            SUPREME COURT OF MISSOURI
                                        en banc
DELORES HENRY,                            )      Opinion issued August 13, 2019
                                          )
      Plaintiff,                          )
                                          )
v.                                        )      No. SC97385
                                          )
PAUL PIATCHEK, et al.,                    )
                                          )
      Respondents,                        )
                                          )
DARRELL WILLIAMS, SR.,                    )
                                          )
      Appellant.                          )

                   Appeal from the Circuit Court of the City of St. Louis
                         The Honorable Rex M. Burlison, Judge

      Darrell Williams Sr. appeals from the circuit court’s overruling of his Rule 74.06(b)

motion to set aside the dismissal of a wrongful death suit filed by his deceased son’s

grandmother and the overruling of his motion to intervene in that suit. Because he failed

to comply with Rule 52.12 governing intervention and his motion was never ruled on prior

to the grandmother’s voluntary dismissal of her suit, he never became a party to the

grandmother’s suit. Rule 74.06(b) does not authorize a non-party to file a motion to set

aside the judgment. Moreover, there was no judgment to be set aside because the

grandmother voluntarily dismissed her suit and that dismissal took effect immediately upon
filing, without order of the court, under Rule 67.02(a). Accordingly, the circuit court did

not err in overruling Williams’ motion to set aside the dismissal of the grandmother’s suit.

I.     FACTUAL AND PROCEDURAL BACKGROUND

       In November 2009, the police shot and killed Darrell Williams 1 after a high-speed

chase. Because of the circumstances of the chase, members of Darrell’s family were

suspicious of wrongdoing by the police. Darrell’s grandmother, Delores Henry, quickly

filed a petition alleging wrongful death in January 2010. In her petition, Ms. Henry claimed

she was Darrell’s “next of kin,” but that was not the case. Darrell was also survived by his

father, Darrell Williams Sr., and his mother, Kathryn Love. The parties agree that, because

Darrell’s mother and father were alive, under section 537.080, 2 his grandmother was not a

proper plaintiff to bring the wrongful death suit. But the grandmother nonetheless filed

suit, perhaps because both parents were incarcerated at the time of Darrell’s death. The

defendants filed an answer to the grandmother’s petition, and the case proceeded without

addressing her authority to bring suit under section 537.080. 3

1
  For clarity and simplicity, because the relationship of the various parties to the deceased
is important, this opinion refers to the deceased as Darrell, to Darrell’s father, Darrell
Williams Sr., as Mr. Williams or father, to Darrell’s grandmother, Delores Henry, as
Ms. Henry or grandmother, and to Darrell’s mother, Kathryn Love, as Ms. Love or mother.
2
  All statutory references are to RSMo 2000, unless otherwise indicated.
3
  Section 537.080 provides:
        1. Whenever the death of a person results from any act, … the person or party
        who … would have been liable if death had not ensued shall be liable in an
        action for damages, … which damages may be sued for:
        (1) … by the father or mother of the deceased …
        (2) If there be no persons in class (1) entitled to bring the action, then by the
        brother or sister of the deceased, or their descendants, …;

                                             2
       Beginning in August 2010, six months after the grandmother filed her suit, and

periodically over the next nine months, while incarcerated on unrelated crimes, Mr.

Williams sent the court at least six letters. Identifying himself in the letters as Darrell’s

father, on August 30, 2010, he asked whether a complaint had been filed for his son’s death

and, if it had, whether the circuit court could provide him with a copy; on November 12,

2010, he asked for a copy of the docket sheet and the contact information for Ms. Henry’s

attorney; on November 22, 2010, and again on December 16, 2010, he said he wanted to

become a plaintiff and asked for the current discovery; and on February 25, 2011, he

requested the docket sheet. The record shows each of Mr. Williams’ letters was docketed,

and the circuit court sent Mr. Williams some of the information he had requested.

       Finally, in May 2011, Mr. Williams sent the circuit court a handwritten letter

attaching a handwritten motion to join in the grandmother’s suit. The motion had the

caption to the grandmother’s case and, in full, stated:

       Comes now, plaintiff Darrell Williams, pro se, requesting to become a
       plaintiff in cause #1022-CC00155, for the following reason:
               Plaintiff Darrell Williams Sr[.], is the father of the deceased Darrell
       Williams Jr.
               Wherefore plaintiff requests that this motion be granted.

While Mr. Williams’ motion conveyed his desire to become a plaintiff and should have

been understood as an attempt to intervene, it failed to comply with the requirements of

Rule 52.12(c), which provides:

       A person desiring to intervene shall serve a motion upon all parties affected
       thereby. The motion shall state the grounds therefor, and shall be

       (3) If there be no persons in class (1) or (2) entitled to bring the action, then
       by a plaintiff ad litem. ….
                                               3
       accompanied by a pleading setting forth the claim or defense for which
       intervention is sought. The same procedure shall be followed when a statute
       of this state gives a right to intervene.

Mr. Williams did not serve his motion on the other parties to the lawsuit, nor was it

accompanied by a pleading setting out the claim for which intervention was sought, as

required by Rule 52.12(c).

       The father did not attempt to correct the deficiencies in his motion in the succeeding

three years in which the grandmother’s suit was pending prior to April 2014, when, shortly

before trial was to occur, the grandmother voluntarily dismissed her suit. Her voluntary

dismissal became effective upon filing under Rule 67.02. 4 The father did not argue to the

circuit court that he still had a live claim due to his pending motion to intervene, nor did he

attempt at any time to get a ruling on the motion or otherwise correct the motion’s

deficiencies or object to the voluntary dismissal or attempt to appeal it. 5

       By the time the grandmother dismissed her lawsuit, the three-year statute of

limitations on the wrongful death claim had run. § 537.100.1. But Rule 67.02(c) provides

that a voluntary dismissal under Rule 67.02(a) is without prejudice, and under section

537.100, the grandmother had one year in which to refile her lawsuit because her original

4
  Rule 67.02(a) provides in relevant part that:
       (a) … a civil action may be dismissed by the plaintiff without order of the court
       anytime:
       (1) Prior to the swearing of the jury panel for voir dire examination, or
       (2) In cases tried without a jury, prior to the introduction of evidence at the
       trial.
5
  This Court is not called upon to reach, and so does not reach, the issue of whether a person
who attempts to intervene but whose motion has not been taken up or ruled on prior to a
voluntary dismissal has standing to appeal.
                                               4
lawsuit had been timely filed. 6

       While the grandmother did not refile within one year, the mother did attempt to file

a wrongful death suit in August 2014, just four months after the grandmother’s voluntary

dismissal. The mother’s suit was dismissed the following year after the defendants filed a

motion arguing the mother could not take advantage of the grandmother’s right to refile

her suit within one year because the mother had not been a party to the prior suit.

       The court of appeals affirmed the circuit court’s dismissal of the mother’s petition

in Love v. Piatchek, 503 S.W.3d 318 (Mo. App. 2016). Love held that, because the

grandmother was never a proper party to bring the wrongful death suit, her suit was a nullity

and could not relate back to the grandmother’s prior suit or take advantage of the one-year

window provided by section 537.100.1. Id. at 320. 7 A concurring opinion suggested a

better mechanism for seeking relief would have been to seek to set aside the dismissal of

the grandmother’s original suit under Rule 74.06(b). Id. at 320 n.1 (Van Amburg, J.,

concurring).

       A few months later, but more than one year after the grandmother voluntarily

dismissed her suit, Mr. Williams obtained counsel and filed a Rule 74.06(b)(5) motion to

set aside the judgment in the grandmother’s original action and to intervene in that suit.

Rule 74.06(b) provides in relevant part:

6
  Section 537.100.1 provides “if any such action shall have been commenced within the
time prescribed in this section, and the plaintiff therein take or suffer a nonsuit, … such
plaintiff may commence a new action from time to time within one year after such nonsuit
suffered or such judgment arrested or reversed ….”
7
  This ruling is not part of this appeal.

                                             5
       On motion and upon such terms as are just, the court may relieve a party or
       his legal representative from a final judgment or order for the following
       reasons: … (5) the judgment has been satisfied, released, or discharged, or a
       prior judgment upon which it is based has been reversed or otherwise
       vacated, or it is no longer equitable that the judgment remain in force.

(Emphasis added). Mr. Williams argued it was not equitable for grandmother’s voluntary

dismissal to remain in place because he filed a timely motion to intervene in the suit prior

to its dismissal and prior to the running of the statute of limitations. He asserted that

because under section 537.080, a parent is entitled to sue for his or her unmarried child’s

death, and because Rule 52.12(a) permitted him to intervene as of right, see Martin v.

Busch, 360 S.W.3d 854, 857 (Mo. App. 2011), the circuit court had no authority to do

anything other than sustain his motion to intervene. Therefore, he argued, he should be

treated as a party just as if he had been granted intervention.

       The circuit court held that it had no authority to sustain Mr. Williams’ Rule 74.06

motion because grandmother had voluntarily dismissed her suit as permitted by Rule

67.02(a). This meant there was no suit for Mr. Williams to join and no judgment for the

circuit court to set aside. Mr. Williams appealed. After decision by the court of appeals,

this Court granted transfer. Mo. Const. art. V, sec. 10.

II.    STANDARD OF REVIEW

       This Court reviews the overruling of a Rule 74.06(b) motion under the abuse of

discretion standard. In re Marriage of Hendrix, 183 S.W.3d 582, 587 (Mo. banc 2006).

“This Court interprets its rules by applying the same principles used for interpreting

statutes.” In re Hess, 406 S.W.3d 37, 43 (Mo. banc 2013), quoting, Buemi v. Kerckhoff,

359 S.W.3d 16, 20 (Mo. banc 2011). “Statutory interpretation is a question of law and is

                                              6
subject to de novo review.” Lindquist v. Mid Am. Orthopaedic Surgery, Inc., 224 S.W.3d

593, 594-95 (Mo. banc 2007).

III.   A NON-PARTY CANNOT SEEK TO SET ASIDE A JUDGMENT, NOR IS A
       VOLUNTARY DISMISSAL A JUDGMENT

       Mr. Williams cannot bring a Rule 74.06(b) motion to set aside the grandmother’s

voluntary dismissal because he was never a party to her suit. Rule 74.06(b) provides, “On

motion and upon such terms as are just, the court may relieve a party or his legal

representative from a final judgment or order ….” Rule 74.06(b) by its terms authorizes

only parties or their legal representatives to seek relief from a final judgment or order.

       This Court’s prior cases have held a person who has sought to intervene but whose

motion to intervene has not been ruled upon because the person failed to comply with the

rules governing such motions has not become a party to the case and, therefore, has no

right to file a motion to be relieved of the final judgment. A case almost directly on point

is State ex rel. Wolfner v. Dalton, 955 S.W.2d 928 (Mo. banc 1997). In Wolfner, three

would-be defendants filed a motion to intervene but did not attach a pleading setting forth

their claims or defenses as required by Rule 52.12(c) or seek a ruling on their motion, and

the circuit court never ruled on it. Id. at 929. They were never added as defendants in the

suit. A few months later, the existing parties in the suit entered into a stipulation and

consent judgment, which the circuit court entered by order that same day. Id. at 929-30.

Learning of the order, the would-be defendants brought a Rule 74.06(b) motion to set aside

the judgment. Id. at 930. This Court held the would-be defendants never became parties

to the suit because they never filed a proper Rule 52.12(c) motion and, as non-parties, were

                                              7
not entitled to set aside the judgment under Rule 74.06(b) because “[t]he provisions of Rule

74.06(b) are limited to parties.” Id.

       This Court recently reaffirmed in State ex rel. AJKJ, Inc. v. Hellmann, 574 S.W.3d

239, 242 (Mo. banc 2019), that “[o]nly parties may file authorized after-trial motions.”

AJKJ rejected an attempt by non-parties to file a motion to set aside a judgment, holding

“[a] motion to set aside filed by a non-party pursuant to Rule 74.06(b) is not an authorized

after-trial motion that allows a circuit court to modify or set aside a judgment more than 30

days after entry.” Id. at 243 (emphasis added).

       Mr. Williams’ case presents a very similar factual scenario. Like those who sought

to intervene in Wolfner, he failed to comply with the requirements of Rule 52.12(c)

governing intervention. He never served his motion on the affected parties. He never

attached to his motion any pleadings setting out his claim for which intervention was

sought or, indeed, even mentioning the word intervention or the rule governing it. And,

while Mr. Williams was proceeding pro se and minor procedural variations might be

anticipated, this Court has repeatedly held the fact that a litigant is not represented by

counsel does not authorize him or her to ignore this Court’s procedural rules. 8

       In any event, even if Rule 74.06 allowed a non-party to move to set aside a

8
  See, e.g., Franklin v. State, 24 S.W.3d 686, 692 (Mo. banc 2000) (“A defendant who
proceeds pro se is bound by the same rules as a party represented by counsel.”).
Mr. Williams contends he cannot be faulted for this failure because he was incarcerated.
But, this Court recently reaffirmed that incarcerated persons must be given an opportunity
to appear, albeit in many instances by telephone or video conference. McNeal v. McNeal-
Sydnor, 472 S.W.3d 194, 195-96 (Mo. banc 2015). His incarceration, therefore, did not
preclude him from appearing. He simply never sought to do so or to comply with the
requirements of Rule 52.12(c).
                                              8
judgment, it would not entitle Mr. Williams to relief here. Rule 74.06(b) allows a party to

seek relief from “a final judgment or order.” In State ex rel. Henderson v. Asel, 566 S.W.3d

596, 598 (Mo. banc 2019), this Court held:

       [A] judgment is a legally enforceable judicial order that fully resolves at least
       one claim in a lawsuit and establishes all the rights and liabilities of the
       parties with respect to that claim. Cf. Rule 74.01. If a judgment resolves all
       claims by and against all parties, or it resolves the last such claim and some
       (but not all) claims have been resolved previously, it is commonly referred
       to as a “final judgment.”

       The grandmother voluntarily dismissed her case before the circuit court entered any

judgment. As noted earlier, Rule 67.02(a) provides, “a civil action may be dismissed by

the plaintiff without order of the court anytime: (1) Prior to the swearing of the jury panel

for the voir dire examination, or (2) In cases tried without a jury, prior to the introduction

of evidence at trial.” Once Ms. Henry voluntarily dismissed her case pursuant to Rule

67.02(a), “It is as if the suit had never been brought .... No steps can be taken upon the suit

after dismissal .... Any steps taken thereafter are a nullity ....” State ex rel. Fisher v.

McKenzie, 754 S.W.2d 557, 560 (Mo. banc 1988), quoting, Bell v. Kitt, 655 S.W.2d 881,

883 (Mo. App. 1983) (alterations in original).

       Because the grandmother’s case was dismissed automatically when she filed her

voluntary dismissal, there simply was no judgment or order from which Mr. Williams could

seek relief under Rule 74.06(b).

                                              9
IV.    CONCLUSION

       This case is tragic, and not only in the facts of the underlying death.          The

grandmother was not entitled to file a lawsuit over her grandson’s wrongful death.

Mr. Williams was entitled to sue and attempted to join the grandmother’s suit, but he failed

to comply with the strictures of Rule 52.12(c). As a consequence, he never became a party

to the only wrongful death suit filed within the statutory time period, nor did the circuit

court rule on his motion before the suit was voluntarily dismissed. As a non-party, and

because the grandmother’s suit was resolved by voluntary dismissal rather than by a

judgment, Mr. Williams could not seek to set aside that voluntary dismissal. In these

difficult circumstances, the circuit court had no option other than to overrule Mr. Williams’

motion to set aside and motion to intervene. Judgment affirmed.

                                                  _________________________________
                                                    LAURA DENVIR STITH, JUDGE

       All concur.

                                             10


         12-4930
         Jalloh v. Holder
                                                                                BIA
                                                                                Hom, IJ
                                                                               A078 216 941
                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT
                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 16th day of October, two thousand fourteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                BARRINGTON D. PARKER,
 9                GERARD E. LYNCH,
10                     Circuit Judges.
11       _____________________________________
12
13       RAMATA JALLOH,
14                Petitioner,
15
16                          v.                                  12-4930
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Andy Wong, New York,N.Y.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Luis E. Perez, Senior
27                                     Litigation Counsel; Timothy B.
28                                     Stanton, Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review

 4   is GRANTED.

 5       Petitioner Ramata Jalloh, a native and citizen of

 6   Sierra Leone, seeks review of a November 20, 2012, order of

 7   the BIA, affirming the January 25, 2011, decision of

 8   Immigration Judge (“IJ”) Sandy Hom, which denied her

 9   application for asylum and request for relief under the

10   Convention Against Torture (“CAT”), and granted her request

11   for withholding of removal.   In re Ramata Jalloh, No. A078

12   216 941 (B.I.A. Nov. 20, 2012), aff’g No. No. A078 216 941

13   (Immig. Ct. New York City Jan. 25, 2011).   We assume the

14   parties’ familiarity with the underlying facts and

15   procedural history in this case.

16       Under the circumstances of this case, we review the

17   IJ’s decision as modified by the BIA decision.   See Yang v.

18   U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

19       I.   Jurisdiction

20       Our jurisdiction to review orders of removal is limited

21   to review of “final order[s] of removal.”   8 U.S.C.

22   § 1252(a)(1).   An order of removal is “final” upon the

23   earlier of the BIA’s affirmance of the immigration judge’s

                                   2
 1   order of removal or the expiration of the time to appeal the

 2   immigration judge’s order of removal to the BIA.       8 U.S.C.

 3   § 1101(a)(47)(B)(i), (ii); see Arias Chupina v. Holder, 570

 4   F.3d 99, 103 (2d Cir. 2009).    The BIA has concluded that

 5   when a case is remanded to the IJ for the completion of

 6   background checks pursuant to 8 C.F.R. § 1003.47(h), the IJ

 7   has full jurisdiction over the case and “no final order

 8   exists.”   Matter of M-D-, 24 I. & N. Dec. 138, 141 (BIA

 9   2007); see also Vakker v. Attorney General of U.S., 519 F.3d

10   143, 147 (3d Cir. 2008) (holding that when the BIA remands a

11   case to the IJ for background checks pursuant to 8 C.F.R.

12   § 1003.47(h), the IJ’s decision following remand becomes the

13   “final order” of removal).

14       Here, the BIA remanded for background checks and

15   security investigation pursuant to      8 C.F.R. § 1003.47(h).

16   Thus, at the time Jalloh petitioned for review in this

17   Court, the order of removal was not final and the Court

18   lacked jurisdiction to consider the petition.        See Matter of

19   M-D-, 24 I. & N. Dec. at 141.       However,   a premature

20   petition for review from a non-final order of removal may be

21   cured, and ripen into a valid petition for review, if a

22   final order of removal has been entered by the time the

                                     3
 1   petition is heard, and the government suffers no prejudice.

 2   See Herrera-Molina v. Holder, 597 F.3d 128, 132 (2d Cir.

 3   2010).    The IJ issued an order of removal on March 13, 2013,

 4   and the government agrees that a final order now exists and

 5   the case is ripe for review.     As a result, Jalloh’s

 6   premature petition for review has now ripened into a valid

 7   petition for review which we may consider on the merits.

 8   See Herrera-Molina, 597 F.3d at 132.

 9       II.    Merits

10       An asylum applicant must demonstrate by clear and

11   convincing evidence that she filed her application within

12   one year after the date of arrival in the United States.       8

13   U.S.C. § 1158(a)(2)(B).     The law provides an exception to

14   the one-year bar if the applicant demonstrates either

15   changed or extraordinary circumstances.     8 U.S.C.

16   § 1158(a)(2)(D).    Under 8 U.S.C. § 1158(a)(3), no court

17   shall have jurisdiction to review the agency’s finding that

18   an asylum application was untimely under 8 U.S.C.

19   § 1158(a)(2)(B), or its finding of neither changed nor

20   extraordinary circumstances excusing the untimeliness under

21   8 U.S.C. § 1158(a)(2)(D).     However, the Court retains

22   jurisdiction to review constitutional claims and questions

                                     4
 1   of law.   8 U.S.C. § 1252(a)(2)(D).    The “proper

 2   interpretation of the one-year deadline provision” presents

 3   a question of law, see Joaquin-Porras v. Gonzales, 435 F.3d

 4   172, 178 (2d Cir. 2006), as does the application of an

 5   exception to the one-year filing deadline.     See Shi Jie Ge

 6   v. Holder, 588 F.3d 90, 94 (2d Cir. 2009).

 7       In this case, Jalloh raises two questions of law:

 8   (1) whether the agency used the proper legal standard to

 9   find that her original claim, based on her rape by rebels,

10   was untimely; and (2) whether her claim based on forced

11   female genital mutilation (“FGM”) was subject to the one-

12   year bar at all, given that the BIA reopened sua sponte

13   because she demonstrated ineffective assistance of counsel.

14   Because of agency errors, we remand.

15              A.   Original Asylum Application

16        Jalloh filed her asylum application in March 2000,

17   prior to the 2005 REAL ID Act.     Accordingly, pre-REAL ID Act

18   law, including the requirements for credibility findings

19   established in Secaida-Rosales v. I.N.S., 331 F.3d 297 (2d

20   Cir. 2003), applies to her testimony regarding her date of

21   entry.    See Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 107

22   n.2 (2d Cir. 2006) (noting that Secaida-Rosales “remain[s]

23
                                    5
 1   good law with regard to asylum applications filed before May

 2   11, 2005”).

 3       In pre-REAL ID Act cases, an adverse credibility

 4   determination must be based on “specific, cogent reasons”

 5   that “bear a legitimate nexus” to the finding, and any

 6   discrepancy must be “substantial” when measured against the

 7   record as a whole.     See Secaida-Rosales, 331 F.3d at 307.

 8   Inconsistencies need not be fatal if they are “minor and

 9   isolated,” and the testimony is otherwise generally

10   consistent, rational, and believable.     See Diallo v. INS,

11   232 F.3d 279, 288 (2d Cir. 2000).

12       The IJ found Jalloh’s testimony not credible regarding

13   her date of entry based on three findings: (1) Jalloh

14   testified she left Guinea on January 25, 1999, was on a boat

15   for two weeks, and yet could not explain how that resulted

16   in her arrival on February 10, 2000; (2) Jalloh testified in

17   2010 that she traveled to New York with two other stowaways,

18   but in 2001 testified she traveled with t-shirt vendors, and

19   her explanation was unconvincing; and (3) Jalloh testified

20   in 2010 that she arranged to leave Guinea “upon a payment of

21   money,” but in 2001 testified that she traveled without

22   paying any money.     The BIA relied upon these same three

23   findings.     However, these discrepancies are not supported by
                                     6
 1   the record and are not “substantial” as required under

 2   Secaida-Rosales.

 3              B.   Updated Asylum Application

 4        Jalloh alleged that she entered the United States in

 5   2000, and applied for asylum based on her forced FGM claim

 6   in 2009.   She argues that the BIA’s reopening of her

 7   proceedings sua sponte to present her FGM claim, and

 8   ineffective assistance of counsel, constitute extraordinary

 9   circumstances that toll the filing deadline.    The government

10   argues that the issue is unexhausted, as it was not raised

11   before the BIA.

12       We generally require that petitioners raise to the BIA

13   the specific issues they later raise in this Court.     See

14   Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004); Zhong v. U.S.

15   Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).

16   However, the Court has never held that a petitioner is

17   limited to the “exact contours” of his argument to the

18   agency.    Gill v. INS, 420 F.3d 82, 85-86 (2d Cir. 2005).    On

19   the contrary, the Court has held that 8 U.S.C. § 1252(d)(1)

20   does not prevent it from considering “specific, subsidiary

21   legal arguments or arguments by extension,” even if those

22   arguments were not presented below.    Id. at 86; see also

23   Restrepo v. McElroy, 369 F.3d 627, 633 n.10 (2d Cir. 2004)
                                    7
 1   (stating that the Court “enjoy[s] broad discretion to

 2   consider subsidiary legal arguments that were not

 3   specifically raised below”).     Here, we conclude that

 4   Jalloh’s argument that she demonstrated an extraordinary

 5   circumstance tolling the one-year filing deadline is a

 6   subsidiary argument of her challenge to the agency’s

 7   pretermission of her asylum application, and we deem the

 8   argument exhausted.

 9       The BIA’s 2008 order stated that it was reopening in an

10   exercise of sua sponte authority “to resolve any issue

11   regarding the relevant time and number bars” and held that

12   Jalloh had demonstrated ineffective assistance of counsel.

13   The BIA exercises sua sponte authority only in

14   “extraordinary circumstances.”     See Johnson v. Ashcroft, 378

15   F.3d 164, 171 n.8 (2d Cir. 2004).     Ineffective assistance of

16   counsel can constitute an extraordinary circumstance.     See 8

17   C.F.R. § 1208.4(a)(5)(iii); Ivanishvili v. U.S. Dep’t of

18   Justice, 433 F.3d 332, 338 (2d Cir. 2006).     The BIA’s very

19   act of reopening sua sponte demonstrated an extraordinary

20   circumstance that tolled the time for filing the claim.

21

22

23
                                    8
1       For the foregoing reasons, the petition for review is

2   GRANTED and the case is REMANDED to the BIA for further

3   proceedings consistent with this order.

4                              FOR THE COURT:
5                              Catherine O’Hagan Wolfe, Clerk
6
7
8

                                 9


63 Mich. App. 309 (1975)
234 N.W.2d 499
PEOPLE
v.
McMILLAN
Docket No. 21107.
Michigan Court of Appeals.
Decided August 13, 1975.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Don L. Milbourn, Chief Appellate Lawyer, and Stephen F. Osinski, Assistant Prosecuting Attorney, for the people.
*310 William M. Havey, for defendant.
Before: D.E. HOLBROOK, P.J., and ALLEN and D.E. HOLBROOK, JR., JJ.
D.E. HOLBROOK, P.J.
Defendant was found guilty by a jury in Macomb County Circuit Court on October 24, 1973 of breaking and entering a building with intent to commit larceny, MCLA 750.110; MSA 28.305, and sentenced to a 3 to 10 year prison term on November 7, 1973. From a July 19, 1974 order denying a motion for new trial, defendant brings this delayed appeal.
At approximately 3 a.m. on May 17, 1973, state police responded to a possible burglary in progress at Capozzo Furniture Store on Gratiot in Macomb County, and found defendant lodged between bars situated in a rear window of the store. The window pane was broken and the defendant's person was stuck "half in and half out" of the premises. The store owner testified that on the evening prior to the episode, all doors and windows were locked, and the window pane where defendant was found was not broken, although it had possessed a small crack for sometime. No one had permission to enter the store after the closing the evening before.
The arresting officer testified that defendant admitted breaking into the building for the object of taking goods therein. Defendant took the stand in his own behalf, and testified that he was trying to enter the building in order to escape from two males who he believed wanted to harm him. Defendant denied or could not recall admitting criminal culpability to the police, other than a statement in jest that he had been dreaming of breaking into the store.
Defendant raises several issues on appeal, one of *311 which deserves discussion and determination. Was defendant denied his right of self-representation?
Defendant asserts that he had the right to conduct his own defense. Const 1963, art 1, § 13, MCLA 763.1; MSA 28.854, People v Henley, 382 Mich 143; 169 NW2d 299 (1969). He claims that the district court judge deprived defendant of this right when he responded negatively to defendant's question, "I can represent myself if I wanted to, couldn't I?"
The people respond saying that the right to represent one's self is not absolute [People v Overby, 42 Mich App 1; 201 NW2d 303 (1972)] and may be limited if it conflicts with the right to receive a fair trial [People v Kirkland, 40 Mich App 22; 198 NW2d 811 (1972)]. Defendant neither objected nor expressed any dissatisfaction with assigned counsel  a prerequisite in this type of case. People v Fred Smith, 22 Mich App 22; 176 NW2d 729 (1970).
Moreover, an accused must unequivocally state that he wants to represent himself. People v Anderson, 55 Mich App 317; 222 NW2d 226 (1974), People v Payne, 27 Mich App 133; 183 NW2d 371 (1970).
This defendant did not unequivocally state he wished to proceed in pro per. In effect, defendant is claiming for the first time on appeal that he was deprived of his right to represent himself on the basis of an inquiry to the district court judge at arraignment on the warrant.
We note that at his May 17, 1973 arraignment on the warrant in district court, defendant informed the court that he desired to retain his own counsel, and a preliminary examination was scheduled for May 22, 1973. On that date, defendant appeared and informed the court that he had been *312 unable to secure counsel and defendant chose to be represented by assigned counsel. Shortly after defendant stated that he desired assigned counsel, the following relevant colloquy took place between the defendant and the district court judge:
"A. (defendant). I can represent myself if I wanted to, couldn't I.
"Q. (district judge). No.
"A. Why not.
"Q. Well, not considering the gravity of the charge and the fact you are on parole. A conviction to anything might result in your parole being violated, so under law you must be represented. You can either get your own attorney or the court will appoint one, but I won't allow you to sit there by yourself. You don't have to talk to him, but at least he'll be sitting there looking at you."
The district court judge incorrectly posited the law in this state:
"A suitor in any court of this state has the right to prosecute or defend his suit, either in his own proper person or by an attorney." Const 1963, art 1, § 13.
"On the trial of every indictment or other criminal accusation, the party accused shall be allowed to be heard by counsel and may defend himself, ..." MCLA 763.1; MSA 28.854.
"One accused of a crime has a right to either represent himself or be represented by an attorney pursuant to Const 1963, art 1, § 13 and MCLA 763.1; MSA 28.854. The right to personally conduct one's defense in a criminal prosecution is absolute but the right to discharge counsel after commencement of the trial is qualified. People v Henley, 382 Mich 143, 148; 169 NW2d 299 (1969); People v Armstrong, 28 Mich App 387, 390; 184 NW2d 531 (1970)." People v Anderson, 55 Mich App 317, 320; 222 NW2d 226, 228 (1974).
The question before us is whether the erroneous *313 statement of the district judge concerning defendant's right to self-representation effectively denied defendant his right to proceed in propria persona, requiring reversal.
The people's authority for the propositions that (1) the right to represent one's self is not absolute, and (2) a defendant must "unequivocally" manifest his desire to proceed in propria persona arose out of factual situations wherein counsel had already been assigned, the request was preceded by a demand for substitution of counsel or the self-representation request was made after trial commencement.
A different standard applies with respect to competency to represent one's self as opposed to competency to stand trial. The Court in People v Holcomb, 47 Mich App 573, 580; 209 NW2d 701, 705, lv granted, 390 Mich 808 (1973), discussed the dilemma created for a trial court judge between one's right to counsel and his right to self-representation.
"Trial judges would never be able to successfully and judiciously resolve the serious confrontation between the right to self-representation and its constitutional counterpart of right to counsel if either right was unlimited. Since these rights are the mirror image of each other, they cannot be invoked simultaneously. The reliance upon one requires the forbearance of the other. To prevent defendant from placing trial judges into a `heads I win, tails you lose' situation, we find the right to self-representation limited in the following manner.
"A defendant choosing to invoke his right to appear pro per must abandon his right to counsel. This waiver of counsel will not be deemed effective unless made voluntarily and intelligently. Johnson v Zerbst, 304 US 458; 58 S Ct 1019; 82 L Ed 1461 (1938); Moore v Michigan, 355 US 155; 78 S Ct 191; 2 L Ed 2d 167 (1957). Defendant's competency is the necessary prerequisite *314 to a valid waiver. Pate v Robinson, 383 US 375; 86 S Ct 836; 15 L Ed 2d 815 (1966); Westbrook v Arizona, 384 US 150; 86 S Ct 1320; 16 L Ed 2d 429 (1966)."
It was not until after he had requested assigned counsel, that the defendant stated: "I can represent myself if I wanted to, couldn't I." It is thus evident from defendant's prior request for assigned counsel, that he did not want to represent himself. In other words, had the defendant desired to represent himself, he would not have informed the court  before inquiring about self-representation  that he wanted an attorney to represent him. Granted defendant was misinformed by the district court judge, but the erroneous information came only after defendant had decided he wanted assigned counsel. Moreover, the statement by defendant that "I can represent myself if I wanted to, couldn't I", indicates that when he made his choice to have assigned counsel, defendant believed he could represent himself.
Defendant was not deprived of his right to represent himself. He was not even denied an opportunity to choose, since he had already made up his mind to be represented by assigned counsel prior to inquiring about self-representation. The subsequent erroneous advice could not relate back to taint his choice. Had the misinformation come prior to the defendant's decision to have assigned counsel, we might reach a different result. In such instance, the district judge would have erroneously narrowed the courses of action available to defendant thereby tainting his choice. In this case, the error lies in the district court's possible foreclosure of defendant's option in futuro to represent himself should he change his mind. One cannot be expected to invoke a right he has been informed is *315 nonexistent. What is decisive in the instant case, however, is that defendant did not inform the district judge that he wanted to represent himself; on the contrary, defendant decided that he wanted assigned counsel. The record is completely devoid of any manifestation by defendant that he ever wanted to proceed in propria persona. Defendant does not even claim on appeal that he ever wanted to represent himself. Thus, the erroneous information supplied defendant by the district court judge after defendant had made the choice to proceed with assigned counsel  at a time he believed he could represent himself  indicates defendant was not deprived of his right of self-representation, and hence, there is no reversible error.
Affirmed.


362 F.Supp. 124 (1973)
Edward F. GENETTI et al.
v.
VICTORY MARKETS, INC.
Civ. No. 73-154.
United States District Court, M. D. Pennsylvania.
March 28, 1973.
*125 James E. O'Brien, Scranton, Pa., Drinker, Biddle & Reath, Philadelphia, Pa., for plaintiffs.
Warren, Hill, Henkeman & McMenamin, Scranton, Pa., for defendant.

MEMORANDUM AND ORDER
NEALON, District Judge.
Plaintiffs, Edward F. Genetti, Richard S. Genetti, and Hazleton National Bank, Trustee to the Deed of Trust of Stanley V. Genetti, shareholders of defendant, Victory Markets, Inc. (hereafter Victory), a New York Corporation, seek to enjoin Victory from holding its annual meeting of shareholders, scheduled for April 17, 1973, until plaintiffs are permitted to examine and copy defendant's shareholder list. In their complaint, plaintiffs allege that they own in excess of 10% of the voting common stock of Victory and that pursuant to Section 624(b) of the New York Business Corporation Law, McKinney's Consol. Laws, c. 4, they are entitled to the list in order to communicate with shareholders to "discuss what steps, if any, should be taken to prevent the further deterioration of the operations, financial and otherwise, of Victory Markets, Inc." Defendant opposes the request for injunctive *126 relief on the grounds, among others,[1] that the court should not exercise jurisdiction over an action involving the internal affairs of a foreign corporation. A hearing on plaintiffs' motion for a preliminary injunction was held on March 19, 1973, at which time the parties stipulated that it would serve as a final hearing on the merits. Briefs have been filed by both sides and the matter is now before the court for disposition.
Since this is a diversity case, a federal court sitting in Pennsylvania is bound to apply Pennsylvania substantive law, Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), which includes its conflict of laws rules. Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Thus, contrary to what plaintiffs contend, if a Pennsylvania court faced with the instant situation would decline jurisdiction, a federal court sitting in Pennsylvania would similarly decline. See Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832 (1947). It is well settled Pennsylvania law that a Pennsylvania court will not take jurisdiction for the purpose of regulating or interfering with the internal management of a foreign corporation. Donna v. Abbotts Dairies, Inc., 399 Pa. 497, 161 A.2d 13 (1960); Kahn v. American Cone & Pretzel Co., 365 Pa. 161, 74 A.2d 160 (1950); Conerty v. Butler County Oil Refining Co., 301 Pa. 417, 152 A. 672 (1930); Tierney v. Indian Ridge Coal & Coke Co., 256 Pa. 340, 100 A. 814 (1917); Machen v. Machen & Mayer Electrical Mfg. Co., 237 Pa. 212, 85 A. 100 (1912); Kinney v. Mexican Plantation Co., 233 Pa. 232, 82 A. 93 (1911). However, it is equally well settled that an action to compel the inspection of a foreign corporation's books and records for a proper purpose does not offend this general rule, at least where such books are within the jurisdiction of the court. Nevertheless, it has been consistently held in Pennsylvania that unless the books and records sought to be inspected are located in Pennsylvania, the general rule applies and a Pennsylvania Court will decline to exercise jurisdiction. For example, in Kahn v. Cone & Pretzel Co., 365 Pa. 161, 74 A.2d 160 supra, a shareholder of a foreign corporation registered to do business in Pennsylvania brought a suit in mandamus to compel disclosure of the company's stockholders. The stockholder wanted the list to form a protective committee of preferred stockholders to act in the interest of his investment. While noting the general rule that a court will not interfere with the internal affairs of a foreign corporation, the Pennsylvania Supreme Court held that in this situation where the books and records were within the state, the corporation maintained its principal office in Pennsylvania and carried on substantial business there, and the defendant directors were Pennsylvania residents, the granting of the right to inspect the records did not offend that rule. And in Conerty v. Butler County Oil Refining Co., supra, the court held that a foreign corporation registered and doing business in Pennsylvania, where most of its assets were located, was subject to an order of mandamus compelling it to permit a stockholder *127 to inspect its books and records which were in Pennsylvania. Similarly, in every Pennsylvania case granting shareholders the right to inspect a foreign corporation's records, the records were located within the jurisdiction of the court. See Donna v. Abbotts Dairies, Inc., 399 Pa. 497, 161 A.2d 13 supra; Tierney v. Indian Ridge Coal & Coke Co., 256 Pa. 340, 100 A. 814 (1917); Machen v. Machen & Mayer Electrical Mfg. Co., 237 Pa. 212, 85 A. 100 supra.
Applying the principles of the above cases to the facts of this case, it is apparent that plaintiffs cannot prevail. Victory is not registered to do business in Pennsylvania; it does not maintain an office in Pennsylvania; none of its directors or officers are residents of Pennsylvania; and most importantly, its books and records are maintained at Victory's principal place of business at Norwich, New York. Under these circumstances, this court, sitting as a Pennsylvania court for diversity purposes, will not exercise its properly invoked jurisdiction.
Defendant attempts to escape this result by arguing that § 313 of the Restatement (Second) Conflict of Laws (1971) would allow a Pennsylvania court to entertain this suit. That section provides: "A court will exercise jurisdiction over an action involving the internal affairs of a foreign corporation unless it is an inappropriate or an inconvenient forum for the trial of the action." Plaintiffs argue that while no Pennsylvania case has had occasion to apply this section, recent Pennsylvania Supreme Court decisions leave little doubt that if faced with the situation it would adopt § 313. Cf. Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854 (1970); Griffith v. United Airlines, 416 Pa. 1, 203 A.2d 796 (1964). However, even under § 313 of the Restatement (Second), a court will decline jurisdiction if it finds "it is an inappropriate or an inconvenient forum for the trial of the action." Comment (c) to § 313, which deals with the factors to be considered in deciding whether a forum is inappropriate or inconvenient, addresses the specific issue involved here. The statement is made there that "a court will usually entertain an action by a shareholder to compel the officers of a foreign corporation to allow him to inspect such of its books or properties as are within the state." (emphasis supplied) Thus, whether we apply the law as announced by the Pennsylvania courts or the Restatement (Second), the result is the same  the court will decline to exercise jurisdiction. An appropriate order will be entered.
NOTES
[1]  Defendant maintains that it is not subject to personal jurisdiction within the Middle District of Pennsylvania. However, at the March 19th hearing, it was shown that Victory is selling wholesale groceries to its wholly owned subsidiary, Genetti Supermarket, Inc. of East Stroudsburg, Pennsylvania, in the amount of approximately $100,000 a month since December, 1972. This substantial activity clearly establishes that Victory is "doing business" within the State of Pennsylvania. See 15 Pa.Stat.Ann. § 2011 subd. C; Gorso v. Bell Equipment Corp., 476 F.2d 1216 (3d Cir. 1973); Myers v. Mooney Aircraft, Inc., 429 Pa. 177, 240 A.2d 505 (1967).

Moreover, in view of the position the court takes in this matter, it will be unnecessary to decide whether service of process has been properly made on defendant or whether plaintiffs are barred by laches from enforcing their rights.


                                                                                ACCEPTED
                                                                                06-15-00026-CR
                                                                           SIXTH COURT OF APPEALS
                                                                                TEXARKANA, TEXAS
                                                                                6/16/2015 7:03:32 PM
                                                                                DEBBIE AUTREY
                                                                                CLERK

               No. 06-15-00026-CR, 06-15-00027-CR, 06-15-00028
                   ____________________________________________FILED IN
                                                              6th COURT OF APPEALS
                                                                TEXARKANA, TEXAS
                                      IN THE                  6/17/2015 8:22:00 AM
                                                                  DEBBIE AUTREY
                              SIXTH COURT OF APPEALS                  Clerk
                               AT TEXARKANA, TEXAS

                      ____________________________________________

                      ROGER DALE GAMMONS,
                                                         Appellant

                                        v.

                      THE STATE OF TEXAS,
                                                     Appellee
                      ____________________________________________

                                    APPEAL FROM
                       TH
                   THE 8 DISTRICT COURT OF HOPKINS COUNTY, TEXAS
                      TRIAL COURT NO. 1423872, 1423873, 1423874
                       ____________________________________________

                                APPELLEE’S BRIEF
                      ____________________________________________

                                             Will W. Ramsay
                                             110 Main Street
                                             Sulphur Springs, TX 75482
                                             903.885.0641, f. 903.885.0640
                                             wramsay@hopkinscountytx.com

                                             Attorney for Appellee
                                             State of Texas

                       ORAL ARGUMENT NOT REQUESTED

Appellee’s Brief
                     I DENTITY   OF   P ARTIES   AND   C OUNSEL

Pursuant to Texas Rule of Appellate Procedure 38(a), the following is a list of all

parties to the trial court’s judgment and the names and addresses of all trial and

appellate counsel:

Appellant                                    Appellant’s appellate counsel
Roger Dale Gammons                           J. Edward Niehaus
                                             207 W. Hickory St. Suite 309
                                             Denton, Texas 76201
                                             940.600.1295 telephone
                                             888.821.2890 facsimile

                                             Appellant’s trial counsel
                                             Heath Hyde
                                             214 Connally Street
                                             Sulphur Springs, TX 75482
                                             903.439.0000 telephone

Appellee                                     Appellee’s trial & appellate counsel
The State of Texas                           Will Ramsay
                                             8TH Judicial District Attorney
                                             110 Main Street
                                             Sulphur Springs, TX 75482
                                             903.885.0641 telephone
                                             903.885.0640 facsimile
                                             wramsay@hopkinscountytx.com

Appellee’s Brief                                                              Page i
                                           T ABLE      OF    C ONTENTS

Identity of Parties and Counsel ............................................................................ i

Table of Contents ........................................................................................... ii, iii

Index of Authorities............................................................................................ iv

Statement of the Case ...........................................................................................2

Issues Presented....................................................................................................3

         POINT OF ERROR 1: Appellant’s Plea of Guilty was Involuntarily
         Entered Where Appellant was Incompletely Admonished Regarding
         His Eligibility for Probation

         POINT OF ERROR 2: The Court Erred by Failing to Recuse Himself
         Where the Court had Personal Knowledge of Disputed Facts Relating
         to Appellant’s Enhancement Paragraph(s)

         POINT OF ERROR 3: The Court Erred by Failing to Recuse Himself
         After Having Previously Served as Counsel to the Defendant in
         Related Criminal Proceedings Relevant to the Case for Which
         Appellant Appeared Before the Court

Statement of Facts ...............................................................................................4

Summary of the Argument ...................................................................................5

Argument.......................................................................................................... 5-8

         POINT OF ERROR 1: Appellant’s Plea of Guilty was Not
         Involuntarily Entered Because Appellant was Admonished Correctly
         Pursuant to Article 26.13 of the Code of Criminal Procedure. .............. 5-7

         POINT OF ERROR 2: Appellant Waived and Failed to Preserve Any
         Possible Error in the Trial Judge Hearing the Case. .............................. 7-8

         POINT OF ERROR 3: Besides Failing to Preserve Error, This Court
         Has Held that a Trial Court Does Not Err by Failing to Recuse

Appellee’s Brief                                                                                Page ii
         Himself After Having Previously Served as Counsel to the Defendant
         in Related Criminal Proceedings................................................................8

Prayer....................................................................................................................8

Certificate of Word Count....................................................................................9

Certificate of Service............................................................................................9

Appellee’s Brief                                                                                Page iii
                                     I NDEX    OF   A UTHORITIES

Cases

Arnold v. State,
      853 S.W.2d 543, 544–45 (Tex.Crim.App.1993)............................... 7,8

Barron v. State of Tex. Attorney Gen.,
     108 S.W.3d 379, 383 (Tex.App.-Tyler 2003, no pet.) ......................... 7

Martin v. State,
      876 S.W.2d 396, 397 (Tex.App.-Fort Worth 1994, no pet.)................ 7

Morsman v. State,
     2013 Tex. App. LEXIS 6177, 2013 WL 2247322 (Tex. App.
     Texarkana May 21, 2013). .................................................................. 8

Rosas v. State,
      76 S.W.3d 771, 774 (Tex.App.-Houston [1st Dist.] 2002, no pet.) ..... 7

Statutes

TEX. CODE CRIM. P. art. 26.13 .................................................................... 5, 6

Tex.R. Civ. P. 18a(a) (amended 2011)........................................................... 7

Appellee’s Brief                                                                                Page iv
               No. 06-15-00026-CR, 06-15-00027-CR, 06-15-00028
                   ____________________________________________

                                      IN THE
                              SIXTH COURT OF APPEALS
                               AT TEXARKANA, TEXAS

                      ____________________________________________

                      ROGER DALE GAMMONS,
                                                       Appellant

                                        v.

                      THE STATE OF TEXAS,
                                                     Appellee
                      ____________________________________________

                                    APPEAL FROM
                       TH
                   THE 8 DISTRICT COURT OF HOPKINS COUNTY, TEXAS
                      TRIAL COURT NO. 1423872, 1423873, 1423874
                       ____________________________________________

                                APPELLEE’S BRIEF
                      ____________________________________________

Appellee’s Brief                                                      Page 1
                            STATEMENT OF THE CASE

      Appellee believes that the Appellant has accurately and succinctly given the

Statement of the Case in his brief and would adopt his version as follows:

      Appellant was charged by indictment with possession of a
      penalty group one controlled substance, with intent to deliver,
      in an amount over 4g but less than 200g in cause number
      1423872 (hereinafter “case 872”)(CR1 at 1, 42), with
      tampering with physical evidence in cause number 1423873
      (hereinafter “case 873”)(CR2 at 1, 41), and with 4g but less
      than 200g in cause number 1423874 Appellant's Opening Brief
      iv (hereinafter “case 874”)(CR3 at 1, 42), all of which were
      pending in the 8TH Judicial District Court of Hopkins County,
      Texas, the Honorable Eddie Northcutt, Presiding, (RR II 6 –
      8).1 Appellant's punishment range was enhanceable pursuant
      to the habitual felony offender provision of the penal code,
      (RR II 8; CR1 at 29; CR2 at 18; CR3 at 26). After plea of
      guilty and hearing on punishment, Appellant was sentenced to
      incarceration for life, (CR1 at 34 – 35, 39 – 40; CR2 at 31 –
      32, 37 – 38; CR3 at 33 – 34, 38 – 39; RR IV 43). As this case
      did not involve a plea bargain, Appellant has a right to appeal,
      (CR1 at 36; CR2 at 34; CR3 at 35). Appellant timely filed
      notice of appeal, (CR1 at 47 – 52; CR2 at 46 – 51; CR3 at 46 –
      51). (Appellant’s Brief pp. iv-v.)

Appellee’s Brief                                                             Page 2
                            I SSUES P RESENTED

      POINT OF ERROR 1: Appellant’s Plea of Guilty was Involuntarily
      Entered Where Appellant was Incompletely Admonished Regarding
      His Eligibility for Probation.

      POINT OF ERROR 2: The Court Erred by Failing to Recuse Himself
      Where the Court had Personal Knowledge of Disputed Facts Relating
      to Appellant’s Enhancement Paragraph(s).

      POINT OF ERROR 3: The Court Erred by Failing to Recuse Himself
      After Having Previously Served as Counsel to the Defendant in
      Related Criminal Proceedings Relevant to the Case for Which
      Appellant Appeared Before the Court.

Appellee’s Brief                                                          Page 3
                             S TATEMENT     OF   F ACTS

      Counsel for appellant has written a Statement of Facts that is approximately

4 pages in length. (Brief for Appellant pgs. 1-5) Appellee adopts the Statement of

Facts set forth in the Brief for Appellant absent the emphasis added.

Appellee’s Brief                                                              Page 4
                        S UMMARY     OF THE   A RGUMENT

      POINT OF ERROR 1: Appellant’s Plea of Guilty was Not
      Involuntarily Entered Because Appellant was Admonished
      Correctly Pursuant to Article 26.13 of the Code of Criminal
      Procedure.

      POINT OF ERROR 2: Appellant Waived and Failed to Preserve
      Any Possible Error in the Trial Judge Hearing the Case.

      POINT OF ERROR 3: Besides Failing to Preserve Error, This
      Court Has Held that a Trial Court Does Not Err by Failing to
      Recuse Himself After Having Previously Served as Counsel to the
      Defendant in Related Criminal Proceedings.

                                   A RGUMENT

      POINT OF ERROR 1: Appellant’s Plea of Guilty was Not
      Involuntarily Entered Because Appellant was Admonished
      Correctly Pursuant to Article 26.13 of the Code of Criminal
      Procedure.

      The trial court satisfied the requirements of Article 26.13 of the Texas

Code of Criminal Procedure. Nowhere in Article 26.13 is it required that the

court explain the differences between “straight” probation and deferred

adjudication.

      Appellant is confused as to Appellee’s argument in this point of error.

The argument seems to be that the trial court erred by not telling Appellant

that “straight” probation was prohibited. However, the trial court went

above and beyond to explain the possible consequences of this open plea.
Appellee’s Brief                                                                 Page 5
(See RR. Vol. 2 p. 6) In this rendition of the possible consequences of the

plea, the trial court explained the best and worst day for Appellant. Further,

within all of the possibilities associated with a plea of guilty, the court

mentioned the chance of straight probation. This explanation was prior to

the trial court finding it true that Appellant had two prior consecutive felony

convictions.

      Taken together, the fact that the judge explained to the defendant that

the court could assess a punishment of 10 years or less and then suspend the

imposition of the sentence and place Appellant on probation, but then later

told Appellant that, if the prior convictions were found true, Appellant’s

range of punishment would move to 25 to Life, shows that the court

explained the prohibition on straight probation. After going through the

whole explanation, Appellant stated that he understood. (See RR. Vol. 2 p.

9)

      Regardless of the fact that the trial court satisfied the requirements of

Article 26.13, Appellant would not have been harmed if the court had never

mentioned the possibility of straight probation. The Appellant even stated

that he “…rejected a plea bargain offer of twenty-five years confinement in

order to attempt to obtain deferred probation from the Court.” (Appellant’s

Brief p. 7) (emphasis added). The truth of the matter is Appellant was going

Appellee’s Brief                                                                  Page 6
“all in” with the hopes that the judge would give him deferred probation,

even with the prior pen trips. To now state that the court failed to advise

him of the prohibition of straight probation is not demonstrated by the record

and, quite simply, not legally required of the trial court.

      POINT OF ERROR 2: Appellant Waived and Failed to Preserve
      Any Possible Error in the Trial Judge Hearing the Case.

      Generally, a recusal motion must be filed at least ten days before trial and

must be verified. See Tex.R. Civ. P. 18a(a) (amended 2011); Arnold v. State, 853

S.W.2d 543, 544–45 (Tex.Crim.App.1993); Barron v. State of Tex. Attorney Gen.,

108 S.W.3d 379, 383 (Tex.App.-Tyler 2003, no pet.). The provisions of Rule 18a

wherein a trial judge must recuse himself or refer the motion to the presiding judge

of the administrative judicial district apply when a written, verified motion to

recuse is filed. Id. If the basis for recusal does not become apparent until a later

point in time, the defendant preserves the complaint by promptly filing the written,

verified motion when the basis for recusal is finally discovered. See Rosas v. State,

76 S.W.3d 771, 774 (Tex.App.-Houston [1st Dist.] 2002, no pet.); Martin v. State,

876 S.W.2d 396, 397 (Tex.App.-Fort Worth 1994, no pet.).

      In this case, Appellant was aware of a possible complaint more than ten days

before the punishment hearing and did not timely file a verified written motion to

recuse. See RR. Vol. 3 p. 5-8. In fact, Appellant expressly waived any objection to

the fact that the judge had previously represented him on another case. Id.
Appellee’s Brief                                                                   Page 7
Therefore, the issue was waived and not preserved for appellate review. See

Arnold, 853 S.W.2d at 544–45.

      POINT OF ERROR 3: Besides Failing to Preserve Error, This
      Court Has Held that a Trial Court Does Not Err by Failing to
      Recuse Himself After Having Previously Served as Counsel to the
      Defendant in Related Criminal Proceedings.

      As Appellant properly stated, this Court has already decided this issue. See

Morsman v. State, 2013 Tex. App. LEXIS 6177, 2013 WL 2247322 (Tex. App.

Texarkana May 21, 2013). Morsman is directly on point and in favor of the trial

court’s actions.

      Further, and in the alternative, Appellant has waived any possible error

regarding this issue for the reasons stated above in Point of Error 2.

                                      P RAYER

      WHEREFORE, premises considered, Appellee, State of Texas, respectfully

requests that the judgment of the trial court be affirmed.

                                              Respectfully submitted,

                                              By: //s// Will Ramsay
                                              Will Ramsay
                                              8th Judicial District Attorney
                                              State Bar #24039129
                                              110 Main Street
                                              Sulphur Springs, TX 75482
                                              903.885.0641, f. 903.885.0640
                                              willramsay@hopkinscountytx.com

                                              Attorney for Appellee
                                              State of Texas
Appellee’s Brief                                                                 Page 8
                       C ERTIFICATE    OF   W ORD C OUNT

      Pursuant to Tex. R. App. P. 9.4(i)(3), this document contains 1,819 words.

                                                    __/s/ Will Ramsay_
                                                    Will Ramsay

                          C ERTIFICATE      OF   S ERVICE

      This is to certify that on June 16, 2015, I served a true and correct copy of
the above and foregoing Appellant’s Brief by email on J. Edward Niehaus,
Attorney for Appellant.

                                                    __/s/ Will Ramsay_
                                                    Will Ramsay

Appellee’s Brief                                                              Page 9


146 F.2d 431 (1945)
PARISER
v.
CITY OF NEW YORK.
No. 69.
Circuit Court of Appeals, Second Circuit.
January 3, 1945.
*432 Ignatius M. Wilkinson, Corp. Counsel, of New York City (Herbert B. Lee, of New York City, of counsel), for appellant.
Jacob Rassner, of New York City, for appellee.
Before SWAN, AUGUSTUS N. HAND and FRANK, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The plaintiff was a deckhand on the dredge Grabit belonging to the City of New York. On April 27, 1943, when the day's dredging was done and the vessel was moored alongside the 29th Street Pier, North River, orders were given to put hooks on the larger friction wheels to keep the outside dredging bucket suspended for the night. There were two of these wheels or drums  one on the starboard and one on the port side of the covered deck. The engineer Dowding placed a hook on the starboard drum. It was the duty of the plaintiff to place another hook on the spoke of the port drum. The hook weighed about thirty-five pounds, was at the end of a short chain bolted on the deck close to the drum and was fastened to a three-quarter inch rope attached to a post running up from the deck. In placing the hook on the spoke the plaintiff had only to grasp the rope, lift the hook, put it on the spoke, move back away and the job would be done. Then the engineer on his signal would release the steam pressure which held up the bucket and the weight of the bucket suspended outside would slowly bring the spoke up snug against the hook. By this means the hook would lock the drum in position and would prevent the chain which held the bucket from being unwound, and the bucket would be held up out of the water for the night. The plaintiff testified that when he first attempted to place the hook on the spoke of the port drum it "flew off" but he backed out of the way. He then replaced it on the spoke and gave the signal to the engineer to release the steam pressure but, as soon as the steam pressure which held the bucket up was released, there was a quick jerk. He jumped to get out of the way of the wheel and hook, and, as he did this, slipped on the grease which was on the deck where he was standing next the post. The apparent effect of slipping, according to his version, was to throw his left foot into the air so that the driving rod caught it, dragging him over, and thereby caused a fracture of the fourth metatarsal bone of his left foot. He testified that the strain occasioned by the slipping on the greasy deck also produced an inguinal hernia which was something he had never had before. The defendant offered evidence indicating that the plaintiff, after giving the signal, got up on the engine bed and attempted to place the hook on the spoke at a time when the engine was revolving, thus seeking to negative plaintiff's testimony that his injuries arose from slipping on the greasy deck. Which version of the accident was correct was a question for the jury.
According to the plaintiff's story, the second time he placed the hook on the spoke it again slipped off, either because of the *433 jerk occasioned by the too sudden releasing of the steam pressure or because of the grease that had accumulated on the spoke. Whatever caused the hook to slip off, as it fell he says he stepped away, his right foot slipped in the grease on the deck, his back went back and hit the post, and he then slipped still more, went off balance, his left foot went in the air, and as it came down the engine caught it and dragged it in. We cannot say that this could not reasonably have happened.
The plaintiff was instructed by the master of the dredge not to stand or jump on the engine bed and not to put the hook on when the wheel was revolving (fol. 249). He, however, testified that the wheel was not revolving but only rocking when he put the hook on. He evidently understood that this action on his part did not violate the order. His testimony was positive that he did not get up on the engine bed to install the hook. Moreover, the jury might have found that the hook fell off because of the jerk when the pressure was released too suddenly and not because of any prior rocking of the wheel and that plaintiff's accident was only due to the grease on the deck or the absence of a guard rail or both.
Judge Bondy, who presided at the trial, allowed the jury to determine whether it was negligent for the defendant to allow grease to accumulate on the deck, whereby the plaintiff slipped and thus got his foot caught, and whether this occurred because of its failure to provide a guardrail. The defendant offered evidence showing that there was no grease at the place where the plaintiff claimed to have slipped and also showing that it was plaintiffs duty to clean up the ship. It also offered evidence that, according to prevalent practice, guardrails were not customarily placed on dredges in order to protect employees from injury arising from contact with the machinery. But, we think the need of a guardrail in such a place as the one in which the plaintiff worked was a question for the jury. He was required to work close to a wheel on which a hook had to be installed and the chance of his getting hurt by the moving machinery, when the steam pressure was released, whether by some carelessness of his own or otherwise, was not so negligible that a jury might not find that safeguards should have been provided. As for the accumulation of grease, the plaintiff himself testified that his duties were to "put burners in and take them out and to clean the ship and put oil on the pumps and cylinders", and he said that the grease was thick and sticky and had not been cleaned off for six weeks. It thus appeared that the officers of the ship had let conditions remain as they were for a long time and had treated the plaintiff's duty to clean up the ship as not applying to the grease which accumulated on the deck near the drum. He was ordered to put the hook on the spoke for the night at a time when there was no opportunity to remove the grease if the order was to be obeyed. The plaintiff's failure to remove the grease under these circumstances was at most no more than contributory negligence which under the quite correct charge of the court would only lessen the amount of his damages. Moreover, the defendant made no objection to the charge which left this question to the jury.
The defendant further argues that the court lacked jurisdiction of the case because the plaintiff was not a seaman. This contention is wholly without merit. It is well settled that such an employee working on a dredge is a seaman entitled to sue under the Jones Act, 46 U.S.C.A. § 688. Norton v. Warner, 321 U.S. 565, 64 S.Ct. 747; Ellis v. United States, 206 U.S. 246, 259, 27 S.Ct. 600, 51 L.Ed. 1047, 11 Ann.Cas. 589.
The defendant next suggests that the judge asked too many questions of the witnesses and unfairly interfered with the proper conduct of the trial. We have examined the record in view of this complaint with considerable care and see no basis for any grievance. A judge who conducts a jury trial has a duty to see that the facts are clearly presented and may ask pertinent questions of the witnesses to that end. He is not a mere passive spectator or moderator, though it goes without saying that he should exercise self-restraint and preserve an atmosphere of impartiality and detachment. Judge Bondy scrupulously observed all these requirements.
Finally, the defendant contends that we ought to review the perhaps too generous award made to the plaintiff by the jury on the ground that it was excessive. But the instructions of the trial court as to the rules to be applied by the jury in fixing damages were entirely correct and were not objected to. If the amount of the *434 verdict be regarded as in fact excessive, nevertheless it was the jury's estimate arrived at after a proper charge. Such a matter is not reviewable on appeal but is solely one of fact for the jury to determine. Southern Ry-Carolina Division v. Bennett, 233 U.S. 80, 87, 34 S.Ct. 566, 58 L.Ed. 860; Herencia v. Guzman, 219 U.S. 44, 45, 31 S.Ct. 135, 55 L.Ed. 81; Swift & Co. v. Ellinor, 5 Cir., 101 F. 2, 131, 132; Metropolitan St. Ry. Co. v. Jacobi, 2 Cir., 112 Fed. 924, 925.
Judgment affirmed.


197 Cal.App.3d 1284 (1988)
243 Cal. Rptr. 454
In re the Marriage of PAMELA and DONALD ZLATNIK.
PAMELA ZLATNIK, Respondent,
v.
DONALD ZLATNIK, Appellant.
Docket No. G004469.
Court of Appeals of California, Fourth District, Division Three.
January 27, 1988.
*1286 COUNSEL
Marjorie G. Fuller for Appellant.
John R. Schilling and Linda F. England for Respondent.
OPINION
SONENSHINE, Acting P.J.
Donald Zlatnik contends the trial court lacked jurisdiction to extend his spousal support obligation beyond the termination date to which he and his former wife, Pamela Zlatnik, stipulated. We agree and, accordingly, reverse.

I.
Donald and Pamela Zlatnik dissolved their 14-year marriage in bifurcated proceedings in December 1978. A few months later, they entered into a written stipulation, drafted by Donald's counsel, dividing their community property and awarding spousal support, child support and custody.[1] An order prepared pursuant to and contemporaneously with the stipulation was approved by the court.
The stipulation and order were virtually identical in content with the exception of paragraph 6 in each. Paragraph 6 of the stipulation read: "That husband shall pay to wife as and for spousal support the sum of $1,900.00 per month, payable on the 1st day of each and every month, commencing April 1, 1979, and continuing thereafter on the 1st day of each and every month for a period of seven (7) years, unless sooner terminated by the death or remarriage of wife, or the death of [husband]. Spousal support shall be modifiable as to amount only by further order of court upon a showing of change of circumstances, but in no event shall husband be obligated to pay spousal support to wife after April 30, 1986 [.]" (Italics added.)
Paragraph 6 of the order stated: "[Husband] shall pay to [wife], as and for spousal support, the sum of $1,900.00 per month, payable on the 1st day of each month, commencing April 1, 1979, and continuing thereafter on the 1st day of each month for a period of seven (7) years, unless sooner terminated by the death or remarriage of [wife], or the death of [husband], or *1287 until further order of Court. In no event shall [husband] be obligated to pay spousal support to [wife] after April 30, 1986." (Italics added.)
In 1982, Pamela sought and obtained an increase in spousal support to $2,000 per month. On February 28, 1986, she filed another request for modification, this time seeking an extension of Donald's obligation to pay. After a hearing on May 30, 1986, the court granted Pamela's request and ordered that support continue at $2,000 per month until Pamela's death, remarriage, or further order of court. Donald's appeal followed.

II.
(1) The California Supreme Court has interpreted Civil Code section 4811, subdivision (b)[2] as "permit[ting] the parties to agree that the provisions of any agreement or order for the support of either party shall not be subject to subsequent modification or revocation by court order." (In re Marriage of Vomacka (1984) 36 Cal.3d 459, 462-463 [204 Cal. Rptr. 568, 683 P.2d 248].) Further, pursuant to section 4801, subdivision (d), "[a]n order for payment of an allowance for the support of one of the parties shall terminate at the end of the period specified in the order and shall not be extended unless the court in its original order retains jurisdiction." (Italics added.) (2a) Here, both the stipulation and the order[3] stated, unequivocally, spousal support was not to be paid after April 30, 1986. As we shall explain, this manifestation of the parties' intent precluded any extension of Donald's obligation to pay.
*1288 In In re Marriage of Vomacka, supra, 36 Cal.3d 459, William and Joyce Vomacka stipulated in open court to the provisions and entry of an interlocutory judgment of dissolution of marriage. The agreement stated: "`[William] shall pay to [Joyce], as and for spousal support, the sum of Two Hundred Seventy-five Dollars ($275.00), ... commencing September 1, 1979 to continue each month thereafter until further order from the Court, the death of either party, the remarriage of [Joyce], or August 1, 1982, whichever first occurs. The Court shall retain jurisdiction regarding spousal support until September 1, 1984, at which time [Joyce's] right to request spousal support from [William] shall terminate forever.' (Italics added.)" (Id., at pp. 461-462.)
On June 29, 1982, before the August 1st deadline, Joyce filed an order to show cause to modify spousal support. The trial court granted her request and ordered William to continue to pay spousal support at an increased monthly rate of $600 "`... until the death of either party, remarriage of [Joyce], or until further order of the court.'" (Id., at p. 462.) The court's notice of intended decision explained: "`To find from an agreement that there is a termination of spousal support, the Court must find explicit language of such termination. The alleged termination provision herein is not sufficiently explicit to find such termination (purports to terminate respondent's right to ask for additional support; does not address itself explicitly to the termination of support). Thus, the Court finds that there is no absolute termination herein on September 1, 1984. [Citation.]'" (Ibid.)
(3a) The Supreme Court affirmed the trial court's order, holding that where jurisdiction to award or grant spousal support is reserved until a specific date, the court retains fundamental jurisdiction until that date to take new action concerning such support. Such new judicial action may include an extension of spousal support beyond the last date the court can act. The trial court may not, however, extend spousal support if the order expressly terminates the court's jurisdiction to do so.
In In re Marriage of Benson, supra, 171 Cal. App.3d 907, the parties' marital settlement agreement and the interlocutory judgment incorporating that agreement, provided: "`[Husband] shall pay to [wife] as and for spousal support the sum of $650.00 per month, payable on the 1st day of each month, commencing June 1, 1977, and continuing until the death of either party, [wife's] remarriage, until modified by a court of competent jurisdiction or until the expiration of eight (8) years, whichever first occurs.'" (Id., at p. 910, italics omitted.) After five years, the wife petitioned for additional support. The trial court increased the husband's obligation to $1,000 per month "`continuing until August 1, 1985, on which date the spousal support will be reduced to $1.00 per month, ... and continuing until further *1289 order of Court, [wife's] remarriage, or the death of either party, whichever first occurs.'" (Ibid.)
The husband appealed, arguing the court did not have authority to extend spousal support past July 20, 1985.[4] We affirmed,[5] finding "the reserved jurisdiction to modify was sufficient to permit the trial court to extend the duration of the order." (Id., at p. 913.)
In In re Marriage of Foreman (1986) 183 Cal. App.3d 129 [228 Cal. Rptr. 4], Marshall and Burnice Foreman entered into a marital settlement agreement providing for Marshall to pay "`the sum of $1,300 per month, with the first of said payments to be made on or before May 5, 1974 ... until [Burnice] remarries, either party dies, or a total of ten years, whichever event first occurs. Thereafter, said spousal support payments shall automatically reduce to a jurisdictional amount of $1.00 per year for an additional one year, and then terminate. The said spousal support payments provided hereunder, shall not be modifiable under any circumstances until June 30, 1977. Thereafter, said support payments may be modified by the court on a proper showing by either party.'" (Id., at p. 131.) During the 11th year, while the court retained jurisdiction to modify, Burnice requested the monthly payments be increased and asked for an extension of spousal support beyond the 11th year. The trial court granted an increase to $1,300 for the 11th year, but determined it had no jurisdiction to modify the award's duration.
In affirming the trial court, the Foreman court distinguished Vomacka and Benson. It found the decrees in those cases contained "language from which reservation of jurisdiction may be implied, i.e., the court-ordered support would `continue until further order of the court' or `until modified by a court of competent jurisdiction.' Here there is no such language. The only language of modification refers to modifying spousal support payments." (Id., at p. 133.) Simply stated, the Foreman court found "no language which reasonably can be interpreted as reserving jurisdiction to avoid the effect of section 4801, subdivision (d)...." (Id., at p. 134.)[6]
*1290 The jurisdictional issue was addressed most recently in In re Marriage of Harbach (1987) 195 Cal. App.3d 629 [240 Cal. Rptr. 698]. There, an interlocutory judgment required the husband to pay spousal support "`until July 14, 1984 at which time [his] obligation to pay spousal support ... shall cease and terminate.'" (Id., at p. 630.) The parties later stipulated to a modification of that judgment, providing, among other things, for the husband to pay spousal support "`until the death of either party, [the wife's] remarriage, or December 31, 1986, whichever first shall occur.'" (Ibid.) Paragraph 7 of the modified decree also "recite[d] the payment of spousal support `is premised' upon the expectation [the wife] would obtain an advanced degree, set out her academic obligations to enroll for at least nine credit hours for each semester, required a report to [the husband] about her progress and provided that her failure to take the minimum hours would be a change of circumstance, entitling [the husband] to move for support modification." (Id., at pp. 630-631.) The paragraph concluded: "`Other than as set forth in this paragraph, spousal support shall be non-modifiable both as to term and amount.'" (Id., at p. 631.)
In January 1986, the wife sought a deferral of the termination date. She had just learned an internship of 3,000 hours was required to secure her certificate as a family and child counselor. The trial court granted her request and ordered support be paid for an additional four months, until April 1987. In affirming the trial court, the appellate court concluded: "[J]urisdiction was retained by the court to modify the decree in the event [the wife] failed to carry out her scholastic obligations. That retained jurisdiction supports the extension of the term to carry out the intent of the parties as expressed in paragraph 7. [Citation.]" (Id., at p. 634.)
(2b) The Foreman court's refusal to extend the duration of support was premised on the absence of language, such as that found in Vomacka and Benson, which could be construed as reserving jurisdiction to do so. Our refusal, however, is based upon express language of termination in the parties' stipulation: The clause, "in no event shall [Donald] be obligated to pay spousal support to [Pamela] after April 30, 1986," is clear and unequivocal.
(3b), (2c) But Pamela asserts termination of jurisdiction to modify spousal support requires a finding of "explicit language of such termination." (In re Marriage of Vomacka, supra, 36 Cal.3d at p. 465.)[7] And, *1291 relying on In re Marriage of Hufford (1984) 152 Cal. App.3d 825 [199 Cal. Rptr. 726], she complains in order to divest the court of its power to modify, "a specific provision concerning judicial modification" is required. (Id., at p. 835.) Thus, she argues the stipulation and order here "suffer the same deficiencies as those discussed at length in Vomacka and in Benson."
To the contrary, the clause quoted above satisfies both of Pamela's concerns: It contains "explicit language of termination," and constitutes a "specific provision concerning judicial modification." In light of the foregoing, we conclude the trial court lacked jurisdiction to extend spousal support beyond April 30, 1986.
The order is reversed. Appellant to receive costs.
Crosby, J., and Taylor (G.L.), J.,[*] concurred.
Respondent's petition for review by the Supreme Court was denied April 20, 1988.
NOTES
[1]  At the time of the dissolution proceedings, the Zlatniks' three children were 14, 12 and 9 years old.
[2]  Civil Code section 4811, subdivision (b) states in pertinent part: "All orders for the support of either party based on the agreement shall be deemed law-imposed and shall be deemed made under the power of the court to make the orders. The provisions of any agreement or order for the support of either party shall be subject to subsequent modification or revocation by court order, except as to any amount that may have accrued prior to the date of filing of the notice of motion or order to show cause to modify or revoke, and except to the extent that any written agreement, or, if there is no written agreement, any oral agreement entered into in open court between the parties, specifically provides to the contrary."

All further statutory references are to the Civil Code.
[3]  Donald and Pamela disagree as to whether the trial court properly based its ruling upon the order rather than the stipulation. Such argument is irrelevant because both parties look to an insignificant ambiguity. The parties compare the stipulation which states "[s]pousal support shall be modifiable as to amount only by further order of court upon a showing of change of circumstances," and the order which provides for the payment of spousal support "for a period of seven (7) years, unless sooner terminated by the death or remarriage of [wife], or the death of [husband], or until further order of Court."

Pamela contends the order must prevail over the stipulation. We agree. (See In re Marriage of Benson (1985) 171 Cal. App.3d 907, 912 [217 Cal. Rptr. 589].) But the order, regardless of whether it adopts the exact words of the stipulation, implies the trial court could exercise its power to modify support only if it found a change of circumstances. Change of circumstances is not, however, the issue. The question presented is whether the court had jurisdiction to modify and thereby extend the duration of support.
[4]  This date was the 8th anniversary of the entry of the interlocutory judgment of dissolution.
[5]  See dissenting opinion and In re Marriage of Trearse (1987) 195 Cal. App.3d 1189, 1191 [241 Cal. Rptr. 257].
[6]  The support in Foreman extended for 11 years; in the final year the wife was to receive $1. Pamela erroneously argues Mrs. Foreman "brought her request for an increase during the eleventh year, after the ten year deadline set for termination. Had [she] brought her request prior to the termination date, the court would still have had jurisdiction to extend support beyond the termination date."

Actually, Mrs. Foreman's request was timely. Moreover, the court did not extend the duration of support because it found "there [was] no conditional clause which can be interpreted as reserving jurisdiction to extend the period of support beyond that specified in the decree...." (In re Marriage of Foreman, supra, 183 Cal. App.3d at p. 133.)
[7]  While explicit language is not essential to reserve jurisdiction to extend support beyond a specified termination date (In re Marriage of Benson, supra, 171 Cal. App.3d at p. 911), explicit language is required to terminate jurisdiction. (In re Marriage of Vomacka, supra, 36 Cal.3d at p. 465.)
[*]   Assigned by the Acting Chairperson of the Judicial Council.