269 B.R. 846 (2001)
In re SUNTASTIC USA, INC., Debtor.
No. 00-08420-ECF-CGC.
United States Bankruptcy Court, D. Arizona.
September 17, 2001.
Daniel Collins, Leonard Collins & Kelly, P.C., Phoenix, AZ, for Trustee Robert Patrick Abele.
Robert Patrick Abele, Mesa, AZ, trustee.
Craig J. Bolton, Greenberg Traurig, LLP, Phoenix, AZ, for Citizens Communications Company.
Janet Napolitano, Attorney General, Deborah L. Bryant, Assistant Attorney General, Phoenix, AZ, for Arizona Department of Revenue.
Richard M. Lorenzen, Brown & Bain, PA, Phoenix, AZ, Michael Harper, LLP, Faegre & Benson, LLP, Minneapolis, MN, for Rabobank Nederland.
D. Lamar Hawkins, Hebert Schenk, P.C., Phoenix, AZ, D. Rand Henderson, Mortensen & Henderson, P.C., Snowflake, AZ, Bernard C. Porter, Porter Law Center, Chartered, Mesa, AZ, for debtor.
G. Terris Porter, Porter Law Offices, PC, Show Low, AZ, for Baldwin, Jones & Co., LLP.
*847 UNDER ADVISEMENT DECISION RE: MOTIONS FOR ALLOWANCE OF SURCHARGE PURSUANT TO 11 U.S.C. § 506(c)
CHARLES G. CASE, II, Bankruptcy Judge.
I. Introduction
Several administrative claimants have filed motions seeking (1) standing to pursue surcharges pursuant to 11 U.S.C. section 506(c) against the collateral of secured creditor Cooperative Centrale Raiffeisen-Boerenleen Bank, B.A. ("Rabobank") or (2) an order requiring the trustee to do so on their behalf.[1] These claimants include various counsel for the debtor, Hebert Schenk P.C. and Baldwin, Jones & Co., and two "involuntary" administrative claimants, Citizens Communications Company ("Citizens"), which was required to provide natural gas service under applicable law and tariffs for which it was not paid, and the Arizona Department of Revenue ("ADOR"), which has not been paid required state withholding taxes on wages of employees who worked post-petition. All of the claimants assert that they have provided a specific benefit to Rabobank sufficient to justify a surcharge. There is approximately $250,000 in post-petition cash collateral available for these purposes; the administrative claims asserted exceed $400,000.
II. Issues presented
The following issues are presented:
1. May a creditor seek a surcharge under section 506(c) where the trustee has refused to do so on the creditor's behalf?
2. If not, what is the trustee's duty where a creditor has demanded that a surcharge motion be prosecuted by the trustee on that creditor's behalf?
III. Discussion
11 U.S.C. section 506(c) provides that [t]he trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim.
This Court is initially bound by the United States Supreme Court's decision in Hartford Underwriters Insurance Co. v. Union Planters Bank, N.A., 530 U.S. 1, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000). The issue in Hartford was whether an administrative claimant of a bankruptcy estate could seek payment of its claim from property encumbered by a secured creditor's lien pursuant to section 506(c). The secured creditor was debtor's primary lender and was secured by essentially all of debtor's real and personal property. Post-petition, the primary lender agreed to lend debtor an additional $300,000 to help finance the reorganization. Debtor used the loan to pay expenses, including worker's compensation expenses.
The worker's compensation insurance was provided by Hartford Underwriters, who was unaware of the bankruptcy proceedings. Debtor failed to make the monthly insurance premium payments, but Hartford continued to provide insurance nonetheless. When reorganization ultimately failed, the case was converted to Chapter 7 and a trustee was appointed. At this time, the debtor owed Hartford *848 $50,000 in premiums. When Hartford learned that the estate lacked unencumbered funds from which to pay Hartford, Hartford sought to surcharge the secured lender for the unpaid premiums pursuant to section 506(c).
Section 506(c) is an exception to the rule that secured claims are superior to administrative claims; it provides that reasonable and necessary amounts expended by a party in order to preserve or dispose of estate property may be paid out of a secured party's collateral where such expenses benefitted the holder of the secured claim. The question was whether Hartford had standing to seek the surcharge or whether it could only be sought by the trustee. Beginning its analysis with the language of section 506(c) that specifically referred to "the trustee," and no other party, the Court concluded that the express language was controlling, notwithstanding the lack of a specific prohibition against other parties bringing such a claim. The Court concluded that it was certainly plausible, given the trustee's unique role in the bankruptcy proceedings, that Congress intended only the trustee to pursue surcharges.
The Court also rejected Hartford's argument that policy urges the conclusion that others may bring surcharge proceedings because in some situations the trustee may lack an incentive to pursue payment. The Court responded that such situations would be "limited by the fact that the trustee is obliged to seek recovery under the section whenever his fiduciary duties so require." 530 U.S. at 12, 120 S.Ct. at 1950. The Court further noted that the failure of the trustee to pursue the surcharge would not leave the party who had provided the goods or services without other means to protect themselves against other creditors. The Court suggested that the party could insist on cash payment, or contract directly with the secured creditor to obtain superiority status or a security interest.
The Court expressly left undecided the question of whether a court could grant a party other than the trustee permission to pursue a surcharge where the trustee refused to do so because Hartford never asked the trustee to pursue payment under section 506(c) and did not seek permission from the Bankruptcy court to pursue the matter itself.
The Court is further bound by the Ninth Circuit's opinion in In re Debbie Reynolds Hotel & Casino, Inc., 255 F.3d 1061 (9th Cir.2001). There, the debtor and secured creditor Resort Funding, Inc. ("RFI") entered into a settlement agreement that provided for a $50,000 payment from RFI to debtor's counsel pursuant to section 506(c). The Ninth Circuit found the settlement agreement valid and enforceable against a challenge by Calstar Corporation that the agreement impermissibly abrogated its right to surcharge the secured collateral of RFI.
The settlement arose when Calstar gained the right to purchase the debtor hotel. It agreed to lend debtor $150,000 to keep the hotel open while Calstar completed its due diligence prior to closing. This postpetition financing was approved on a super-priority basis, giving Calstar the right to repayment ahead of all administrative and unsecured claims (but didn't change the right of the secured creditors). Subsequently, Calstar withdrew from the sale. The court then held a public auction to sell the property.
After the sale, debtor's counsel sought a $50,000 payment out of RFI's secured collateral under section 506(c). RFI agreed, although it never conceded that debtor's counsel had provided any measurable benefit to its secured collateral. The agreement contained a provision barring any *849 other party in the proceedings from seeking to surcharge RFI's collateral under section 506(c). Calstar objected because it wanted to surcharge the secured collateral itself for repayment of the $150,000 it advanced debtor and which it claimed benefitted RFI.
Two issues faced the court: (1) whether Calstar had standing to object to the secured creditor's settlement agreement with the debtor in possession; and (2) how should the $50,000 in proceeds from the surcharge be distributed. On the first issue, the court concluded that Calstar had no standing under the analysis of Hartford Underwriters and therefore the immunizing language in the settlement agreement had no legal effect. The court noted that Hartford overruled prior 9th Circuit law (In re Palomar Truck Corp., 951 F.2d 229 (9th Cir.1991)) allowing parties other than the trustee to seek a surcharge under section 506(c) when the trustee "has no economic incentive to seek recovery under § 506(c)." Neither the court in Debbie Reynolds nor in Palomar determined whether a party other than the trustee may seek a surcharge after the trustee has refused to pursue such a surcharge, although the court's analysis in Palomar suggests that it is not necessary.[2]
Nevertheless, at bottom, Debbie Reynolds establishes that, in the Ninth Circuit, even where the trustee has no economic incentive to pursue recovery under 506(c), nobody else may pursue surcharge  period.
This conclusion does not fully answer the next question, however: on what grounds may the trustee refuse to pursue a surcharge? The trustee unquestionably has obligations to the estate and the creditors to pursue various claims and matters. See Kowal v. Malkemus (In re Thompson), 965 F.2d 1136, 1145 (1st Cir.1992) (Chapter 7 trustees are "charged with the fiduciary duty to administer the chapter 7 estate expeditiously in the best interests of the estate"); Martin-Trigona v. Ferrari (In re WHET, Inc.), 750 F.2d 149, 149 (1st Cir.1984) (trustees "owe[ ] a fiduciary duty to debtor and creditors alike to act fairly and protect their interests"). And, of course, the Supreme Court in Hartford told us that the trustee had some duties in this regard. Not surprisingly, case law on this point is scant.
The Fourth Circuit in In re JKJ Chevrolet, Inc., 26 F.3d 481 (4th Cir.1994), briefly addressed the issue of a trustee's duty with respect to section 506(c).[3] In responding to the argument that a trustee may not have an incentive to pursue a surcharge on behalf of some creditors, the court noted that the trustee owes a fiduciary duty to the creditors of the estate:
A failure to seek recovery of a qualifying claim under § 506(c) may constitute a breach of those duties. In addition, trustees are administrative claimants who are paid from the funds of the estate. If there are insufficient funds in the estate to pay all of the allowed administrative expenses, the trustee will not be paid in full, but will be required to share the funds of the estate on a pro rata basis with the other administrative claimants. Thus, not only does a trustee usually have a strong incentive to pursue § 506(c) claims, but both the trustee and *850 debtor in possession have a fiduciary duty to pursue viable § 506(c) claims that would benefit the estate.
26 F.3d at 485. The court went on to state that if a trustee refuses to pursue the 506(c) surcharge, the third party could seek a court order requiring the trustee to do so, request the court remove the trustee, or, if the debtor in possession is in control of the estate, request the appointment of a trustee. Again, the court refused to consider whether it could grant derivative standing to the third party in order to pursue the surcharge because in this case there had been no argument that the previously mentioned avenues of relief would not prevent a windfall to the secured creditors.
The touchstone of a trustee's duty is to act in the best interests of all creditors. Thus, this Court concludes that the test of whether a trustee may refuse to pursue a section 506(c) claim after request by an administrative claimant is whether doing so may conceivably benefit the estate, without regard to whether the action will benefit the requesting claimant. A typical scenario would be where there are potentially legitimate surcharge claims, payment of which from the secured party's collateral would increase the pool of unencumbered assets remaining to pay other administrative, or even unsecured claims, that do not have a legitimate basis upon which to seek a surcharge. These circumstances could include surcharge claims by the trustee himself or surcharge claims brought on behalf of others. In either event, the net result would be an increase in the pro rata distribution available to other creditors  clearly a benefit to the estate.
Unfortunately for these claimants, these are not the undisputed facts in this case. Here, there are no unencumbered funds. The only basis for payment of these claimants, other than consent, is whether they can individually establish entitlement to a surcharge. Whether they do or not has no impact on the estate as a whole, or on other creditors; the only impact is individual. This Court concludes that it is not part of a trustee's mandatory exercise of his fiduciary obligations to take actions the end result of which only benefit an individual creditor or claimant. As a result, his refusal to prosecute the claims is not open to challenge under governing law. Therefore, it is not necessary to hold further proceedings in this case to test the trustee's refusal to proceed.
IV. Conclusion
For the foregoing reasons, the Court concludes that the administrative claimants here, other than the trustee, lack standing to pursue a surcharge against Rabobank under 11 U.S.C. section 506(c). In addition, where pursuing the requested surcharges here would not benefit the estate as a whole, but only the individual administrative claimants, the trustee cannot be forced to pursue the surcharges himself.
However, the issue of whether Rabobank consented to the use of its cash collateral as to one, some, or all of these claimants is a factually intensive question that must be decided individually as to each claim. For that purpose, a Rule 16(b) scheduling conference will be held on October 25, 2001, at 3:30 p.m. in Courtroom 6 of the United States Bankruptcy Court, 2929 N. Central Ave., Phoenix, Arizona. Parties are to comply with Federal Rules of Civil Procedure 26(a) and 26(f) prior to that conference and shall be prepared to discuss setting the matters for final disposition.
So ordered.
NOTES
[1]  The administrative claimants also assert that they should be paid out of Rabobank's cash collateral because Rabobank has consented to such use under various cash collateral orders. These claims present factually intensive inquiries that cannot be resolved by the this Order but rather will be set for further evidentiary proceedings.
[2]  Of course, in Palomar, the Court held that where there is no incentive for the trustee to pursue a surcharge on the request of a third party, the third party could bring the surcharge proceeding itself. Thus, it was unnecessary to reach the issue.
[3]  JKJ has not been overruled and appears consistent with the Supreme Court's subsequent decision in Hartford. The Fourth Circuit held that a section 506(c) surcharge may only be sought by the trustee based on the unambiguous language of the Code.


[Cite as State v. Diggs, 2019-Ohio-244.]

             IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                   BELMONT COUNTY

                                            STATE OF OHIO,

                                            Plaintiff-Appellee,

                                                     v.

                                            ANDRE C. DIGGS,

                                           Defendant-Appellant.

                        OPINION AND JUDGMENT ENTRY
                                            Case No. 16 BE 0036

                                      Application for Reopening

                                            BEFORE:
                  Kathleen Bartlett, Cheryl L. Waite, Carol Ann Robb, Judges.

                                                JUDGMENT:
                                                  DENIED

Andre C. Diggs, pro-se, A726-203, Noble Correctional Institution, 15708 McConnelsville
Road, Caldwell, Ohio 43724-9678, for Appellant and

Atty. J. Flanagan, Courthouse Annex 1, 147-A West Main Street, St. Clairsville, Ohio
43950, for Appellee.

                                           Dated: January 24, 2019
                                                                               –2–

PER CURIAM.

       {¶1}    On October 18, 2018, Appellant Andre Diggs, acting pro se, filed a motion
for clarification of our June 25, 2018, decision in State v. Diggs, 7th Dist. 16 BE 0036,
2018-Ohio-2761. No opposition brief was filed. In the motion, Appellant asks us to “lay
rest to further argument” based upon “unresolved issues,” so we address the motion for
clarification as a motion to reopen filed pursuant to App.R. 26(B).
       {¶2}    App.R. 26(B)(1) provides, in part: “An application for reopening shall be
filed * * * within ninety days from journalization of the appellate judgment unless the
applicant shows good cause for filing at a later time.” The Belmont County Clerk of
Courts journalized the entry at issue and served copies of the decision on all of the
parties on June 26, 2018. As a consequence, Appellant’s application for reopening is
untimely.
       {¶3}    Although App.R. 26(B)(2)(b) requires that an application for reopening
include “a showing of good cause for untimely filing,” Appellant does not offer any
explanation for his failure to timely file the motion. Appellant has also failed to comply
with several filing requirements set forth in App.R. 26(B).        Of greatest import, an
application for reopening shall be granted only upon a demonstration that a genuine
issue as to whether the applicant was deprived of the effective assistance of counsel on
appeal.     App.R. 26(B)(5).   Even assuming that Appellant’s motion was timely and
complied with the statutory filing requirements, the arguments advanced in the pro se
motion do not demonstrate that Appellant received ineffective assistance of counsel.
       {¶4}    In Appellant’s direct appeal, we reversed his conviction for knowingly
selling or offering to sell heroin in an amount equal to or in excess of five grams but less
than ten grams in a school zone, in violation of R.C. 2925.03(A)(1)(C)(6)(d).          The
evidence offered at trial established that Appellant actually sold 3.88 grams of heroin to
a confidential informant in the vicinity of a school. Although there was evidence that
established an offer to sell drugs, the offer was not made by Appellant and no amount of
heroin was specified in the offer to sell. As a consequence, we reversed Appellant’s
conviction and remanded the matter for modification of the degree of the offense and for
resentencing consistent with Ohio law.
       {¶5}    Citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d

Case No. 18 BE 0036
                                                                               –3–

435 (2000), Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002),
and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004),
Appellant argues that the jury did not find him guilty of knowingly selling the 3.38 grams
of heroin that was recovered following the controlled buy, so his conviction should be
vacated. (Mot. p. 1).       The cited cases hold that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” Blakely at 2536, quoting Apprendi at 490. Ring extended the rule announced in
Apprendi to the judicial fact-finding required prior to the imposition of the death penalty.
       {¶6}      The evidence adduced at trial establishes that Appellant knowingly sold
3.38 grams of heroin. Apprendi and its progeny relate to sentencing, not conviction,
and, therefore, Appellant’s reliance on the foregoing cases to challenge his conviction is
misplaced.
       {¶7}      Appellant next argues that the school zone specification cannot be
invoked because “if it attaches to the 3.38 [grams of heroin] actually sold, then it must
be vacated pursuant to thee [sic] jury not finding guilt on the element of sell [sic].” (Mot.,
p. 2.) Based on the evidence adduced at trial, the jury found that Appellant sold heroin
within the vicinity of a school.        Insofar as no judicial fact-finding was required,
Appellant’s challenge to the school zone specification based on the cited case must
likewise fail.
       {¶8}      For the foregoing reasons, Appellant’s motion for clarification is denied.

Bartlett, J., concurs.

Waite, P.J., concurs.

Robb, J., concurs.

                                    NOTICE TO COUNSEL

This document constitutes a final judgment entry.

Case No. 18 BE 0036


Opinion issued October 22, 2009

In The
Court of Appeals
For The
First District of Texas

NO. 01-09-00159-CV

KENNETH HYATT, Appellant

v.

DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee

On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 2007–07249J

MEMORANDUM  OPINION

          In this case, appellant Kenneth Hyatt, seeks to appeal the trial court’s decree
terminating the parent-child relationship between Hyatt and his minor daughter,
“Jane.”
  As statutorily required, we initially determine whether the trial court abused
its discretion by finding, based on Hyatt’s statement of appellate points, that his
appeal is frivolous.  See Tex. Fam. Code Ann. § 263.405(g) (Vernon 2008).
          The record shows that the Department sought to terminate Hyatt’s parental
rights to Jane, and the case was tried to a jury.  Evidence introduced at trial showed
that, in October 2008, Hyatt pleaded guilty to, and was convicted of, sexually
assaulting Jane.
  The sexual assault occurred in August 2007 when Jane was three
years old.  The evidence further showed that Hyatt was sentenced to 50 years in
prison.
          The trial court signed a decree terminating the parent-child relationship
between Hyatt and Jane and awarding the Department sole managing
conservatorship.
  The decree recites that the clear and convincing evidence showed
that terminating Hyatt’s parental rights was in Jane’s best interest.  The decree further
recites that the clear and convincing evidence showed that Hyatt had engaged in the
following predicate acts listed in Family Code section 161.001(1):
knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional
well-being of the child, pursuant to § 161.001(1)(D) of the Texas Family
Code;

engaged in conduct or knowingly placed the child with persons who
engaged in conduct which endangers the physical or emotional well-being of the child, pursuant to § 161.001(1)(E) of the Texas Family
Code;

[pursuant to § 161.001(1)(L)], been convicted or has been placed on
community supervision, including deferred adjudication community
supervision, for being criminally responsible for the death or serious
injury of a child under the following sections of the Penal Code or
adjudicated under Title 3 for conduct that caused the death or serious
injury of a child and that would constitute a violation of . . . the
following Penal Code section[]: § 22.021 (aggravated sexual assault);

knowingly engaged in criminal conduct that has resulted in the father’s
conviction of an offense and confinement or imprisonment and inability
to care for the children for not less than two years from the date of the
filing the petition, pursuant to § 161.001(1)(Q) of the Texas Family
Code.
          Hyatt timely filed his statement of appellate points and a motion for new trial.
In his statement of points, Hyatt identified three “points on appeal.”  Specifically,
Hyatt asserted that the Department presented legally insufficient evidence to support
the predicate determinations under subsections (E) and (Q) and factually insufficient
evidence to support the predicate finding under subsection (D).  Hyatt made no
challenge to the predicate finding under subsection (L) or to the finding that
termination was in Jane’s best interest.
          Following a hearing, the trial court determined that Hyatt’s appeal was
frivolous.  See Tex. Fam. Code Ann. § 263.405(d)(3) (requiring trial court to
determine whether appeal is frivolous).  Hyatt now challenges the trial court’s
frivolousness determination.
          If a trial court makes a frivolousness finding, the aggrieved parent can appeal,
but the appeal is initially limited to the frivolousness issue.  Lumpkin v. Dep’t of
Family & Protective Servs., 260 S.W.3d 524, 526 (Tex. App.—Houston [1st Dist.]
2008, no pet.) (citing Tex. Fam. Code Ann. § 263.405(g).  In other words, before we
can reach the substantive merits of an appeal in which a frivolousness finding has
been made, we must first determine whether the trial court properly found the appeal
to be frivolous.
 Id.
          We review a trial court’s frivolousness finding under an abuse of discretion
standard.  Id.  Applying that standard, we decide whether the trial court acted without
reference to any guiding rules or principles; in other words, we must decide whether
the act was arbitrary or unreasonable.  Id. at 527 (citing Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)).
          Family Code section 263.405(d)(3) directs the trial court to determine whether
an appeal from a termination order is frivolous “as provided by section 13.003(b),
Civil Practices and Remedies Code.”  Tex. Fam. Code Ann. § 263.405(d)(3).
Section 13.003(b) provides that, “[i]n determining whether an appeal is frivolous, a
judge may consider whether the appellant has presented a substantial question for
appellate review.”  Tex. Civ. Prac. & Rem. Code Ann. § 13.003(b) (Vernon 2008).
For analysis purposes, an appeal is frivolous when it lacks an arguable basis either in
law or in fact.  Lumpkin, 260 S.W.3d at 527.
          As mentioned, in his statement of points, Hyatt did not challenge the best-interest determination or the predicate determination under subsection (L).  The
Department contends that Hyatt’s failure to challenge these two determinations
supports the trial court’s finding that the appeal was frivolous.  We agree.
          When, as here, there is a finding that termination is in the best interest of the
children, only one predicate finding under Family Code section 161.001(1) is
necessary to support a judgment of termination.  See In re A.V., 113 S.W.3d 355, 362
(Tex. 2003); see also Tex. Fam. Code Ann. § 161.001.  Here, in addition to the best
interest determination, the final order of termination specifies that clear and
convincing evidence supported termination of appellant’s parental rights to Jane
because appellant committed or omitted either one or more of the grounds specified
in subsections (D), (E), (L), and (Q) of section 161.001(1).
          In his statement of points, Hyatt raised no challenge to the best interest or
subsection (L) determinations in the termination order.  An appeal of a termination
order is limited to the issues presented in the appellant’s statement of points.
 See
Lumpkin, 260 S.W.3d at 526.  Thus, the absence of a complaint in the statement of
points regarding the best interest and subsection 161.001(L) determinations prevents
Hyatt from raising such complaints for the first time on appeal.
 See Fletcher v. Dep’t
of Family & Protective Servs., 277 S.W.3d 58, 64 (Tex. App.—Houston [1st Dist.]
2009, no pet.).
          When an appellant does not challenge an independent ground that may, under
the record presented, support the judgment that the appellant seeks to reverse, this
Court may neither address the grounds actually challenged on appeal or the
unchallenged ground; rather, we may only overrule the challenges asserted by the
appellant.  Id.  Because Hyatt did not challenge the subsection (L) predicate finding
in his statement of points, this Court would be precluded from addressing any
challenge to subsections (D), (E), and (Q) that Hyatt did raise in his statement of
points.  See id.
          In sum, the unchallenged best interest and subsection (L) determinations
support the termination order in this case.  See Tex. Fam. Code Ann. § 161.001; see
also In re K.N.R., 137 S.W.3d 675, 676 (Tex. App.—Waco 2004, no pet.).  Based on
Hyatt’s statement of points, the trial court could have properly determined that
Hyatt’s appeal lacked an arguable basis either in law or in fact.  Thus, we hold that
the trial court did not abuse its discretion when it found Hyatt’s appeal to be
frivolous.
          We affirm the order of the trial court finding Hyatt’s appeal to be frivolous.

                                                             Laura Carter Higley
                                                             Justice

Panel consists of Justices Jennings, Higley, and Sharp.


152 B.R. 996 (1993)
COLONIAL DAYTONA LIMITED PARTNERSHIP, Appellant,
v.
AMERICAN SAVINGS OF FLORIDA, F.S.B., Appellee.
No. 92-1411-CIV-T-17C.
United States District Court, M.D. Florida, Tampa Division.
April 1, 1993.
*997 *998 Michael C. Markham, Charles Martin Tatelbaum, Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P.A., Clearwater, FL, for appellant.
Jose I. Astigarraga, West Palm Beach, FL, for appellee.
KOVACHEVICH, District Judge.
This cause is before the Court on appeal from the Order granting Appellee, American Savings of Florida's Motion to Dismiss for Cause entered on August 28, 1992, 144 B.R. 924, nunc pro tunc June 24, 1992, by Chief Bankruptcy Judge Alexander L. Paskay. Also before this Court for consideration is Appellant's Motion To Strike Exhibits. (# 77)

STANDARD OF APPELLATE REVIEW
Upon review of bankruptcy proceedings, this Court will not set aside findings of fact unless such findings are clearly erroneous. F.R.B.P. 8013; In re Downtown Properties, Ltd., 794 F.2d 647 (11th Cir.1986). While conclusions of law are reviewed de novo, In re Owen, 86 B.R. 691 (M.D.Fla.1988), discretionary rulings made pursuant to the Bankruptcy Code are reviewable only for abuse of discretion. In re Northwest Place, 108 B.R. 809 (Bankr. N.D.Ga.1988), following In re Albany Partners, Ltd., 749 F.2d 670, 674 (11th Cir.1984).

FACTS
Appellant/Debtor, Colonial Daytona Limited Partnership (Colonial Daytona) is the owner of a 208-unit apartment house complex located in Daytona Beach, Florida. The complex is Colonial Daytona's sole asset. The Debtor does not conduct any business other than ownership of this property, and does not have any employees. The property is operated by a management company owned by insiders of the Debtor.
Appellee, American Savings of Florida (American Savings) is the holder of a wraparound second mortgage on the property with an outstanding balance of $1.8 million. The complex is also encumbered by a first mortgage held by Barnett Bank of Florida (Barnett), with a current outstanding balance of $7.2 million.
The first mortgage represents the financial arrangement originally used to fund construction of the complex. Barnett issued and sold tax exempt bonds in the approximate amount of $7 million. American *999 Savings issued a letter of credit on which Barnett, as the Trustee managing the bond issue, was entitled to draw, in order to pay the principal and interest payments on the bonds as they became due, if the revenue from the apartment complex was insufficient to meet the debt service. Thus, while American Savings technically holds only a second mortgage on the property, American Savings is guaranteeing payment to the first mortgage holder and trustee of the bond issue, Barnett, through its letter of credit.
Although the record supports the possibility of a dispute between the parties as to the value of the complex, by either valuation figure the complex is heavily overleveraged, and the Debtor has no equity in the property.
The apartment complex is fully rented and does not generate sufficient revenues to service the two mortgages by paying either interest or principal. Further, the revenues have been insufficient in the past year to pay for either property taxes or the regular maintenance of the building. There is little likelihood of an increase in revenue by raising rents in the foreseeable future, due to market conditions.
Since March, 1991, American Savings has paid more than $1, 376,675.00 in draws to Barnett, as the trustee of the bond issue, pursuant to the letter of credit issued by American Savings.
In January 1991, American Savings filed suit in the Circuit Court for Volusia County, Florida, in order to foreclose its second mortgage on the Debtor's property.
In July of 1991, the Circuit Court entered an order sequestering the rents of the property. From August of 1991 until it filed bankruptcy, Colonial Daytona paid revenues from the complex to American Savings once a month, pursuant to the sequestration order. Although the Debtor has paid approximately $440,000 in sequestered rents, American Savings has accumulated an approximate $1 million shortfall through its payments on the letter of credit to Barnett, and will continue to accrue an even greater shortfall, as scheduled payments on the bonds are made, and Barnett demands payment from American Savings.
Colonial Daytona's scheduled date for payment of sequestered rents was the 10th of the month. The Petition for Relief under Chapter 11 was filed by Debtor, Colonial Daytona, on May 7, 1992, thereby triggering the automatic stay pursuant to § 362 of the Bankruptcy Code. Thus, the $20,000 in revenues that Colonial Daytona had stockpiled for payment to American Savings on May 10, 1992 were used instead by the Debtor to pay a retainer for counsel in the bankruptcy case. Subsequently, a similar payment system was reinstated between the Debtor and American Savings through a stipulation as to the use of cash collateral.
In the state court foreclosure proceeding on April 6, 1992, American Savings, along with Barnett, filed Plaintiffs' Verified Motion For Appointment Of Receiver, and set the motion for hearing on May 14, 1992. The hearing, however, was never held because the Debtor filed its Petition in Bankruptcy Court on May 7, 1992, thus staying the state court foreclosure case.
After Colonial Daytona filed its Petition for Relief, the Chapter 11 case moved forward toward reorganization; the Debtor attended the required 341 Meeting of Creditors, a representative of the Debtor was deposed by American Savings, and a stipulation as to the use of cash collateral was reached between the Debtor and American Savings. A motion to dismiss, or in the alternative, motion for relief from the automatic stay was filed by American Savings on May 26, 1992, and noticed for hearing on June 24, 1992. On June 24, 1992, just prior to the hearing, the Debtor filed its Disclosure Statement and Plan of Reorganization.
Although the Debtor has listed a great number of unsecured creditors on its Schedule of Liabilities, the claims are small relative to the secured debt of American Savings and Barnett, ranging in value from $5.94 to $2,519.24. Most of the unsecured creditors are residents of the complex who have a claim for their security deposit.
*1000 The Debtor does list a secured creditor other than American Savings and Barnett, A.I. Credit Corporation (A.I. Credit), However, the Debtor's attorney, at the hearing on the motion to dismiss, admitted that the A.I. Credit debt is an obligation secured by an assignment of the notes of various limited partners, and that the Debtor doesn't even have the documentation evidencing the debt. The notes were drafted by entities affiliated with the Debtor, and it is possible that the debt belongs to those related entities. Additionally, A.I. Credit had not filed any suit in an effort to collect on any debt owed to it by Colonial Daytona prior to the bankruptcy filing. Further, A.I. Credit filed a notice of appearance in the bankruptcy case, received service of the motion for dismiss or lift the stay, and did not oppose the motion.
The Debtor's Plan of Reorganization proposed to pay two cents on the dollar on the unsecured deficiency claims of American Savings, and to all other unsecured creditors in the same class, over a two-year time frame. The Debtor's expectation of successful reorganization depended upon the Debtor's ability to use the cramdown provisions of § 1229(b)(1) and (2) of the Bankruptcy Code.
Since the complex is highly overleveraged, and American Savings continues to accumulate a shortfall due to its payment obligation to Barnett, American Savings is seriously undersecured, and would certainly have opposed the Debtor's Plan. American Savings' chances of collecting on the Debtor's obligation were much less favorable under the Plan than its chances of recouping at least some of the debt through the state foreclosure proceeding. Therefore, it is unlikely that the Debtor could have obtained confirmation of its Plan and proceeded through reorganization.
Further, the Debtor's Plan relied heavily on the infusion of new value by its limited partners in order to fund even the small distribution it set forth. Because of the status of the partnership at the time the Plan was written, as evidenced by statements made by the Debtor's attorney at the hearing regarding the limited partners' attempts to sell their interests, the cash infusion was, at best, a rather speculative proposition.
On June 24, 1992 the Bankruptcy Court granted American Savings' Motion To Dismiss For Cause, pursuant to § 1112(b) of the Bankruptcy Code, finding that the Debtor had filed its Petition for Relief under Chapter 11 in bad faith.
On September 2, 1992 the Appellant filed its notice of appeal from the Bankruptcy Court's order dismissing its Petition for Relief under Chapter 11.
On October 27, 1992, Appellant filed its Motion To Strike Exhibits, requesting this Court issue an order striking Appellee's exhibits submitted by Appellee, American Savings, at the Bankruptcy Court hearing June 24, 1992, and subsequently included in the record on appeal.

ISSUES
I. WHETHER AMERICAN SAVINGS CARRIED ITS BURDEN OF PROOF ON THE MOTION TO DISMISS FOR CAUSE.
II. WHETHER THE DEBTOR WAS GIVEN ADEQUATE OPPORTUNITY FOR HEARING ON THE MOTION TO DISMISS.
III. WHETHER THE BANKRUPTCY COURT CONSIDERED THE TOTALITY OF CIRCUMSTANCES IN RULING ON THE MOTION TO DISMISS FOR CAUSE.
IV. WHETHER THE RECORD CONTAINS SUFFICIENT EVIDENCE TO SUPPORT A FINDING OF BAD FAITH.
V. WHETHER APPELLEE, AMERICAN SAVINGS' EXHIBITS SHOULD BE STRICKEN FROM THE RECORD OF APPEAL.

DISCUSSION
Section 1112(b) of the Bankruptcy Code provides that, on request from a party of interest, the court may dismiss a case for cause. "Cause", pursuant to § 1112(b), *1001 includes: "1) continuing loss to or diminution of the estate and the absence of any reasonable likelihood of rehabilitation; 2) the inability to effectuate a plan; or 3) unreasonable delay by the debtor that is prejudicial to creditors." Several other possible grounds supporting dismissal for cause are listed in § 1112(b), but the list is not exhaustive and "the court may consider other factors as they arise and use its equitable powers to reach an appropriate result in individual cases." In re Albany Partners, Ltd., 749 F.2d 670 (11th Cir. 1984), quoting legislative history H.R.Rep. No. 595, 95th Cong., 1st Sess. 406 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5787, 6362. Thus, the court is given judicial discretion to determine what factors shall constitute "cause" under the circumstances of each case. Several courts, including the Eleventh Circuit, have found that the Debtor's bad faith in filing its petition for relief constitutes cause for dismissal of the bankruptcy case. In re Albany Partners, Ltd., 749 F.2d at 674; In re Phoenix Piccadilly, Ltd., 849 F.2d 1393, 1394 (11th Cir.1988).
There is no particular test for determining whether a debtor has filed its petition in bad faith, although several circumstantial factors occurring together may be indicative of bad faith filing. See In re Phoenix Piccadilly, Ltd., 849 F.2d at 1394 and In re Albany Partners, Ltd., 749 F.2d at 674. The Debtor's bankruptcy case exhibited most of these factors, according to the Bankruptcy Court's findings of fact, including the following:
1) The Debtor has only one asset, the apartment complex, and conducts no other meaningful business operations;
2) The Debtor has unsecured creditors whose claims are small in relation to the secured claims of American Savings and Barnett Bank;
3) The Debtor has no employees;
4) The Debtor's financial problems involve essentially a dispute between the Debtor and one other party, American Savings, as second mortgage holder and guarantor of the first mortgage holder, Barnett Bank.
5) The timing of the Debtor's filing evidences an intent to delay the state circuit court foreclosure proceedings and to frustrate American Savings' efforts to enforce its rights in the property.
6) The Debtor's case presents no realistic possibility of effective reorganization, in that the Debtor's sole asset is highly overleveraged and not generating enough revenue to fund either its debt service or reorganization. Further, the Debtor's hopes for confirmation of its Plan Of Reorganization were dependent on precarious events such as the Debtor's ability to (a) successfully use the cramdown provisions of the Bankruptcy Code and (b) obtain new infusions of cash from limited partners whose status as continuing partners was in question.
See In re Albany Partners Ltd., 749 F.2d at 674 and In re Phoenix Piccadilly, Ltd., 849 F.2d at 1394-95. Further, these factors follow the rationale of possible grounds for dismissal for cause listed in § 1112(b)(1), (2), and (3) of the Bankruptcy Code.

I.
As its first assignment of error, the Debtor asserts that American Savings failed to carry its burden of proof on the motion to dismiss for cause. The Debtor suggests that a simple review of the hearing transcript in this case indicates that American Savings did not place sufficient evidence in the record to prove the Debtor's bad faith in filing its petition. Instead, Colonial Daytona maintains the facts merely reflect that its Chapter 11 proceeding is a single asset case, which, without more, does not inherently prove the Debtor's bad faith.
Specifically, the Debtor alleges American Savings failed to put forth substantial evidence as to (1) the Debtor's intent or motive in filing the petition; (2) the extent to which the Debtor is an ongoing concern; and (3) the ability of the Debtor to reorganize. Further, the Debtor assigns error in that American Savings failed to offer any testimonial evidence at the dismissal hearing *1002 to prove the facts presented by American Savings as uncontested facts.
If a motion to dismiss under § 1112(b) is contested by the nonmovant, the movant must prove, by a preponderance of the evidence, that cause exists for dismissal of the debtor's bankruptcy case. In re A-K Enterprises, Inc., 111 B.R. 149, 150. This Court finds that, based upon the Bankruptcy Court's findings of fact, American Savings met its burden of proof on its Motion To Dismiss For Cause.
The Bankruptcy Court's findings reflect its adoption of the undisputed facts presented to it by American Savings. In fact, virtually all of these facts are characterized as undisputed by the Appellant in the brief it filed for this appeal. These facts indicate that it is more likely than not that the Debtor's intent in filing its Petition was to avoid the upcoming hearing in the state court foreclosure case. Further, the undisputed facts clearly show that the Debtor is not able to pay even normal operating expenses, let alone service the debt on the complex, thus reflecting the Debtor's inability to operate as an on-going concern. Finally, the facts prove, more likely than not, that the Debtor would not have been able to confirm its Plan and proceed through the steps of reorganizing.
Further, the Bankruptcy court advised both parties at the outset that it would first hear all undisputed facts, and then hear evidence only with regard to contested facts. Although there were a few facts that the Debtor's attorney stated were disputed, when Judge Paskay heard the Debtor's arguments as to those facts, he determined either that the fact in question was not material, or that the fact not actually disputed. Thus, this Court finds the Debtor's assignment of error regarding American Savings' failure to present testimony at the dismissal hearing is also without merit.

II.
The Debtor contends, as its second assignment or error, that it was not given an adequate opportunity for hearing on the motion to dismiss. The Debtor cites F.R.B.P. 9014, which states that "reasonable notice and opportunity for hearing shall be afforded the party against whom relief is sought." Colonial Daytona asserts that it was not given an adequate opportunity for hearing in that the Bankruptcy Court did not listen to the Debtor's testimony and did not give the Debtor an opportunity to dispute facts submitted by American Savings' as uncontested facts. Here again the Debtor refers this Court to the hearing transcript as evidence that it was denied an adequate opportunity for a hearing.
Appellee, American Savings filed its motion to dismiss on May 22, 1992, and served a copy of the motion to the Debtor and all parties in interest. The Clerk of the Bankruptcy Court scheduled the matter for hearing, and served a notice of hearing to all parties of interest on May 26, 1992. The hearing on the motion was subsequently held on June 24, 1992. As the hearing transcript indicates, in the interest of judicial economy, the Bankruptcy Court requested the parties first give the Court all purportedly uncontested facts bearing on the issue of bad faith cause for dismissal, and then proffer evidence only if a material fact was deemed disputed. As previously stated, although some facts were asserted by Debtor's counsel as disputed, after further inquiry, the Bankruptcy Court found that the facts at issue were either immaterial or not truly disputed.
There is no question that the Debtor had reasonable notice of the hearing. The Debtor had plenty of time to prepare its case against American Savings' motion. If the Debtor knew of material facts that were in dispute, the Debtor's attorney had the opportunity both at the beginning of the hearing, and during the presentation of the Debtor's opposition to the motion, to bring these facts to the Bankruptcy Court's attention and to formally proffer evidence. Except for the few facts the Bankruptcy Court deemed either immaterial or not in dispute, the Debtor raised no issues of material fact that were contested, and failed to formally proffer any evidence at all. It was not until the Bankruptcy Court had *1003 already ruled in favor of the movant that the Debtor stated for the record that there were "facts in dispute".
Although there are discrepancies between the record of this case and the Bankruptcy court's opinion as to valuation of the complex, this item is of limited significance, and does not rise to the level of clear error. The Bankruptcy Court's determinations as to the other so-called disputed facts are, in this Court's judgment, free from error.
Further, although F.R.B.P. 9014 states that reasonable notice and opportunity for hearing shall be given to the party against whom relief is sought, the terms "notice" and "hearing" have a particular meaning within the context of bankruptcy. The Bankruptcy Code construes "after notice and hearing" to mean after "such notice as is appropriate in the particular circumstances, and such opportunity for a hearing as is appropriate in the particular circumstances . . .". 11 U.S.C. § 102(1)(A). This Court finds that, under the circumstances of this case, the notice and hearing afforded both parties with regard to American Savings' motion to dismiss was both reasonable and appropriate. See In re E. Gene Wade and Joyzelle I. Wade v. State of Arizona, 948 F.2d 1122 (9th Cir.1991).

III.
As its third assignment of error, the Debtor maintains that the Bankruptcy Court failed to consider the totality of circumstances surrounding its filing of the Petition for Chapter 11 relief. Colonial Daytona sets forth three specific factors it asserts the Bankruptcy Court failed to consider, which, if considered, would have led the Bankruptcy Court to deny American Savings' motion to dismiss. These factors are as follows: (1) the Debtor had problems with its former general partners; (2) the Debtor and American Savings negotiated for three years prior to American Savings filing foreclosure; and (3) The Debtor sincerely desires to reorganize its indebtedness with American Savings and Barnett Bank.
Since there is no particular test for determining whether a debtor has filed a petition in bad faith, courts may consider any factors which evidence an intent to abuse the judicial process and the purposes of the Bankruptcy Code's reorganization provisions. In re Phoenix Piccadilly, Ltd., 849 F.2d at 1194. Thus, the court has judicial discretion to evaluate the totality of circumstances in each case and determine whether those circumstances indicate a bad faith filing by that debtor. This determination, since it is discretionary, will only be reversed by this Court if it finds the Bankruptcy Court has abused its discretion.
The Bankruptcy Court, as evidenced both by the hearing transcript and the Order of Dismissal, methodically went through all the hallmarks of bad faith filing. Additionally, the transcript indicates that the Bankruptcy Court did indeed consider the factors listed by the Debtor. This Court finds no abuse of discretion by the Bankruptcy Court in its decision in light of these factors.
Moreover, this Court finds that the Debtor's negotiations with American Savings prior to the filing of foreclosure are irrelevant with regard to the issue of the Debtor's bad faith. Similarly, the Debtor's problems with its previous general partners are also immaterial to American Savings' motion to dismiss. Further, the Debtor's sincere desire to reorganize means little without the Debtor's actual ability to reorganize. See Matter of Little Creek Development Co., 779 F.2d 1068, 1073 (5th Cir.1986); Tennessee Publishing Co. v. American National Bank, 299 U.S. 18, 22, 57 S.Ct. 85, 87, 81 L.Ed. 13 (1936).

IV.
In its final assignment of error, the Debtor asserts that the record contains insufficient evidence to support a bad faith dismissal. The Debtor suggests that several of the Bankruptcy Court's conclusions were in error.
First, the Debtor cites In re Brown, 951 F.2d 564 (3rd Cir.1991) for the proposition that the record in this case lacks the certainty needed for entry of an order of dismissal. In re Brown is clearly distinguishable *1004 from the case at bar in that the Debtor's bankruptcy case has proceeded through the preliminary steps toward reorganization, and it is clear that an effective reorganization of this Debtor's assets is highly unlikely. By contrast, the debtor's bankruptcy case in Brown had not yet progressed to the point where such a determination could be made, principally because the debtor had not yet filed its Plan of Reorganization and Disclosure Statement.
Further, the test applied for bad faith in Brown is substantially different from that applied by the Eleventh Circuit in Phoenix Piccadilly and Albany Partners, Ltd. Brown required the movant to specifically prove either (a) the continuing loss or diminution of the estate, or (b) that it is unreasonable to expect that a plan can be approved. By contrast, the Eleventh Circuit has developed a looser, totality of circumstances test, giving the court broader discretion to consider all factors evidencing bad faith. Therefore, the Debtor's reliance on In re Brown is misplaced.
Secondly, the Debtor questions the Bankruptcy Court's factual finding as to the value of the property. Although it appears from the record that there may be a dispute as to valuation, the dispute is immaterial in that the property is overleveraged by either the Debtor's figure of $5.2 million or American Savings' figure of between $4.1 and $4.4 million. Further, the fact that the property is overleveraged by either party's estimation precludes the need for evidence as to value, despite the Debtor's assertions that the Bankruptcy Court should have heard evidence on this issue.
Next the Debtor attempts to cast doubt on American Savings' status as a secured creditor because it holds merely a second, wrap-around mortgage on the property. American Savings' obligation to Barnett encompasses the first mortgage. American Savings is rapidly assuming more and more of the first mortgage indebtedness, as the bond payments become due and Barnett draws on American Savings' letter of credit. Both American Savings and Barnett were joined as Plaintiffs in the state court foreclosure proceedings, although American Savings, as a guarantor to Barnett, is the party primarily interested in pursuing its rights in the property. The Debtor's attempt to characterize American Savings as anything other than a secured creditor with the primary interest in the property is nonsense.
The Debtor also finds error in the Bankruptcy Court's finding that the case is basically nothing more than a two party dispute. Appellant again mentions Barnett's interest, A.I. Credit's claim, and the fact that the Debtor has actively participated in the bankruptcy cases of its former general partners in an effort to find more than one party pursuing its claims against the Debtor.
The record reflects, however, that the Debtor filed its Petition just a week prior to the hearing in the state court foreclosure case regarding appointment of a receiver, and obviously in an attempt to stall those proceedings. Because of the economic realities of the situation, American Savings is the party with the motive to pursue the collateral. However, this does not mean that Barnett, as the superior mortgage holder, opposes American Savings' attempt to collect. On the contrary, Barnett was being joined as Plaintiff in the state foreclosure case just prior to the Debtor filing bankruptcy. Further, neither A.I. Credit, nor the Debtor's previous general partners, were pursuing any collection suits against the Debtor when it filed its Petition for Relief. Thus, this case does in fact boil down to a two party dispute between the Debtor and American Savings.
Finally, the Debtor's last two suggestions of error as to the sufficiency of the record deal with the Bankruptcy Court's findings of fact as to the Debtor's ability and need to reorganize. As previously stated, this Court will not reverse the Bankruptcy Court's findings of fact absent a finding of clear error by the Bankruptcy Court. This Court finds no error in Bankruptcy Court's conclusions with regard to the Debtor's ability and need to reorganize.
*1005 As the Fifth Circuit noted "[the] Requirement of good faith prevents abuse of the bankruptcy process by debtors whose overriding motive is to delay creditors without benefitting them in any way or to achieve reprehensible purposes." In the Matter of Little Creek Development Co., 779 F.2d 1068, 1072 (5th Cir.1986).
The record in this case suggests that the Debtor planned its escape into Bankruptcy Court almost a full month before filing, and just in time to avoid the upcoming hearing in state court regarding appointment of a receiver for the property. The Debtor's use of complex revenues to pay its attorney's retainer for the bankruptcy case, when such revenues were to be paid to American Savings in two days, pursuant to the sequestration of rents order, illustrates the Debtor's bad faith in filing its Petition as well as any other fact previously mentioned.

V.
Appellant requests that this Court strike exhibits submitted by American Savings to the Bankruptcy Court at the June 24, 1992 hearing, and subsequently included as part of the record on appeal. Appellee, American Savings requests this Court to refrain from striking the exhibits. Appellee suggests that the Appellant relied on at least one of the exhibits at the hearing, and thus should be estopped from now having the exhibits stricken, even though the exhibits were not admitted into evidence.
This Court, in its decision, has not relied upon the exhibits in question. Since the exhibits were not admitted into evidence and the Bankruptcy Court relied on what it determined to be undisputed facts, this Court hereby strikes the Appellee's exhibits from the record on appeal. Accordingly it is
ORDERED that the Bankruptcy Court's Order granting American Savings Of Florida's Motion To Dismiss For Cause is hereby AFFIRMED. Further, Appellant, Colonial Daytona's Motion To Strike American Savings' Exhibits is hereby GRANTED.
DONE and ORDERED.


115 F.Supp.2d 27 (2000)
Anita D. BORLAWSKY, Plaintiff,
v.
TOWN OF WINDHAM, et al., Defendants.
No. Civ. 99-272-P-H.
United States District Court, D. Maine.
September 26, 2000.
*28 Grover G. Alexander, Gray, ME, for Anita D Borlawski, plaintiff.
John J. Wall, III, Monaghan, Leahy, Hochadel & Libby, Portland, ME, for Town of Windham, Michael R. Denbow, defendants.
Mark G. Lavoie, Norman, Hanson & Detroy, Portland, ME, for Scott Losciuto, defendant.
Barri L. Bloom, Richardson, Whitman, Large & Badger, Portland, ME, for Janette Losciuto, defendant.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT
HORNBY, Chief Judge.
This dispute arises out of a confrontation between a mother and her teen-aged daughter. Foul names were exchanged, the mother struck the daughter and made a threat of some sort (the manner and the nature of both the physical contact and the threat are disputed). The episode, or parts of it, occurred in the presence of another child and the grandmother, the divorced husband's mother. As a result, the grandmother called the father/divorced husband and, on his advice, proceeded to call law enforcement authorities. The father/divorced husband also called law enforcement authorities. Ultimately the mother was arrested and charged with domestic violence assault. She was acquitted. The father/divorced husband sought a protection from abuse hearing on behalf of the children and, as a result, the plaintiff lost custody of the two children to her divorced husband. Subsequently and in an obvious effort to vindicate herself, she brought this lawsuit for damages in state court against the divorced husband, the grandmother, law enforcement officers and their employers. The defendants removed it to federal court. The remaining defendants have moved for summary judgment.
It should be apparent from this brief description that no one will ever know finally who was right or wrong or, more likely, to what degree they were right or wrong in this unfortunate family dispute. There have already been two trials in state court growing out of the episode. Neither the plaintiff nor the defendants are ever going to have complete satisfaction; that is not the nature of these kinds of disputes, *29 and because children are involved, the wounds here will not heal quickly, if ever. The plaintiff has a long list of claims against the defendants; most of them are state claims, and at least one of them involves interpretation of a "unique" state statute that I have already referred to as worthy of certification to the Maine Law Court. As a federal judge, I address only the narrower federal claims and conclude that the defendants are entitled to summary judgment on all of them. Judgment shall be entered accordingly and the remaining state claims will be remanded to state court. 28 U.S.C.A. § 1367(c) (West 1993). This outcome is particularly appropriate here where one of the state law claims (civil perjury) raises unique and difficult issues of state law. See Order, Dec. 22, 1999, at 4 (order denying motion to dismiss).

DIVORCED HUSBAND/FATHER AND GRANDMOTHER
The only explicit federal claim against Scott Losciutto, the children's father, and against Janet Losciutto, the children's grandmother, is a claim under 42 U.S.C.A. § 1985(3), the civil rights conspiracy statute. Coverage of that statute, however, is limited to conspiracies based upon racial or some other class-based invidious discrimination. See Romero-Barcelo v. Hernandez-Agosto, 75 F.3d 23, 34 (1st Cir.1996). There is no evidence of any such conspiracy here. The class for which the plaintiff claims protection is "divorced or otherwise single women parents." Pl.'s Mem. in Opp'n to Def. Scott Losciuto's Reply Mem. at 6. That is not a recognized class.[1] To the extent that the plaintiff is stating a separate claim against Scott or Janet Losciuto under 42 U.S.C.A. § 1983 (the Complaint is unclear), it fails for lack of state action on the part of Scott or Janet Losciuto, who are private parties. See Gonzalez-Morales v. Hernandez-Arencibia, 221 F.3d 45, 49 (1st Cir.2000).

TOWN OF WINDHAM AND POLICE OFFICER DENBOW
There are two federal claims against the Windham defendants. The primary one is that there was no probable cause for the arrest initiated by Officer Denbow. But the plaintiff does not contend that the witness statements Officer Denbow had received, if believable, failed to provide probable cause; the plaintiff's argument is that Officer Denbow should not have believed them and should have done more investigation to test the credibility of these witness statements. I find no support for that proposition. See, e.g., United States v. Bonilla Romero, 836 F.2d 39, 46 (1st Cir.1987) (noting that probable cause does not require police officers to investigate every possibility of innocence and doing so burdens public safety); Kelley v. Myler, 149 F.3d 641, 646-47 (7th Cir.1998) (holding that once probable cause is established, officer is not required to investigate further); Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123, 128 (2d Cir.1997) (holding that police officer is not required to explore and eliminate all theoretically plausible claims of innocence); *30 Brodnicki v. City of Omaha, 75 F.3d 1261, 1264 (8th Cir.1996) (noting that officers are not required to conduct mini-trials before arrest). On probable cause determinations, courts do not second guess the credibility determinations of law enforcement officers on the scene. See Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979); White v. Town of Marblehead, 989 F.Supp. 345, 350 (D.Mass.1997). This especially holds true for officers investigating complaints of domestic violence. See White, 989 F.Supp. at 350 (noting that after determining probable cause, the law has recognized the need for "urgent and decisive action," particularly in situations of domestic violence).
The second federal claim, excessive force and substantive due process, is barely pressed. The Plaintiff's entire argument on that topic is the following:
Assuming, arguendo, that the arrest was based upon probable cause, ANITA still maintains that the force used to effect and maintain the arrest was excessive, and that DENBOW'S conduct in kicking her, watching her go to the bathroom, keeping her in cuffs behind her back, and his failure to comply with the statutory procedure for the handling of and transporting of persons to a mental hospital, 34-B M.R.S.A. §§ 3862, 3863, as well as the applicable General Order 2-12 setting forth his department's operating procedure for handling deviant behavior is a substantive due process violation. DENBOW claims to have ultimately regarded ANITA as a person exhibiting deviant behavior and acted accordingly.
Pl.'s Resp. to Defs. Windham and Denbow Mot. for Summ.J. at 8. The plaintiff's summary treatment of this argument justifies equally summary treatment by the court. The Plaintiff's evidentiary support for these allegations reveals that the monitoring of her bathroom activities occurred in the psychiatric ward of the hospital where she had been involuntarily admitted after a medical advisor advised Officer Denbow to take her there for examination. Borlawsky Dep. at 57-59, 185. The alleged "kicking" occurred earlier at the police station, when she says that she passed out from low blood sugar and fell from a bench to the floor:
And I was on the floor and my hands were still handcuffed behind my back and Officer Denbow said  he started kicking me on my outer left thigh from my knee to my hip. He was kicking me and telling me to get up off that floor, stop your faking, you know, stop the dramatics, you know.
Q. When you say he was kicking you, what do you mean, how was he kicking you?
A. You want me to demonstrate?
Q. Well, I mean was he like winding up and kicking you or was he just nudging you with his foot?
A. No, he was kicking me, you know, kicking me.
Q. And was this while you were unconscious?
A. Yes.
Q. How did you know he was kicking you if you were unconscious?
A. Well, because I was coming in and out and I could feel it. I could feel every time he kicked me....
Borlawsky Dep. at 51-2.
I assume that observing intimate activity of an arrestee without justification can sometimes be a Fourth Amendment violation, but the plaintiff's evidence simply does not make that case here under the circumstances of involuntary admission to a psychiatric ward on a doctor's advice with concern for the plaintiff's risk to herself or others. See Cookish v. Powell, 945 F.2d 441, 447 (1st Cir.1991) (noting that inadvertent, occasional, casual and restricted observation of inmate's body by an officer of opposite sex does not violate the Fourth Amendment and emergency circumstances, like harm to oneself, allows more direct observation); Ellis v. Meade, 887 F.Supp. 324, 332 (D.Me.1995) (holding that officer's view of plaintiff's shower, in light of his suicide *31 watch, did not violate the Fourth Amendment). Likewise, kicking an arrestee can amount to unconstitutional use of excessive force, but the encounter the plaintiff describes in her deposition, while perhaps unprofessional as she describes it, does not meet the constitutional standard to make out a substantive due process violation. See Ellis, 887 F.Supp. at 329 (holding that officer's patting pretrial detainee on the buttocks does not rise to the level of punishment to constitute a constitutional violation). Because the incident was isolated and in an effort to get the plaintiff off the floor of the police station, see Borlawsky Dep. at 51-52, the kicking was not so arbitrary or purposeless so as to lead to an inference of an intent to punish the plaintiff. See Ellis, 887 F.Supp. at 329. The use of handcuffs for an arrestee is obviously justifiable, see Gold v. City of Miami, 121 F.3d 1442, 1446 (11th Cir. 1997); Foster v. Metropolitan Airports Comm'n, 914 F.2d 1076, 1082 (8th Cir. 1990) and any failure to comply with a state statute or a police department order does not make out a constitutional violation. See Bell v. Wolfish, 441 U.S. 520, 543, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (noting that draft recommendation of Federal Corrections regarding conditions of confinement are not determinative of requirements of the Constitution); Soares v. Connecticut, 8 F.3d 917, 922 (2d Cir.1993) (holding that Department of Environmental Protection handcuffing policy has no bearing on whether officers violated constitutional rights).
Accordingly summary judgment shall be entered for the remaining defendants on all the plaintiff's federal claims and the remaining state claims are REMANDED to state court.
SO ORDERED.
NOTES
[1]  Moreover, the only motivation disclosed by the summary judgment record is personal dislike. The plaintiff admitted the following factual assertion by Scott Losciuto:

[T]he Plaintiff identified her allegations concerning Scott Losciuto's motivation for his actions: "Since our divorce in 1987, Scott has always wanted to `get even' with me for having him arrested for assaulting me. He always[sic] felt that I give him a hard time about child support. He was always behind in his payments. He has always been motivated by revenge and a wish to avoid paying child support. I took him to Court on this issue as well. Scott does not like me and I believe he is still fighting the battles which occurred during our marriage." See [Pl.'s Ans. to Interrogs. Propounded by Def. Scott Losciuto at ¶ 26]; see also Pla.'s Opposing SMF at ¶ 51.
Reply Statement of Material Facts ¶ 4. For the admission, see Pl.'s Statement of Material Facts in Opp'n to Def. Scott Losciuto's Reply Statement of Material Facts ¶ 4. The plaintiff goes on to say that Scott Losciuto's motivation is "further explained in the Anita Borlawsky Affidavit" at paragraphs six and seven. See id. Neither paragraph suggests a classbased motivation for Scott Losciuto's and Janette Losciuto's actions.


238 P.3d 860 (2008)
TENAS
v.
PROGRESSIVE PREFERRED INS. CO.
No. 49355.
Supreme Court of Nevada.
September 16, 2008.
Decision Without Published Opinion Reversed.


568 F.2d 778
Powellv.Business Men's Assurance Co. of America
No. 76-3371
United States Court of Appeals, Ninth Circuit
12/6/77

1
D.Or.

AFFIRMED


73 U.S. 18 (____)
6 Wall. 18
THE AMELIE.
Supreme Court of United States.

*21 Messrs. B.R. Curtis and F.C. Loring, for the appellants.
Mr. C.W. Loring, contra, argued.
*26 Mr. Justice DAVIS delivered the opinion of the court.
The principle of maritime law which governs this controversy is too well settled for dispute. Although the power of the master to sell his ship in any case, without the express authority of the owner, was formerly denied, yet it is now the received doctrine of the courts in this country as well as in England, that the master has the right to sell in case of actual necessity.
We are not called upon to discuss the reasons for the rule, nor to cite authorities in its support, because it has repeatedly received the sanction of this court.[§]
From the very nature of the case (the court say), there must be this implied authority of the master to sell. The injury to the vessel may be so great and the necessity so urgent as to justify a sale, and under such circumstances, the master becomes the agent of all concerned, and is required *27 to act for their benefit. The sale of a ship becomes a necessity within the meaning of the commercial law, when nothing better can be done for the owner, or those concerned in the adventure. If the master, on his part, has an honest purpose to serve those who are interested in ship and cargo, and can clearly prove that the condition of his vessel required him to sell, then he is justified. As the power is liable to abuse, it must be exercised in the most perfect good faith, and it is the duty of courts and juries to watch with great care the conduct of the master. In order to justify the sale, good faith in making it and the necessity for it must both concur, and the purchaser, to protect his title, must be able to show their concurrence. The question is not whether it is expedient to break up a voyage and sell the ship, but whether there was a legal necessity to do it. If this can be shown, the master is justified; otherwise not. And this necessity is a question of fact, to be determined in each case by the circumstances in which the master is placed, and the perils to which the property is exposed.
If the master can within a reasonable time consult the owners, he is required to do it, because they should have an opportunity to decide whether in their judgment a sale is necessary. And he should never sell, when in port with a disabled ship, without first calling to his aid disinterested persons of skill and experience, who are competent to advise, after a full survey of the vessel and her injuries, whether she had better be repaired or sold. And although his authority to sell does not depend on their recommendation, yet, if they advise a sale, and he acts on their advice, he is in a condition to furnish the court or jury reviewing the proceedings, strong evidence in justification of his conduct.
The facts of this case bring it within these well-settled principles of maritime law, and clearly show that the master was justified in terminating his voyage and selling his ship. When the voyage began, the ship was seaworthy and well provided, but after she had been at sea a short time, she became disabled during a violent storm, and with great difficulty *28 was taken into the harbor of Port au Prince. The master at once entered his protest before the Dutch consul general (the ship being owned in Amsterdam), who caused three surveys to be made of the condition of the vessel. No action was taken on the first survey, but the result of the second was to incur an expense of one thousand Spanish dollars in partial repairs, decided by it to be practicable, and recommended, in order that the ship should be put in a proper condition to proceed on her voyage to Boston. In making these partial repairs, one of the sides of the vessel was uncovered, disclosing additional damages, of a serious character, not previously ascertainable, which caused the consul general to order a third survey. This third and final survey was thorough and complete. The men who made it were captains of vessels, temporarily detained in port, and the agents of American and English underwriters. No persons could be more competent to advise, or from the nature of their employment, better acquainted with the structure of vessels, and the cost of repairing them.
Their report is full and explicit. After the advice given in it, the master, who was bound to look to the interest of all parties concerned in the adventure, had no alternative but to sell. In the face of it, had he proceeded to repair his vessel, he would have been culpable. Being in a distant port, with a disabled vessel, seeking a solution of the difficulties surrounding him; at a great distance from his owners; with no direct means of communicating with them; and having good reason to believe the copper of his vessel was displaced, and that worms would work her destruction, what course so proper to pursue, as to obtain the advice "of that body of men, who by the usage of trade have been immemorially resorted to on such occasions?"[*] No prudent man, under the circumstances, would have failed to follow their advice, and the state of things, as proved in this case, imposed on the master a moral necessity to sell his vessel and reship his cargo.
*29 But it is said, the fact that the vessel was repaired by the purchaser and sent to Boston, disproves this necessity. Not so. It may tend to prove the surveyors were mistaken, but does not affect the question of the duty of the master to follow their advice, when given in such strong terms, and with no evidence before him that it was erroneous. But in fact, the surveyors did not err in their conclusion that the vessel was not worth the cost of repairs, as the amount in the registry of the court for which the vessel was sold in Boston, will fail to reimburse the claimant the money expended by him, in purchasing and repairing her.
It is insisted, even if the circumstances were such as to justify the sale and pass a valid title to the vendee, he, nevertheless, took the title subject to all existing liens. If this position were sound, it would materially affect the interests of commerce; for, as exigencies are constantly arising, requiring the master to terminate the voyage as hopeless, and sell the property in his charge for the highest price he can get, would any man of common prudence buy a ship sold under such circumstances, if he took the title encumbered with secret liens, about which, in the great majority of cases, he could not have the opportunity of learning anything? The ground on which the right to sell rests is, that in case of disaster, the master, from necessity, becomes the agent of all the parties in interest, and is bound to do the best for them that he can, in the condition in which he is placed, and, therefore, has the power to dispose of the property for their benefit. When nothing better can be done for the interest of those concerned in the property than to sell, it is a case of necessity, and as the master acts for all, and is the agent of all, he sells as well for the lien-holder as the owner. The very object of the sale, according to the uniform current of the decisions, is to save something for the benefit of all concerned, and if this is so, the proceeds of the ship, necessarily, by operation of law, stand in place of the ship. If the ship can only be sold in case of necessity, where the good faith of the master is unquestioned, and if it *30 be the purpose of the sale to save something for the parties in interest, does not sound policy require a clean title to be given the purchaser in order that the property may bring its full value? If the sale is impeached, the law imposes on the purchaser the burden of showing the necessity for it, and this he is in a position to do, because the facts which constitute the legal necessity are within his reach; but he cannot know, nor be expected to know, in the exercise of reasonable diligence, the nature and extent of the liens that have attached to the vessel. Without pursuing the subject further, we are clearly of the opinion, when the ship is lawfully sold, the purchaser takes an absolute title devested of all liens, and that the liens are transferred to the proceeds of the ship, which, in the sense of the admiralty law, becomes the substitute for the ship.
The title of Riviere, the claimant, was questioned at the bar, because he did not prove the master executed to him a bill of sale of the vessel. We do not clearly see how this question is presented in the record, for there is no proof, either way, on the subject, but if it is, it is easily answered. A bill of sale was not necessary to transfer the title to the vessel. After it was sold and delivered, the property was changed, and no written instrument was needed to give effect to the title. The rule of the common law on this subject has not been altered by statute. The law of the United States, which requires the register to be inserted in the bill of sale on every transfer of a vessel, applies only to the character and privileges of the vessel as an American ship. It has no application to this vessel and this case.[*]
DECREE AFFIRMED.
NOTES
[§]  The Patapsco Ins. Co. v. Southgate, 5 Peters, 620; The Sarah Ann, 13 Id. 400; Post et al. v. Jones et al., 19 Howard, 157.
[*]  Gordon v. Mass. Ins. Co., 2 Pickering, 264.
[*]  Wendover v. Hogeboom, 7 Johnson, 308; Sharp v. United States Insurance Co., 14 Id. 201; Weston v. Penniman, 1 Mason, 306.


808 F.2d 54
*Knightv.McCotter
86-2281
United States Court of Appeals,Fifth Circuit.
12/11/86

1
W.D.Tex.

AFFIRMED

2
---------------

* Fed.R.App.P. 34(a);  5th Cir.R. 34.2.


367 P.2d 891 (1962)
The STATE of Montana, Plaintiff and Respondent,
v.
Robert C. JOHNSTON, Defendant and Appellant.
No. 10335.
Supreme Court of Montana.
Submitted November 8, 1961.
Decided January 16, 1962.
As amended January 19 and 25, 1962.
Richard J. Conklin, argued orally, White Sulphur Springs, for appellant.
John V. Potter, Jr., County Atty., argued orally, White Sulphur Springs, Forrest H. Anderson, Atty. Gen., and Donald Garrity, Asst. Atty. Gen., argued orally, for respondent.
DOYLE, Justice.
The defendant, Robert C. Johnston, was convicted of the crime of uttering and delivering a fictitious check in Meagher County on or about October 9, 1959.
This cause was tried to a jury and on June 27, 1961, the jury returned a verdict of guilty and left the punishment to be fixed by the court. The defendant was thereafter sentenced to five years in the Montana State Prison at Deer Lodge. Defense counsel moved for a new trial which was denied, and on June 30, 1961, judgment was pronounced upon the defendant. From this judgment of conviction the defendant appeals.
From the record in this cause, we adduce that the appellant Johnston and one LeRoy Franklin Wenig on October 9, 1959, were present at the cashing of two checks at the Mint Bar in White Sulphur Springs. The first check was in the sum of $140 drawn on the First National Bank of White Sulphur Springs with the payee as LeRoy Wenig and the maker as one James J. Johnson. The second check was payable to the appellant in the sum of $40, and the maker was Raymond Hannes, and this check was also drawn on the First National Bank and cashed at the Mint Bar in White Sulphur Springs.
On December 15, 1959, LeRoy Franklin Wenig plead guilty to uttering and delivering *892 the fictitious check in the sum of $140 before referred to.
The appellant here, who cashed the $40 check on Friday, October 9, 1959, testified that the nebulous Raymond Hannes had advanced him this $40 for work and labor that he was to perform on Monday, October 12, 1959, and yet we find the appellant arrested in Dillon on Tuesday, October 13, 1959. The records of the First National Bank at White Sulphur Springs fail to disclose that there ever was a Raymond Hannes who was carried as a depositor in that Bank. The sheriff of Meagher County likewise testified that he had never known or heard of any such person as Raymond Hannes. It perhaps is pertinent to observe that the record discloses that the appellant admitted a felony conviction although the prior conviction was not charged in the information in this cause.
The appellant specifies twenty-one separate specifications of error. We will discuss those specifications possessing merit.
Appellant's first four specifications of error deal with the elapsed time of twenty-one days between his arrest and arraignment.
It was clearly brought out, without difference of opinion, that counsel for appellant had represented him from the middle of October 1959, when he was arrested together with LeRoy Franklin Wenig and both were charged with the identical crime on the $140 check. LeRoy Franklin Wenig plead guilty in the month of December to uttering and delivering the fictitious $140 check, with intent to defraud the recipient of the check, and the joint information was dismissed as to defendant.
The Honorable F.V. Watts had resigned as district judge of this district and informed both counsel for appellant and respondent that he would not again be in White Sulphur Springs after December 15, 1959. The county attorney could have continued the original information on the $140 check against the appellant herein until the new district judge appeared and then dismissed as against this appellant after filing the information on the $40 check presently before this court.
The Montana statutes provide that a defendant must be taken before a magistrate "without unnecessary delay". R.C.M. 1947, § 94-5912; R.C.M. 1947, § 6016. The defendant urges that his detention for a period of twenty-one days without being taken before a magistrate was a violation of the above statutes and hence his conviction should be reversed.
The authorities cited by defendant in support of his argument are distinguishable from the case at bar. All of the cases cited deal with the question of a coerced confession. These cases require a reversal of the conviction because the illegal confession has a bearing on the conviction on the merits of the charge. In this case there was no confession. Moreover, we find that the detention of defendant did not prejudice him in presenting his defense on the merits at the trial. If the defendant has a remedy at all it must be found in a civil action. See Cline v. Tait, 113 Mont. 475, 129 P.2d 89.
The rule is stated in 15 Am.Jur., Criminal Law, § 317, as follows:
"As a general rule, the mere fact that the arrest of an accused person is unlawful is of itself no bar to a prosecution on a subsequent indictment or information, by which the court acquires jurisdiction over the person of the defendant."
The specifications of error numbered 5, 6, and 11, deal with the failure of the county attorney to endorse the name of Robert W. Johnson, President of the First National Bank of White Sulphur Springs on the information. This failure was inadvertent on the part of the county attorney who promptly informed court-appointed counsel for the defendant of his omission and of his intention to move the court for an order permitting the endorsement of the witness upon the information.
In the case of State v. McDonald, 51 Mont. 1, 149 P. 279, Mr. Chief Justice Brantly, speaking for the court in connection with this question said:
"* * * It does not appear that the defendants in this case suffered any prejudice *893 by his delinquency. [County attorney.] It is not claimed by counsel that they did. There was no attempt to show that they were surprised or unable to meet the testimony given by the witness. The argument is merely that the county attorney purposely failed to perform his duty, and therefore the conviction should be set aside. The argument is without merit."
Appellant argues in specifications of error 12 and 13 that it is a defense to section 94-2007, R.C.M. 1947, if the defendant has made restitution. This is not the law.
22 C.J.S. Criminal Law § 41, states the general rule in the headnote:
"Since the status of an act as a crime is fixed when it is completed, and cannot be changed by the subsequent act of third persons, the fact that a person injured by a crime condones the offense or makes a settlement with respect thereto is not, in the absence of statute, a defense to criminal prosecution."
In this state we have statutes providing for compromising public offenses. R.C.M. 1947, § 94-9403, provides:
"No public offense can be compromised * * * except as provided in this chapter." This chapter provides only for the compromising of a misdemeanor, R.C.M. 1947, § 94-9401, and then only at the discretion of the court. R.C.M. 1947, § 94-9402.
As to specifications of error No. 17 and 18, the appellant objected to the instruction numbered 21, which is as follows:
"You are instructed that it is not necessary that the party to whom the alleged fictitious check was given, give notice of any kind, of nonpayment of said check to the purported maker or endorser thereof before a criminal prosecution could be commenced, having as its basis the alleged fictitious check."
Defendant's objection to this instruction is based on his contention that a local custom allows the payee to redeem the check and thus it is not a fictitious check. As we have stated earlier in this opinion, this reference to "local custom" does not reflect the law of this state.
Also as to instruction number 23, which is as follows:
"You are instructed that, in a case where a check is drawn upon some bank, banker, or depository for money, purporting to be signed by an individual, evidence that no such person as the one whose name purports to be signed to such check had an account with said bank, banker, or depository for the payment of money, at the time of making, drawing or uttering of such check, is prima facie evidence of the fictitious character of the check."
The essence of the offense charged in the information was the passing, with intent to defraud another, of a fictitious check purporting to be a check for the payment of money of an individual, when, in fact there was no such individual in existence.
The intent to defraud and appellant's knowledge of the fictitious character of the check were questions for the jury and such intent and knowledge were facts which might reasonably have been inferred by them from the circumstances shown by the evidence. See State v. Wellard, 3 Utah 2d 129, 279 P.2d 914; People v. Walker, 15 Cal.App. 400, 114 P. 1009; People v. Hamby, 55 Cal.App. 37, 202 P. 907.
We find no merit to other specifications of error and deem it unnecessary to discuss them. The verdict was supported by the evidence, and the judgment is therefore affirmed.
MR. CHIEF JUSTICE JAMES T. HARRISON and MR. JUSTICES CASTLES, ADAIR and JOHN C. HARRISON concur.