerk of the Court within ten days of the file date of this Order a written request for the issuance of an Order to Show Cause; and it is further
ORDERED that the entire record of this matter be made a permanent part of respondent's file as an attorney at law of this State; and it is further
ORDERED that respondent be restrained and enjoined from practicing law during the period of his suspension and that he comply with Rule 1:20-20.


510 U.S. 1108
In re Gay.
No. 93-7607.
Supreme Court of United States.
February 22, 1994.

1
Petition for writ of habeas corpus denied.