721 F.Supp. 24 (1989)
Edward Reddy HENDERSON, Jr., Plaintiff
v.
TUCKER, ANTHONY AND RL DAY, Defendant.
Civ. A. No. 89-0188 L.
United States District Court, D. Rhode Island.
October 2, 1989.
Brian G. Goldstein, Kirshenbaum & Kirshenbaum, Cranston, R.I., for plaintiff.
Richard M. Borod, Edwards & Angell, Providence, R.I., for defendant.

MEMORANDUM AND ORDER
LAGUEUX, District Judge.
This matter is presently before the Court on defendant Tucker Anthony's motion to dismiss or stay these judicial proceedings pending arbitration. Plaintiff, Edward Reddy Henderson, Jr., in the multiple count complaint essentially alleges that his former employer wrongfully terminated his employment. Tucker Anthony argues that plaintiff's claims fall within the ambit of an arbitration agreement signed by plaintiff at *25 the commencement of his employment. The agreement in question derived from the Uniform Application for Securities Industry Registration or Transfer, Form U-4. Form U-4 incorporates New York Stock Exchange (NYSE) Rule 347. Plaintiff argues that NYSE Rule 347 deals primarily with wage claims and issues of job performance and is, therefore, inapplicable.

BACKGROUND
On or about July 17, 1985, plaintiff entered into an employment contract to be a salesman of securities in Massachusetts with defendant stock brokerage firm. In so doing, plaintiff executed an application for the securities registration, Form U-4. In or around June of 1986, the Securities and Exchange Commission (SEC) filed a complaint against Henderson alleging violations of Section 10(b) of the Securities Exchange Act. Thereafter, it is alleged that an officer of Tucker Anthony told Henderson that the Commission would drop the complaint if plaintiff would sign a Consent Decree and if he signed, he would not be fired. Plaintiff signed the Consent Decree on June 27, 1986. On or about July 8, 1986, the Wall Street Journal published an article regarding the SEC's complaint against Henderson. Within one week of the article's publication, Tucker Anthony officials asked plaintiff to resign. Plaintiff resigned on or about July 17, 1986.
The complaint, in six Counts, alleges that Tucker Anthony wrongfully terminated plaintiff's employment. One count calls for the payment of commissions as well as the cost of a trip to Puerto Rico won by plaintiff in a sales contest. The other counts are gounded on the alleged bad faith of Tucker Anthony and the claim that it breached an implied agreement to deal fairly with Henderson.
Henderson bases his bad faith and breach of contract claims on two alleged acts of Tucker Anthony officials. He first contends that defendant's branch manager falsely assured him that signing the Consent Decree would have no effect on his employment. Henderson further alleges that several officials of defendant forced his resignation by threatening to fire him if he refused to resign. Plaintiff asserts that Tucker Anthony justified its resignation request by citing an "unwritten rule" that employees' names be kept out of the media.
Tucker Anthony filed its motion to dismiss or stay all further judicial proceedings arguing that the Federal Arbitration Act, 9 U.S.C. § 2 et seq., requires this Court to order arbitration because Henderson agreed, by signing Form U-4, to arbitrate employment disputes. In opposition, plaintiff contends that this dispute goes beyond the employment contract and does not involve questions of job performance or compensation, thus arbitration is precluded. At the conclusion of oral arguments, this Court took this matter under advisement. It is now in order for decision.

DISCUSSION
Section 2 of the Federal Arbitration Act provides that written arbitration provisions within contracts involving commerce are valid and enforceable. 9 U.S.C. § 2. Section 3 of the same Act specifies that a court "shall ... stay the trial of the action until such arbitration," if it is found that the issues are subsumed within the particular arbitration agreement. 9 U.S.C. § 3. The United States Supreme Court has held that the "[Federal Arbitration]" Act leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct ... arbitration." Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218, 105 S.Ct. 1238, 1241, 84 L.Ed.2d 158 (1985) (emphasis included). This federal policy favoring arbitration is so strong that "any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration." Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983); see Perry v. Thomas, 482 U.S. 483, 489, 107 S.Ct. 2520, 2525, 96 L.Ed.2d 426 (1987); Iacono v. Drexel Burnham Lambert, Inc., 715 F.Supp. 18, 22 (D.R.I.1989).
Since Henderson argues that arbitration should be limited to compensation disputes, he cannot now maintain that his demands *26 for his commissions and his trip to Puerto Rico are not subject to arbitration. See Perry v. Thomas, 482 U.S. at 490-91, 107 S.Ct. at 2526 (Federal Arbitration Act covers wage disputes). Plaintiff, however, raises two propositions to support his argument that this Court should not order arbitration of the other claims. First, he contends that the bad faith/unfair dealings claims do not fit within the NYSE Rule 347 definition of "arising out of employment," because the claims do not require an evaluation of his job performance. Secondly, plaintiff proposes that courts must review all bad faith/unfair dealings claims when they arise in employment at will situations. Plaintiff's contentions are without merit.
The law of contracts governs arbitration agreements. Henderson executed two arbitration contracts which must be reviewed. Form U-4 provides "I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm ... that is required to be arbitrated under the rules, constitutions, or by-laws of the organizations with which I register." Under NYSE Rule 347, "[a]ny controversy between a registered representative and any member or member organization arising out of employment or termination of employment of such registered representative by and with such member or member organization shall be settled by arbitration ..." This Court must determine whether these arbitration agreements control this controversy. See Morgan v. Smith Barney, Harris Upham & Co., 729 F.2d 1163, 1165 (8th Cir.1984).
The key words "arising out of employment or termination of employment" within NYSE Rule 347 have received liberal interpretations by the federal courts. See id. at 1167 (Rule 347 includes arbitration of tort as well as contract disputes); McGinnis v. E.F. Hutton and Co., 812 F.2d 1011, 1013-14 (6th Cir.) (wrongful discharge claim of non-broker arbitrable under broad language of Rule 347), cert. denied, 484 U.S. 824, 108 S.Ct. 87, 98 L.Ed.2d 49 (1987). The Rule was intended to govern any controversy between employers and employees. Ayres v. Merrill Lynch, Pierce, Fenner & Smith, 538 F.2d 532, 535 (3d Cir.) (dispute between employee as stockbroker against employer as purchaser not arbitrable), cert. denied, 429 U.S. 1010, 97 S.Ct. 542, 50 L.Ed.2d 619 (1976). The issue of an employee's job performance provides only one of many arbitrable disputes. See Aspero v. Shearson American Express, Inc., 768 F.2d 106, 109 (6th Cir.) cert. denied, 474 U.S. 1026, 106 S.Ct. 582, 88 L.Ed.2d 564 (1985). Courts have interpreted Rule 347 to encompass tort claims, Morgan, 729 F.2d at 1167, statutory claims, Shearson/American Express Inc. v. McMahon, 482 U.S. 220, 226, 107 S.Ct. 2332, 2337, 96 L.Ed.2d 185 (1987), and contract claims which arise from employment relationships. The Eighth Circuit, in Morgan, noted that the "`arising out of' ... language reveals that the specific source from which a controversy must arise is not the employment (or termination of the employment) contract; it is simply employment or termination of employment." Morgan, 729 F.2d at 1167 (emphasis included). Whether or not disputes fall within NYSE Rule 347 depends on whether the lawsuit involves "significant aspects of the employment relationship" Aspero, 768 F.2d at 109.
The Sixth Circuit, interpreting the "significant aspects of the employment relationship" language, noted that "[w]hen the employee's role as a broker or the brokerage house's role as an employer of brokers is the `specific source' from which a controversy arises, even a controversy that is not based upon contractual rights or duties will be subject to arbitration under Rule 347." Id. (discussing Morgan v. Smith Barney, Harris Upham & Co., 729 F.2d 1163 (8th Cir.1984)). In Aspero, the broker filed suit against her employer alleging defamation, invasion of privacy, and intentional infliction of emotional distress. Id. at 107. Aspero initiated her claims when her employer, after promising to provide Aspero with positive references, lied to Aspero's potential employers by telling them that she had been fired for unlawful trading. Id. Finding that the employer's post-employment conduct sufficiently touched upon the parties employment relationship, the *27 court upheld the district court's arbitration order. Id. at 109.
In a Second Circuit case, which reviewed the same tort claims as discussed in Aspero, the court found against arbitration but emphasized in its reasoning that the tortious conduct had occurred after the employee had voluntarily terminated her employment. Coudert v. Paine Webber Jackson & Curtis, 705 F.2d 78, 82 (2d Cir.1983). More notably, the Coudert court differentiated the claims before it from a claim for wrongful termination, thereby, implying that any wrongful termination disputes should be arbitrated. Id.
Henderson's wrongful termination suit falls squarely within NYSE Rule 347's language. The Rule itself refers to controversies arising out of employment or the termination of employment. Although perhaps not based on expressed contractual rights or duties, plaintiff's lawsuit, by its very nature, involves "significant aspects" of Henderson and Tucker Anthony's employment relationship. The challenged conduct occurred during the course of Henderson's employment. Henderson attacks Tucker Anthony's role in his alleged forced resignation. Resolution of plaintiff's bad faith/unfair treatment claim will require an examination of Tucker Anthony's role as employer and a determination of whether it acted properly within the bounds of that employment relationship.
Plaintiff's attempt to denominate the relationship as an employment at will is of no consequence for purposes of resolving this issue. Although not specified in the Complaint, this Court assumes that plaintiff based his wrongful termination claim on Massachusetts law. Massachusetts stands alone in recognizing an implied covenant not to discharge an employee at will except for just cause. See Cummins v. EG & G. Sealol, Inc., 690 F.Supp. 134, 137 (D.R.I. 1988); Fortune v. National Cash Register Co., 373 Mass. 96, 364 N.E.2d 1251 (1977). Rhode Island law, on the other hand, does not generally recognize wrongful discharge claims by employees at will. See Cummins, 690 F.Supp. at 135. Under the law, whether the employment exists at will or by contract determines which legal avenues are open to plaintiffs. The employment relationship's characterization, however, does not affect whether or not the parties must submit to arbitration. As discussed previously, the important consideration here is not whether the controversy involves an employment contract but whether the controversy implicates the employment relationship. See Morgan, 729 F.2d at 1167; Aspero, 768 F.2d at 109. When a party relies on NYSE Rule 347 to compel arbitration, courts need only determine the existence and scope of the arbitration agreement. See Zdeb v. Shearson Lehman Bros., 674 F.Supp. 812, 813 (D.Colo. 1987).
Finally, this Court rejects plaintiff's contention that NYSE Rule 347 does not require arbitration of a breach of implied covenant of good faith and fair dealings claim. Whether based on an alleged violation of state or federal laws, once a court determines that an employee's claim arises out of employment, it must stay the judicial proceedings pending arbitration. McGinnis, 812 F.2d at 1015. Having found Henderson's wrongful discharge claims and his wage claim to have arisen from his employment relations with Tucker Anthony, this Court must stay these judicial proceedings.

CONCLUSION
Defendant's motion to dismiss is denied. Defendant's motion to stay these proceedings pending arbitration is granted.
It is so Ordered.


                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5496-16T1

SPEEDWAY LLC,

          Plaintiff-Appellant,

v.

THE STATE OF NEW JERSEY
and ATTORNEY GENERAL
GURBIR S. GREWAL,

     Defendants-Respondents.
____________________________

                    Argued December 11, 2018 – Decided April 24, 2019

                    Before Judges Yannotti and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Mercer County, Docket No. L-0284-17.

                    Brian J. Molloy argued the cause for appellant
                    (Wilentz, Goldman & Spitzer, PA, attorneys; Brian J.
                    Molloy and Daniel J. Kluska, of counsel and on the
                    briefs).

                    Renee Greenberg, Deputy Attorney General, argued the
                    cause for respondents (Gurbir S. Grewal, Attorney
                    General, attorney; Jason W. Rockwell, Assistant
                    Attorney General, of counsel; Wendy Leggett Faulk
            and Renee Greenberg, Deputy Attorneys General, on
            the brief).

            Brennan Law Firm, attorneys for amicus curiae New
            Jersey Gasoline-C-Store-Automotive Association and
            Fuel Merchants Association of New Jersey (Francis J.
            Brennan, III and Craig A. Cox, of counsel and on the
            brief).

PER CURIAM

      Over seventy-five years ago, the New Jersey Legislature established "[a]n

act to regulate the retail sale of motor fuels" (1938 Act), N.J.S.A. 56:6-1 to -17.

Among other provisions, the 1938 Act prohibits retail dealers from selling

gasoline below the net cost of the fuel plus all selling expenses, defined as "all

overhead and general business expense[s]." N.J.S.A. 56:6-2(b); N.J.S.A. 56:6-1.

      On October 16, 2016, the Middlesex County Department of Weights and

Measures filed two complaints in the Woodbridge Municipal Court against

plaintiff Speedway, LLC, alleging it violated N.J.S.A. 56:6-2(b) because it sold

gasoline at its Hopelawn filling station below cost. According to Speedway, it

is the "second[] largest chain of company-owned-and-operated convenience

stores in the United States[,] with approximately 2730 locations in [twenty-one]

states." Speedway owns and operates approximately seventy convenience stores

in New Jersey, which all sell motor fuel.

                                                                           A-5496-16T1
                                        2
      On February 13, 2017, Speedway filed a complaint in the Law Division

seeking a declaration that the below-cost sales prohibition violated the due

process clause of the New Jersey and United States Constitutions, infringed

plaintiff's right to sell goods, and violated the Federal Civil Rights Act, 42

U.S.C. § 1983, and the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c).

Speedway also sought an injunction to prevent defendant, the State of New

Jersey, from enforcing the provision.

      After the trial court granted defendants' motion to dismiss under Rule

4:6-2(e), Speedway filed this appeal. We affirm because the trial court, after

accepting as true all of Speedway's factual allegations, properly dismissed the

complaint.   The Legislature's decision, as expressed in N.J.S.A. 56:6-2(b),

prohibiting the below-cost sale of gasoline is a rational, necessary restraint on

the market, and is in the public interest.

      We also agree with the court that N.J.S.A. 56:6-2(b) is not

unconstitutionally vague. The challenged terms – "net cost" and "expenses" –

are words of common usage and understanding, particularly for a sophisticated

business entity such as Speedway.            Finally, because the below-cost sales

provision addresses a specific state interest, it is not unconstitutionally

overbroad.

                                                                           A-5496-16T1
                                         3
                                           I.

      We begin our opinion with a brief discussion of the 1938 Act, its

subsequent amendment, and the relevant legislative history.

   A. 1938 Act

      The 1938 Act outlines the conditions for the sale of motor fuel by retail

dealers. Among other requirements, it mandates that retailers post the per-gallon

fuel price on each pump, and requires all dispensing equipment to conspicuously

identify the fuel brand. N.J.S.A. 56:6-2(a) and (g). The fuel price must be

posted inclusive of all taxes, and cannot employ rebates or concessions that

would affect the sale of fuel below the posted price. N.J.S.A. 56:6-2(a) and (e).

Retailers are prohibited from selling gasoline at a price below their net cost of

the fuel plus all selling expenses, defined in the statute as "all overhead and

general business expense[s]." N.J.S.A. 56:6-2(b); N.J.S.A. 56:6-1. As noted,

Speedway challenges only the constitutionality of the below-cost sales

prohibition, codified in subsection (b).

   B. Amendments to the 1938 Act and Relevant Legislative History

      The Legislature created a "Gasoline Study Commission" (Commission) in

February 1952 to study New Jersey's gasoline industry, with an emphasis on

those factors "governing the fixing of prices of gasoline to the public." In

                                                                         A-5496-16T1
                                           4
addition, the Commission prepared a report that also "survey[ed] the operation

of the entire gasoline industry in the [s]tate . . . with a view to[ward] correcting

– if it appeared necessary and desirable – by legislative recommendation[], any

practices which might be found to be injurious to the best interests of all the

people of New Jersey." (emphasis in original).

      The report also explained that although the Commission's "paramount

obligation" was to all New Jersey citizens, it stressed that:

            [s]pecial attention has been directed in this examination
            to the plight of those New Jersey citizens – small
            businessmen – who own or operate the retail outlets in
            this State. The problem of the retailers and of all other
            phases of the petroleum industry have been carefully
            and fully reviewed both from the viewpoint of serving
            the best interests of the vast army of consumers of a
            commodity – gasoline – which has become a necessity
            in modern living and from the viewpoint of recognizing
            the difficult and important position of the small
            businessman in an industry dominated by giants.

      The Commission recommended that the 1938 Act be amended to make it

a misdemeanor if any distributor offered, or any retail dealer accepted, a rebate

or concession with respect to the distribution of motor fuel. The Commission

also endorsed that the Legislature invoke the State's police power to protect the

public welfare by ending unfair practices that curtailed, rather than strengthened

                                                                            A-5496-16T1
                                         5
competition, because "[t]he motor fuel business constitutes such an important

and necessary part in the economy of this State."

      In addition, the Commission considered proposing that any retail

distributor of fuel be required to sell "at a price determined by the [distributor's]

cost of doing business plus the posted tankwagon price."1 The Commission

explained that company-owned-and-operated retail stations (at the time

described as "few in number") were typically "integrated corporations" that can

"exert considerable influences on the posted retail prices" and operate retail

outlets at a loss if necessary "in sharp contrast to the individual dealer who is

compelled to carry on his business at a profit in order to survive." Despite

expressly recognizing the influence company-owned retail dealers had on the

price of fuel, the Commission declined to recommend amending the 1938 Act

in this regard because it concluded the below-cost sales prohibition adequately

addressed the issue and additional legislation would be "superfluous."

      The 1938 Act was amended in 1953, consistent with the Commission's

recommendations, and retitled the Uniform Motor Fuels Practices Act, N.J.S.A.

56:6-19 to -32 (1953 Amendments). When passing the new legislation, the

1
   Tankwagon price represents "the price charged to the retailer by the
wholesaler, or the invoice cost of motor fuel to the retailer."
                                                                             A-5496-16T1
                                         6
Legislature declared that the "practices of the distribution and sale of motor fuels

in th[e] State have developed unfair methods of competition in the marketing of

motor fuels" and that "conditions have . . . impair[ed] . . . the supply of motor

fuel needed by the general public[,] thereby affecting the general economic

welfare of the people of th[e] State." N.J.S.A. 56:6-19(a). Although the 1953

Amendments modified the 1938 Act to prohibit certain trade practices related to

the distribution of motor fuel that "inten[d] to injure competitors or destroy or

substantially lessen competition," N.J.S.A. 56:6-22,2 the Legislature did not

amend or change the below-cost sales prohibition to include similar language.

      Since 2008, the Legislature considered a number of bills seeking to amend

the below-cost sales prohibition that would permit a retailer to sell gasoline at a

price below its net cost plus selling expenses to meet competition, and deem it

illegal for a dealer to sell at a price below net cost if done with the intent to harm

or injure competition. See Senate Bill No. 2414 (2008 Session); Senate Bill No.

484 and Assembly Bill No. 2932 (2010 Session); Assembly Bill No. 1567 (2012

Session); and Assembly Bill No. 1695 (2014 Session). None of these bills were

2
    N.J.S.A. 56:6-22 prohibits retailers from offering "a rebate, concession,
allowance, discount or benefit . . . in connection with the sale or distribution of
motor fuel."
                                                                              A-5496-16T1
                                          7
enacted. Accordingly, the Legislature has not altered the original language of

N.J.S.A. 56:6-2(b) contained in the 1938 Act.

         On appeal, Speedway raises five points of error, three of which relate to

its claim that the 1938 Act, and specifically section (b), is unconstitutional.

First, Speedway contends that the complaint alleged viable due process

violations because the below-cost sales prohibition unreasonably and arbitrarily

"deprives it of its property and liberty interests and abrogates its common -law

right to sell goods," as the provision lacks "an element of intent and a meeting

competition defense."      Second, Speedway argues that the below-cost sales

prohibition deprives it of due process of law because it is unconstitutionally

vague as it "leaves retailers guessing at its meaning and application." In further

support of this argument, Speedway contends that the State is collaterally

estopped from disputing that section (b) is constitutionally infirm on vagueness

grounds, because it unsuccessfully litigated the issue before another New Jersey

court.     Third, Speedway maintains that the below-cost sales provision is

unconstitutionally overbroad. Fourth, Speedway claims that the court erred in

dismissing violations of the New Jersey and Federal Civil Rights Acts. Finally,

Speedway asserts that the court incorrectly applied Rule 4:6-2(e), failed to issue

findings of facts and conclusions of law in accordance with Rule 1:7-4 and

                                                                          A-5496-16T1
                                         8
requests that any remanded proceeding be conducted by a different judge. We

disagree with all of Speedway's arguments and affirm.

                                      II.

      We start with the standard of review. "On appeal, we engage in a de novo

review from a trial court's decision to grant or deny a motion to dismiss filed

pursuant to Rule 4:6-2(e)." Smith v. Datla, 451 N.J. Super. 82, 88 (App. Div.

2017) (citing Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J.

Super. 103, 114 (App. Div. 2011)). We accord no deference to the trial court's

legal conclusions. Rezem Family Assocs., LP, 423 N.J. Super. at 114. When a

court grants a party's motion to dismiss, "[w]e approach our review of the

judgment below mindful of the test for determining the adequacy of a pleading :

whether a cause of action is 'suggested' by the facts." Printing Mart-Morristown

v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (citing Velantzas v. Colgate-

Palmolive Co., 109 N.J. 189, 192 (1988)). "[T]he Court is not concerned with

the ability of plaintiffs to prove the allegation contained in the complaint." Ibid.

(citing Somers Constr. Co. v. Bd. of Educ., 198 F.Supp. 732, 734 (D.N.J. 1961)).

                                      III.

      Next, and before addressing each of Speedway's points on appeal

individually, we briefly discuss basic constitutional principles applicable to

                                                                            A-5496-16T1
                                            9
Speedway's challenge to the below-cost sales prohibition.              Legislative

enactments carry a "strong presumption in favor of constitutionality." Paul

Kimball Hospital, Inc. v. Brick Twp. Hospital, Inc., 86 N.J. 429, 447 (1981).

While the presumption can be rebutted, "it places a heavy burden on the party

seeking to overturn the [statute]." Hutton Park Gardens v. Town Council, 68

N.J. 543, 564 (1975).

      "[I]t is up to legislatures, not courts, to decide on the wisdom and utility

of legislation." Ferguson v. Skrupa, 372 U.S. 726, 729 (1963). Thus, courts

reviewing the validity of a statute, should "properly defer to legislative judgment

as to the necessity and reasonableness of a particular measure." United States

Tr. Co. v. New Jersey, 431 U.S. 1, 22-23 (1977). A court's power to declare a

statute invalid is to be "delicately exercised," Kimball, 86 N.J. at 447, and

"unless the statute is clearly repugnant to the Constitution," ibid., or "plainly

exceeds the constitutional power of the Legislature, a court should not adjudge

it invalid." Yellow Cab Co. v. State, 126 N.J. Super. 81, 94 (App. Div. 1973).

      When a statute's facial constitutionality is challenged, courts should ask

"whether the 'mere enactment' of [the] statute offends constitutional rights," as

the "effects on particular participants in an industry are not dispositive." State

Farm Mut. Auto. Ins. Co. v. State, 124 N.J. 32, 46 (1991) (citing Hodel v.

                                                                           A-5496-16T1
                                       10
Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 295 (1981)).

"In cases dealing with the validity of price-control statutes . . . , holdings of

facial unconstitutionality are exceedingly rare." Ibid. Further, if a statute may

be construed as valid or unconstitutional, the construction "which will uphold

its validity must be adopted." Ahto v. Weaver, 39 N.J. 418, 428 (1963) (citing

State v. Hudson Cnty. News Co., 35 N.J. 284, 294 (1961)). The reasonableness

of a governmental price regulation may be reinforced by "the existence of an

'emergency'" and a "determination that the industry regulated is 'affected [with]

a public interest.'" Hutton Park Gardens, 68 N.J. at 561-62 (first quoting Como

Farms, Inc. v. Foran, 6 N.J. Super. 306, 314 (App. Div. 1950); then quoting

Fried v. Kervick, 34 N.J. 68, 71-74 (1961)).

      Finally, when addressing the constitutionality of the 1938 Act, we note

that we do not write on a blank slate. Indeed, in Fried, 34 N.J. at 83, our Supreme

Court upheld subsection (e) of N.J.S.A. 56:6-2 against a constitutional challenge

that the provision violated a retail motor fuel dealer's due process and equal

protection rights. Subsection (e) prohibits retailers from providing rebat es that

would permit a consumer to purchase gasoline below the posted price. Similar

to the below-cost sales prohibition, subsection (e), does not contain an intent to

injure element. N.J.S.A. 56:6-2(e).

                                                                           A-5496-16T1
                                       11
      In rejecting the retail dealer's constitutional challenge, the Fried court

concluded the Legislature's decision to safeguard the public welfare was neither

discriminatory nor arbitrary, but rather a reasonable exercise of the State's

policing power. Fried, 34 N.J. at 83. The Court's holding relied upon the 1952

New Jersey Gasoline Study Commission, the Annual Report of the Motor Fuel

Division, and the Report of the United States Senate Select Committee on Small

Business on Petroleum Marketing Practices in New Jersey (Senate Committee)

(84th Congress, 2d Session 1956; Report No. 2810). Id. at 79-80. The Senate

Committee report found that "competitive problems of gasoline retailers were

most pronounced," in New Jersey. Id. at 80.

      When describing the appropriate use of the state's police power, the Fried

court stated:

            [T]he police power of a state is incapable of precise
            definition and limitation. It develops by an empiric
            process and its boundaries expand to include authority
            to regulate an evil associated with any business which
            for the public good justifies the particular measure of
            control. The Legislature is presumed to know the needs
            of the people . . . .

            [Id. at 75.]

See also United Stations of New Jersey v. Getty Oil Co., 102 N.J. Super. 459,

474-76 (Ch. Div. 1968) (rejecting constitutional challenges to subsection (f) of

                                                                        A-5496-16T1
                                      12
N.J.S.A. 56:6-2, which bars the use of gaming activities in connection with the

sale of gasoline).

      With these principles in mind, we turn to Speedway's specific

constitutional challenges.

                                      IV.

  A. Due process violations based on the below-cost sales prohibition's
     unreasonable restriction on free trade and competition.

      In counts one, two and three of its complaint, Speedway asserts that the

absence of meeting competition and intent to harm elements in the below-cost

sales prohibition deprives Speedway of its due process rights. Specifically,

Speedway asserts that the below-cost sales prohibition "creates a conclusive

presumption that all below-cost sales are made with an intent or effect of

destroying competition and bars motor fuel retailers from having any

opportunity to show they made such sales without any improper intent or unfair

effect on competition." As a result, Speedway contends the below-cost sales

prohibition is unreasonable, arbitrary, and discriminatory, as it restrains fair and

open competition. We disagree.

      It is well established that "a state is free to adopt whatever economic

policy may reasonably be deemed to promote public welfare, and to enforce that

policy by legislation adapted to its purpose." Nebbia v. New York, 291 U.S.

                                                                            A-5496-16T1
                                        13
502, 537 (1934). Price-control legislation is "subject to the same narrow scope

of review under principles of substantive due process as are other enactments

under police power: could the legislative body rationally have concluded that

the enactment would serve the public interest without arbitrariness or

discrimination?" Hutton Park Gardens, 68 N.J. at 563-64.

      In Nebbia, the United States Supreme Court upheld the constitutionality

of the government's regulation of milk prices, and held that statutes that regulate

prices are constitutional:

            [i]f the law-making body within its sphere of
            government concludes that the conditions or practices
            in an industry make unrestricted competition an
            inadequate safeguard of the consumer's interests, . . .
            statutes passed in an honest effort to correct the
            threatened consequences may not be set aside because
            the regulation adopted fixes prices reasonably deemed
            by the [L]egislature to be fair to those engaged in the
            industry and the consuming public.

            [Nebbia, 291 U.S. at 538.]

      The goal of the below-cost sales provision, as gleaned from the legislative

history, is to prevent improper trade practices related to the sale of motor

fuel. Because it applies to all retailers, large and small, and to all sales

regardless of volume, it is neither discriminatory nor arbitrary. Further, because

it addresses Speedway's non-fundamental right to sell goods, it need only be

                                                                           A-5496-16T1
                                       14
supported by a conceivable rational basis. That basis can be found in the

Commission's recommendation, ultimately followed by the Legislature in its

enactment of the 1953 Amendments, not to amend or change the below-cost

sales prohibition to include an intent to injury element, as it did with other

provisions. See N.J.S.A. 56:6-22. The Legislature clearly determined that the

below cost sales provision, as originally enacted, was necessary to maintain a

competitive motor fuel market, particularly in an industry "dominated by

giants," many of whom maintain a vertically integrated supply chain.

      Further, in adopting the 1953 Amendments, the Legislature determined

that selling gasoline at below cost would cause disorder in the marketplace,

particularly as to smaller retailers whose survival depends upon operating at a

profit, and who cannot sustain an extended price war. The Legislature deemed

a broad below-cost sales provision, without an intent to injure component, or

meeting the competition defense, was necessary not only to ensure a competitive

market, but to avoid the adverse financial consequences that would be visited

on small, retail operators from aggressive, uncontrolled pricing practices. See

Fried, 34 N.J. at 79-80.

      We conclude that this considered judgment by our Legislature, made

nearly seventy years ago was rational and should not be disturbed. Any changes

                                                                       A-5496-16T1
                                     15
to the below-cost sales prohibition in the manner requested by Speedway are

best addressed by the Legislature. See Burton v. Sills, 53 N.J. 86, 95 (1968)

(courts do not sit "as a superlegislature" and "absent a sufficient showing to the

contrary, it . . . [is] assumed that [a] statute rested 'upon some rational basis

within the knowledge and experience of the Legislature.'"). In this regard,

Speedway's citation to the below-cost sales prohibition in thirty-three states'

statutes which include a intent to injure element or meeting competition defense,

demonstrates that the legislature branch of government is the proper body to

exercise judgment as to the necessity and reasonableness of such language in

price control legislation after considering the public welfare of the citizens of a

particular state, as our Legislature did when passing the 1953 Amendments.

      Speedway's reliance on State v. Packard-Bamberger & Co., Inc., 123

N.J.L. 180 (1939) and Wilentz v. Crown Laundry Serv. Inc., 116 N.J. Eq. 40

(1939), is misplaced as neither case supports invalidating price control

legislation with respect to products affecting the public interest.               In

Packard-Bamberger, the Court determined that a below-cost sales prohibition of

general   merchandise,     which    included    any   personal    property,    was

unconstitutional. Central to its conclusion that the statute in that case was

unconstitutional was the court's finding that the statute contained "no limitation

                                                                           A-5496-16T1
                                       16
to transactions which involve commodities affected with a public inte rest." Id.

at 184-85; see also Wilentz, 116 N.J. Eq. at 43 ("[A] few years ago every court

in the land would have held that a statute abrogating [the] right [to sell goods],

except in the case of a business or property affected with a public interest, would

deprive the individual of his property without due process of law and therefore

be void.") (emphasis added). Thus, as the Packard-Bamberger and Wilentz

courts recognized, a significant distinction exists between price regulations

involving general commodities, and those affected with the public interest.

      Here, N.J.S.A. 56:6-19(c) expressly recognized that the "distribution and

sale of motor fuels within this State is hereby declared to be affected with a

public interest." As noted, while the Legislature has included an intent to harm

element in other provisions of the statute, see N.J.S.A. 56:6-22, it has deemed it

reasonably necessary to regulate differently the pricing of retailers' sale of

gasoline.

      Speedway also relies on three cases from Arkansas, Minnesota, and

Pennsylvania, in which courts invalidated similar statutes for their lack of an

intent to harm element. See Ports Petroleum Co. v. Tucker, 916 S.W.2d 749

(Ark. 1996); Twin City Candy & Tobacco Co. v. A. Weisman Co., 149 N.W.2d

698 (Minn. 1967); Commonwealth v. Zasloff, 13 A.2d 67 (Pa. 1940). We

                                                                           A-5496-16T1
                                       17
conclude that the unique legislative history related to the 1938 Act and 1953

Amendments render those cases fundamentally distinguishable.

      In Ports Petroleum Co., the Court considered the below-cost sales

prohibition in the Arkansas Petroleum Trade Practices Act (APTPA). In that

case, the Court determined the APTPA "prohibit[ed] legitimate and innocent

competition fostered by below-cost sales," and concluded that "[h]ad the

[APTPA] included a prohibition against such sales made with predatory intent

to damage and destroy competition[,] . . . due process impairment would not be

a concern."     Ports Petroleum Co., 916 S.W.2d at 755.            In making its

determination, the Court employed a test adopted by the Alabama Supreme

Court in State v. Mapco Petroleum, Inc., 519 So. 2d 1275, 1284-85(Ala. 1987),

that "[i]f the act penalizes innocent acts not reasonably related to the problem of

monopolistic practices or other deceptive, disruptive, or destructive price

cutting, the act strikes too broadly." Ibid.

      The Ports Petroleum Co. court, however, failed to discuss Arkansas's

legislative history that led to the enactment of the APTPA. Similarly, the Twin

City Candy & Tobacco Co. and Zasloff courts did not consider the legislative

history underpinning the Minnesota and Pennsylvania statutes at issue. As we

have previously detailed, New Jersey's unique and lengthy legislative history

                                                                           A-5496-16T1
                                       18
related to the 1953 Amendments confirms the necessity of the below-cost sales

provision to ensure a competitive market, while avoiding harmful financial

consequences resulting from uncontrolled pricing practices.

   B. Due process violations based on the vague and overbroad nature of the
      below-cost sales prohibition.

      In count four of its complaint, Speedway asserts that the terms "net cost"

and "selling expenses" in N.J.S.A. 56:6-2(b) are unconstitutionally vague, and

the State is collaterally estopped from disputing the issue. Further, in the fifth

count of its complaint, Speedway argues the below-cost sales prohibition is

overbroad because it "restrain[s] constitutionally-protected fair competition."

Again, we disagree.

      "A law is void if it is so vague that persons 'of common intelligence must

necessarily guess at its meaning and differ as to its application.'" Twp. Of

Pennsauken v. Schad, 160 N.J. 156, 181 (1999) (quoting Town Tobacconist v.

Kimmelman, 94 N.J. 85, 118 (1983)). "[T]he requirement of statutory clarity is

essentially a due process concept grounded in notions of fair play." In re N.N.,

146 N.J. 112, 126 (1996) (quoting State v. Cameron, 100 N.J. 586, 591 (1985)).

Vague laws are constitutionally banned in order to "invalidate regulatory

enactments that fail to provide adequate notice of their scope and sufficient

guidance for their application." Cameron, 100 N.J. at 591. "The determination

                                                                          A-5496-16T1
                                       19
of vagueness must be made against the contextual background of the particular

law and with a firm understanding of its purpose." Ibid. "Absent any explicit

indications of special meanings, the words used in a statute carry their ordinary

and well-understood meanings." State v, Afanador, 134 N.J. 162, 171 (1993).

      "[D]ifferent levels of 'definitional clarity' are required depending on the

type of statute under scrutiny." Heyert v. Taddese, 431 N.J. Super. 388, 424

(App. Div. 2013) (quoting Commc'ns. Workers of Am. v. State, Dep't of

Treasury, 421 N.J. Super. 75, 104 (Law Div. 2011)). Economic legislation "is

subject to a less strict vagueness test because its subject matter is often more

narrow, and because businesses, which face economic demands to plan behavior

carefully, can be expected to consult relevant legislation in advance of action."

Cameron, 100 N.J. at 592 (quoting Hoffman Estates v. Flipside, Hoffman

Estates, 455 U.S. 489, 498 (1982)).

      Further, a "regulated enterprise may have the ability to clarify the meaning

of the regulation by its own inquiry, or by resort to an administrative process."

In re Farmers' Mut. Fire Assurance Ass'n of New Jersey, 256 N.J. Super. 607,

619 (App. Div. 1992) (quoting Village of Hoffman Estates, 455 U.S. at 498).

Thus, "[a] commercial regulatory statute can be held unconstitutionall y vague

only if it is 'substantially incomprehensible.'"   Ibid. (alteration in original)

                                                                          A-5496-16T1
                                      20
(quoting In re Loans of N.J. Property Liability Ins. Guar. Ass'n, 124 N.J. 69, 78

(1991)).

      We first address Speedway's claim that the State is collaterally estopped

from defending against its vagueness challenge due to the court's ruling in Neeld

v. Automotive Products Credit Ass'n, 21 N.J. Super. 159 (Dist. Ct. 1952.)

Collateral estoppel "bars relitigation of any issue which was actually determined

in a prior action, generally between the same parties, involving a different claim

or cause of action." Ziegelheim v. Apollo, 128 N.J. 250, 265 (1992) (quoting

State v. Gonzalez, 75 N.J. 181, 186 (1977)). A party asserting collateral estoppel

must demonstrate:

             (1) the issue to be precluded is identical to the issue
            decided in the prior proceeding; (2) the issue was
            actually litigated in the prior proceeding; (3) the court
            in the prior proceeding issued a final judgment on the
            merits; (4) the determination of the issue was essential
            to the prior judgment; and (5) the party against whom
            the doctrine is asserted was a party to or in privity with
            a party to the earlier proceeding.

            [First Union Nat. Bank v. Penn Salem Marina, Inc., 190
            N.J. 342, 352 (2007) (citing Hennessy v. Winslow
            Twp., 183 N.J. 593, 599 (2005)).]

However, "[e]ven where these requirements are met, the doctrine, which has its

roots in equity, will not be applied when it is unfair to do so."         Pace v.

Kuchinsky, 347 N.J. Super. 202, 215 (App. Div. 2002).

                                                                          A-5496-16T1
                                       21
        In Neeld, the court addressed whether N.J.S.A. 56:6-2(b) was

"unenforceable for uncertainty." The court noted that as a district court, it was

an "inferior court of limited jurisdiction," Neeld, 21 N.J. Super. at 161, and

acknowledged that "the better practice is for the inferior court to assume that an

act is constitutional until it has been passed upon by the Appellate Court." Ibid.

(quoting Legg v. County of Passaic, 122 N.J.L. 100, 104 (Sup. Ct. 1939)). Thus,

while the court found N.J.S.A. 56:6-2(b) unenforceable due to its uncertainty, it

did not determine the below-cost sales prohibition unconstitutional. Rather, the

court stated, "[a]lthough [it is] inclined to think it invalid, it cannot be said to be

clear beyond a reasonable doubt that the prohibition against selling below cost,

without more, is unconstitutional." Id. 163.

      Further, the 1952 Neeld decision was never appealed, nor has the

Legislature amended N.J.S.A. 56:6-2(b), despite being presented with the

opportunity on at least four occasions. Finally, unlike the Neeld court, we have

undertaken a thorough review of the legislative history and constitutionality of

the below-cost sales probation, and have conclusively determined it passes

rational basis scrutiny. Under these circumstances, we conclude it would be

fundamentally unfair to apply the equitable doctrine of collateral estoppel here.

Winters v. North Hudson Regional Fire and Rescue, 212 N.J. 67, 93 (2012)

                                                                               A-5496-16T1
                                         22
("Collateral estoppel is an equitable doctrine and should be invoked only to

promote equity."); Hennessey, 368 N.J. Super. at 452 ("An equitable doctrine,

collateral estoppel is not applied if it is unfair to do so.").

      Turning to the merits of Speedway's vagueness argument, we reject

Speedway's claim that persons of ordinary intelligence would be unable to

understand the meaning of the terms used in N.J.S.A. 56:6-2(b). While we

acknowledge that the phrase "net cost" is not defined, it is a commonly used

business term used in retail settings. Further, upon an examination of the

ordinary, well-understood definitions of "net" and "cost," 3 we conclude a person

of ordinary intelligence can ascertain the definition of "net cost."

      We reach a similar conclusion with respect to the term "selling expense"

which is defined in N.J.S.A. 56:6-1 as "all overhead and general business

expense[s]." As there is no "explicit indication[] of [a] special meaning[], the

words used in [the] statute carry their ordinary and well-understood meanings."

Afanador, 134 N.J. at 171.        The well-understood definition of "overhead,"

another commonly understood business term, is "business expenses (such as

3
  "Net" is defined as "remaining after the deduction of all charges, outlay, or
loss," Merriam-Webster, https://www.merriam-webster.com/dictionary/net (last
visited Apr. 8, 2019), and "cost" is defined as "the amount or equivalent paid or
charged for something." Merriam-Webster, https://www.merriam-webster.com/
dictionary/cost (last visited Apr. 8, 2019).
                                                                         A-5496-16T1
                                         23
rent, insurance, or heating) not chargeable to a particular part of the work or

product."    Merriam-Webster, https://www.merriam-webster.com/dictionary/

overhead (last visited Apr. 8, 2019).

       With respect to Speedway's overbreadth claim, we note that in

determining if a statute is overbroad, "the question is whether the enactment

reaches a 'substantial amount of constitutionally protected conduct.'" State v.

Lee, 96 N.J. 156, 164-65 (1984). A court must ask "whether the reach of the

law extends too far in fulfilling the State's interest." Id. at 165. Here, as

discussed at pp. 14-16, the Legislature had a legitimate interest in regulating the

pricing for all motor vehicle sales, regardless of intent. Thus, we conclude

N.J.S.A. 56:6-2(b) is not overbroad.

                                        V.

      Based on our conclusion that the below-cost sales provision does not

represent an unconstitutional restraint on trade nor is otherwise impermissibly

vague and overbroad under the Federal and New Jersey Constitutions, we reject

Speedway's claim that the court erred in dismissing the sixth count of the

complaint asserting violations of the Federal Civil Rights Act and New Jersey

Civil Rights Act. Without an underlying constitutional violation, there exists no

legal basis for those claims. See Rezem Family Assocs., LP v. Borough of

                                                                           A-5496-16T1
                                        24
Millstone, 423 N.J. Super. 103, 114-115 (App. Div. 2011) (stating that civil

rights laws "'[are] not [themselves] a source of substantive rights,' but merely

provide[] 'a method of vindicating federal [or state] rights elsewhere

conferred.'"); 42 U.S.C. § 1983; N.J.S.A. 10:6-2.

                                     VI.

      Finally, we find without merit Speedway's claims that the court

improperly applied Rule 4:6-2(e) and that its factual findings and legal

conclusions failed to satisfy Rule 1:7-4. In an oral decision, the court recited

the legal standard applicable with respect to Rule 4:6-2(e) dismissal motions,

followed by an explanation of the rational basis review to be applied to

Speedway's constitutional claims, and a summary of each party's arguments.

Then, the court, accepting as true Speedway's factual allegations, determined

that they were "palpably insufficient to support [the] claim[s]." Finally, the

court noted the presumption of constitutionality of statutes, particularly

economic legislation, and concluded that Speedway failed to rebut this

presumption. We are satisfied that the court properly applied Rule 4:6-2(e) and

complied with its obligation under Rule 1:7-4. Printing Mart-Morristown, 116

N.J. at 746 ("In reviewing a complaint dismissed under Rule 4:6-2(e) our inquiry

is limited to examining the legal sufficiency of the facts alleged on the face of

                                                                         A-5496-16T1
                                      25
the complaint."); Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 594 (App.

Div. 2016) ("When a trial court issues reasons for its decision, it 'must state

clearly [its] factual findings and correlate them with relevant legal conclusions,

so that parties and the appellate courts [are] informed of the rationale underlying

th[ose] conclusion[s].'")

      Because we affirm the court's order dismissing the complaint, we need not

address Speedway's request that the matter be assigned to a different judge on

remand. We note, however, there is no support in the record for the request.

      Affirmed.

                                                                           A-5496-16T1
                                       26


                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 14a0670n.06

                                            No. 12-6425

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                   FILED
                                                                                Aug 27, 2014
UNITED STATES OF AMERICA,                                  )                  DEBORAH S. HUNT, Clerk
                                                           )
       Plaintiff-Appellee,                                 )
                                                           )       ON APPEAL FROM THE
v.                                                         )       UNITED STATES DISTRICT
                                                           )       COURT FOR THE EASTERN
RODNEY TULLOCK,                                            )       DISTRICT OF TENNESSEE
                                                           )
       Defendant-Appellant.                                )       OPINION
                                                           )
                                                           )

       BEFORE:         DAUGHTREY, CLAY and STRANCH, Circuit Judges.

       STRANCH, Circuit Judge. Rodney Tullock appeals his conviction on drug charges and

his sentence of 61 months in prison following a jury trial held in May 2012. He challenges the

district court’s denial of his motion to suppress evidence relating to a traffic stop and the quantity

of oxycodone pills attributed to him at sentencing.            We REVERSE Tullock’s convictions

because the motion to suppress evidence should have been granted. Accordingly, we REMAND

for further proceedings consistent with this opinion. We address the sentencing issue to provide

guidance to the district court and the parties in the event Tullock is retried and again convicted.

                                 I. PROCEDURAL HISTORY

       In September 2011, a grand jury returned a forty-five count indictment against twenty-

one defendants, including Tullock and the leader of the drug conspiracy, William H. McMahan,

Jr. Tullock was named in only two counts of the indictment: Count 3, charging that, between
No. 12-6425
United States v. Tullock

January 2009 and September 13, 2011, he conspired with McMahan and other co-conspirators to

distribute and to possess with intent to distribute a quantity of oxycodone, a Schedule II

controlled substance, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(C) & 846; and Count 21,

charging that, on April 21, 2010, he knowingly and intentionally possessed with intent to

distribute a quantity of oxycodone, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C).

       At trial, the government connected Tullock to the conspiracy primarily through

intercepted telephone conversations between Tullock and McMahan that were obtained through

a Title III wiretap on McMahan’s cell phone and through Tullock’s own statements made during

a police interview. Drug agents conducted ongoing surveillance of McMahan’s and Tullock’s

activities in an effort to corroborate the meetings McMahan and Tullock discussed on the phone.

On April 21, 2010, as Tullock left McMahan’s residence, a drug agent contacted Tennessee

Highway Patrol Trooper Jacob Stielow and asked him to be on the lookout for a maroon van and

to stop the van if there was probable cause to do so. Trooper Stielow later spotted the van and

stopped Tullock for following too closely to the car in front of him. Trooper Stielow searched

the van with Tullock’s permission and found oxycodone pills in vials bearing Tullock’s name on

the prescription labels. No witnesses testified that they bought oxycodone pills from Tullock or

saw him sell drugs to customers.       Tullock admitted during a law enforcement interview,

however, that he unlawfully distributed oxycodone pills. He did not testify at trial or present any

witnesses. After hearing the government’s evidence, the jury convicted Tullock on both counts.

       At sentencing, the district court held Tullock responsible for 4,050 30-milligram

oxycodone pills, which is equivalent to 814 kilograms of marijuana.           This drug quantity

produced a base offense level of 30 under USSG § 2D1.1(c)(5). With no other sentencing

enhancements or reductions, the total offense level of 30, combined with a criminal history

                                                -2-
No. 12-6425
United States v. Tullock

category of I, produced an advisory guideline range of 97 to 121 months imprisonment. The

district court overruled Tullock’s objections to the Presentence Report, including his challenge to

the drug quantity, but the court granted his motion for a downward variance and imposed a

sentence of 61 months of imprisonment. We have jurisdiction of this appeal under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742.

                                         II. ANALYSIS

       Tullock’s motion to suppress evidence of the traffic stop should have been granted

because Trooper Stielow lacked probable cause to stop Tullock’s van. As a result, we reverse

Tullock’s convictions.

A. Motion to Suppress Evidence

       1. Standard of review

       In reviewing the denial of a motion to suppress evidence, we examine the district court’s

factual findings for clear error and its legal conclusions de novo. United States v. Lyons, 687

F.3d 754, 762 (6th Cir. 2012).      “A factual finding is clearly erroneous when a court, on

reviewing the evidence, ‘is left with the definite and firm conviction that a mistake has been

committed.’” United States v. Gunter, 551 F.3d 472, 479 (6th Cir. 2009). Whether a seizure was

reasonable under the Fourth Amendment is a question of law. Id. Because the district court

denied Tullock’s motion to suppress, we review the evidence in a light most favorable to the

government. Id.

                                                -3-
No. 12-6425
United States v. Tullock

        2. The traffic stop was not based on probable cause

        At the suppression hearing, the government called Trooper Stielow to testify briefly

about the traffic stop. Tullock did not take the stand or call any witnesses.

        Trooper Stielow testified that, on April 21, 2010, he was working in Greene County when

he received a telephone call from TBI Special Agent Wilhoit expressing interest in a maroon

Chevy van. Agent Wilhoit asked Trooper Stielow to stop the van if he had probable cause to do

so and to report anything unusual discovered during the stop.            Agent Wilhoit and other

investigators knew that Tullock had just left McMahan’s residence and they suspected he was

carrying a quantity of oxycodone pills that he purchased from McMahan.

        Sometime later, while running radar on Highway 321 between Greeneville and Newport,

Trooper Stielow spotted a maroon Chevy van. His first thought was, “[W]ow, that van is really

close to the vehicle in front of it,” so he stopped the van for following too closely, a violation of

state law.1

        Trooper Stielow considered a number of factors before making the stop, including the

speed of the vehicles and the condition and grade of the roadway, but his main consideration was

whether the van driver could stop without causing a rear-end collision if the vehicle in front of

him had to stop for any reason. The weather conditions were not adverse at the time. Trooper

Stielow did not recall how fast the van was moving even though he was running radar at the

time. He did not think the driver was speeding or he would have written a speeding ticket. He

        1
            Tennessee Code Annotated § 55-8-124(a) provides:

        The driver of a motor vehicle shall not follow another vehicle more closely than is
        reasonable and prudent, having due regard for the speed of the vehicles and the
        traffic upon and the condition of the highway.

                                                -4-
No. 12-6425
United States v. Tullock

could not specify the distance between the two vehicles and he did not think the vehicle in front

of the van was slowing down to make a turn.

         Trooper Stielow approached the driver and requested identification. Tullock nervously

produced his commercial driver’s license (CDL). When asked about his visible nervousness,

Tullock replied, “I don’t really like being stopped.”

         Trooper Stielow asked Tullock if he was taking any prescription medications, thinking

that might explain Tullock’s nervous shaking. Tullock responded that he was. Trooper Stielow

asked, “Well, do you have any on you?” to which Tullock answered, “Yes, there’s some in the

vehicle.” When Trooper Stielow asked for permission to search the van, Tullock replied, “Go

ahead, go right ahead.” Trooper Stielow and a backup officer who had arrived on the scene

searched the van.

         Trooper Stielow was not asked during the suppression hearing what he found during the

search of Tullock’s van. At trial, however, he testified that the search of the front passenger

compartment turned up several empty pill vials bearing oxycodone prescription labels in

Tullock’s name. Trooper Stielow also found a chip cannister behind the rear passenger seat that

held more pill vials for oxycodone prescriptions written in Tullock’s name. Some of these vials

contained a total of 170 oxycodone pills. The vial labels indicated that the prescriptions had

been obtained in Florida within the previous month.

         Trooper Stielow did not seize the oxycodone pills because the name on the labels

matched Tullock’s identification and there was nothing obviously illegal about his possession of

the pills. There were no drug packaging materials or large amounts of cash in the van. Trooper

Stielow handed Tullock a warning citation for following too closely and allowed him to leave the

scene.

                                                -5-
No. 12-6425
United States v. Tullock

       The traffic stop was constitutionally reasonable if Trooper Stielow had probable cause to

believe that Tullock violated § 55-8-124(a). See Whren v. United States, 517 U.S. 806, 819

(1996). In this circuit, “to effect a traffic stop, an officer must possess either probable cause of a

civil infraction or reasonable suspicion of criminal activity.” Lyons, 687 F.3d at 763; Gaddis v.

Redford Twp., 364 F.3d 763, 771 n.6 (6th Cir. 2004). We employ the probable cause standard

because the parties agree that their dispute centers on whether Trooper Stielow could stop

Tullock for a civil violation of § 55-8-124(a).

       Our inquiry focuses on whether Trooper Stielow had an objectively verifiable reason for

stopping Tullock’s van. See United States v. Hughes, 606 F.3d 311, 315–16 (6th Cir. 2010);

United States v. Herbin, 343 F.3d 807, 809 (6th Cir. 2003). Trooper Stielow’s subjective intent

in conducting the traffic stop is not a relevant factor in the Fourth Amendment analysis. See

Whren, 517 U.S. at 813.

       Trooper Stielow recalled few objective facts to justify the traffic stop. He remembered

only that the weather was clear, Tullock probably was not speeding, and Tullock did not have to

slam on his brakes to avoid hitting the car in front of him. He could not recall the speed the

vehicles were traveling, the amount of distance between them, or for how long a period Tullock

drove too closely to the car in front of him.

       In United States v. Sanford, 476 F.3d 391, 393 (6th Cir. 2007), by contrast, this court

concluded that a deputy sheriff provided sufficient objective facts to justify his decision to make

a traffic stop for following too closely under § 55–8–124(a). The deputy watched a car traveling

at 65 miles per hour on the interstate approach a slow-moving tractor-trailer truck. Id. The car’s

driver was unable to change lanes quickly. He slammed on the brakes and came within ten feet

of the truck in front of him. Id. This court held that the deputy had probable cause to stop the

                                                  -6-
No. 12-6425
United States v. Tullock

driver for violating § 55–8–124(a) because he did not maintain a distance of at least one car

length for every ten miles per hour of speed as directed in the Tennessee drivers’ manual. Id. at

393, 395. Trooper Stielow did not testify to any similar facts.

       Other examples of proper traffic stops for following too closely appear in our

unpublished cases, although those decisions are not binding on us here. In United States v.

Kelley, 459 F. App’x 527, 532 (6th Cir. 2012), the officer stopped a driver who was following a

vehicle in front of him within three to five feet at about 55 miles per hour; the intervening

distance should have been fifty feet. These objective facts were sufficient to show a violation of

§ 55–8–124(a) to support probable cause for a traffic stop. Id.

       In United States v. Jimenez, 446 F. App’x 771, 772 (6th Cir. 2011), an officer watched as

a car traveling 55 miles per hour on an interstate pulled within twenty-four inches of the rear

bumper of a tractor-trailer truck. This conduct, along with the driver’s other maneuvers, formed

probable cause to stop the driver for following too closely. Id. at 773–74.

       In United States v. Walton, 258 F. App’x 753, 754, 756–57 (6th Cir. 2007), the court

relied on Sanford to hold that probable cause existed for an officer to stop a car for following too

closely under § 55–8–124(a) where the car’s driver, upon spotting a police vehicle parked in the

median, immediately changed lanes and pulled within less than two car lengths behind a tractor-

trailer truck. In United States v. Valdez, 147 F. App’x 591, 592–95 (6th Cir. 2005), probable

cause existed to make a traffic stop for violation of § 55–8–124(a) where a car driving 60 miles

per hour on an interstate pulled within twenty feet of a vehicle and followed closely for fifteen

seconds.

       In all of these cases law enforcement officers specified the objective facts that led them to

form probable cause to make the traffic stops. By stark contrast, Trooper Stielow did not.

                                                -7-
No. 12-6425
United States v. Tullock

Although we give due deference to the district court’s determination that Trooper Stielow was a

credible witness, see United States v. Akram, 165 F.3d 452, 456 (6th Cir. 1999), the substance of

the testimony he provided was simply insufficient to demonstrate probable cause to stop

Tullock’s van. The district court’s contrary determination is erroneous, and the motion to

suppress evidence should have been granted. Accordingly, we reverse Tullock’s convictions and

remand for further proceedings.

B. Drug quantity determination

       We address the sentencing issue only to provide guidance to the district court and the

parties in the event the government elects to retry Tullock and he is again convicted.

       At the original sentencing, the district court held Tullock responsible for 4,050

oxycodone pills. This quantity included 3,600 pills Tullock obtained legally at Florida pain

clinics under prescriptions written in his own name, as well as 450 pills he obtained illegally

from McMahan as part of the charged conspiracy. Citing United States v. Page, 232 F.3d 536

(6th Cir. 2000), the district court ruled that the drugs Tullock obtained from his supplier for his

personal use could be counted in determining the drug quantity for purposes of sentencing. The

court found that Tullock’s statement about traveling to Florida monthly to obtain oxycodone

tablets was sufficient to meet the burden.

       USSG § 1B1.3 provides that relevant conduct is determined on the basis of “all acts . . .

committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the

defendant” and “in the case of a jointly undertaken criminal activity (a criminal plan, scheme,

endeavor, or enterprise undertaken by the defendant in concert with others, whether or not

charged as a conspiracy), all reasonably foreseeable acts . . . of others in furtherance of the

jointly undertaken criminal activity.” Tullock does not dispute that the oxycodone pills he

                                                -8-
No. 12-6425
United States v. Tullock

purchased from McMahan constitute relevant conduct because those purchases occurred during

the jointly undertaken criminal activity of the charged conspiracy. Under Page, the court may

count as relevant conduct all of the pills Tullock purchased from McMahan, even if some of

them were purchased for Tullock’s own personal use. See Page, 232 F.3d at 542.

       Page does not apply to the 3,600 oxycodone pills Tullock obtained on his own in Florida

through legal prescriptions. The government did not present any proof that Tullock obtained

those pills as part of the charged conspiracy or that McMahan had any involvement in those

purchases. Thus, Page cannot support the district court’s decision to hold Tullock accountable

for those pills when McMahan did not supply them.

       The district court should have determined how many of the 3,600 oxycodone pills

Tullock obtained in Florida were attributable to his own lawful personal use and how many were

unlawfully distributed or possessed with intent to distribute to others. Relevant conduct includes

only unlawful activity.    USSG § 1B1.3. “[P]resuming that the full quantity possessed by

conspiracy members is ‘contraband . . . within the scope of the criminal activity,’ without

requiring the government to prove and without a factual finding by the district court explicating

the evidence supporting that finding, creates an unacceptably high risk that a defendant will be

punished for drug quantities a portion of which was lawfully obtained, possessed, and

consumed.” United States v. Bell, 667 F.3d 431, 443 (4th Cir. 2011).

       Ordinarily, the government bears the burden to prove the drug quantity attributable to the

defendant by a preponderance of the evidence, but “the defendant bears the burden of production

with respect to his personal use of the drug in question.” United States v. Gill, 348 F.3d 147,

153, 156 (6th Cir. 2003) (relying on United States v. Asch, 207 F.3d 1238, 1246 (10th Cir.

2000)). The Gill court adopted the suggestion in United States v. Wyss, 147 F.3d 631, 633 (7th

                                               -9-
No. 12-6425
United States v. Tullock

Cir. 1998), that “when the defendant buys drugs both for his own consumption and for resale, he

has some burden of producing evidence concerning the amount that he consumed––he cannot

just say to the government, ‘I’m an addict, so prove how [many of the pills] that I bought I kept

for my own use rather than to resell.’”

       If the government opts to retry Tullock and he is again convicted, Tullock must carry a

burden of production to show how many of the oxycodone pills that he obtained in Florida were

for his own lawful use. The government must carry the burden of persuasion to prove the

number of oxycodone pills Tullock unlawfully distributed or possessed with intent to distribute.

The district court’s findings must be based on the evidence presented. If the amount of drugs

attributable to the defendant is uncertain, “the district court must ‘err on the side of caution’ and

hold the defendant accountable only for that amount that is more likely than not attributable to

the defendant.” See Gill, 348 F.3d at 151.

                                       III. CONCLUSION

       Tullock’s motion to suppress evidence should have been granted because Trooper

Stielow did not establish probable cause to make a traffic stop for a violation of § 55–8–124(a).

For this reason, we REVERSE Tullock’s convictions and REMAND for further proceedings

consistent with this opinion.

                                                -10-


COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-07-354-CV

ELIZABETH A. ROHR
	APPELLANT

V.

RALPH CRAIG SAUNDERS
	APPELLEE

----------

FROM THE 211
TH
 DISTRICT COURT
OF DENTON COUNTY

------------

MEMORANDUM OPINION
(footnote: 1) AND JUDGMENT

------------

On May 14, 2008, we notified appellant, in accordance with rule of appellate procedure 42.3(c), that we would dismiss this appeal unless the $175 filing fee was paid.
See

Tex. R. App. P.
 42.3(c).  Appellant has not paid the $175 filing fee.
See

Tex. R. App. P.
 5, 12.1(b).

Because appellant has failed to comply with a requirement of the rules of appellate procedure and the Texas Supreme Court’s order of August 28, 2007,
(footnote: 2) we dismiss the appeal.
See

Tex. R. App. P
. 42.3(c), 43.2(f).

Appellant shall pay all costs of this appeal, for which let execution issue.
See

Tex. R. App. P.
 43.4.

PER CURIAM

PANEL D:  WALKER, J.; CAYCE, C.J.; and MCCOY, J.

DELIVERED:  June 5, 2008

FOOTNOTES
1:See

Tex. R. App. P.
 47.4.

2:See
 Supreme Court of Tex.,
Order Regarding Fees Charged in Civil Cases in the Supreme Court and the Courts of Appeals and Before the Judicial Panel on Multidistrict Litigation
, Misc. Docket No. 07-9138 (Aug. 28, 2007) (listing fees in court of appeals).


357 F.3d 664
ADCO OIL COMPANY, Plaintiff-Appellant,v.Michael J. ROVELL, Defendant-Appellee.
No. 03-2575.
United States Court of Appeals, Seventh Circuit.
Argued January 6, 2004.
Decided February 3, 2004.
Rehearing Denied February 26, 2004.

Mark J. Rose, Chicago, IL, Stanley M. Ward, Norman, OK, E. Vance Winningham (argued), Winningham & Stein, Oklahoma City, OK, for Appellant.
Lisa I. Fair (argued), Rovell & Associates, Chicago, IL, for Debtor-Appellee.
Before EASTERBROOK, DIANE P. WOOD, and WILLIAMS, Circuit Judges.
EASTERBROOK, Circuit Judge.

1
Adco Oil Company developed a means to increase the recovery of natural gas from underground deposits and assigned this intellectual property to Hugoton Joint Venture 1986(HJV), in exchange for a partnership interest: Adco was entitled to 20% of any returns exceeding $1.1 million. Adco hired Guy Taylor as legal counsel to negotiate on its behalf (and HJV's) to market its idea to Mobil Oil Company. According to Adco, Taylor bungled the job and gave away the secret. HVJ and Adco filed suit in Oklahoma against both Mobil and Taylor. Adco and HJV engaged Michael J. Rovell, then a partner of Jenner & Block, to represent them. Within a month, Adco assigned to HJV whatever interest Adco held in the claims against Mobil and Taylor. HJV settled with Mobil for $250,000 and went to trial against Taylor. Before the jury returned its verdict, HJV and Taylor cut a deal, including a cap at $850,000 if the jury should make a higher award, a low of $200,000 even if the verdict favored Taylor, and a waiver of appeals and post-trial motions. The jury brought back a verdict for $120 million, so HJV received $850,000. Because total recoveries equaled $1.1 million, Adco did not receive a distribution from HJV. Adco then sued Rovell for malpractice, on the theory that he should have seen a huge verdict coming and ensured that Adco got a slice, rather than negotiating a cap that left Adco uncompensated.

2
Adjudication of Adco's claim against Rovell has been complicated by the fact that Rovell filed a federal bankruptcy proceeding, so the malpractice suit has proceeded as an adversary action within the bankruptcy. (Federal bankruptcy law is the source of subject-matter jurisdiction. See 28 U.S.C. § 1334(b).) A further complication is that Rovell failed to give timely notice of the malpractice claim to his insurance carrier, leading to extended litigation about its duty to defend and indemnify. See Home Insurance Co. v. Adco Oil Co., 154 F.3d 739 (7th Cir.1998). After the underbrush had been cleared away, Bankruptcy Judge Ginsberg dismissed Adco's malpractice claim on the ground that, because of the assignment to HJV, Adco lacks standing to sue Rovell. District Judge Moran affirmed. Adco Oil v. Rovell, 2003 WL 21148445, 2003 U.S. Dist. LEXIS 8352 (N.D.Ill. May 19, 2003).

3
Unlike the bankruptcy and district judges, we conclude that Adco's claim presents a controversy under Article III. Adco wants money damages for a tort, and a favorable judicial order would redress the injury. Its problem is not standing but substance: Adco transferred to HJV any interest in both the intellectual property and the ensuing claim against Mobil and Taylor. Adco's injury thus is derivative rather than direct — HJV did not recover enough to call for a payout to Adco. Yet Adco has elected to sue in its own name rather than to make a derivative claim on behalf of HJV, or a claim against HJV's managing partner. No rule of Oklahoma law of which we are aware permits a partner such as Adco to litigate independently on account of an injury done to a partnership. To the contrary, Oklahoma follows the lead of Delaware, which requires a partner to initiate a derivative action in order to obtain redress for an indirect injury. See 54 Okl. St. §§ 357, 358; Litman v. Prudential-Bache Properties, Inc., 611 A.2d 12 (Del.Ch.1992). Adco therefore is not entitled to recover against Rovell.

4
Adco's demand for an independent recovery is a thinly disguised effort to undo the assignment to which it consented during the Oklahoma litigation, and to usurp the control of the litigation ceded to HJV as a result. It is unclear to us that Adco had any interest in the suit against Mobil and Taylor to start with. Once it had sold its intellectual property rights to HJV in exchange for a partnership interest, any injury caused by Taylor's errors was suffered by HJV rather than Adco. (In other words, Adco's belief that it originally had a claim against Mobil and Taylor is attributable to the same failure to distinguish between direct and derivative injuries that besets the malpractice claim against Rovell). But this is beside the point, for Adco transferred to HJV whatever interest Adco had possessed in the legal action against Mobil and Taylor.

5
Midway through the proceedings in Oklahoma, Adco changed its mind and tried to reclaim the chose in action by disputing Rovell's authority to sign off on the settlement, but the state judiciary — both the trial court and the court of appeals — held that the assignment is valid and extinguishes Adco's independent claim. That decision is not subject to collateral attack in this federal litigation, and Adco's insistence that as a matter of Oklahoma law it must have retained some stake in the claim against Mobil and Taylor is a form of prohibited collateral attack. So too is Adco's insistence that, because Rovell represented Adco before he took HJV itself as a client, Rovell owed it a duty to use this phantom claim to siphon some settlement proceeds direct to Adco, without passing through HJV. The Oklahoma judiciary has concluded that whatever claim Adco possessed was transferred to HJV. Legal ethics does not compel a lawyer to sabotage such transactions.

6
HJV itself may or may not have had a legitimate grievance with Rovell's advice and assistance. We do not explore that question. Adco's only interest was, and is, as a partner of HJV, and its injury is derivative. Only HJV could vindicate the interest of the partnership as a whole, and the time to do so expired years ago. Adco should not attempt to resurrect this claim by re-filing it as a derivative action; that would just invite sanctions for frivolous litigation.

7
AFFIRMED.


                                MEMORANDUM OPINION
                                       No. 04-12-00200-CV

                                        Kandy E. SWAIM,
                                            Appellant

                                                 v.

                                      Robert M. SWAIM, Jr.,
                                             Appellee

                     From the 406th Judicial District Court, Webb County, Texas
                               Trial Court No. 2009-CVG-000185-D4
                            Honorable Oscar J. Hale, Jr., Judge Presiding

PER CURIAM

Sitting:         Karen Angelini, Justice
                 Sandee Bryan Marion, Justice
                 Phylis J. Speedlin, Justice

Delivered and Filed: October 31, 2012

DISMISSED

           Appellant has filed a motion to dismiss this appeal, stating that both appellant and

appellee are informing the court that they have settled their dispute. Therefore, we grant the

motion and dismiss the appeal. See TEX. R. APP. P. 42.1(a). Costs of appeal are taxed against

appellant. See id. 42.1(d).

                                                      PER CURIAM


558 N.W.2d 239 (1996)
219 Mich. App. 735
Beverley J. FROMMERT, Plaintiff-Appellant,
v.
BOBSON CONSTRUCTION COMPANY, Defendant-Appellee.
Docket No. 182052.
Court of Appeals of Michigan.
Submitted August 20, 1996, at Detroit.
Decided November 8, 1996, at 9:05 a.m.
Released for Publication January 24, 1997.
Power & Gerisch by Jonathan P. Gerisch, Ann Arbor, for plaintiff-appellant.
Thav, Gross, Steinway & Bennett, P.C. by David J. Berman, Birmingham, for defendant-appellee.
Before CORRIGAN, P.J., and JANSEN and M. WARSHAWSKY,[*] JJ.
PER CURIAM.
Plaintiff appeals as of right from a July 6, 1994, order of the Washtenaw Circuit Court granting defendant summary disposition pursuant to MCR 2.116(C)(7) (claim barred by statute of limitations). We reverse and remand for further proceedings.
Plaintiff is a veterinarian who owns a veterinary clinic in Ann Arbor. In 1986, the clinic had a leaking roof, and the roof was *240 inspected by defendant's employee, John Copeland, on April 18, 1986. Ultimately, plaintiff decided to have the entire roof removed and replaced with a new roofing system. On May 8, 1986, plaintiff and Copeland signed the contract. The work was completed on November 24, 1986.
On August 28, 1987, the new roof began to leak, and plaintiff claimed that the leak caused damage to the building and property in the building. Plaintiff also claimed that the roof has leaked continuously since then. Defendant made several attempts in 1987 and 1988 to repair the leaks; however, the roof was not repaired to plaintiff's satisfaction. On December 31, 1992, plaintiff filed a two-count complaint, alleging breach of contract and breach of warranty. The trial court ultimately granted summary disposition in favor of defendant, finding that plaintiff's claim was barred by the four-year statute of limitations found in the Uniform Commercial Code, M.C.L. § 440.2725; M.S.A. § 19.2725. Specifically, the trial court, relying on Neibarger v. Universal Cooperatives, Inc., 439 Mich. 512, 486 N.W.2d 612 (1992), determined that the contract involved a mixture of goods and services, but that the purchase of a roof was the predominant factor and the services were incidental to the purchase of the roof.
On appeal, plaintiff argues that the contract in this case is one for services, rather than one for a sale of goods, and that the four-year statute of limitations under the UCC does not apply. Rather, plaintiff contends that the six-year statute of limitations in M.C.L. § 600.5807(8); M.S.A. § 27A.5807(8) should apply. We agree.
We review a trial court's decision on a motion for summary disposition de novo. Peters v. Dep't of Corrections, 215 Mich.App. 485, 486, 546 N.W.2d 668 (1996). The pleadings, affidavits, depositions, admissions, and documentary evidence submitted by the parties must be considered by the court when the motion is based on MCR 2.116(C)(7). MCR 2.116(G)(5).
In Neibarger, supra at pp. 527-528, 486 N.W.2d 612, our Supreme Court adopted the "economic loss doctrine" and held that where a plaintiff seeks to recover for economic loss caused by a defective product purchased for commercial purposes, the exclusive remedy is provided by the UCC, and its statute of limitations applies. An injury caused by a service, however, would not arise out of a "transaction in goods" and would not be governed by the UCC. Id. at p. 533, 486 N.W.2d 612. Where a contract involves a mixture of goods and services, our Supreme Court adopted the test set forth in Bonebrake v. Cox, 499 F.2d 951, 960 (C.A.8 1974), to determine whether contracts for mixed goods and services are governed by the UCC:
The test for inclusion or exclusion is not whether they are mixed, but, granting that they are mixed, whether their predominant factor, their thrust, their purpose, reasonably stated, is the rendition of service, with goods incidentally involved ... or is a transaction of sale, with labor incidentally involved. [Neibarger, supra at p. 534, 486 N.W.2d 612.]
Generally, the question whether goods or services predominate in a hybrid contract is one of fact. Higgins v. Lauritzen, 209 Mich.App. 266, 269, 530 N.W.2d 171 (1995). Where there is no genuine issue of any material fact regarding the provision of the contract, a court may decide the issue as a matter of law. Id. at p. 270, 530 N.W.2d 171.
Applying the Bonebrake test to the facts of this case, we conclude that the contract between the parties was predominantly one for services, rather than one for a sale of goods, and was not subject to the statute of limitations period set forth in the UCC. According to the contract and the letter from Copeland, defendant was to remove the old roof and replace it with a new Bobson Polybond roofing system with an R-25 insulation value. In this case, it is difficult to conceive of the goods being supplied, the roofing material, as the predominant purpose of the contract. That is, plaintiff needed to have a new roof installed, and the service of removing the old roof and replacing it with the new roofing system was clearly the predominant purpose of the contract.
*241 Further, the contract itself is specifically identified as a "home improvement and installment contract" and defendant is referred to as a contractor in the contract. Defendant essentially undertook to remove and replace a leaky roof. The goods were merely incidental to the purpose of the contract. Plaintiff was not contracting to purchase roofing material only, because the goods would have been of no value unless they were installed. See, e.g., Higgins, supra at pp. 270-271, 530 N.W.2d 171 (and see cases cited therein where installation contracts were not covered by Article 2 of the UCC). Accordingly, we conclude that the contract between the parties was predominantly one for a service, rather than one for a sale of goods, and was not subject to Article 2 of the UCC, including the four-year statute of limitations.
Defendant cites Mennonite Deaconess Home & Hosp, Inc. v. Gates Engineering Co., 219 Neb. 303, 363 N.W.2d 155 (1985); however, that case is factually distinguishable because the defendant in that case was sued in its capacity as the manufacturer of the roofing material. Further, the contract was very specific in identifying the type of roof to be installed and the roof was not installed by the defendant. Under those circumstances, the Nebraska Supreme Court concluded that the contract was predominantly for the sale of goods and that Article 2 of the UCC applied.
Similarly, Docteroff v. Barra Corp. of America, Inc., 282 N.J.Super. 230, 659 A.2d 948 (1995), involved a suit against the manufacturer of the roofing material. The New Jersey appellate court was careful to note that only the manufacturer of the roofing material was sued and that the defendant did not install the roof. Under that situation, the court concluded that the contract was predominantly one for the sale of goods rather than one for the provision of a service.
The present case is distinguishable from Docteroff or Mennonite Deaconess because defendant in this case is the installer of the roof and the roofing material is not specifically identified in the contract. Therefore, the contract between the parties was predominantly one for the provision of a service, with the sale of goods incidentally involved. The statute of limitations in Article 2 of the UCC does not apply. Rather, the applicable statute of limitations is M.C.L. § 600.5807(8); M.S.A. § 27A.5807(8), which provides that the period of limitation for an action to recover damages for a breach of contract is six years.
In this case, plaintiff's breach of contract claim was filed timely under the six-year limitation period in § 5807(8). The first leak after the installation of the new roof occurred on August 28, 1987. Plaintiff filed her suit on December 31, 1992, within the six-year period of limitation. Accordingly, plaintiff's breach of contract claim was filed timely.
Plaintiff also contends that the trial court erred in dismissing her breach of warranty claim. Because we have determined that the UCC does not apply and that the six-year period of limitation applies, we conclude that plaintiff's breach of warranty claim also was filed timely. Under M.C.L. § 600.5833; M.S.A. § 27A.5833, a cause of action based on a breach of warranty accrues when the breach of warranty is discovered or should have been discovered. Under the earliest date of the breach when the first leak of the new roof occurred on August 28, 1987, plaintiff's complaint was filed timely because her claims were filed within the six-year period of limitation. The trial court committed error requiring reversal in granting summary disposition to defendant on the basis that plaintiff's claims were time-barred.
For the reasons set forth, we reverse the trial court's grant of summary disposition in favor of defendant and remand for further proceedings. Jurisdiction is not retained.
NOTES
[*]  Circuit judge, sitting on the Court of Appeals by assignment.