60 F.3d 437
BELL LUMBER AND POLE COMPANY, Plaintiff-Appellant,v.UNITED STATES FIRE INSURANCE COMPANY;  Continental CasualtyCompany, Defendants-Appellees.Hartford Accident and Indemnity Company;  Liberty MutualInsurance Company, Defendants.Westchester Fire Insurance Company;  Centennial InsuranceCompany, Defendants-Appellees.State of Minnesota, Amicus Curiae.
No. 94-2649.
United States Court of Appeals,Eighth Circuit.
Submitted Dec. 14, 1994.Decided July 13, 1995.

Thomas Charles Mielenhausen, Minneapolis, MN, argued (James A. Mennell, on the brief), for appellant.
Robert Edward Salmon, Minneapolis, MN, argued (Andrew W. Horstman, Richard W. Bale, Stacy A. Broman, Scott P. Drawe and Louise A. Behrendt, on the brief), for appellee.
Before McMILLIAN, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and SHAW,* District Judge.
McMILLIAN, Circuit Judge.

1
Bell Lumber and Pole Company (Bell Lumber) appeals from final orders entered in the United States District Court1 for the District of Minnesota, granting summary judgment in favor of Continental Casualty Company (CCC) and Centennial Insurance Company (Centennial), Bell Lumber & Pole Co. v. United States Fire Ins. Co., 847 F.Supp. 738 (D.Minn.1994) (Bell Lumber I ), and United States Fire Insurance Company (U.S. Fire), and Westchester Fire Insurance Company (Westchester).  Id., 853 F.Supp. 315 (D.Minn.1994) (Bell Lumber II ).  (CCC, Centennial, U.S. Fire, and Westchester are collectively referred to as the carriers.)   For reversal, Bell Lumber argues, among other things, that the district court erred in holding that (1) the qualified pollution exclusion contained in the relevant comprehensive general liability (CGL) and umbrella liability policies issued by the carriers to Bell Lumber barred coverage and (2) there are no genuine issues of material fact as to the inclusion of a qualified pollution exclusion in the policy issued by CCC to Bell Lumber.  Also before us on this appeal is a motion by the carriers to strike portions of Bell Lumber's brief which refer to certain rulings by the district court in Bell Lumber's favor.  We held the present appeal in abeyance pending the appeal to the Minnesota Supreme Court in SCSC Corp. v. Allied Mutual Ins. Co., 515 N.W.2d 588 (Minn.Ct.App.1994) (SCSC I ), which has now been decided.  Id., 533 N.W.2d 603 (Minn.1995) (SCSC II ).   For the reasons discussed below, we affirm the orders of the district court.

Background

2
The background of this case is well-stated in the district court's orders of March 21 and May 26, 1994.  Bell Lumber I, 847 F.Supp. at 740-42;  Bell Lumber II, 853 F.Supp. at 316-17.   Thus, we provide only a brief summary of the facts.

3
Bell Lumber operates a wood treatment facility in New Brighton, Minnesota, where it treats wood poles used for power and telephone lines.  The dispute in the present case involves whether or not Bell Lumber is entitled to coverage for pollution-related costs under various policies issued by the carriers.  Between December 19, 1971, and January 1, 1975, Centennial provided umbrella excess liability insurance coverage to Bell Lumber.  The Centennial policy contained a qualified pollution exclusion.  We assume, for purposes of this appeal, that from May 19, 1972, to May 19, 1975, CCC provided CGL coverage to Bell Lumber.  However, as explained below, we also conclude that, if such a CCC policy existed, it would have included a standard qualified pollution exclusion.  Between May 19, 1975, and November 1, 1987, U.S. Fire provided CGL coverage to Bell Lumber and Westchester provided comprehensive catastrophe (umbrella) liability coverage to Bell Lumber.  The U.S. Fire and Westchester policies each contained a qualified pollution exclusion.

4
The qualified pollution exclusion was substantially the same for each of the insurance policies at issue in the present case.  Under these provisions, coverage would be excluded for property damage arising out of the release or escape of contaminants into the soil or groundwater, with the qualification--or exception--that coverage would be allowed if the release or escape were both "sudden and accidental."

5
From the 1920s until the early 1960s, Bell Lumber treated the poles with creosote.  Bell Lumber's creosoting operations produced annually between 5,600 and 8,400 gallons of sludge containing creosote.  In the mid-1940s, Bell Lumber began treating the poles with pentachlorophenol (penta).  Bell Lumber applied the penta to the poles by placing the poles in treatment tanks and pumping hot and cold oil into the treatment tanks from storage tanks.  After the hot and cold oil baths, the oil was removed from the treatment tanks and the poles were allowed to dry in the treatment tanks for several hours before being removed.  The poles were inspected and then lifted from the tanks with a crane.  On rare occasions, penta solution dripped off the poles during removal from the treatment tanks.  Bell Lumber's penta treatments took place in an area referred to as the process area.  The penta treatments created a sludge containing oil and penta emulsion, soil and wood particles, which was hauled from the process area to a separate disposal area.2  Bell Lumber also sprayed penta solution to control weeds in another area where untreated wood was stored.  At the time, penta was an approved herbicide.

6
Bell Lumber's operations involved the use of numerous tanks, pumps, and pipes, some of which were located underground.  Despite Bell Lumber's regular efforts to maintain the integrity of the system, penta solution occasionally escaped into the ground from cracks or leaks in the underground components.  In addition, mixtures of oil and creosote, and oil and penta, occasionally spilled onto the ground from storage and treatment tanks.  Bell Lumber employees recalled fifteen such events.  Some of the spills occurred as a direct result of human error--for example, when the tanks were accidentally overfilled or when someone failed to close a valve.  Others were caused by boilovers, resulting from hot oil mixing with cold water within the treatment tanks.  On one occasion in 1974, spilled penta solution reached nearby Pike Lake, killing some of the fish.  As a result, Bell Lumber was required to clean up the spill.

7
The surface and subsurface soil near the process area was found to be contaminated with penta and creosote.  The groundwater under the process area was found to be contaminated with over 200,000 gallons of penta.  According to Bell Lumber's own expert, the fact that a significant amount of contaminated oil was observed to soak into the ground in the process area, such that little could be recovered, suggested that the majority of the spills were not recovered and therefore entered the groundwater and soil beneath the process area.  We assume, for purposes of this appeal, that spills were the major source of groundwater and soil contamination at or below the process area.

8
In February 1984, the Minnesota Pollution Control Agency (MPCA) formally requested that Bell Lumber take specific actions to clean up surface and subsurface contamination.  In 1985, pursuant to a consent order, Bell Lumber agreed to undertake the cleanup.  In 1989, the Environmental Protection Agency (EPA) notified Bell Lumber that it would bring a claim against Bell Lumber for its investigation and remediation costs associated with surface and subsurface contamination at the New Brighton facility.

9
Bell Lumber brought this diversity action seeking declaratory judgment holding the carriers liable for cleanup and related past and future costs resulting from the creosote and penta contamination at the New Brighton facility.  The carriers moved for summary judgment on grounds that they cannot be held responsible for Bell Lumber's pollution-related claims because such claims are precluded by the qualified pollution exclusions in their various policies.  The district court granted the carriers' motions for summary judgment holding that Bell Lumber's claims were excluded as a matter of Minnesota state law based upon certain material facts not genuinely in dispute.  Bell Lumber I, 847 F.Supp. at 747 (granting CCC and Centennial's motion for summary judgment);  Bell Lumber II, 853 F.Supp. at 319 (granting U.S. Fire and Westchester's motion for summary judgment).  Bell Lumber appealed.  On appeal, Bell Lumber focuses specifically on the carriers' obligation to insure its liabilities for environmental damage arising out of penta spills which occurred in the process area of its New Brighton facility.

Discussion
The Qualified Pollution Exclusion

10
In its appeal from the district court's summary judgment decisions, Bell Lumber argues that the district court erred in its interpretation of the qualified pollution exclusion.  More specifically, Bell Lumber argues that the district court erroneously held that there are no genuine issues of material fact, and the carriers are entitled to judgment as a matter of law, on the question of whether Bell Lumber has coverage in this case by operation of the "sudden and accidental" exception to the pollution exclusion.

11
We review a grant of summary judgment de novo.   The question before the district court, and this court on appeal, is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.  Fed.R.Civ.P. 56(c);  see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (Celotex );  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986);  Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.1992);  St. Paul Fire & Marine Ins. Co. v. FDIC, 968 F.2d 695, 699 (8th Cir.1992).  Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate.  Crain v. Board of Police Comm'rs, 920 F.2d 1402, 1405-06 (8th Cir.1990).  In the present case, we are called upon to interpret the language of insurance policies, which involves questions of state law.  Sargent Constr.  Co. v. State Auto Ins. Co., 23 F.3d 1324, 1326 (8th Cir.1994).  We review questions of state law de novo, without deference to the district court's legal determinations.  Salve Regina College v. Russell, 499 U.S. 225, 239-40, 111 S.Ct. 1217, 1225, 113 L.Ed.2d 190 (1991).

12
For purposes of our review of this issue on appeal, we begin by assuming, without deciding, that Bell Lumber established a prima facie case of insurance coverage under its CGL and umbrella liability policies issued by the carriers.  Thus, the burden shifts to the carriers to prove the applicability of the pollution exclusion.  SCSC II, 533 N.W.2d at 611-12 ("[i]f the policy contains an exclusion clause, the burden then shifts to the insurer to prove the applicability of the exclusion as an affirmative defense") (citing Boedigheimer v. Taylor, 287 Minn. 323, 178 N.W.2d 610, 614 (1970)).  If the carriers make the requisite showing of the existence and applicability of the exclusion, the burden shifts back to Bell Lumber to prove the applicability of an exception to the exclusion, namely, the "sudden and accidental" exception.  SCSC II, 533 N.W.2d at 611-12.   In the present case, it is undisputed that the environmental damage at issue arose out of the release or escape of contaminants into the soil or groundwater.  Therefore, the carriers have demonstrated the applicability of the pollution exclusion.  The only question remaining is whether such release or escape was "sudden and accidental."   As stated above, it is not the carriers' burden to prove that the relevant releases were not sudden and accidental, but rather, Bell Lumber's burden to prove that the relevant releases were sudden and accidental.  Thus, the applicability of this exception is an essential element of Bell Lumber's case.  Accordingly, if there are no genuine issues of material fact as to the non-applicability of the "sudden and accidental" exception, the carriers are entitled to summary judgment on Bell Lumber's claim for insurance coverage.

13
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.  In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.

14
Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552.

15
The district court held, as a matter of law, that the "sudden and accidental" exception does not apply under the undisputed facts because the term "release" in the qualified pollution exclusion refers "not ... to the spillage or disposal of waste but to the entry of the contaminants into the groundwater."  Bell Lumber I, 847 F.Supp. at 747 (citing Dakhue Landfill, Inc. v. Employers Ins. of Wausau, 508 N.W.2d 798, 803 (Minn.Ct.App.1993) (Dakhue );  Krawczewski v. Western Casualty and Sur. Co., 506 N.W.2d 656, 659 (Minn.Ct.App.1993) (Krawczewski );  Sylvester Bros. Dev.  Co. v. Great Cent. Ins. Co., 480 N.W.2d 368, 373-74 (Minn.Ct.App.1992) (Sylvester Bros.));   see also Bell Lumber II, 853 F.Supp. at 317-19.   Because it is undisputed that the release of contaminants into the subsoil and groundwater below Bell Lumber's property occurred gradually, over many years, the district court held that the relevant release could not reasonably be construed as "sudden" for purposes of applying the "sudden and accidental" exception.  Bell Lumber I, 847 F.Supp. at 747.   The district court therefore concluded, as matters of law, that the exception does not apply and coverage is barred under the qualified pollution exclusion.  Id.

16
Relying primarily on SCSC I, Bell Lumber argues that the district court erred in its analysis because the term "release," for purposes of applying the "sudden and accidental" exception, refers not to the entry of the contaminants into the groundwater, but rather to the issuance of contaminants from their means of containment.   In SCSC I, the Minnesota Court of Appeals affirmed a judgment for the insured and against the insurer upon a jury finding that the soil and groundwater damage in question was caused by a sudden and accidental release of perchloroethylene (perc) on the insured's property.  515 N.W.2d at 594.   The release occurred when, over a period of two to three minutes, an estimated 20 to 30 gallons of perc spilled out of a tank through a fill hose, onto the parking lot of the insured's property, and into a seam in the asphalt;  that same day, there was a seven-inch rainfall.  Id. at 592-93.   Bell Lumber argues that SCSC I is controlling in the present case because the Minnesota Court of Appeals held "[t]he exception to the pollution exclusion clause refers to a sudden and accidental 'discharge, dispersal, release or escape,' of pollutants.  These terms connote 'the issuance of a substance from a state of containment.' "  Id. at 598 (citing Sylvester Bros., 480 N.W.2d at 374).   Applying this holding to the facts of SCSC I, the court of appeals went on to conclude "[i]t is the suddenness of the release of perc from a state of containment, not the length of time that elapses before the damage is discovered, that determines whether the sudden and accidental exception to the pollution exclusion applies."  515 N.W.2d at 598.   Likewise, in the present case, Bell Lumber argues, the manner in which contaminants were released or escaped from the treatment tanks on Bell Lumber's property, not their entry into the groundwater, determines whether the "sudden and accidental" exception applies.  Under this approach, Bell Lumber argues, there are genuine issues of material fact.

17
In SCSC I, the Minnesota Court of Appeals noted the following on the issue of what constituted a "release" in that case for purposes of applying the "sudden and accidental" exception:

18
In the trial court, [the insurers] took the position that the relevant "release" was the escape from confinement of the perc, rather than the resulting property damage.  [One of the insurers] argued that since the present case does not involve a landfill, the relevant discharge of perc was the discharge "from a hose, tank truck or other place of containment."   The trial court agreed.  [The insurers] cannot complain that the trial court accepted their argument.

19
Id.  Thus, the precise legal question of whether the trial court erred in failing to interpret the term "release" as "the entry of contaminants into the groundwater" was not properly before the Minnesota Court of Appeals (nor was it before the Minnesota Supreme Court in SCSC II ) because there was no controversy over this issue in the trial court.  Nevertheless, the Minnesota Court of Appeals went on to discuss this legal issue, in dicta, as follows:

20
[One of the insurers] relies on several cases involving landfills wherein this court has considered what constitutes the "release" of a substance into the environment....  Landfills were built on the assumption that the ground under the waste mass would be able to hold pollutants in suspension above the groundwater....  For this reason, the relevant release was deemed to occur when pollutants leaked out of the soil under a landfill and into the groundwater....  These cases are distinguishable.  This case does not involve a landfill and SCSC made no attempt to store perc, suspended in the soil, above groundwater.

21
Id.  (citations omitted).3  Based upon this dicta in SCSC I, Bell Lumber urges us to adopt the view that, under Minnesota state law, the term "release," as used in a qualified pollution exclusion, refers to the escape of pollutants from their state of containment, even if that release is into or onto the insured's own property, except in cases involving landfills, where the soil within the landfill is intended to be the means of containment. Bell Lumber argues that this approach is consistent with the plain language of the qualified pollution exclusion, that it is sound as a matter of public policy, and that it is consistent with cases relied upon by the district court.  Brief for Appellant at 13-27 (citing, e.g., Dakhue, 508 N.W.2d at 804) ("it is the migration of pollutants from where they are supposed to stay that constitutes a release from the standpoint of the insured");  Sylvester Bros., 480 N.W.2d at 374 ("these terms carry the connotation of the issuance of a substance from a state of containment")).

22
In response, the carriers argue that SCSC I fails to address the "inextricable link" between the injury-in-fact that triggers coverage under a CGL or umbrella liability insurance policy and the relevant release for purposes of applying a qualified pollution exclusion.  In Northern States Power Co. v. Fidelity & Casualty Co., 523 N.W.2d 657, 662 (Minn.1994) (NSP ), in considering a dispute over the allocation of liability among insurers, the Minnesota Supreme Court observed that "Minnesota follows the 'actual injury' or 'injury-in-fact' theory to determine which policies have been triggered by an occurrence causing damages for which an insured is liable."   Under NSP, the carriers argue, liability coverage is triggered by an actual injury or injury-in-fact, which occurs when there is damage to the property of a third party.  Id.;  see also Minnesota Mining & Mfg. Co. v. Travelers Indem. Co., 457 N.W.2d 175, 182-84 (Minn.1990) (3M ) (damages are typically regarded as the sum awarded to a third person as compensation for loss or injury;  CGL policies provide coverage for sums which the insured becomes legally obligated to pay because of property damage);  Industrial Steel Container Co. v. Fireman's Fund Ins. Co., 399 N.W.2d 156, 159 (Minn.Ct.App.1987) (property damage occurs for purposes of triggering coverage when the complaining party is actually damaged).

23
In 3M, questions of state law were certified to the Minnesota Supreme Court by the federal district court, regarding the meaning of the term "damages" in CGL policies, as that term relates to the obligation of CGL insurers to provide coverage for their insureds' costs in complying with orders of the MPCA and the EPA to clean up groundwater contamination.  In rejecting the insurers' argument that the term "damages" refers only to remedies traditionally recognized at law, as opposed to costs associated with equitable remedies as well, the Minnesota Supreme Court noted that

24
[a]ll of the elements of a claim for damages are present in the [MPCA's and the EPA's] claims against the insureds, i.e., the insureds are under a legal obligation to provide compensation to an injured third party.  The insureds in these cases have caused the contamination of groundwater beneath their waste disposal sites.  Pollution of the groundwater is damage to public property....  The state on behalf of its citizens has a proprietary interest in the natural resources of Minnesota....  The MPCA as an agency of the state is the named trustee of the waters of the state.... Thus, for the purposes of this analysis, the state is the injured third party asserting claims against the insureds.

25
457 N.W.2d at 182 (citations omitted);  see also SCSC II, 533 N.W.2d at 611-12 (causal link triggering coverage is established as a matter of law when the expenditures constituting the damages are mandated by the MPCA).

26
In the present case, no actual injury occurred until the contaminants in question entered the groundwater and damaged the property of a third party--namely, the State of Minnesota.  Therefore, the carriers argue, the district court appropriately concluded that the "release," for purposes of applying the "sudden and accidental" exception, occurred when the contaminants entered the groundwater, not when they spilled out of the storage tanks onto the soil.  The carriers argue that to hold otherwise would improperly divorce the interpretation of the qualified pollution exclusion from the concept of liability insurance coverage.  We agree.

27
Having established the "inextricable link" between the actual injury or injury-in-fact that triggers coverage under a CGL or umbrella liability insurance policy and the relevant release for purposes of applying a qualified pollution exclusion, the carriers maintain that the language upon which Bell Lumber relies from SCSC I should be read in conjunction with the following language elsewhere in the same opinion:

28
In the present case, the event triggering liability on the part of SCSC was the entry of perc into the groundwater.   The MPCA's later discovery of the perc in the groundwater did not create liability on the part of SCSC;  the liability was created at the time the groundwater was damaged.  The trial court properly held that the trigger of liability was the injury in fact, not the later discovery of that injury by the MPCA.

29
515 N.W.2d at 596 (emphasis added).  The carriers contend that "the SCSC I court's opinion failed to take the next logical step and address the relationship between the injury-in-fact which triggered coverage and the relevant release for purposes of the pollution exclusion."   Brief for Appellees at 21.  We agree.  We reject, as a matter of Minnesota state law, the apparent assumption stated by the SCSC I court, in dicta, that a "release," for purposes of applying a qualified pollution exclusion, may occur upon the issuance of pollutants into or onto the insured's own property rather than at the point of entry into the groundwater or upon other property of a third party.4  Thus, upon de novo review, we agree with the district court's conclusion that

30
[i]nterpretation of the pollution exclusion ... cannot be divorced from the concept of insurance coverage.  [Liability] [i]nsurance coverage is triggered only when the property of another is damaged.  The injury-in-fact which triggers insurance coverage also invokes consideration of the exclusion clauses.  Thus, regardless of the type of pollution case, the relevant release occurs when the pollutants leave the insured's property and damage a third party's property.

31
Bell Lumber II, 853 F.Supp. at 318-19 (footnote omitted).  In our opinion, this statement summarizes the better reasoned approach on the legal issue before us.  Moreover, as the district court thoroughly explained in Bell Lumber I and Bell Lumber II, and as we further discuss herein, the district court's holding is consistent with the greater weight of Minnesota authority.  In the present case, damage to a third party's property did not occur until penta entered the groundwater, which is property of the State of Minnesota.  As noted by the district court, the entry of penta into the groundwater occurred gradually, over many years.  Bell Lumber I, 847 F.Supp. at 747.   Therefore, the relevant releases, for purposes of applying the qualified pollution exclusions in the carriers' CGL and umbrella liability policies, were not "sudden," within the meaning of the "sudden and accidental" exception.  See Board of Regents v. Royal Ins. Co., 517 N.W.2d 888, 892 (Minn.1994) (in "sudden and accidental" exception, the term "sudden" is used to indicate the opposite of gradual);  Bureau of Engraving, Inc. v. Federal Ins. Co., 5 F.3d 1175, 1177 (8th Cir.1993) ("sudden" means incident occurs relatively quickly, rather than gradually over a long period of time).  Accordingly, we affirm the district court's grant of summary judgment in favor of the carriers on grounds that there are no genuine issues of material fact, and the carriers are entitled to judgment as a matter of law, on the issue of whether coverage is barred under the qualified pollution exclusions contained in the liability insurance policies at issue in the present case.

The CCC Policy

32
We next consider whether the district court erred in holding that any CGL policy issued by CCC to Bell Lumber after June 1970 would have included a standard qualified pollution exclusion.  See Bell Lumber I, 847 F.Supp. at 743-44 & n. 7.   As discussed above, it was Bell Lumber's burden to establish a prima facie case of coverage.  Because Bell Lumber had lost its copy of the alleged CCC policy, it was only able to submit to the district court a copy of a declarations page referring to a CGL policy issued by CCC to Bell Lumber for a policy period of May 19, 1972 to May 19, 1975.  The district court held, and we assume for purposes of this appeal, that Bell Lumber met its prima facie burden of showing coverage.

33
The burden thus shifts to CCC to prove the existence and applicability of a policy exclusion.  Because CCC did not concede the existence of the alleged CGL policy, it asserted, as a matter of undisputed fact, that if the alleged CGL policy did exist, it would have contained a standard qualified pollution exclusion.  CCC submitted an affidavit from a former CCC underwriter, C. Daniel Molloy, who stated that, having reviewed the declarations page relied upon by Bell Lumber, the CGL policy identified therein would have contained the standard CCC qualified pollution exclusion.  Molloy stated that the CCC qualified pollution exclusion became effective on June 24, 1970, for use in Minnesota policies.  He further stated that the CCC underwriting department would not have approved the issuance of a policy to Bell Lumber in May 1972 unless the qualified pollution exclusion was attached as a separate endorsement to the policy.  Appellant's Appendix at 93-97.

34
In response, Bell Lumber did not submit any affidavits or other evidence to counter Molloy's affidavit.  Instead, it relied solely upon the fact that the declarations page did not specifically identify the qualified pollution exclusion as an attached endorsement.  On appeal, Bell Lumber repeats this argument in asserting that the district court erred in granting summary judgment in favor of CCC.

35
When a properly supported motion for summary judgment is made, an adverse party may not rest upon the mere allegations or denials of its pleadings, but rather, must set forth specific facts, supported by affidavits or other proper evidence, showing that there is a genuine issue for trial.  Fed.R.Civ.P. 56(e).  "If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party."   Id.; Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.   Molloy's affidavit established that, notwithstanding the declarations page, if the alleged CGL policy did exist, it would have contained a standard qualified pollution exclusion.  Bell Lumber failed to respond to CCC's evidence in a manner sufficient to avoid summary judgment.  We therefore hold that the district court did not err in granting summary judgment in favor of CCC.

36
For the foregoing reasons, the orders of the district court are affirmed.5

*
 The Honorable Charles A. Shaw, United States District Judge for the Eastern District of Missouri, sitting by designation

1
 The Honorable David S. Doty, District Judge, United States District Court for the District of Minnesota

2
 The disposal area was located in an area that served as a source of water infiltration to the aquifer below Bell Lumber's property.  Tests showed penta and creosote contamination in the soil and groundwater beneath the disposal area.  In 1983, Bell Lumber excavated and backfilled the disposal area

3
 Nothing in the Minnesota Supreme Court's decision in SCSC II addresses this discussion in SCSC I

4
 Ironically, it is unlikely that the outcome in SCSC I would have been different had the Minnesota Court of Appeals viewed the relevant release as the entry of the perc into the groundwater, for purposes of applying the qualified pollution exclusion.  In that case, there was overwhelming evidence demonstrating not only that the initial spill was sudden and accidental, but also that the entry of perc into the groundwater was sudden and accidental as well.  See 515 N.W.2d at 594 (SCSC's hydrogeologists testified at trial, without objection, that the seven-inch rainfall on August 30, 1977, washed the perc through the soil and into the groundwater, which was only twelve feet below the surface at the SCSC site)

5
 Our holdings herein are sufficient to dispose of this case.  We therefore decline to address the remaining issues presented in this appeal, including the carriers' motion to strike portions of Bell Lumber's brief


378 So.2d 319 (1980)
BILL BRANCH CHEVROLET, INC., Appellant,
v.
James T. REDMOND, Appellee.
No. 78-955.
District Court of Appeal of Florida, Second District.
January 4, 1980.
*320 James R. Clouse, Jr. of Goldberg, Rubinstein & Buckley, P.A., Fort Myers, for appellant.
Charles R. Holley, Naples, for appellee.
RYDER, Judge.
Bill Branch Chevrolet, Inc. appeals from the award to James T. Redmond of compensatory and punitive damages, alleging that the damages were not supported by the evidence. We agree that appellee failed to prove a basis for punitive damages, and we reverse the award of punitive damages.
Appellee testified below that he went to appellant's place of business to buy a vehicle. After talking with two or three different people, appellee ended up talking with a man who identified himself as Joe Watts. Appellee made a deal to buy a blue Caprice automobile for $1,000.00 less than the marked price, the car to be delivered to appellee's residence. Appellee testified that he gave the salesman $1,000.00 cash in return for a receipt and business card. Appellee continued that the automobile was delivered to him the following night by Watts, and he gave Watts the balance of $5,200.00. Watts gave appellee a printed sales contract showing the name and address of Bill Branch Chevrolet and reflecting the payments made with no balance due.
One month after acquiring possession, appellee contacted employees of appellant saying he wanted the title papers for the automobile. Employees of appellant had reported the car stolen, and appellee was given the name of the insurance company. Appellee testified that he subsequently lost time from work and suffered business disadvantages because he was unable to use the vehicle without title and registration.
The jury assessed actual damages in the amount of $2,500.00 and punitive damages in the amount of $7,000.00.
Although inartfully drawn, appellee's complaint essentially sought damages for breach of the implied warranty of good title. Section 672.312, Fla. Stat.(1977). See Walker v. Hilliard, 329 So.2d 44 (Fla.1st DCA 1976); Frank v. McCafferty Ford Company, 192 Pa.Super. 435, 161 A.2d 896 (Pa.Super. 1960). The facts reflect that appellee protected his right to damages by notifying the seller of the breach one month after purchase. See Section 672.607, Fla. Stat. (1977). With this done, appellee was entitled to the "difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted," with good title. Section 672.714(2), Fla. Stat. (1977). Additionally, appellee was entitled to incidental and consequential damages. Section 672.714(3), Fla. Stat. *321 (1977). Incidental damages include "... any ... reasonable expense incident to the ... breach." Section 672.715(1), Fla. Stat. (1977). See Council Brothers, Inc. v. Burnham Corp., 473 F.2d 400 (5th Cir.1973); Riggs Motor Company v. Archer, 240 S.W.2d 75 (Ky. 1951).
Appellee submitted no evidence to show the difference in value between the goods as accepted and as warranted, and thus cannot recover under that provision. Appellee did submit evidence of lost work and monetary inconvenience resulting from his inability to use the unregistered car and his attempts to obtain title for it.
We hold the evidence submitted to be sufficient to prove that these damages were reasonable expenses incident to appellant's breach, and we hold the evidence sufficient to support the jury's award of $2,500.00.
Punitive damages, however, may be awarded only when specifically provided in the Uniform Commercial Code or by other rule of law. We are unaware of any provision in the Code permitting punitive damages for breach of implied warranty of good title, nor has appellee cited any such provision. Otherwise, punitive damages may be awarded for breach of contract only when the breach also amounts to a cause of action in tort which was wilfully and wantonly committed or attended by fraud, malice or gross negligence. Griffith v. Shamrock Village, Inc., 94 So.2d 854 (Fla. 1957); Charter Air Center, Inc. v. Miller, 348 So.2d 614 (Fla.2d DCA 1977). The facts established by appellee do not constitute a tort, but merely a breach of a sales contract. Thus, appellee was not entitled to punitive damages.
We remand with instruction that the trial court strike the award of punitive damages, and enter judgment on the compensatory damages of $2,500.00, plus costs.
GRIMES, C.J., and BOARDMAN, J., concur.


                                                                           FILED
                            NOT FOR PUBLICATION                            OCT 15 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS

                            FOR THE NINTH CIRCUIT

JACO VAN MAANEN,                                 No. 12-15515

              Plaintiff - Appellant,             D.C. No. 1:10-cv-00493-AWI-JLT

  v.
                                                 MEMORANDUM*
UNIVERSITY OF THE NATIONS, INC.,
DBA YWAM-University of the Nations
and DOES, 1-10,

              Defendants - Appellees,

  And

YOUTH WITH A MISSION
INTERNATIONAL, INC., DBA YWAM-
Office of The Founders and YOUTH
WITH A MISSION-BISHOP,

              Defendants.

                   Appeal from the United States District Court
                       for the Eastern District of California
                 Anthony W. Ishii, Senior District Judge, Presiding

                      Argued and Submitted October 9, 2013
                            San Francisco, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: D.W. NELSON, M. SMITH, and IKUTA, Circuit Judges.

      Jaco van Maanen appeals the district court’s decision granting summary

judgment in favor of the University of the Nations (University) on van Maanen’s

claim of ostensible agency under California law. We have jurisdiction pursuant to

28 U.S.C. § 1291.

      The evidence in the record does not establish any genuine dispute of

material fact suggesting that van Maanen relied on a belief that Youth With a

Mission-Bishop (YWAM-Bishop) was the agent of the University when he decided

to enroll in the SOAR course. See Cal. Civ. Code § 2300; Associated Creditors’

Agency v. Davis, 13 Cal. 3d 374, 399 (1975). Van Maanen testified that he relied

on the inclusion of the YWAM-Bishop SOAR course as part of the University

course catalog because it informed him that the course was part of the YWAM

movement and complied with YWAM’s values. But Van Maanen did not identify

any other reason why the inclusion of the SOAR course in the University was

important to him. Cf. J.L. v. Children’s Institute, Inc., 177 Cal. App. 4th 388,

403–04 (2009). Accordingly, there is no evidence that in making his decision to

enroll in the SOAR course van Maanen relied on the ability of the University to

exercise control over YWAM-Bishop. Cf. Kaplan v. Coldwell Banker Residential

                                          2
Affiliates, Inc., 59 Cal. App. 4th 741, 744–48 (1997); Beck v. Arthur Murray, Inc.,

245 Cal. App. 2d 976, 977–78 (1966).

AFFIRMED.

                                         3


                                        In The
                                   Court of Appeals
                          Seventh District of Texas at Amarillo
                                   ________________________

                                        No. 07-15-00215-CV
                                   ________________________

                            IN THE MATTER OF J.O.E., A JUVENILE

                            On Appeal from County Court at Law No. 1
                                        Potter County, Texas
               Trial Court No. 10,478-J#1; Honorable W.F. “Corky” Roberts, Presiding

                                           October 11, 2016

                                              OPINION
                       Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

        On April 16, 2015, Appellee, the State of Texas, filed a petition alleging that

Appellant, J.O.E.1, a fifteen-year-old juvenile, violated the Texas Penal Code by

committing aggravated robbery2 and possession of marihuana.3 A grand jury approved

and certified the State’s determinate sentencing petition on May 6, 2015. The State

later waived the allegation of possession of marihuana, whereupon Appellant waived his
        1
         To protect the juvenile’s privacy, we will refer to him by his initials. See TEX. FAM. CODE ANN. §
109.002(d) (West 2014).
        2
            See TEX. PENAL CODE ANN. § 29.03 (West 2011).
        3
            See TEX. HEALTH & SAFETY CODE § 481.121(b)(1) (West 2010).
right to a jury trial and pleaded true to the aggravated robbery allegation. The trial court

determined that Appellant had engaged in delinquent conduct and proceeded to hear

testimony regarding the disposition phase of the proceeding. During the disposition

phase, while Appellant’s legal counsel remained silent, the State represented to the

court that Appellant had been properly certified by a Potter County grand jury. At the

conclusion of the hearing, the court determined that the appropriate placement for

Appellant was in the Texas Department of Juvenile Justice for a period of eight years.

The dispositional order was signed on May 18, 2015, and Appellant filed a timely notice

of appeal.

       By two issues, Appellant contends: (1) the trial court lacked jurisdiction to

dispose of his case by determinate sentencing because the grand jury certification

named the wrong person and (2) Appellant’s right to a jury trial was violated because he

never waived that right at the disposition phase of the proceeding. We affirm.

       BACKGROUND

       On May 6, 2015, a Potter County grand jury approved and certified the petition

concerning Appellant. The certification documents consisted of a one-page document

(signed by the grand jury foreman), entitled Certification of Grand Jury Approval of

Petition, and four attached pages constituting the State’s original petition. The style of

the case, located at the top of the certification, correctly sets forth Appellant’s full name,

cause number, and name of the juvenile court. The body of the certification, however,

names another individual as having engaged in delinquent conduct “by committing the

offenses of Aggravated Robbery as alleged in Count One, and Possession of

Marihuana as alleged in Count Two of the petition previously filed in Cause no. 10478-

                                              2
J#1 [correct cause number] in the County Court at Law #1 of Potter County, Texas,

[correct court] . . . a copy of which is attached and incorporated for all purposes herein.”

The attached petition lists Appellant’s correct name no less than five times and never

lists the name of the other individual.

       Appellant came before the court for adjudication and disposition on May 18,

2015. At the adjudication hearing, the State announced that the grand jury had certified

the petition and waived Count 2 (pertaining to the possession of marihuana charge).

Following that announcement, Appellant pleaded true to the aggravated robbery charge.

Prior to commencement of the hearing, Appellant and his attorney signed a written

“Waiver of Trial by Jury” pursuant to section 54.03(c) of the Texas Family Code. TEX.

FAM. CODE ANN. (West 2014). At the commencement of the adjudication hearing, the

court admonished Appellant and confirmed the waiver of his right to trial by jury with

respect to that phase of the proceeding.         The court did not, however, provide any

additional admonishments prior to beginning the disposition phase of the hearing. At no

time did Appellant request, in writing or otherwise, a jury to determine the issue of

disposition.

       ANALYSIS AND DISCUSSION

       Juvenile delinquency proceedings are governed by the provisions of the Texas

Family Code. See TEX. FAM. CODE ANN. §§ 51.01 – 61.07 (West 2014 & Supp. 2016).

Such proceedings are considered to be both civil and criminal in nature. In re S.L.L.,

906 S.W.2d 190, 192 (Tex. App.—Austin 1995, no writ). Due to the very real possibility

of loss of liberty, juvenile proceedings invoke procedural requirements similar to those in

adult criminal prosecutions. Consequently, many of the rights afforded by the Texas

                                             3
Code of Criminal Procedure to adult criminal defendants are also provided to a juvenile

under the Texas Family Code.4

        ERROR IN CERTIFICATION PETITION

        A grand jury approves a juvenile court certification petition in the same manner

that it votes on the presentment of an indictment, and the law expressly provides that a

juvenile court petition that has been approved by a grand jury pursuant to section

53.045 is an indictment for the purpose of transferring a juvenile to the Texas

Department of Criminal Justice.           In the Matter of J.G., 905 S.W.2d 676, 680 (Tex.

App.—Texarkana 1995, writ denied). The indictment serves to invest the court with

jurisdiction of the case. Carrillo v. State, 2 S.W.3d 275, 277 (Tex. Crim. App. 1999). An

indictment also serves to give notice of the offense so that a defendant can adequately

prepare a defense.        Cook v. State, 902 S.W.2d 471, 475 (Tex. Crim. App. 1995).

Additionally, the indictment serves to protect against the risk of incarceration without a

finding of probable cause by a grand jury. In the Matter of A.D.J., No. 03-96-00210-CV,

1996 Tex. App. LEXIS 4566, at *3 (Tex. App.—Austin, Oct. 16, 1996, writ denied)

(mem. op.). An indictment must charge (1) a person with (2) the commission of the

offense. Cook, 902 S.W.2d at 476. An indictment is sufficient when it contains the

name of the accused, one or more initials of the given name and the surname, or states

that the name is unknown and provides a reasonably accurate description of the

accused. TEX. CODE CRIM. PROC. ANN. art. 21.07 (West 2009).

        4
         For example, both juveniles and adults have the right to assistance of counsel and trial by jury.
Compare TEX. CODE CRIM. PROC. ANN. arts. 1.051, 1.12 (West 2005 & Supp. 2016) with TEX. FAM. CODE
ANN. §§ 51.10, 54.03, 54.04 (West 2014 & Supp. 2016).

                                                    4
       Appellant contends that, because the certified petition serves as an indictment,

which establishes the court’s jurisdiction, and the certification approval form erroneously

listed another individual in the body of the form, the certification of the petition was

invalid and the trial court was, therefore, without jurisdiction. Because Appellant did not

object to this alleged defect at the time of his hearing, he argues that lack of jurisdiction

is fundamental error that can be brought for the first time on appeal. Wal-Mart Stores,

Inc. v. Alexander, 868 S.W.2d 322, 328 (Tex. 1993).

       The State, however, contends that a certified petition is not in all respects

identical to an indictment. In the Matter of A.D.J., 1996 Tex. App. LEXIS 4566, at *3.

The State contends that certification serves to protect against the risk of incarceration

without a finding of probable cause by a grand jury, but that an indictment’s notice

requirement is fulfilled by the State’s original petition and the jurisdiction requirement is

established by the service of summons on the juvenile. Id. The State contends all of

these elements have been met, because while the certification page refers to an

erroneous name, the identification of Appellant as the person who robbed and injured

the victim was never at issue. That is, Appellant pleaded true to the factual basis of the

petition during the adjudication hearing, signed a written stipulation admitting guilt of

each element alleged in the petition, and testified as to his guilt during the disposition

phase, and the correct name appears in the style of the case on the Certification of

Grand Jury Approval of Petition, as well as in the original petition, which was attached

thereto.

       Both parties rely on Cook, which held that an indictment must charge (1) a

person (2) with the commission of the crime, as established by Article V, Section 12(b)

                                              5
of the Texas Constitution. Cook, 902 S.W.2d at 477. Article V, Section 12(b) was

created to stop abuse by defendants withholding substantive defects at trial and raising

them on appeal to void the conviction.      Id. at 476. While Article V, Section 12(b)

requires an indictment to charge “a person,” it does not require the indictment to charge

a person using their full and correct name. TEX. CONST. art. V, § 12(b); Cook, 902

S.W.2d at 479-80. The indictment in Cook “wholly failed” to list any person against

whom the crime was charged or the actus reus of the offense. Cook, 902 S.W.2d at

480. The appellate court found the appellant had waived the error by failing to object at

trial. The Texas Court of Criminal Appeals reversed, finding the conviction was void for

lack of jurisdiction. Id. at 474. Defects in the fundamental, constitutional requirements

of an indictment cannot be waived. Id. at 479.

       A charging instrument can, however, be sufficient even when it does not list the

correct name. Cook, 902 S.W.2d at 480 n.5 (noting that when an incorrect name is

used, “whether erroneously or through a lack of information,” the charging instrument

still meets the Article V, Section 12(b) requirement to be an indictment, because it

charges “a person”). Article 26.07 of the Texas Code of Criminal Procedures provides

the following:

       When the defendant is arraigned, his name, as stated in the indictment,
       shall be distinctly called; and unless he suggest by himself or counsel that
       he is not indicted by his true name, it shall be taken that his name is truly
       set forth, and he shall not thereafter be allowed to deny the same by way
       of defense.

TEX. CODE CRIM. PROC. ANN. art. 26.07 (West 2009).

       While a valid indictment is required for jurisdiction and is not subject to waiver—

defects, errors, or irregularities in the form or substance of the indictment are

                                            6
considered to be of a non-jurisdictional nature and can be waived by a defendant’s plea

of nolo contendere. TEX. CODE CRIM. PROC. ANN. art. 1.14 (West 2005); Studer v. State,

799 S.W.2d 263, 265 (Tex. Crim. App. 1990).

       In the case at hand, the State’s original petition names the correct person,

whereas the grand jury’s certification contains a misnomer by listing an erroneous name

in the body of the certification. However, the erroneous name is best described as a

defect, error, or irregularity in form, most likely the result of poor proof-reading following

the use of a previous certification as a template. To be preserved, such errors must be

objected to before the date of the trial or the right to complain on appeal is waived. TEX.

CODE CRIM. PROC. ANN. art. 1.14(b) (West 2005); Studer, 799 S.W.2d at 263. Here,

Appellant did not object, either in writing or verbally, to the defect prior to trial and thus

waives the right to object to the defect on appeal. Unlike Cook, where no person was

listed in the indictment, in the present case “a person,” referred to by the wrong name in

the body of the certification, is listed. While the name is incorrect in the body of the

certification, the name is correctly listed multiple times in the style of the case and the

original petition, which was attached to the certification and “incorporated for all

purposes,” giving Appellant sufficient notice of the charges against him. Appellant’s

failure to correct errors or irregularities in the form of the certification prior to trial waives

his right to bring these complaints for the first time on appeal. Appellant’s first issue is

overruled.

       WAIVER OF TRIAL BY JURY

       As to his second issue, Appellant contends his right to a jury trial was violated

because he never waived that right at the disposition phase of the proceeding. Clearly,

                                                7
Appellant was entitled to a jury trial during that phase of his hearing, but only by

request. Section 54.04(a) of the Texas Family Code provides in relevant part:

       The disposition hearing shall be separate, distinct, and subsequent to the
       adjudication hearing. There is no right to a jury at the disposition hearing
       unless the child is in jeopardy of a determinate sentence under Subsection
       (d)(3) or (m), in which case, the child is entitled to a jury of 12 persons to
       determine the sentence, but only if the child so elects in writing before the
       commencement of the voir dire examination of the jury panel.

TEX. FAM. CODE ANN. § 54.04(a) (West Supp. 2016).              Unlike section 54.03(b)(6),

requiring the court to admonish the child of his right to a trial by jury at the beginning of

the adjudication hearing, there is no statutory requirement for the court to admonish the

child of this right.

       Appellant argues that although section 54.04 states that a child is only entitled to

a jury if the child expressly elects in writing, the right to a trial by jury has special

protection within the justice system such that it cannot be forfeited or extinguished by

inaction alone. Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993). Appellant

argues that he should have to expressly relinquish his right to a trial by jury, and

because nothing in the record shows he was ever admonished of this right prior to his

disposition hearing, his case should be remanded to the trial court.

       The State contends there was no duty to admonish Appellant of his right to a jury

trial under section 54.04. Additionally, the State contends that Appellant was orally

admonished by the court, prior to waiving his right to a jury trial at the adjudication

phase of his trial, regarding the various dispositions available to the court, including: (1)

sending the juvenile home with his parents, (2) sending the juvenile to various

                                              8
placements, or (3) committing the juvenile to the Texas Juvenile Justice Department, all

of which Appellant testified he understood.

       It is clear from the language of section 54.04 that there was an affirmative duty

on Appellant to expressly request a jury at the disposition hearing. At no time did either

Appellant or his counsel request a jury during that phase of the case.           Therefore,

pursuant to the statute, the right to a jury trial during this phase was waived. Appellant’s

second issue is overruled.

       CONCLUSION

       The trial court’s dispositional order is affirmed.

                                                            Patrick A. Pirtle
                                                                Justice

                                              9


229 N.W.2d 274 (1975)
In re the MARRIAGE OF F. Robert WOODWARD, Jr., and Judith A. Woodward.
Upon the Petition of F. Robert WOODWARD, Jr., Appellant, and concerning Judith A. WOODWARD (now Judith A. Woodward Graves), Appellee.
No. 56642.
Supreme Court of Iowa.
May 21, 1975.
Rehearing Denied June 16, 1975.
*275 Fuerste, Carew & Coyle, Dubuque, for appellant.
Alfred E. Hughes, Dubuque, for appellee.
Heard before MOORE, C. J., and MASON, LeGRAND, REES, and McCORMICK, JJ.
MASON, Justice.
This appeal arises from a controversy over whether periodic payments to the wife as provided for in a dissolution decree should terminate upon her remarriage. Implicit in this problem is whether the term "alimony" as used by the district court actually referred to a property settlement. Petitioner, F. Robert Woodward, Jr., is appellant and respondent, Judith A. Woodward, now Judith A. Woodward Graves, is appellee.
June 10, 1959, Robert and Judith were married in Dubuque, Iowa. Three children were born of the marriage, namely Frederick Robert, III, January 11, 1960; Mona Jeanne, June 20, 1961; and John Duncan, October 21, 1963. The trial court found Robert and Judith were both good parents.
The marriage was a prosperous one, and the parties acquired substantial property, including a home valued at $35,000, a summer cottage, two automobiles, a houseboat and small runabout, stocks in various companies and several life insurance policies. Robert, employed at a newspaper company, was earning approximately $42,000 gross income per year. Judith was not employed and had no particular skills.
Unfortunately, the marriage relationship crumbled and was dissolved June 1, 1971. In its original decree, the trial court awarded Judith the family home, furniture and adjacent grounds, free of debts and encumbrances, one of the automobiles, 225 shares of stock of the Dubuque Bank and Trust Company, and custody of the children.
Robert was ordered to assume the $11,000 debt on the family home and was awarded the remainder of the assets. The court further provided for the support of Judith and the children as follows:
"For the support of said children, Petitioner shall pay into the Clerk of the above-entitled Court for the use of Respondent the sum of $1,300.00 per month on the 10th day of each month commencing with the 10th day of June, 1971 and continuing monthly thereafter until the youngest child then living shall have attained the age of 18 years. Further, as each child completes secondary school education, jurisdiction is retained for the purpose of determining whether Petitioner shall, at such time, provide such child with post high school training.
"The foregoing payments of support money shall be deemed to include alimony, and upon the youngest then living child having attained his 18th birthday, such monthly installments shall be reduced to the sum of $300.00 and continue thereafter until Respondent remarries or dies whichever occurs first. If Respondent has remarried prior to said child having attained the age of 18 years, then all payments shall cease on said child's 18th birthday."
After the decree was initially entered, neither party appealed.
June 23, 1971, petitioner and respondent filed their "Motion for Enlargement or Amendment of Findings of the Court and Modification of Judgment." Basically, the parties desired a more definite recital of Robert's visitation rights and, more important, a finding as to what portion of the $1,300 per month was alimony. The latter request was related to the determination of alimony for income tax purposes.
June 25 the court amended its judgment and decree in relevant part as follows:
*276 "As alimony and for the support of the children, Petitioner shall pay into the Clerk of the above-entitled Court for the use of Respondent, the sum of $1,300.00 per month on the 10th day of each month commencing with the 10th day of June, 1971 and continuing monthly thereafter until the youngest child then living shall have attained the age of 18 years. Further, as each child completes secondary school education, jurisdiction is retained for the purpose of determining whether Petitioner shall, at such time, provide such child with post-high school training. Of said $1,300.00 payment, $300.00 shall constitute alimony and $1,000.00 shall constitute support money.
"Upon the youngest child then living having attained his 18th birthday, such monthly installments shall be reduced to the sum of $300.00 and continue thereafter until Respondent remarries or dies whichever occurs first. If Respondent has remarried prior to said child having attained the age of 18 years, then all payments shall cease on said child having attained its 18th birthday."
Robert apparently paid the $1,300 monthly. However, Judith remarried June 2, 1973, and June 13 Robert applied to the same court for an order terminating the $300.00 monthly alimony payments.
Both parties appeared with counsel and the court issued its order July 7, which appears in pertinent part as follows:
"Examination of the Decree originally written discloses that the Court found that the Respondent's expenses in maintaining a family for herself and her three children were approximately $15,500.00 and consequently set the monthly payments at $1,300.00 or $15,600.00 per year. Further, the Court made findings of the accumulated properties of the parties together with those properties owned separately by Petitioner and found that the nature of the same was such that division in kind would not be practical. On the other hand, Petitioner's income, after taxes, was such that it did not seem practical that he could bear any alimony payments made in the way of property settlement in addition to the monthly payments of $1,300.00. For that reason the Court assigned an arbitrary figure of $300.00 to that portion of the monthly payments attributable to alimony. It was for the reason that Respondent seemed entitled, in equity, to more than the home, automobile, and bank stock that she received as her share of the accumulated property of the parties, that the Court assured her of $300.00 a month until the youngest child attained the age of 18 years under any circumstances.
"IT IS THEREFORE ORDERED that it is the Court's present interpretation of what was in the mind of the Court at the time of the entry of the Judgment and Decree that remarriage prior to the youngest child attaining the age of 18 years does not terminate the $300 alimony since the same, until that time, is in the nature of property distribution."
Robert appeals from this order and asserts the $300 should have terminated upon Judith's remarriage.
I. Since this is an equity case, the supreme court reviews the facts de novo. "Review of a decree granting dissolution of marriage, determining property rights and ordering alimony payments is de novo. It is our duty to examine the whole record and adjudicate rights anew on those propositions properly presented, provided issue has been raised and error, if any, is preserved in the course of the trial proceedings; while we give weight to the findings of the trial court, we will not abdicate our function as trier de novo on appeal. * * * [citing authority]." In Re Marriage of Novak, 220 N.W.2d 592, 597 (Iowa 1974).
The parties in this appeal do not question the propriety of the amount of alimony and child support or the property division, but simply Judith's continued right to receive the monthly $300 "alimony" after her remarriage to Dr. Graves.
Robert as appellant contends the provision in both the original decree and the *277 decree as modified on the joint application of the parties is an award for alimony and not a portion of a property settlement made in connection with a just and equitable division of the property of the parties. He maintains that although Judith's marriage to Graves did not automatically terminate her right to receive alimony from her former husband, her second marriage created a prima facie case for termination of her right to alimony from Robert, absent unusual circumstances.
Judith, on the other hand, maintains the financial provisions made for her in the original decree as modified constituted a portion of a property settlement even though such provisions were labeled "alimony"; thus such provisions cannot be modified in the absence of fraud, duress, coercion, mistake or other grounds as would justify the setting aside or changing a decree in any other case.
II. The first problem is the question of the trial court's intent in entering the dissolution decree requiring Robert to pay $1300 per month as alimony and for support of the children. Paragraphs 3 and 4 of the original decree as well as paragraphs 3 and 4 of the decree as modified June 25, 1971, have been set out earlier.
The court in its ruling on the joint application of the parties to enlarge or amend the findings of the court in the original decree "to cover specifically the matter of what, if any, portion of the $1,300.00 per month support money required under paragraph 3 of the Court's Judgment and Decree are or will be alimony, the parties being uncertain as to the tax consequences of such provisions, covered or alluded to in * * * paragraphs 3 and 4 of the Court's Judgment and Decree" declared "of said $1,300.00 payment, $300.00 shall constitute alimony and $1,000.00 shall constitute support money."
The modified decree did not specifically provide that the sum of $300 per month alimony due Judith should cease upon her remarriage prior to the youngest living child having attained his 18th birthday.
Robert's application of June 13, 1973, alleged Judith had remarried June 2, 1973. He asked the trial court to enter a decree establishing that his obligation to pay alimony to Judith ceased upon her remarriage.
Judith in answer admitted she had remarried but urged the court to continue the payments required of Robert in the sum of $1300 per month until the youngest living child attained his 18th birthday.
The court in interpreting its original decree expressed the view in its July 7 ruling the nature of the property accumulated by the parties during their marriage was such that division in kind would not be practical; Robert's income, after taxes, was such it did not seem practical he could bear any alimony payments made in the way of property settlement in addition to the $1300 monthly payments required of him in the original decree. The court expressed the further view Judith was entitled to more than the home, automobile and bank stocks she received and for that reason it was the court's intention to assure her the $300 a month payments until the youngest child attains the age of 18 years under any circumstances.
The court then concluded the $300 alimony payments should continue until the youngest living child attains the age of 18 in the nature of a property distribution.
In the matter before us the same judge who entered the original decree entered the June 25, 1971 modification decree and heard Robert's application for modification. Peters v. Peters, 214 N.W.2d 151, 157 (Iowa 1974), has this statement:
"* * * [W]e recognize the advantage a trial court has in interpreting its own prior decree. We have said a court's construction of its own decree is given great weight in determining what the decree means. * * * [citing authority]."
"`A judgment is to be construed like other written instruments. The determinative factor is the intention of the court as gathered *278 from all parts of the judgment. Effect must be given to that which is clearly implied as well as to that which is expressed. * * * [citing authorities].'" (Emphasis supplied). Cooper v. Cooper, 158 N.W.2d 712, 713 (Iowa 1968). See also Dairyland, Inc. v. Jenison, 207 N.W.2d 753, 754 (Iowa 1973); Sound Storm Ent., Inc. v. Keefe In and For Fayette Cty., 209 N.W.2d 560, 566 (Iowa 1973); and Peters v. Peters, 214 N.W.2d at 157.
"A decree in equity is to be given construction in the light of the circumstances appearing of record under which it was entered.
"`It will be construed and restricted in accordance with the pleadings and even with reference to other parts of the record.' * * * [citing authority]." Hargrave v. City of Keokuk, 208 Iowa 559, 562-563, 223 N.W. 274, 276.
In order to resolve Judith's contention set out in division I, supra, that the financial provisions made for her in the original decree as modified constituted a portion of a property settlement even though such provisions were labeled "alimony," it is necessary to discuss the meaning of the terms "alimony" and "property division." This problem was before this court in Knipfer v. Knipfer, 259 Iowa 347, 144 N.W.2d 140, where a stipulation dictated by the parties, not transcribed, not signed, filed or made a part of decree was involved.
In the course of the opinion the court said:
"The term `alimony' has always had a technical signification, and, while in modern times, there have been many definitions of `alimony' set out in the decisions of the courts, which differ more or less in details, they all agree that primarily alimony is an allowance to the wife from the husband for her support in a divorce action, in lieu of the legal obligation of the husband to support her * * *.
"* * *
"The doctrine of alimony is based upon the common law obligation of the husband to support his wife, which obligation is not removed by her obtaining a divorce for his misconduct." Id., 259 Iowa at 352-353, 144 N.W.2d at 143.
However, simply because the term alimony is employed in a decree does not always dictate it is used in the sense set out above. "The term `alimony' usually and technically means an allowance for wife support and is distinguishable from property settlement and child support. But it has been said that `in a broader sense it covers an award made for the support of minor children' and `is used in some instances to designate the amount allowed the divorced wife in settlement of property rights.' * * * [citing authority]." Brin v. Brin, 240 Iowa 659, 661, 37 N.W.2d 261, 262.
The fact the award was to be paid in installments rather than in a lump sum is immaterial. Farrand v. Farrand, 246 Iowa 488, 493, 67 N.W.2d 20, 23.
In other words, "* * * the trial court's employment of the term `alimony' is not conclusive. It is not what the arrangement is called but what it is that fixes its legal status. It is the substance not the form which is controlling. * * * [citing authority]. If an order constitutes a property settlement as distinguished from alimony, its character is not affected by the name given it. * * * [citing authorities]." Knipfer, 259 Iowa at 351, 144 N.W.2d at 142-143.
Nevertheless, alimony and property division do have distinct meanings. "* * * Division of property has for its basis the wife's right to a just and equitable share of that property which has been accumulated by the parties as the result of their joint efforts during the years of the marriage to serve their mutual needs. * * * [citing authority]." Knipfer, 259 Iowa at 353, 144 N.W.2d at 143.
No single factor is controlling in determining whether a particular award constitutes alimony or a property division. All *279 relevant factors must be taken into consideration including the extent and nature of the property accumulated by the parties which the court is called upon to distribute in a just and equitable manner, the provisions of the original decree terminating the marital relationship, as well as the guidelines set out in Schantz v. Schantz, 163 N.W.2d 398, 405 (Iowa 1968), excluding consideration of reward or punishment on the basis of fault. In Re Marriage of Winter, 223 N.W.2d 165, 169 (Iowa 1974).
In its original decree the court made a finding that at the time of the dissolution Judith was unemployed and had no special skills. Obviously, the court felt some provision should be made for Judith's maintenance and support. The court also made a finding Judith's expenses in maintaining the family home for herself and the three children were, at the time, approximately $15,500 per year. The total amount awarded to meet these expenses was $15,600.
When consideration is given to the extent and value of the assets of the parties and the division made thereof by the court in the original decree, this court reaches the conclusion the provision for the periodic payment of $300 is alimony.
III. With the foregoing conclusion there still remains to be determined whether the $300 per month alimony should be continued notwithstanding Judith's remarriage. This seems particularly true in light of the provisions of the trial court's order from which this appeal arises.
There are two separate views as to the effect of remarriage on an alimony decree. One is that it automatically terminates alimony. The other is that remarriage does not ipso facto terminate alimony but ordinarily justifies an application for termination of alimony. In Myers v. Myers, 195 N.W.2d 113, 114 (Iowa 1972), this court recognized, "where no child support is involved a majority of jurisdictions hold a wife's remarriage does not in and of itself terminate her right to alimony. It does constitute a strong ground for termination of the alimony decreed. Annot., 48 A.L. R.2d 270, 283, AlimonyEffect of Remarriage."
This statement regarding the problem appears in Wolter v. Wolter, 183 Neb. 160, 158 N.W.2d 616, 619:
"The basic principle that supports both views is that it is against public policy that a woman should have support or its equivalent during the same period from each of two men. On this issue, this court said: `"Aside from positive unseemliness, it is illogical and unreasonable that she should have the equivalent of an obligation for support by way of alimony from a former husband and an obligation from a present husband for an adequate support at the same time. It is her privilege to abandon the provision made by the decree of the court for her support under sanctions of the law for another provision for maintenance which she will obtain by a second marriage; and when she has done so, the law will require her to abide by her election since there is no reason why she should not do so."' Bowman v. Bowman, 163 Neb. 336, 79 N.W.2d 554.
"* * * Even cases which adopt the automatic termination approach tend to concede that there may be exceptional circumstances under which alimony might be considered as continuing, or that, at least, judicial determination of the question as to whether it continues might be advisable. This is perhaps due to problems involved in the use of the term `alimony' in decrees or orders as representing an allowance for support or property division or settlement, or both. For example, see comments in Bowman v. Bowman, supra, indicating that the alimony award represented, in whole or in part, repayment to the wife for her material contributions to the marriage and to the assets of the husband. Other courts have indicated concerns in the area of the validity of the remarriage, particularly where the mental capacity of the wife to contract the second marriage is in issue. The obvious result of an automatic termination *280 would be that the court would lose all jurisdiction and the wife would have no judicial recourse, even though there were extraordinary equities."
In Myers v. Myers, 195 N.W.2d at 114, after noting the conclusion reached by the majority of jurisdictions appears to be well supported by the cases, this court stated, "We agree."
Cases from other jurisdictions supporting the rule recognized in Myers v. Myers are collected in the annotation in 48 A.L.R.2d 270 and in the Later Case Service for that volume.
We now hold the remarriage of a woman whose previous marriage has been terminated in a dissolution of marriage proceeding does not of itself terminate her right to alimony but it does make out a prima facie case which requires the court to end it, in the absence of proof of some extraordinary circumstances justifying its continuance.
Robert made out a prima facie case for termination of the $300 monthly payments. In our de novo review we fail to find any extraordinary circumstances justifying continuance of these payments.
The present case does not present the factual circumstances before the court in Peters v. Peters, 214 N.W.2d 151. In that connection see Annot., 45 A.L.R.3d 1033.
IV. On remand the trial court shall set aside its order of July 7, 1973, and provide for the termination of $300 monthly payments required of Robert as of the date the procedendo is issued in this matter. See Siver v. Shebetka, 245 Iowa 965, 968-969, 65 N.W.2d 173, 175.
The costs on this appeal shall be taxed to the appellee, now Judith A. Woodward Graves.
With directions to the trial court the case is therefore
Reversed and remanded.


                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  February 3, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT

 LINDA A. DOUGHERTY,

          Plaintiff-Appellant,
 v.                                                       No. 09-6068
 UNIVERSITY OF OKLAHOMA                          (D.C. No. 5:05-CV-01341-F)
 BOARD OF REGENTS, State of                             (W.D. Okla.)
 Oklahoma ex rel., a constitutional
 state agency,

          Defendant-Appellee.

                             ORDER AND JUDGMENT *

Before LUCERO, BALDOCK, and HOLMES, Circuit Judges. **

      Plaintiff Linda A. Dougherty appeals from the district court’s denial of her

motion to enforce a settlement agreement against Defendant University of Oklahoma

Board of Regents. Because we conclude the district court lacked subject matter

jurisdiction, we remand this case to the district court with instructions to remand to

the state court.

      *
         This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is,
therefore, submitted without oral argument.
                                          I.

      The parties are familiar with the facts of this case, and we do not recite them

at length here. In 2005, Plaintiff sued Defendant in Oklahoma state court, alleging

breach of contract. Defendant removed the action to federal district court, alleging

subject matter jurisdiction on the basis of diversity of citizenship.       28 U.S.C.

§ 1332(a)(1). Plaintiff is a citizen of Alabama, and both parties appear to have

assumed Defendant, a “Constitutional body of the State of Oklahoma,” was

considered a citizen of Oklahoma. Defendant also alleged an amount in controversy

exceeding $75,000. 1

      After the complaint and answer were filed in federal district court, the parties

reached a settlement agreement. 2 In a short order, the district court administratively

closed the case but retained jurisdiction for the purpose of enforcing the settlement

agreement. Plaintiff became dissatisfied with Defendant’s actions pursuant to the

settlement agreement and filed a motion to enforce the settlement agreement in 2008.

The district court concluded the agreement was unambiguous and that Defendant had

complied with it. The court, therefore, denied her motion to enforce. Plaintiff

appealed. We subsequently issued an order to show cause why we should not

      1
         Because we conclude diversity of citizenship does not exist in this case, we
do not reach the question whether the amount in controversy requirement is satisfied.
      2
        In her amended complaint before the federal district court, Plaintiff alleged
negligent supervision, training and retention claims in addition to her breach of
contract claim against Defendant.

                                          2
remand to the district court with instructions to remand to the state court for lack of

subject matter jurisdiction. In simultaneous briefings, both parties concede we lack

subject matter jurisdiction. 3

                                          II.

      In every case, we must “satisfy ourselves not only of our own jurisdiction, ‘but

also that of the lower courts in the cause under review.’” Estate of Harshman v.

Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1164 (10th Cir. 2004) (quoting

Mitchell v. Maurer, 293 U.S. 237, 244 (1934)). Thus, “‘[w]e have jurisdiction to

determine our jurisdiction.’” Hamilton v. Gonzales, 485 F.3d 564, 565 (10th Cir.

2007) (quoting Schroek v. Gonzales, 429 F.3d 947, 950 (10th Cir. 2005)).

      The only defendant in this case is the University of Oklahoma Board of

Regents. The Board of Regents, like the University of Oklahoma itself, is an arm of

the state of Oklahoma. Cornforth v. Univ. of Okla. Bd. of Regents, 263 F.3d 1129,

1131 n.1 (10th Cir. 2001); Hensel v. Office of Chief Admin. Hearing Officer, 38

F.3d 505, 508 (10th Cir. 1994); see also Okla. Const. Art. XIII-A, XIII-B (2006);

Okla. Stat. tit. 70, §§ 3301–3305 (2005). “A state, or the arm or alter ego of a state,

      3
        Defendant notes: “[I]t would seem that an incorrect presumption was shared
by all–counsel for the University, counsel for Dougherty, the District Court, and
even this honorable Court, at least for some period of time–that the University’s
status constituted that of a ‘citizen’ for purposes of diversity jurisdiction.”
Counsel’s candid admission of his mistake is well-warranted, but his implication that
this court has made the same mistake is not. It cannot be said that the court which
ordered the parties to explain why the district court had jurisdiction allowed “the
issue of subject matter jurisdiction . . . to slip through the cracks.”

                                          3
however, does not constitute a ‘citizen’ for diversity purposes.” State Ins. Fund v.

Ace Transp. Inc., 195 F.3d 561, 563 (10th Cir. 1999); see also Stone v. South

Carolina, 117 U.S. 430, 433 (1886) (“There is no statute which authorizes the

removal of a suit between a state and citizens on the ground of citizenship, for a state

cannot, in the nature of things, be a citizen of any state.”); Okla. ex rel. Williams v.

Okla. Natural Gas Corp., 83 F.2d 986, 988 (10th Cir. 1936) (“[A] state is not a

citizen for the purpose of constituting the requisite diversity.”). Because Defendant

cannot be considered a citizen for diversity purposes, the district court lacked subject

matter jurisdiction. Accordingly, we remand this action to the district court with

instructions to remand to the state court.

                                        Entered for the Court,

                                        Bobby R. Baldock
                                        United States Circuit Judge

                                             4