228 S.W.2d 201 (1950)
LOEFFLER
v.
KING et al.
No. 15100.
Court of Civil Appeals of Texas, Fort Worth.
February 10, 1950.
Rehearing Denied March 17, 1950.
*203 Geo. E. B. Peddy, and Wm. N. Bonner, both of Houston, attorneys for appellant.
Kenneth Johnson and Guy Rogers, both of Wichita Falls, attorneys for appellees, Roy H. King, Al Horwitz, Sarah T. Horwitz, individually and as trustee of the Gloria T. Horwitz Trust, W. P. Oldom, Alpha Cottom, J. H. Cottom, Lacy Armour, and Laurance Armour.
Cantey, Hanger, Johnson, Scarborough & Gooch, all of Fort Worth, attorneys for appellees, The First National Bank of Chicago, Ill., Hugo A. Anderson, Trustee for The First National Bank of Chicago.
Smead & Harbour and H. P. Smead, all of Longview, attorneys for appellees, Paul B. Scott, Nate J. Ginsberg, Hyman Ginsberg, H. A. Fleishman, H. M. Bell, Trustee for Citizens National Bank of Tyler, Texas, and Central Pipe Line Company.
Frank Bunting; Stine & Stine and Vincent Stine, all Henrietta, attorneys for appellees, Lilyan Chilson and Mary Atkeison et vir.
HALL, Justice.
Appellant Lee E. Loeffler instituted this suit in a district court of Wichita County, Texas against his co-tenants, their lessees, mortgagees and purchasing agencies, seeking an accounting and to establish his title to an undivided one-sixth mineral fee interest in the northeast portion of a tract of land out of J. P. Meade Subdivision of Block 2 of Margarette Ramsey Survey, situated in said County, and hereinafter more fully described. The case was presented to the court and judgment rendered against appellant; hence, perfection of his appeal consisting of four points.
Before considering appellant's points we deem it necessary to state the following facts:
In 1930, H. H. Haggard owned a fee simple title in and to a one-sixth interest in the hereinafter described land, and on March 21, 1930, he made a conveyance to appellant Loeffler and one W. H. Rankin, containing the following provisions, which are under attack in this case:
"That I, H. H. Haggard, of the County of Wichita, State of Texas, has and by these presents does grant, bargain, sell, convey, set over and assign and deliver unto W. H. Rankin & Lee E. Loeffler the following to-wit: 1/6th of the 1/8th Royalty interest in and to all of the oil, gas and other minerals in and under and that may be produced from the following described lands situated in Wichita County, Texas, to-wit: Being a part of Block No. Two (2) Meades Subdivision of the West one-half of the Margarette Ramsey Survey Abstract No. 471, and described as follows to-wit;-Beginning at the North-East Corner of said Block No. Two (2) said West half of the M. Ramsey Survey; Thence West along the North line of said Block 2012 Feet to the East line of the West 41 acres of said Block No. 2. Thence South along the east line of said 41 acres 1635 feet stake for corner, Thence East of the East line of said Block No. 2 and the West line of Block No. 3 M. Ramsey Survey, Thence North along said line 1635 feet to place of beginning, containing 80 acres more of less, together with the right of ingress and egress at all times for the purpose of mining, drilling and exploring said lands for oil, gas and other minerals, and removing the same therefrom.
*204 "And said above described lands being now under an oil and gas lease originally executed in favor of J. H. Cottom, E. 40 acres, and W. M. Scott, West 40 acres, and now held by Omohundro & Riner it is understood and agreed that this sale is made subject to said lease, but covers and includes 1/6th of all the oil royalty and gas rental or royalty due and to be paid under the terms of said lease.
"It is agreed and understood that 1/6th of the money rentals which may be paid to extend the term within which a well may be begun under the terms of said lease is to be paid to the said W. H. Rankin & Lee E. Loeffler, and in the event that the said above described lease for any reason becomes cancelled or forfeited, then and in that event, the lease interests and all future rentals on said land, for oil, gas and mineral privileges shall be owned jointly by W. H. Rankin & Lee E. Loeffler, Lilyan Chilson, Blanche Haggard and H. H. Haggard Guardian for William Howard Haggard, John Chilson Haggard and Nahcy Catherine Haggard Minors, and each owning Record interest in all oil, gas and other minerals in and upon said land, together with 1/6th interest in all future rents. W. H. Rankin & Loeffler owning a 1/6th interest jointly."
The trial court construed the above portion of said deed from Haggard to Loeffler and Rankin as conveying a royalty interest as contended by appellees instead of conveying a mineral fee interest as contended by appellant (appellant having bought Rankin's interest in the property). The trial court cited for its authority in its conclusions of law the case of Kennedy v. Ellisor, Tex.Civ.App., 154 S.W.2d 284, writ ref. Said case was decided upon a question of limitation which is not involved here.
Appellant's first point is as follows:
"(A) The error of the Court in holding that the conveyance from H. H. Haggard to plaintiff Loeffler was, and after the expiration of the then existing lease, continued to be only a royalty interest.
"(B) The error of the Court in failing to hold that a conveyance of a 1/6th mineral interest in land, but subject to an existing, producing lease (1/6 of 1/8 royalty under the existing lease being also conveyed), did not ripen into a full 1/6th mineral interest upon abandonment and relinquishment of the lease."
While construing written conveyances presented to us by this appeal, we will consider the following well known rules of construction:
First: "Fundamental among these are the rules that the deed should be construed against the grantor, rather than against the grantee, and that the intent of the parties must be sought. The intention which controls is not that which the parties may have had, but failed to express, but the intention which by the instrument they did express. The intent is to be gathered from the whole instrument. All parts of the deed must be considered and, unless conflicting, given effect. This is true even though the material part consists of different sentences and different paragraphs. But this rule of construction does not demand that every part of the deed shall be treated as of equal weight in the solution of every question that may arise. If a particular phrase in the deed is not in harmony with the remainder of the provisions, it should not have equal weight with the other terms used therein when it appears that the other terms have controlling effect in the instrument. Where there is a repugnance between a general and a particular description in the deed, the latter will generally control. The intent is to be arrived at without technical or mechanical rules of construction if such intent can be made to appear from the instrument. Technical rules are resorted to only when there is no other means." 31-A Tex.Jur., pp. 74-75.
Second: "Where the terms of the deed are plain and unambiguous, and in the absence of fraud, accident or mistake, parol evidence is inadmissible to vary them or to show the construction placed upon them by the parties at the time or subsequent to the making thereof." 31-A Tex.Jur., p. 76. See 58 C.J.S., Mines and Minerals, § 221b, p. 589, styled Construction on General.
*205 With the above rules of construing deeds in mind, we find that the instructment is unambiguous and even though it mentions in the granting clause the words "royalty interest," yet after designating the owners of the then producing lease covering said interest in said land, said instrument grants to grantees money renals which may be paid to extend the term of said lease. It also conveys to grantees, in the event said lease shall become forfeited or canceled, rights to all the lease interests and all future rentals on said land and all future interests in rents and all future interest in "all oil, gas and other minerals in and upon said land." This in our opinion would leave no interest in the minerals or in the royalty for grantor to own. He certainly did not reverse unto himself or except for himself any interest in and to said minerals. (It was agreed between the parties that H. H. Haggard only owned in fee simple a one-sixth interest in the land in question at the time he executed the written instrument to Loeffler and Rankin.) King v. First National Bank of Wichita Falls, 144 Tex. 583, 192 S.W.2d 260, 163 A. L.R. 1128; Clayton v. Ancell, 140 Tex. 441, 168 S.W.2d 230; Newman v. Kerlyn Oil Co., Tex.Civ.App., 189 S.W.2d 701; Porter v. Shaw, Tex.Civ.App., 12 S.W.2d 595; Olvey v. Jones, Tex.Civ.App., 95 S.W.2d 980, writ dismissed; 58 C.J.S., Mines and Minerals, § 221, p. 590; Watkins v. Slaughter, 144 Tex. 179, 189 S.W.2d 699; O'Fiel v. Brooks, Tex.Civ.App., 98 S.W.2d 266, writ refused.
Our holding under the above authorities is that the court erred in finding said instrument conveyed to appellant only a royalty interest. We find it conveyed to grantee the mineral rights owned by grantor, H. H. Haggard, subject only to the then existing producing oil and gas lease. For such reason appellant's point one is sustained.
Production on said lease ceased and on December 17, 1945, appellant and Rankin executed an oil and gas lease to one Horwitz for a primary term of three months. A portion of said oil and gas lease is quoted as follows: "If, after the expiration of the primary term of this lease, production on the leased premises all cease from any cause, lessee shall have the period of sixty (60) days from the stopping of production within which, at his election, to commence operations for the drilling of another well, deepen an existing well or wells, or otherwise to attempt to restore the production of such existing well or wells, and if such work is so commenced and prosecuted with reasonable diligence and production results therefrom, this lease shall remain in force as long as production continues." (Emphasis ours).
Under (A) of appellant's second point he complains because the court erred in finding that his lease to Horwitz did not terminate at the end of said three months. This part of appellant's point two we overrule for the reason it is shown there was drilled on said lease two shallow wells which produced a small amount of oil in paying quantities for a short time.
Section (B) of appellant's second point is as follows:
"(B) The error of the Court in holding that plaintiff's lease to Horwitz did not terminate when, after the 3-months primary term, production wholly ceased for a period in excess of 60 days during which period lessees did not comply with the applicable saving provision in the lease * * *."
During the year 1946 there was produced on said lease by appellees the small sum of 409 barrels of oil; appellant and his partner, whom he later bought out, received royalty from said lease in a total sum of $15.58, in October, 1947. There was no production in November or December, 1946, or January, 1947; there was no production in June or July, 1947, and only six barrels were produced in August, 1947. There was produced during said year a total of 131 barrels. The defendants also reported to the Railroad Commission production from said lease in 1948 a total of twenty-two barrels, eight barrels in January, 1948 and fourteen barrels in June, 1948. The following is an itemized statement of the total quantity and dates of *206 production from said lease which certain appellees rely upon to sustain and extend the terms of the lease:

                                Production
Date                             Barrels
March,          1946                12
April,            "                105
May,              "                106
June,             "                 60
July,             "                 66
August,           "                 10
September,        "                 29
October,          "                 21
November,         "                 __
December,         "                 __
                                  _______
Total                               409
                                Production
Date                             Barrels
January,        1947                __
February,         "                 31
March,            "                  6
April,            "                 13
May,              "                 15
June,             "                 __
July,             "                 __
August,           "                  6
September,        "                 15
October,          "                 25
November,         "                  8
December,         "                 12
                                   ____
Total                               131
January,        1948                  8
February,         "                  __
March,            "                  __
April,            "                  __
May,              "                  __
June,             "                  14
July,             "                  __
                                    _____
Total                                22

We sustain section (B) of appellant's second point by holding that the court erred in finding the three months primary term lease executed by appellant to one Horwitz did not lapse by failure to produce in paying quantities. The facts relate that these shallow wells were drilled to a depth of approximately 700 feet; they were drilled between old wells which had been abandoned but prior thereto had been producing oil for a number of years at the same depth. Appellee Roy King owned these two wells up until October, 1948; prior thereto he had sold his deep oil rights to Armour Properties.
The record shows this land was in a trend toward deep production not too far away. The deep will was drilled by Armour in July, 1948. Record of the total oil production valuation from the two shallow wells for a period of approximately two and one-half years was the sum of $1,025.55. It was admitted by Roy H. King that he spent the sum of $600 at one time in operating these two wells; his testimony on this point is as follows:
"I did not have the same experience with my other surrounding shallow wells that I had with these two on the Loeffler lease. I have spent $600 in one operation on one of these wells. I did not have the same water trouble with my other surrounding wells that I had here on this lease the reason being this (Loeffler lease) had been milked and it had been abandoned and naturally, the water level-the water drifted in, it would give us a great deal of trouble, more than something that was higher on the same structure. My other leases around there were producing from other levels which helped me to carry the Chilson lease along. We were not treating it (Chilson-Loeffler) as a lease: I was treating it as a block * * *."
Appellee King and other interested appellees contend the lease was kept alive because they were working on the wells at different intervals when they were not producing oil. Appellant contends the wells had never produced in paying quantities and therefore the three-month term lease was never extended but that if said lease did produce in paying quantities for a few months it then terminated because of nonproduction and a period of ninety days having elapsed without any effort or labor having been performed on said lease which efforts created production in paying quantities. This last contention of *207 appellant is supported by the evidence. Appellee Roy H. King testified he did not know why there was no oil production in November and December, 1946, and January, 1947. His son testified that no production in those months was caused by cold weather, that they did not have their equipment housed to keep same from freezing. In our opinion the lease lapsed for lack of production, and when a lease terminates by its own terms the parties cannot restore life to it. 31-A Tex.Jur., p. 288. The equitable rule as to relieving against forfeitures is not applicable in such case. Ibid., p. 289. Gillespie v. Bobo, 5 Cir., 1921, 271 F. 641. It is apparent from the testimony of lessee King and from the surrounding circumstances pertaining to the lease that he was trying to hold on to this lease for speculation purposes, trusting that the deep oil production might become closer in order that he could make a lease for a deep well which would become profitable to him, and as stated by our Supreme Court in the case of Garcia v. King, 139 Tex. 578, 164 S.W.2d 509, at page 513, "The lessors should not be required to suffer a continuation of the lease after the expiration of the primary period merely for speculation purposes on the part of the lessees. Since the lease was no longer yielding a profit to the lessees at the termination of the primary period, the object sought to be accomplished by the continuation thereof had ceased, and the lease had terminated."
Appellee Roy H. King contends that appellant had waived termination of the lease by accepting the above royalty check. In this connection it is noted there was sent to appellant another small check in the sum of $3.11, which was rejected by appellant. Appellee further contends appellant waived termination of the lease by allowing appellee Armour to drill the deep test well and in this connection it is noted in the brief of appellee King "the operator had never heard of or from Loeffler (appellant) during the 2½ year period." It is well to note here appellant Loeffler did not own the surface rights, that he had never seen the property which he had bought from Haggard and Rankin until after suit was filed, and he lived in Houston, Texas. As stated by our Supreme Court in the case of Watson v. Rochmill, 137 Tex. 565, 155 S.W.2d 783, 137 A.L.R. 1032, which was a suit involving the same question of lapsation of an oil and gas lease after the expiration of the primary term because of failure to produce oil from the leased premises, "Lessee asserts that lessors by standing by and permitting lessee to produce oil from the premises from 1935 to 1937, and to otherwise develop and improve the lease at lessee's expense, thereby recognized the continued existence of the lease and are therefore estopped to plead the termination thereof. It appears, however, that the lease in question terminated by its own terms automatically upon cessation of production after the expiration of the primary term. The lease involved the conveyance of an interest in land, and by extension thereof would necessarily have to be in writing unless the doctrine of estoppel applies. 20 Tex.Jur. 272. The conduct of lessors, relied on by lessee as forming a basis for estoppel, all occurred after the lease had fully terminated. At that time lessee knew, or in law must have known, that his lease had terminated. In our opinion, lessors' mere silence after the expiration of the lease was not sufficient to recreate the lease. Guerra v. Chancellor, Tex.Civ.App., 103 S.W.2d 775, writ refused; 7 Tex.Law Rev. 8; 8 Tex. Law Rev. 530. Consequently, even though lessors did silently permit the improvement and development of the property after the termination of the lease, they are not now estopped to plead the termination thereof." See also Freeman v. Magnolia Petroleum Co., 141 Tex. 274, 171 S.W.2d 339.
What we are holding, based upon the production record from this lease, is, the evidence is insufficient to support a judgment that the lease produced in paying quantities from July, 1946 to July, 1948, even though the trial court found that appellee worked on these wells from time to time. During said 730 days said lease produced 213 barrels, which is less than a third of a barrel of oil per day production, *208 and from the record as to expense to operation, it is clear that production was not in paying quantities during said two year period, even though after said date of July, 1948, it is shown that production was increased on account of the drilling of the deep oil well by Armour.
Appellee Armour Properties were charged with legal notice that the above lease had failed to produce and in all probability would never produce in paying quantities from the same level to which the two wells were drilled, to-wit, 700 feet, and evidently they had made some investigation and decided to take a chance on holding appellant's one-sixth interest in said land by reason of their assignment from King on this three-month primary lease. The following is noted in the record:
Early in August, 1948, Loeffler wrote The Texas Company, who had a contract to run the oil from this lease, as follows:
"D/O No 25-868-Wichita County
"Roy H. King Lilyan Chilson-80 acres "Gentlemen:
"With reference to the above property, my records indicate that last payment received covered runs for the month of October 1947.
"I would appreciate it very much if you would advise me the dates of runs since October 1947 or if you have any record of the well on this tract being abandoned."
On August 18, 1948, said Texas Company made the following reply to appellant Loeffler:
"We have your letter of August 11, wherein you advise that you have not received any proceeds on your mineral interest in that property covered by the subject lease subsequent to October, 1947.
"With respect to the above matter, we wish to advise you that there has been no oil run from the property in question to The Texas Company subsequent to October 1947, and this will account for your failure to receive any proceeds from this property during the period in question."
Along about the same time appellant had a conversation with R. E. Chambers, manager of Armour Properties, in Houston and advised Chambers he owned a one-sixth mineral interest in the northeast 80 acres of Block 2 because the King shallow wells had long since ceased to produce any oil, and on August 25, 1948 Chambers wrote appellant Loeffler the following:
"* * * I do not believe that you would have a chance to get a court in Wichita County to find that the lease covering your 1/16 interest in your 80 acres has been forfeited due to failure to produce. Although the report shows that very little oil has been produced from the shallow production I believe you will find that Mr. King will be able to prove that he has continued to squeeze and rework the wells from February until June of this year."
So we find appellee Armour recognizing that the re-working on the wells by appellee King was merely to try to squeeze some oil out of an old abandoned field having produced from the same level for a number of years in order to hold the lease. We have appellee King, from his testimony quoted supra, admitting that said lease "had been milked and it had been abandoned and naturally, the water level-the water drifted in, it would give us a great deal of trouble. * * * We were not treating it as a lease; I was treating it as a block." This testimony we interpret to mean that he was using these two wells to try to hold a block of acreage together rather than for production of oil in paying quantities from the lease in question.
We sustain section (B) of appellant's second point.
Section (B) of appellant's third point is as follows:
"(B) The error of the Court in holding that plaintiff Loeffler, by accepting conveyance from W. H. Rankin, dated August 2, 1948, covering Rankin's 1/12th interest in the property, thereby `ratified, adopted and confirmed the oil and gas lease executed by Rankin and Loeffler to Al Horwitz on December 17, 1945.'"
*209 The trial court's conclusions of law in part are: "That Lee E. Loeffler, in accepting the deed from W. H. Rankin to Lee E. Loeffler, dated August 2, 1948, recorded in Volume 485 at page 15 of the Deed Records of Wichita County, Texas, ratified, adopted and confirmed the oil and gas lease executed by W. H. Rankin and Lee E. Loeffler to Al Horwitz on December 17, 1945. Grissom v. Anderson, 125 Tex. 26, 79 S.W.2d 619, also Greene v. White, 137 Tex. 361, 153 S.W.2d 575, 136 A.L.R. 626; Turner v. Hunt, 131 Tex. 492, 116 S.W.2d 688, 690, 117 A.L.R. 1066; and Leopard v. Stanolind Oil and Gas Co., Tex.Civ.App., 220 S.W.2d 259, 264. There being a flowing well on the property covered by said lease which continues to flow, such lease so ratified remains valid and subsisting."
As we have stated before, appellant Loeffler purchased from W. H. Rankin by deed dated August 2, 1948, a one-twelfth interest in the land under question, thus making appellant owner of the one-sixth interest formerly owned by Haggard and deeded to said Loeffler and Rankin, and it is by provisions of this deed from Rankin to Loeffler that appellees contend, and the trial court found, by his acceptance thereof, Loeffler adopted and confirmed the oil and gas lease executed by him and Rankin in 1945 to Horwitz. The portion of said written instrument under discussion is as follows: "It is distinctly understood and herein stipulated that said land is under an Oil and Gas Lease providing for a royalty of 1/8th of the oil and certain royalties or rentals for gas and other minerals, and that Grantee herein shall receive 1/12th of the royalties and rentals provided for in said lease; but he shall have 1/12th part of the annual rentals paid to keep said lease in force until drilling is begun." We note here that after the words, "It is distinctly understood and herein stipulated that said land is under an Oil and Gas Lease," there was struck out of said printed form which was used the following words: "made by Grantor." This, in our opinion, specifically demonstrates that appellant Loeffler was not recognizing the lease which he and Rankin had made as being in force but that he was strictly denying that said lease was in force by striking out the words, "made by Grantor"; and by the same token it can easily be assumed that Rankin did not want to execute a deed wherein there was an oil and gas lease on said property, to-wit, the one which Mrs. Chilson had executed on the other 5/6ths interest, without recognizing such lease in said instrument and making his deed subject thereto. She being a tenant in common with him, his grantee would naturally become interested in production from her lease. At any rate, the phrase "that said land is under an oil and gas lease" alone does not bring the case under the rule announced in the above four cases cited by the trial court in his conclusions of law, for in those cases the grantors recognized the particular leases made to particular parties and chose to make their conveyances subject thereto. In other words, if appellant's deed from Rankin had a provision similar to the following-said land is now under an oil and gas lease executed by the grantor and grantee to Horwitz on December 17, 1945, and this lease is made subject thereto-then in that event appellant would be estopped from now denying the validity of said lease after appellee Armour Properties had drilled a producing well, because by the recognition of such lease being in existence and in force appellant would be estopped under the cases cited by the trial court. However, no such stipulation is in said deed.
We find the evidence is insufficient to support the trial court's judgment that appellant, by accepting the conveyance from Rankin, ratified, adopted and confirmed the oil and gas lease executed by him and Rankin to Horwitz on December 17, 1945.
Section (B) of appellant's third point is sustained.
Appellant's fourth point is as follows:
"(A) The error of the Court in failing to award plaintiff a judgment for an undivided 1/6 interest in the minerals in a 67-acre tract of land in the Northeast 80 acres of Block 2, with a like interest in the *210 Armour wells Nos. 1 and 2, and an accounting against all the parties for the oil produced therefrom.
"(B) The error of the Court in failing to render plaintiff a judgment against all the defendants, particularly the defendants Scott, et al., Horwitz, et al., and Chilson, in a sum equal to 1/6 of 13/74.3 for the value of all the oil heretofore produced and hereafter to be produced from all of Block 2 South of the North 80 acres.
"(C) The error of the Court in denying the plaintiff Loeffler any recovery whatever against any of the parties defendant."
In discussing appellant's fourth point we will briefly enumerate owners of the title to Block 2, Meades Subdivision, supra, known as the Chilson land and covering the entire tract of land in question.
Appellees Alpha Cottom and J. H. Cottom, Al Horwitz and W. P. Oldom were jointly and equally interested in the two leases covering Block 2 of the Chilson land. Cottom assigned the Chilson lease, which was a ten year commercial lease, to Horwitz and Oldom, who in turn assigned the north part of the entire lease to Roy H. King and remainder of the tract to appellees Paul B. Scott et al., dba F. S. G. & G. Oil Co., reserving overriding royalties which were later distributed among Cottom, Al Horwitz, Sarah Horwitz, and W. P. Oldom. Roy H. King in turn assigned his interest in the deep rights to appellee Armour Properties, retaining an additional overriding royalty to himself. Later he assigned his entire lease, including the shallow rights, to Armour Properties.
Armour Properties had drilled three wells 330 feet north and Scott et al. had drilled four wells 330 feet south of the division line between the two tracts, leaving about 13 acres in the Scott et al. tract, of which appellant owned a 1/6th interest, which Scott et al. wells the court found to be within the following distances from the south line of appellant's land, along with other findings, as follows:
"That Paul Scott, Nate Ginsberg, H. A. Fleishman and Hyman Ginsberg, on that portion of the oil and gas lease above set out as being owned by them in Block Two (2) Meade subdivision of the Margarette Ramsey Survey, Abstract 471, Wichita County, Texas, drilled four (4) wells, located as follows:
"Well No. 1: 370.2 West of the East Line of the Loeffler 80 acre tract.
"Well No. 2: 17 South of the South Line of the Loeffler 80 acre tract.
"Well No. 3: 28.7 South of the South Line of the Loeffler 80 acre tract.
"Well No. 4: 105.6 South of the South Line of the Loeffler 80 acre tract.
"That neither Well No. 1, Well No. 2, Well No. 3, nor Well No. 4 that were drilled by the defendants, Paul Scott, Nate Ginsberg, H. A. Fleishman and Hymen Ginsberg, is located on any portion of the tract of land covered and affected by the deed from Haggard to Rankin and Loeffler.
"The court finds that Paul Scott, Nate Ginsberg, H. A. Flieshman and Hyman Ginsberg did no things or made no representations which in any sense defrauded plaintiff, Lee E. Loeffler.
"That the defendants, Paul Scott, Nate Ginsberg, H. A. Fleishman and Hyman Ginsberg did no things nor executed any instrument which would unitize, pool or otherwise join any of their property with any property belonging to plaintiff.
"That no oil was produced from the four (4) wells drilled by Paul Scott, Nate Ginsberg, H. A. Fleishman and Hyman Ginsberg from any part of the property covered in the deed from H. H. Haggard to Rankin and Loeffler."
For convenience we include here a rough sketch of plaintiff's Exhibit 38, which was prepared by a surveyor. Our sketch is not drawn to scale but does indicate the location of appellant's south boundary line (it being the dotted line C to D) relative to the wells drilled by appellees Scott et al., which appellant contends are unlawfully draining oil from his land. The tract of land in which Loeffler claims 1/6th of the minerals is indicated on said sketch by the lines drawn from points A to B, from B *211 to C, from C to D, and from D to A. The division line between what is referred to in this opinion as the Armour tract and the Scott tract is indicated by the broken line running east and west across the entire plat.

Aeppellant contends the three Scott et al. wells, which are less than 330 feet from his south line, are unlawfully draining oil from his land; that Scott made an affidavit to the Railroad Commission in securing their four permits, which did not mention appellant or his land; that the Railroad Commission, no doubt, would have refused to grant said permits if Scott had disclosed true facts about appellant's ownership. That said tract had been fully developed under the Railroad Commission rule prescribing 20-acre drilling units for the field. That the south side of the Scott et al. tract would probably produce no oil since there were two dry holes within 330 feet of their line, but by drilling on the north side of their tract 17 feet from the south line of appellant's tract, they were able to drill flowing wells with 60 barrels per day allowable *212 from each of the four wells and that most of said oil produced was unlawfully drained from appellant's land.
Appellant further alleged that Scott et al. had deliberately and recklessly invaded, destroyed and drained appellant's land, that appellant is entitled to recover actual and exemplary damages against Scott et al. and against all the appellees for the use of appellant's properties, wholly disregarding his rights with the result that appellant, the owner of a 1/6th interest in the land could never have but three wells drilled thereon. Appellant sued for the value of his oil unlawfully drained from his land and for further value of future drainage.
The trial court found as a matter of law pertaining to this subject the following:
"That the oil and gas lease from W. H. Rankin and Lee E. Loeffler to Al Horwitz, dated December 17, 1945, being in full force and effect, plaintiff, Lee E. Loeffler, owned no interest which would be involuntarily unitized or pooled with the leasehold estate owned by Paul Scott, Nate Ginsberg, H. A. Fleishman and Hyman Ginsberg.
"That the interest in the property in controversy held by Lee E. Loeffler being only a royalty interest, he held no interest subject to be involuntarily unitized or pooled with the leasehold estate held by Paul Scott, Nate Ginsberg, H. A. Fleishman and Hyman Ginsberg.
"That plaintiff is not entitled to recover against any party defendant by reason of his suit.
"Plaintiff has not sued for damages by reason of record facts as to all of the tract other than the North 80 acres thereof. He sues upon the theory that the drilling of a well on one tract of land, if too close to another, will automatically pool all interests and give to the man who owns all or an interest in adjoining lands a proportionate interest in the tract upon which the well is drilled. I do not understand such to be the Texas law. I understand the rule of law in Texas to follow the rule of capture. Hence, and wholly aside from questions of damage which are not before the court, it is my opinion that the interest of Loeffler is not pooled with the interest of Scott in the wells drilled South of Loeffler's interest. [Harris v. Wood County Cotton Oil Co., Tex.Civ.App.], 222 S.W.2d 331. * * *"
We find the court erred in not hearing appellant's cause of action raised by his pleadings upon the merits and the law relative to recovering the value of his oil which had been unlawfully drained from his land, if any, by Paul Scott, Nate Ginsberg, H. A. Fleishman and Hyman Ginsberg from the three wells which are located less than 330 feet from his property line.
There was introduced in evidence by appellant an order issued by our State Railroad Commission adopting special rules and regulations applying to this particular field, to-wit, the Kempner Field, Wichita County, Texas, such order recites, among other things, the following:
"No well for oil or gas shall hereafter be drilled nearer than six hundred sixty (660) feet to any well completed in or drilling to the same horizon or reservoir and located on the same lease, tract, or farm; and no well shall be drilled nearer than three hundred thirty (330) feet to any lease line, property line, or subdivision line, provided that the Commission in order to prevent waste or to prevent the confiscation of property will grant exceptions to permit drilling within shorter distances than herein prescribed whenever the Commission shall have determined that such exceptions are necessary either to prevent waste or to prevent the confiscation of property. * * * No proration unit shall contain more than twenty (20) acres except as hereinafter provided. * * *"
In the case of Gulf Land Co. et al. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73, it was announced that the oil well spacing rule of the Railroad Commission was valid and that any one desiring to drill an oil well at a lesser distance than that specified by the spacing rule of the Railroad Commission must secure a special permit after notice and hearing, and such applicant must bear the burden of proving such well is necessary to prevent waste or to prevent confiscation of property.
It is stated in 31-A Tex.Jur., p. 670, sec. 400, that the spacing rules "apply to tracts *213 held by a single owner or by several owners. With a view to devising some reasonably definite plan or pattern to start with, the Commission promulgated Rule 37, which is one of the cardinal rules of the Commission, adopted after extensive hearings. * * * The rule's objective is conservation of natural resources. It constitutes a limitation or restraint upon the unlimited right of capture." (Our emphasis).
It was held in Shell Oil Co. v. Railroad Commission, Tex.Civ.App., 133 S.W.2d 791, error dismissed, that the 300-660-foot spacing rule necessarily implied that a well would drain at least 330 feet.
In the case of Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73, it was held in substance that where the spacing rule for a particular tract is 150-330 feet, it means no well can be drilled at any point less than such space from any property or division line, or at any point less than the designated number of feet from any other well.
It was held in the case of F. A. Gillespie & Sons Co. v. Railroad Commission, Tex.Civ.App., 161 S.W.2d 159, error refused, that the spacing pattern prescribed by the Commission must govern and not a different one prescribed by the operators. Such rule of course must necessarily allow latitude in its application to meet specific factual situations, a mere slight departure should be construed to carry out rather than hinder a fair application of the rule. Humble Oil & Refining Co. v. Railroad Commission, Tex.Civ.App., 94 S.W.2d 1197, error refused; Brown v. Humble Oil & Refining Co., 126 Tex. 296, 83 S.W.2d 935, 99 A.L.R. 1107.
The Commission's spacing rule fixes the minimum distances at which wells may be drilled; if these three wells of the above named appellees, Scott et al., had been drilled 330 feet from the line of appellant, the only recourse for appellant, under the law of capture, would be to secure offset permits in order to stop the drainage from under his land, but since it is conceded by appellees and found by trier of the facts that their wells are a substantial distance less than 330 feet from appellant's land, then in that event appellant has a right to allege a cause of action to recover any oil he may have lost by such operation, without having to offset same, as his rights under the law are all the rights that are granted to an owner of real estate under the law of trespass to recover property which he has been unlawfully dispossessed and/or to recover the value thereof.
As pointed out in the case of Railroad Commission v. Magnolia Petroleum Co., Tex.Civ.App., 125 S.W.2d 398, 402, error refused, the Railroad Commission established the following portion of Rule 37, which may be pertinent to the question presented in this case: "No well drilled in violation of this rule without special permit obtained in the manner prescribed in said rule, and no well drilled under such a special permit which does not conform in all respects to the terms of such permit, shall be permitted to produce either oil or gas; and any such well so drilled in violation of said rule or in violation of a permit granted as a special exception to said rule shall be plugged.'"
The trial court in his conclusions of law cited the case of Harris et al. v. Wood County Cotton Oil Co. et al., Tex.Civ.App., 222 S.W.2d 331, writ refused, n. r. e., as authority for denying appellant recovery. We do not deem the Harris case in point here for the following reasons: The Wood County Cotton Oil Co. received a special permit to drill on Lot 12 and a part of Lot 11; it developed that said Cotton Oil Co. did not own any part of Lot 11; the plaintiffs sued for a one-third interest in the oil runs on the ground said Cotton Company had included a part of Lot 11 with Lot 12 in securing its permit and as a matter of law it was entitled to be classified as an unitized lease. The court held there was no intention on the part of the Cotton Company to act in the capacity as co-tenant with the parties owning Lot 11. It was without controversy that the Cotton Oil Co. executed a lease in good faith believing it to be the owner of the west half of Lot 11. It did own Lot 12. But since the Cotton Oil Co. received a special legal permit to *214 drill on Lot 12, it appeared that the plaintiffs possessed an equal right to protect drainage by obtaining a permit to drill on the west half of Lot 11. This point of law we have heretofore discussed in this opinion. But such are not the facts in the case before us and we do not consider it in point here, for in the Cotton Company case the defendants possessed a legal right to drill sufficiently close to Lot 11 to drain it, even though they thought they owned a portion of Lot 11. The permits which appellees Scott et al. received from the Railroad Commission were not special permits to drill less than 330 feet from appellant's line, but their permits were under the spacing rule to drill no less than 330 feet from appellant's line; to allow appellees to ignore the spacing rule would of itself destroy such rule.
The trial court applied the stringent rule of capture in this case without applying its limitation, to-wit, "legitimate operation." The trial court was correct in so far as it went in stating the rule of capture, which is nothing more than a right the land owner has in all the oil and gas beneath his land or which is produced legitimately from wells on his land though some of the oil may have seeped from adjoining lands. The rule is fully discussed by our Supreme Court in the case of Elliff v. Texon Drilling Co., 146 Tex. 575, 210 S.W.2d 558, 562, 4 A.L.R.2d 191, but the court went on to say: "It must be conceded that under the law of capture there is no liability for reasonable and legitimate drainage from the common pool. The landowner is privileged to sink as many wells as he desires upon his tract of land and extract therefrom and appropriate all the oil and gas that he may produce, so long as he operates within the spirit and purpose of conservation statutes and orders of the Railroad Commission. These laws and regulations are designed to afford each owner a reasonable opportunity to produce his proportionate part of the oil and gas from the entire pool and to prevent operating practices injurious to the common reservoir. In this manner, if all operators exercise the same degree of skill and diligence, each owner will recover in most instances his fair share of the oil and gas. This reasonable opportunity to produce his fair share of the oil and gas is the landowner's common law right under our theory of absolute ownership of the minerals in place. But from the very nature of this theory the right of each land holder is qualified, and is limited to legitimate operations. Each owner whose land overlies the basin has a like interest, and each must of necessity exercise his right with some regard to the rights of others. No owner should be permitted to carry on his operations in reckless or lawless irresponsibility, but must submit to such limitations as are necessary to enable each to get his own. Hague v. Wheeler, 157 Pa. 324, 27 A. 714, 717, 22 L.R.A. 141, 37 Am.St.Rep. 736." (Our emphasis.)
Neither party cited a case in point where a well was drilled on one tract of land but unquestionably drilled too close, and at a much less distance than that allowed by law to adjoining land, but we believe that the principles announced in Peterson v. Grayce Oil Co., Tex.Civ.App., 37 S.W.2d 367, are applicable to the problem before us. In the Peterson case a recovery was sought by the leaseholder against an adjoining leaseholder on the ground that the latter had wrongfully caused drainage of oil from the plaintiff's leased premises by the use of a vacuum pump in violation of Rule 40, adopted by the Railroad Commission. It was clearly held that the drainage of oil brought about by the unlawful use of the vacuum pump could serve as a basis for recovery of damages. The Court of Civil Appeals in the cited case reversed and remanded the cause on account of erroneous admission of evidence, and the Supreme Court, Grayce Oil Co. v. Peterson, 128 Tex. 550, 98 S.W.2d 781, affirmed the judgment of the Court of Civil Appeals on the ground of erroneous admission of evidence but declined to pass on the merits of the case for the reasons announced in its opinion. However, the holding of the Court of Civil Appeals appears to have been cited with approval by the Supreme Court in Elliff v. Texon Drilling Co., supra. It seems to us that a drainage of oil from plaintiff's premises, brought about by reason of the drilling of a well at a distance closer to plaintiff's land than *215 allowed by the Railroad Commission Rule, is wrongful to the same extent, and that damages are equally recoverable on account thereof, as in the case of a wrongful drainage by the use of a vacuum pump. The case just cited, as well as other cases cited therein, uphold the right of appellant to recover such damages as he may be able to establish.
We have carefully read appellant's section (B) in his fourth point and have come to the conclusion that the same does not raise an issue relative to the measure of damage and while we do not agree with appellant as to the measure of damage set out in his section (B), yet we do not have authority to pass upon the propriety of such measure of damage because the same is not before us. See Elliff v. Texon Drilling Co., supra. We have, however, enjoyed reading an interesting discussion as to the measure of damage outlined in 1 Summers, Oil and Gas, Perm.Ed. § 24, the Texas cases there cited on page 49, and in its pocket part supplement.
We do not find the question is before us as to the extent of appellant's cause of action, if any, alleged against appellees herein other than Scott et al., supra, because the pleadings may be amended upon another trial.
Judgment of the trial court is reversed and the cause remanded for a new trial not inconsistent with this opinion.


128 F.3d 103
PPG INDUSTRIES, INC., Plaintiff-Counter-Defendant-Appellant,v.WEBSTER AUTO PARTS INC.;  Anthony Puleo, and Patricia Puleo,Defendants-Counter-Claimants-Appellees.
No. 1356, Docket 96-7429.
United States Court of Appeals,Second Circuit.
Argued April 18, 1997.Decided Oct. 20, 1997.

Linda L. Morkan, Hartford, CT (Frank F. Coulom, Jr., Robinson & Cole, Hartford, CT), for Plaintiff-Appellant.
Dominic Fulco III, Wethersfield, CT (William J. O'Sullivan, Baker & Fulco, Wethersfield, CT), for Defendants-Appellees.
Before:  WINTER, PARKER and PHILLIPS*, Circuit Judges.
PARKER, Circuit Judge:

1
Appellant PPG Industries, Inc.  ("PPG") filed two collection actions against two of its distributors.  In the first action (the "Premium action"), PPG sued appellee Webster Auto Parts, Inc.  ("Webster"), Premium Paint Company, Inc.  ("Premium"), and Anthony and Patricia Puleo.  In the second action (the "Webster action"), PPG sued Webster and the Puleos alone.  In both actions, the appellees filed counterclaims against PPG. PPG filed a petition to compel the arbitration of the counterclaims asserted by Webster in the Webster action.  The United States District Court for the District of Connecticut (Robert N. Chatigny, Judge ) denied the petition, finding that PPG waived its right to arbitration in the Webster action because it (1) failed to appeal an order denying arbitration in the Premium action;  (2) engaged in discovery in the Premium action;  (3) moved for summary judgment on counterclaims asserted in the Premium action.  In addition, the district court found that ordering the matter to arbitration at this late stage would prejudice Webster.  We agree that PPG's conduct in both the Premium and Webster actions was inconsistent with its contractual right to compel arbitration and that Webster was prejudiced by this conduct.  Accordingly, we affirm the district court's order.I. BACKGROUND

2
PPG is a Pennsylvania corporation that manufactures and sells automotive refinish coating products.  In 1988, Webster, a Massachusetts corporation, began serving as a distributor of PPG products.  Anthony Puleo was the president and sole shareholder of Webster.  In 1990, Puleo incorporated Premium in Connecticut to serve as a distributor of PPG products.  Puleo was also the president and sole shareholder of Premium.  On January 17, 1991, PPG entered into a contract with both Webster and Premium entitled "PPG Automotive Refinish Jobber Agreement" (the "Jobber Agreement").

3
To secure the inventory that they purchased on credit from PPG, Premium and Webster entered into security agreements with PPG, giving PPG a security interest in their inventory and equipment.  In addition, Puleo and his wife, Patricia, personally guaranteed Webster's debts to PPG, Puleo executed a separate guaranty of debt on behalf of Premium, and Webster guaranteed payment for any PPG products sold to Premium.

4
The Jobber Agreement that PPG maintained with Webster and Premium contained an arbitration clause.  That arbitration clause specifically exempted collection actions from its reach.  The clause provided, in relevant part, the following:

5
A.  Except for suits to enforce the provisions of Article VI [re. trademarks] or to collect on a delinquent account, any controversy or claim between the parties as to the provisions of this Agreement shall, upon written request of either party, immediately be referred jointly to the respective managements of each party for decision....

6
B. After exhausting the procedures set forth above, any controversy as specified in A above may be submitted for binding arbitration by either party....

7
PPG alleges that in October 1993, Puleo announced that he had begun selling the product line of one of PPG's competitors and would not be paying Webster's or Premium's outstanding debts.  On October 21, 1993, PPG filed a collection action in the United States District Court for the District of Connecticut (Dorsey, J.), naming Webster, Premium, and both Puleos as defendants (the "Premium action").  As part of this action, PPG executed a writ of replevin, and the Hartford County Sheriff's Department, together with PPG's counsel and several PPG employees, took possession of Premium's inventory and equipment.  On November 10, 1993, PPG filed a second collection action in Massachusetts state court, naming only Webster and the Puleos as defendants (the "Webster action").  The defendants in the Webster action removed the case to federal court in Massachusetts.

8
PPG sought nearly identical relief in both actions.  In the Premium action, PPG sought $206,575 from Premium for inventory that Premium purchased from PPG;  $29,444 from Webster for inventory that Webster purchased from PPG and an additional $206,575 as guarantor of Premium's debt;  and both debts from the Puleos.  In the Webster action, PPG sought $29,444 from Webster for inventory that Webster purchased from PPG;  $206,575 from Webster as guarantor of Premium's debt;  and both debts from the Puleos.  Thus, the only difference between the two actions was that in the Premium action, PPG named both Premium and Webster as defendants and replevied Premium's inventory and equipment, whereas in the Webster action, Premium was not named and there was no replevin.

9
From October 1993 until early February 1994, the following occurred in the Premium action:  In late October 1993, Premium noticed the depositions of three PPG employees.  PPG moved for a protective order to stay the taking of these depositions.  The district court denied this motion, and the depositions went forward.

10
On December 3, 1993, Premium filed an amended answer that raised six counterclaims against PPG. These counterclaims alleged that (1) PPG's replevin of Premium's inventory and equipment effected a de facto termination of the Jobber Agreement, in violation of the notice-and-cure provision of the Jobber Agreement;  (2) the Jobber Agreement was really a franchise agreement governed by the Connecticut Franchise Act, and PPG breached that act by failing to provide Premium with sixty days' notice of termination;  (3) PPG breached the implied covenant of good faith and fair dealing;  (4) PPG tortiously interfered with Premium's business relations with customers and another supplier;  (5) the seizure of Premium's inventory and equipment, accomplished in concert with various state actors, constituted a violation of due process actionable under 42 U.S.C. § 1983;  and (6) PPG's wrongful conduct violated the Connecticut Unfair Trade Practices Act.

11
On December 13, 1993, Webster filed an amended answer that raised four counterclaims against PPG. Those counterclaims were the same as Premium's first, second, third, and sixth counterclaims, set forth above.

12
On January 12, 1994, PPG filed a petition to compel arbitration in the Premium action.1  This petition was filed simultaneously with five responsive pleadings, including:  (1) an answer to the fifth counterclaim;  (2) a motion to dismiss the fourth counterclaim for failure to state a claim;  (3) a motion for partial summary judgment as to the fifth counterclaim;  (4) a motion to dismiss the state law counterclaims for lack of subject matter jurisdiction;  and (5) a motion to strike the counterclaims.

13
On January 31, 1994, PPG filed a motion entitled "Plaintiff's Motion to Stay Discovery Pending Resolution of Plaintiff's Motion to Dismiss and Motion to Strike."   On February 8, 1994, the district court denied this motion.

14
On February 10, 1994, PPG filed an answer to the Webster counterclaims.  The answer contained two affirmative defenses, neither of which mentioned arbitrability.

15
Also in February, the Webster action was transferred from Massachusetts to federal district court in Connecticut.  In addition, the defendants moved to have the Webster and Premium actions consolidated.

16
Following the district court's February 8, 1994, denial of its motion to stay discovery, PPG commenced discovery in the Premium action.  On April 6, 1994, PPG served interrogatories and a document production request upon Webster, as well as a subpoena duces tecum upon Webster's accountant.  PPG sought information regarding Webster's attorney's fees;  its lost profits and goodwill;  the diminution of the business's value;  and lost earnings.

17
On May 2, 1994, PPG filed a petition to compel arbitration in the Webster action.

18
On July 15, 1994, the district court denied the motion to compel arbitration in the Premium action on the grounds that PPG had waived its right to arbitrate.  Judge Dorsey found that PPG had "substantially invoked the litigation process by filing the complaint, seeking a prejudgment remedy, participating in discovery, and seeking additional time to respond to the counterclaims."   In addition, he noted that, contemporaneously with the petition to compel, PPG filed four dispositive motions addressed to the merits of Premium's counterclaims.  Finally, Judge Dorsey noted that enough time had passed for waiver to apply, that the defendants would be prejudiced by compelled arbitration at this late stage of the litigation, and that arbitrating only the counterclaims would subject the defendants to piecemeal resolution of the entire dispute.

19
PPG moved for reconsideration of this order.  While its motion for reconsideration was pending, discovery continued in the Premium action.  In addition, both the Premium and the Webster actions were transferred to Judge Chatigny.  In the Premium action, both sides moved for partial summary judgment.

20
In August 1994, Webster filed an updated objection to PPG's petition to compel arbitration in the Webster action, on the grounds that the denial of the petition in the Premium action should be binding on the parties.

21
In March 1995, Judge Chatigny denied PPG's motion for reconsideration of the district court's denial of PPG's petition to compel arbitration in the Premium action.

22
In August 1995, the Premium and Webster actions were consolidated before Judge Chatigny.

23
On March 22, 1996, Judge Chatigny denied PPG's petition to compel arbitration in the Webster action.  In reaching his decision, Judge Chatigny expressly considered PPG's conduct in the Premium action as well as in the Webster action.  Judge Chatigny based his conclusion that PPG waived its right to arbitrate in the Webster action on the grounds that PPG (1) failed to appeal Judge Dorsey's order denying arbitration in the Premium action;  (2) engaged in discovery in the Premium action;  and (3) moved for summary judgment on the Premium counterclaims.  In addition, Judge Chatigny noted that "the two actions have been consolidated in this District precisely because they are so closely related as to form what is really a single controversy."   Thus, he concluded that to bifurcate the actions at this stage to permit arbitration of the counterclaims in the Webster action alone would prejudice the defendants.

II. DISCUSSION

24
We review de novo the district court's decision that PPG waived its right to arbitration.  See Doctor's Assocs., Inc. v. Distajo, 107 F.3d 126, 130 (2d Cir.1997);  Leadertex Inc. v. Morganton Dyeing & Finishing Corp., 67 F.3d 20, 25 (2d Cir.1995).  We reverse the district court's factual determinations leading to its finding of waiver only if those determinations are clearly erroneous.  See Doctor's Assocs., 107 F.3d at 130;  Leadertex, 67 F.3d at 25.

A. Law Governing Waiver

25
Federal policy strongly favors arbitration as an alternative means of dispute resolution.  See Doctor's Assocs., 107 F.3d at 130;  Leadertex, 67 F.3d at 24-25 (citing Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 480-81, 109 S.Ct. 1917, 1919-20, 104 L.Ed.2d 526 (1989)).  This preference for arbitration "[has] led to its corollary that any doubts concerning whether there has been a waiver are resolved in favor of arbitration."  Leadertex, 67 F.3d at 25 (citing Moses H. Cone Mem.  Hosp. v. Mercury Constr.  Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941-42, 74 L.Ed.2d 765 (1983)).  We have often stated that "waiver of arbitration ' "is not to be lightly inferred." ' "   E.g., id.  (quoting Rush v. Oppenheimer & Co., 779 F.2d 885, 887 (2d Cir.1985) (quoting Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir.1968))).

26
Nonetheless, a party waives its right to arbitration when it engages in protracted litigation that prejudices the opposing party.  See Doctor's Assocs., 107 F.3d at 131;  Cotton v. Slone, 4 F.3d 176, 179 (2d Cir.1993);  Kramer v. Hammond, 943 F.2d 176, 179 (2d Cir.1991).  "[P]rejudice as defined by our cases refers to the inherent unfairness--in terms of delay, expense, or damage to a party's legal position--that occurs when the party's opponent forces it to litigate an issue and later seeks to arbitrate that same issue."  Doctor's Assocs., 107 F.3d at 134.   Incurring legal expenses inherent in litigation, without more, is insufficient evidence of prejudice to justify a finding of waiver.  See id.  (citing Leadertex, 67 F.3d at 26).   Thus, we have found that a party waived its right to arbitration where it engaged in extensive pre-trial discovery and forced its adversary to respond to substantive motions, see Com-Tech Assocs. v. Computer Assocs.  Int'l, Inc., 938 F.2d 1574, 1576-77 (2d Cir.1991), delayed invoking arbitration rights by filing multiple appeals and substantive motions while an adversary incurred unnecessary delay and expense, see Kramer, 943 F.2d at 179, and engaged in discovery procedures not available in arbitration, see Zwitserse Maatschappij Van Levensverzekering En Lijfrente v. ABN Int'l Capital Mkts. Corp., 996 F.2d 1478, 1480 (2d Cir.1993) (per curiam).

27
Therefore, in determining whether PPG has waived its right to arbitration, we will consider such factors as (1) the time elapsed from the commencement of litigation to the request for arbitration, (2) the amount of litigation (including any substantive motions and discovery), and (3) proof of prejudice.  There is no bright-line rule, however, for determining when a party has waived its right to arbitration:  the determination of waiver depends on the particular facts of each case.  See Leadertex, 67 F.3d at 25;  Cotton, 4 F.3d at 179;  Kramer, 943 F.2d at 179.2

B. Analysis

28
1. Time Elapsed from Commencement of Litigation

29
The Webster litigation commenced in November 1993, and Premium and Webster asserted counterclaims in December 1993.  PPG filed its petition to compel arbitration in the Webster action on May 2, 1994.  Therefore, approximately five months passed between the time the defendants asserted arbitrable claims and PPG filed its petition to compel in the Webster action.  This five-month delay, by itself, is not enough to infer waiver of arbitration.  See Rush, 779 F.2d at 887;  Sweater Bee by Banff, Ltd. v. Manhattan Indus., Inc., 754 F.2d 457, 461 (2d Cir.1985).  Rather, we must consider the delay in conjunction with (1) the amount of litigation that occurred during that period and (2) any proof that Webster was prejudiced by PPG's conduct during that period.  See Leadertex, 67 F.3d at 25.

2. Amount of Litigation

30
Before PPG filed its petition to compel arbitration in the Webster action on May 2, 1994, the following events occurred:

31
October 21, 1993: PPG filed the Premium action.

32
Late October 1993: Premium noticed depositions of PPG employees.

33
November 1, 1993:  PPG moved for a protective order.

34
November 9, 1993:  Judge Dorsey denied motion for protective order.

35
November 10, 1993: PPG filed Webster action.

36
December 3, 1993: Premium filed amended answer with counterclaims.

37
December 13, 1993: Webster filed amended answer with counterclaims.

38
December 1993: PPG wrote letters demanding arbitration.

39
January 12, 1994: PPG filed petition to compel in Premium action.PPG filed substantive motions in Premium action.

40
January 31, 1994: PPG filed motion to stay discovery.

41
February 1994: PPG filed answer to Webster counterclaims.  Webster action transferred to Connecticut.  Defendants moved to have actions consolidated.  PPG commenced discovery in Premium action.

42
April 6, 1994: PPG requested discovery in the Premium action on Webster's damages.

43
As this timeline illustrates, PPG had engaged in discovery and had filed substantive motions in the Premium action prior to filing the petition to compel in the Webster action.  Although the substantive motions were directed towards Premium's counterclaims, the counterclaims asserted in Webster are based on the same core facts:  PPG's allegedly wrongful termination of the Jobber Agreement and the replevin of Premium's inventory and materials.

44
Moreover, although the discovery that PPG requested with respect to Webster's damages was requested as part of the Premium action, that information was not relevant to the Premium action;  rather, it was relevant to the counterclaims asserted by Webster in the Webster action.  Specifically, the interrogatories that PPG filed on April 6, 1994, sought information regarding Webster's attorney's fees, its lost profits and goodwill, the diminution of the business's value, and lost earnings.  In addition, a subpoena served on Webster's accountant sought all of Webster's financial records, including tax returns for the years 1989-1993.  This information was relevant to Webster's counterclaims, which sought damages for PPG's alleged bad-faith breach of the Jobber Agreement.

45
By engaging in discovery and filing substantive motions in the Premium action, PPG evidenced a preference for litigation that supports a finding of waiver in the Webster action.  See Leadertex, 67 F.3d at 26;  Kramer, 943 F.2d at 179;  Com-Tech Assocs., 938 F.2d at 1576-77.   It is irrelevant that this conduct occurred as part of the Premium, as opposed to the Webster, action.  The actions are nearly identical;  therefore, the adjudication of substantive motions in one would likely be binding in the other.  In addition, the discovery sought in the Premium action was relevant to the counterclaims asserted in the Webster action.

46
3. Additional Evidence of Intent to Litigate

47
Other aspects of PPG's conduct support a finding of waiver in the Webster action.  First, PPG failed to assert the defense of arbitration in its answer to either PPG's or Webster's counterclaims, which would have resulted in a clear indication of PPG's intention to invoke its arbitration rights.  See Com-Tech Assocs., 938 F.2d at 1576.

48
Second, PPG did not file a motion to stay either the Premium or Webster actions pending arbitration.  Section 3 of the Federal Arbitration Act provides that a district court, "upon being satisfied that the issue involved in such suit or proceedings is referable to arbitration under [a written] agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement."  9 U.S.C. § 3.  The filing of this motion would have been a clear statement of PPG's intention to arbitrate.  Instead, PPG chose to pursue the Premium action.

49
In sum, we are persuaded that PPG acted inconsistently with its contractual right to arbitration.  Therefore, we now consider whether Webster was prejudiced by PPG's conduct.

4. Prejudice

50
We have held that sufficient prejudice to sustain a finding of waiver exists when a party takes advantage of pre-trial discovery not available in arbitration.  See Zwitserse, 996 F.2d at 1480;  see also Cotton, 4 F.3d at 180 (basing finding of prejudice on delay and expense caused by defendant's extensive pre-trial litigation as well as defendant's "secur[ing] for himself the benefits of pretrial discovery that is often unavailable in an arbitral forum");  cf.  Leadertex, 67 F.3d at 26 (finding that plaintiff was not prejudiced by pre-trial discovery where defendant "obtained no facts in discovery that would have been unavailable in arbitration").

51
Through interrogatories served on Webster in the Premium action, PPG received a vast amount of information relevant to the counterclaims asserted in the Webster action, including information regarding Webster's attorney's fees, its lost profits and goodwill, the diminution of the business's value, and lost earnings.  In addition, pursuant to a subpoena duces tecum served on Webster's accountant, PPG received all of Webster's financial records from 1989-1993.  Webster has not specified, however, what portion of the foregoing information ultimately would be unavailable in the arbitral forum.  In Leadertex, we refused to find that the plaintiff was prejudiced by the defendant's pursuit of discovery where the plaintiff divulged no "significant information" to the defendant during the discovery process.  See 67 F.3d at 26.3

52
We need not decide, however, whether the amount of discovery, by itself, is sufficient to establish prejudice in this case.  Pursuant to § 16(a) of the Federal Arbitration Act, a party may take an appeal as of right from an order denying a petition to compel arbitration.  See 9 U.S.C. § 16(a).  We have previously held that a party's failure to take an immediate appeal, combined with that party's continued pursuit of litigation once the opportunity to appeal has passed, results in prejudice that compels a finding of waiver.  See Cotton, 4 F.3d at 179-80.   The district court denied PPG's motion to compel in the Premium action on July 15, 1994.  PPG did not appeal that decision, choosing instead to continue with discovery and ultimately to file a motion for partial summary judgment.  More significantly, to allow PPG to take the information that it received during discovery and to use that information against Webster in the arbitral forum would be inconsistent with the principle that a party waives its right to arbitration when it avails itself of judicial resources in one action, then attempts to compel arbitration in a second action involving the same facts and legal issues.  See Doctor's Assocs., 107 F.3d at 133;  Zwitserse, 996 F.2d at 1480.

53
Moreover, while PPG was waiting for a decision on its motion to compel in the Webster action, the Premium and Webster actions were consolidated before Judge Chatigny because, as Judge Chatigny stated, "they are so closely related as to form what is really a single controversy."   Thus, because PPG never moved for stay of either proceeding pending the determination of its motions to compel, the cases progressed to the point where they were virtually inseparable.  Allowing PPG to bifurcate the actions at this point would be unfair as well as a waste of both judicial and arbitral resources.

III. CONCLUSION

54
PPG's conduct after it filed its petition to compel in the Premium action, including its conduct after that petition was denied, compels the conclusion that PPG waived its right to arbitration.  Accordingly, we affirm the decision of the district court.4

*
 The Honorable James Dickson Phillips, Jr., of the United States Court of Appeals for the Fourth Circuit, sitting by designation

1
 PPG alleges that in letters dated December 15 and 27, 1993, it demanded that the counterclaims raised in the Premium and Webster actions be resolved by arbitration, pursuant to the arbitration clause contained in the Jobber Agreement.  PPG further contends that Premium and Webster ignored these demands

2
 Despite PPG's contention to the contrary, it is appropriate that we consider PPG's conduct in both the Premium and Webster actions to determine whether PPG waived its right to arbitrate in the Webster action.  Here, the counterclaims raised in the Webster action were duplicative of four of the counterclaims raised in the Premium action.  In addition, both actions arose out of the same core facts.  We have previously stated that the "prior litigation of the same legal and factual issues as those the party now wants to arbitrate results in waiver of the right to arbitrate."  Doctor's Assocs., 107 F.3d at 133.   It is irrelevant that the prior litigation occurred as part of a separate action or in a different court.  See id. at 132-33;  see also Kramer, 943 F.2d at 178 (reversing district court's grant of motion to compel arbitration where defendant waived right to arbitrate by engaging in extensive litigation in state courts)

3
 In that case, however, the only information that the plaintiff disclosed was the identity of two witnesses to an alleged defamatory statement and copies of 23 dye orders that the defendant already had in its possession.  See Leadertex, 67 F.3d at 26.   Here, PPG used the judicial process to secure a substantial amount of information that it otherwise would not have had in its possession

4
 Because we agree with the district court that PPG waived its right to arbitration, we need not address Webster's additional argument that the counterclaims asserted in its amended answer are beyond the scope of the arbitration clause


254 P.3d 743 (2011)
350 Or. 241
STATE
v.
DOUGLAS.
(S059044).
Supreme Court of Oregon.
April 21, 2011.
Petition for Review Denied.


969 F.2d 1042
Ortizv.Bermuda Star Lines
NO. 92-7054
United States Court of Appeals,Second Circuit.
May 26, 1992

1
Appeal From:  S.D.N.Y.

2
AFFIRMED.


529 S.E.2d 155 (2000)
242 Ga. App. 125
BLUAIN
v.
The STATE.
No. A99A1740.
Court of Appeals of Georgia.
January 31, 2000.
*156 Lynn M. Friedewald, Atlanta, for appellant.
J. Tom Morgan, District Attorney, Jeanne M. Canavan, Maria Murcier-Ashley, Thomas S. Clegg, Assistant District Attorneys, for appellee.
ANDREWS, Presiding Judge.
Donnell Bluain appeals following the denial of his motion for new trial after conviction of three counts of rape, two counts of burglary, one count of aggravated sodomy, one count of attempting to commit aggravated sodomy, and one count of kidnapping with bodily injury.[1]
1. Bluain's fourth enumeration of error challenges the legal sufficiency of the evidence, and we consider it first.
On appeal[,] the evidence must be viewed in the light most favorable to support the verdict, and [Bluain] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.... [T]he test established in Jackson [v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ] is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence. [Cit.]
(Punctuation omitted.) Carter v. State, 235 Ga.App. 260(1), 510 S.E.2d 539 (1998).
So viewed, the evidence was that, on April 14, 1992, V. Robinson was awakened in her Doraville home around 3:30 a.m. by a noise she initially believed was made by her cat. She was dressed in a knee-length T-shirt nightgown and was wearing panties and socks. She got out of bed to check and was immediately grabbed from behind by a man. He placed one hand around her neck and the other over her mouth and whispered that if she screamed he would kill her. He said he wanted money, and she told him to take what she had, which was not much because she had been on vacation. He then walked her down the hall, with his chest pressed against her back and some object, which could have *157 been a screwdriver, pressed into her side. The man was carrying a flashlight, larger than a penlight, and used it as they went down the hallway.
Although she was unaware of it at the time, her cash had already been removed from her purse, apparently by the intruder. She told him there might be some cash in a kitchen drawer, but he said she was trying to trick him. He did check the drawer, but there was no money there. He attempted to engage her in conversation, asking what she did for a living. He then said, "Since I can't have any money[,] I'm going to take something else."
Admonishing her not to look at him, he walked her into the living room and directed her to lie down and pull her gown over her face, which she did. He then placed a throw pillow over her face and took off her panties and socks. He sucked her toes and then performed oral sodomy on her. He then had intercourse with her while saying that he wanted to be with a white woman. He asked her if her roommate, asleep upstairs, would want some, and she told him that she wanted him all to herself, in order to protect her roommate. During these acts, V. Robinson was able to see the man's arm and determine that he was African-American. She asked him to use a condom which she had upstairs, but he refused, saying she was trying to trick him. He did withdraw before ejaculating after she told him she might have a sexually transmitted disease. She took him in her hand, and he ejaculated onto her stomach. She asked him to leave, but he said no, he was going to do it again and this time she "was going to take it up the ass." He then tried to enter her from the rear, and although he touched her anus, she was able to guide him into her vagina. Only one or two minutes had elapsed between the man's erections. He again withdrew and ejaculated onto her. He was wearing some type of cloth gardening glove which V. Robinson described as smelling of dirt.
She again asked if he would leave, and he directed her to stay on the floor, not to try to see him, not to call the police, and to give him two or ten minutes to get away.
V. Robinson described the man as extremely lean and very muscular with broad shoulders and approximately 5'9" or 5'10" tall. She believed he had a mustache and might have had a beard or five o'clock shadow.
After he left, she discovered that the window next to the front door had been inadvertently left open. She locked it after he left, wakened her roommate and called the police. As they were waiting for the police, they saw an old silver or light color Datsun drive by slowly. Later, she found the screen which had been on the front window lying outside on the ground.
V. Robinson's nightgown and vaginal swabs taken from her were sent to the Georgia Bureau of Investigation laboratory where DNA testing was conducted on them and on blood taken from Bluain after his arrest in 1996. DNA analyst Fyffe testified that, while she could not say with reasonable scientific certainty that Bluain was the donor of the semen sample removed from the nightgown, she could say that only one in 1,000 African-American men would have the test results she obtained and that two bands on the questioned DNA did match or were consistent with Bluain's DNA and he could not be excluded as the donor.
On June 3, 1992, in east DeKalb County, C. Robinson was awakened about 2:15 a.m. by someone shining a penlight in her eyes and saying that, if she screamed, he would cut her throat. He placed his hand over her mouth and told her to get up slowly, which she did. He put his hand around her neck and told her to walk toward the living room, which she did, with him walking behind her, his chest to her back. He asked where her purse was and was told on the dining room table. He rifled through it, taking the few dollars in it. He then pushed her back toward her daughter's bedroom.[2] Hearing a car, he ordered her to face the wall, and he looked out the window. Then, he told her to lift her nightgown and lie on the bed, which she did. He directed her to pull her gown *158 over her face and then asked if she and her boyfriend used condoms and if she wanted him to use one. She was crying, and he asked why. She begged him not to hurt her. She heard him rustling with a condom package, and he did use one that time. He told her to move, and she complied. After he ejaculated, he told her to get up but keep the gown over her face. After she complied, he grabbed her, was behind her again, and pushed her out into the living room. He told her to unlock the front door and looked outside. Then, he told her to close the door but leave it cracked, which she did.
He told her to bend over the couch and asked her if she had ever been "f___d in the ass." C. Robinson told him that if he did that, she would scream, and she begged him not to. He then had vaginal sex with her from the rear. He then made her lie face down on the couch and fondled her. Then, he told her not to move or he would kill her. After she heard the door open and felt air from it, C. Robinson got up, looked out, and saw him run into some woods. She discovered the window raised in her daughter's room, although she knew it had been down when she went to bed. The screen had been removed and was underneath the window.
C. Robinson, who was African-American, saw the man's leg at some point and described it as tan in color. She said he was very muscular, about 5'8" tall, and was wearing a stocking mask or hose over his face. She detected what she described as a "petroleum, chemical smell on him." She had bruises on her neck which she attributed to the man's having sucked on her neck or "whatever he was doing." He told her that he lived in her apartment complex and had been watching her for a long time.
GBI DNA analyst Goff conducted testing on the vaginal swabs from C. Robinson and Bluain's blood, finding matches. He opined, based on his testing and computer-conducted statistical analysis, that only "one in one billion" African-American men would have sperm matching this DNA pattern.
On October 2, 1992, DeKalb County Undercover Officer Violette was conducting surveillance at a Starvin' Marvin store at the intersection of Pleasantdale and Britt Roads, no more than a mile from the residence of V. Robinson. It was around 10:30 p.m., and Violette was parked in an unmarked car at a Jiffy Lube next to the store, approximately 40 feet from the well-lighted fuel pumps. He observed a Pontiac Sunbird matching the description of the one he was looking for stop, back up, make a U-turn, and pull next to a car parked at the pumps. The African-American male driver got out of his car and crouched over, attempting to enter the other car, which was locked. Officer Violette observed his profile for approximately five seconds and said the man's facial features "stuck out" and were "easily identifiable to me." The man then jumped into his car and left at a high rate of speed, pursued by Violette and uniformed officers and marked cars. The Pontiac Sunbird crashed into a ditch, and the driver escaped. Found in the car were binoculars, two packs of pantyhose, a camera and case, a screwdriver set, a watch, a white purse, a pack of unopened Lifestyles condoms, a package of opened Lifestyles condoms, food stamps, and a bottle of cologne. After Bluain's arrest, Violette was shown a photo spread on August 26, 1996. It had been prepared by the detective investigating the sexual assaults. Violette studied the array and identified Bluain as the man he saw at the Starvin' Marvin in 1992. He stated that he was "pretty positive" in his identification.
On July 9, 1996, around 4:30 a.m., Clayton police officer Monteau was dispatched to a possible prowler call. He arrived at the address at 4:41 a.m. and was met by Mr. and Mrs. Smith, who ran out their front door and said the man was running through the back yard. The officer pursued and saw a flashlight in the man's hand. He momentarily lost sight of the man but stood still and heard a rustling in the brush. Although he saw Bluain lying in the brush, he radioed that he had lost the prowler. Then, he and another officer rushed Bluain's location. Although Bluain ran, he was eventually captured. A mid-size flashlight was found on the ground where he was caught. A flat head screwdriver, a Lifestyles condom, jewelry, and cash were found on Bluain. A screen had been removed from a rear window of the Smiths' *159 home, and pry marks were found on the window.[3]
Bluain's sole argument regarding sufficiency of the evidence of all the counts except the kidnapping with bodily injury is that the evidence was "contradictory and conflicting." Conflicts in testimony of witnesses, including the State's witnesses, are a matter of credibility for the jury's resolution. Howard v. State, 227 Ga.App. 5, 8(6)(a), 488 S.E.2d 489 (1997). Here, although conflicting, there was competent evidence to support the burglary and rape counts (V. and C. Robinson), the aggravated sodomy of V. Robinson (oral sex), and the attempted aggravated sodomy of V. Robinson (anal sex). Jackson, supra; Shelnutt v. State, 234 Ga.App. 655, 656(2), 506 S.E.2d 643 (1998).
With regard to the kidnapping with bodily injury count, Bluain argues that the State failed to prove any bodily injury of C. Robinson aside from the rapes committed against her. The State agreed, and the court instructed the jury that an injury aside from the rapes was necessary to constitute kidnapping with bodily injury. OCGA § 16-5-40(b).
C. Robinson testified that she had bruises on her neck. Although she attributed them to the sucking or "whatever he was doing," there was also evidence that he kept his hand tightly around her neck while he moved her from room to room. "Any physical injury, however slight, suffices to support a conviction of kidnapping with bodily injury. [Cit.]" McDougal v. State, 239 Ga.App. 808, 809(1), 521 S.E.2d 458 (1999) (scratches or abrasions sufficient). See also Roberson v. State, 219 Ga.App. 160, 162(2), 464 S.E.2d 262 (1995) (bruising sufficient); Ferguson v. State, 211 Ga.App. 218, 221(3), 438 S.E.2d 682 (1993) (choking sufficient).
The evidence was legally sufficient. Jackson, supra.
2. In his first enumeration of error, Bluain contends that the DNA evidence was improperly admitted because there was insufficient proof that the general scientific principles and techniques involved in the testing were capable of producing reliable results and that the DNA testers themselves substantially performed the scientific procedures in an acceptable manner, as required by, e.g., Johnson v. State, 264 Ga. 456, 458(5), 448 S.E.2d 177 (1994).
To the contrary, a substantial record was made both before trial and during the trial regarding DNA testing by the GBI. Goff, a DNA analyst who conducted the restriction fragment length polymorphism (RFLP) testing on the samples of Bluain and C. Robinson, testified at length regarding the protocols and methodology used in extracting, fragmenting, testing, and matching the DNA fragments. See generally Caldwell v. State, 260 Ga. 278(1), 393 S.E.2d 436 (1990). RFLP testing has been accepted in this state. Chapel v. State, 270 Ga. 151, 156(5), 510 S.E.2d 802 (1998).
Fyffe was the DNA analyst who conducted the polymerase chain reaction (PCR) testing on the samples of Bluain and V. Robinson. She also testified at length on the protocols and methodology of this method of testing. This method has also been accepted as valid in this state. Redding v. State, 219 Ga.App. 182, 184(4), 464 S.E.2d 824 (1995).
The trial court did not err in admitting the results. The deficiencies argued below by Bluain, lack of national accreditation of the GBI lab by the National Association of Crime Lab Directors and failure to use the "highest standards" in testing, went to the weight of the testing results and not their admissibility. Chapel, supra; Ross v. State, 231 Ga.App. 793, 801(14), 499 S.E.2d 642 (1998); Redding, supra.
3. In his second enumeration of error, Bluain contends that the trial court erred in not granting his motion to sever the counts involving V. Robinson from those involving C. Robinson. The indictment against Bluain originally contained not only those counts but 15 other counts involving additional rapes and assaults against other victims. *160 Only those involving V. and C. Robinson occurred in private homes, while the others occurred in public places and involved two victims at a time.
A written motion to sever was filed and sought severance of the counts involving each victim from counts involving any other victim. At the hearing on the motion, however, Bluain's argument was directed at severing Counts 9 through 23 from Counts 1 through 8 on the ground that the latter involved residential settings while the others involved public places and multiple victims. Counsel asked the court to "sever out those two [victims]."
Counsel for the State then agreed to sever the first eight counts from the remaining counts if the State could introduce the circumstances of Bluain's arrest.
Since the case was tried as to only the two Robinson victims, as requested by Bluain at the hearing, there is no error for this Court to review.
Even pretermitting this issue, however, because of the similarities in the two assaults, although they were not identical, the evidence regarding each would have been admissible in the trial of the other even if they had been severed. Scroggins v. State, 237 Ga.App. 122, 124(3), 514 S.E.2d 252 (1999); Redding, supra at 184(3), 464 S.E.2d 824.
4. Bluain also contends that the trial court erred in allowing the items found in the abandoned Sunbird on October 2, 1992, to be admitted into evidence.
This error, however, is not the subject of an objection appearing below on the record, and there is nothing in this regard for our review. Although there is a notation during the testimony of Detective Brown, the officer who seized the items, of a bench conference requested by Bluain's trial counsel, the record does not contain this bench conference. Had Bluain desired that we consider this objection, steps should have been taken to ensure that the court reporter took down the conference or the objection restated into the record after this conference. Spivey v. State, 237 Ga.App. 626, 627(1), 516 S.E.2d 332 (1999); Prine v. State, 237 Ga.App. 679, 680, n. 1, 515 S.E.2d 425 (1999).
Judgment affirmed.
RUFFIN and ELLINGTON, JJ., concur.
NOTES
[1]  Counts 1 through 4 of the indictment involved victim V. Robinson and alleged burglary, rape, and two counts of aggravated sodomy. Counts 5 through 8 involved victim C. Robinson (no relation to V. Robinson) and alleged burglary, kidnapping with bodily injury, and two counts of rape. The jury returned a verdict of guilty of attempt to commit aggravated sodomy on Count 4.
[2]  She and her daughter were preparing to move, and most of their belongings were packed. Her daughter was spending the night with someone else.
[3]  It was stipulated that Bluain pled guilty to criminal attempt to commit burglary, possession of burglary tools, and obstruction of an officer as a result of his attempt to enter the Smiths' home and the ensuing chase.