116 F.3d 1485
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Ken FALLON;  UNISYNC, Inc., Plaintiffs-Appellants,v.INTERNATIONAL BUSINESS MACHINES, INC.;  G.C. ServicesLimited Partnership, Computone, Inc., Defendants-Appellees.
No. 95-56694.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 15, 1997.
Withdrawn June 20, 1997.

Appeal from the United States District Court Central District of California, Nos. 95-56694, CV-94-00030-RT;  Robert J. Timlin, District Judge, Presiding.
BEFORE:  FARRIS, KOZINSKI, and T.G. NELSON, Circuit Judges.

1
MEMORANDUM*

2
Fallon and Unisync appeal the grants of summary judgment.  Fallon also appeals the district court's award of attorney fees and costs against him.

I.

3
The district court granted summary judgment in favor of IBM, concluding that there was no genuine issue of material fact as to whether wrongful acts by IBM caused the damages alleged.  The record supports the court's conclusions.  Unisync argues that IBM acted wrongfully in:  (1) causing the IRS to believe that Unisync products did not work;  (2) knowing and not informing the IRS that Unisync products worked;  and (3) causing the Unisync products not to work.  The first two theories were properly rejected on uncontroverted facts and law.

4
Unisync bases its third theory on an allegation that IBM denied Unisync testing equipment, "which effectively made compliance impossible."   This allegation, even if true, fails as a matter of law in the absence of a duty from IBM to Unisync to provide the equipment.  See Nipper v. California Automobile Assigned Risk Plan, 19 Cal.3d 35, 46-47 (1977);  Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 435 (1976).  Summary judgment was appropriate.

5
Summary judgment against Unisync on its tortious interference claim against GC Services was also appropriate.  The economic relationship allegedly interfered with was the contract between Unisync and GC Services.  Under California law a party cannot tortiously interfere with a contract to which it is a party.  Applied Equipment Corp. v. Litton Saudi Arabia, Ltd., 7 Cal.4th 503, 514 (1994).

II.

6
Fallon contends that the district court erred in awarding attorney fees and costs against him, because he was not a party to the contract between GC Services and Unisync.  We review de novo the question of entitlement to an award of attorney fees under state law.  Resolution Trust Corp. v. Midwest Federal Savings Bank of Minot, 36 F.3d 785, 799 (9th Cir.1993).

7
The district court awarded attorney fees and costs for two distinct claims:  GC Services' successful defense of the breach of contract claim against it, and GC Services' successful prosecution of its contract claim against Unisync.  The court made a single award.

8
In his complaint, Fallon alleged that he was a party to the contract with GC services.  That contract provided:

9
The prevailing party in any legal action brought by one party against the other and arising out of this Agreement shall be entitled ... to reimbursement for its expenses, including court costs and reasonable attorneys' fees.

10
Fallon, therefore, would have been entitled to recover attorney fees had he prevailed, and he is liable for attorney fees as the losing party.

11
But the district court could not award attorney fees and costs against Fallon for GC Services' contract-based counterclaim against Unisync, because there was no legal basis for such an award.  Fallon was not a party to the contract.  GC Services brought its counterclaim against Unisync, but not against Fallon.  The district court initially agreed that an award against Fallon was inappropriate on the counterclaim:  it awarded "other expenditures" in connection with the counterclaim solely against Unisync.  But when Fallon raised the issue in connection with fees, the court refused to consider it.

12
GC Services first raises procedural arguments to defend the award.  It contends that we lack jurisdiction because Fallon failed to file a separate notice of appeal of the fee award.  Fallon filed his notice after entry of judgment on the merits of the claims, but before the award of fees.  He did not file a second notice after the fee award.

13
"As a general matter ... a claim for attorney's fees is not part of the merits of the action."  Budinich v. Becton Dickinson & Co., 486 U.S. 196, 200 (1988).  A fee award is only final and appealable after the amount is determined.  Intel Corp. v. Terabyte International, Inc., 6 F.3d 614, 617 (9th Cir.1993).  Therefore, a notice of appeal "filed after ... judgment but before the determination of the fee amount, pertain[s] only to the merits of the litigation."  Id. (emphasis omitted).

14
However, "the finality requirement must be given a practical rather than a technical construction," in which "we focus on what effect the court intended [its ruling] to have."  Montes v. United States, 37 F.3d 1347, 1350 (9th Cir.1994) (dismissal of complaint).  On this record, the judgment on the merits also finally determined Fallon's liability for fees.  When Fallon opposed GC Services' fee request, GC Services argued that the court had already "rejected [Fallon's] position on that issue and indeed entered judgment against [him] on it."   The court agreed with GC Services, and its ruling left no doubt that the issue had already been decided:  "[D]espite any substantive merit of Fallon's legal argument, such argument is precluded by the existence of the filed and entered judgment."   Fallon had already noticed an appeal of that judgment.  We have jurisdiction to hear that appeal.

15
GC Services also argues that Fallon forfeited his right to appeal the award because he did not object to the form of the judgment or move to amend it.  Though the order granting GC Services' motion for summary judgment had properly distinguished between Unisync and Fallon for purposes of a fee award, the subsequent judgment did not.  Fallon did not object.  But this failure to object does not prevent review.  An appellate court may correct forfeited errors that are "plain" and that "seriously affect the fairness ... of judicial proceedings."  United States v. Olano, 507 U.S. 725, 736 (1993) (correcting error under FRCrP 52(b)) (citing Connor v. Finch, 431 U.S. 407, 421 n. 19 (1977) (applying same plain error test to civil appeal)).  " 'Plain' is synonymous with ... 'obvious.' "  Olano, 507 U.S. at 734.   Holding Fallon liable for attorney fees incurred by GC Services on its claim against a different party was an obvious error.  It seriously affected the fairness of the proceedings by imposing liability without a legal basis.

16
GC Services also argues that the award of fees was not error under Texas law, which governs the contract claims.  It contends that the court did not have to segregate the fees expended on GC Services' counterclaim from those expended on the action against it because:  (1) the two actions arose out of the same transaction;  and (2) the amount attributable to the counterclaim was nominal.  These arguments lack merit.  Though the actions arose out of related contract disputes, there was one critical difference:  GC Services did not sue Fallon.   None of the cases cited by GC Services establishes that segregation is unnecessary when the party against whom recovery is sought was never a defendant.  See, e.g., Stewart Title Guaranty Co. v. Sterling, 822 S.W.2d 1, 5, 10-12 (Tex.1992) (segregation between claims against defendants that settle before trial and those that do not);  see also id. at 10 ("the plaintiff [seeking fees] is required to show that the fees were incurred while suing the defendant sought to be charged with the fees").  Similarly, though "nominal" amounts need not always be segregated, no Texas court has applied this rule to impose fees against someone against whom no claim was ever asserted.  See, e.g., Bullock v. Kehoe, 678 S.W.2d 558, 560 (Tex.Ct.App.1984) (segregation between claims against same defendant).

17
GC Services has acknowledged that approximately five percent of attorney fees related to the counterclaim.  We therefore relieve Fallon of liability for this portion, $4,522.37, of the award.

18
Summary judgment is AFFIRMED.  The award of attorney fees is AFFIRMED against Unisync and VACATED against Fallon, and the case is remanded for entry of a reduced fee award against Fallon.  No costs.

*
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3


                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  May 15, 2017
                      UNITED STATES COURT OF APPEALS
                                                              Elisabeth A. Shumaker
                                   TENTH CIRCUIT                  Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                    No. 16-2201
                                             (D.C. No. 1:15-CR-02731-JCH-1)
 FRANCISCO ROBERT ESQUIBEL,                              (D.N.M.)
 JR.,

          Defendant - Appellant.

                              ORDER AND JUDGMENT *

Before TYMKOVICH, Chief Judge, BALDOCK, and MURPHY, Circuit
Judges.

      Francisco Esquibel appeals his drug sentence. The basic facts are as

follows: when police officers arrested Esquibel, they found him on a bicycle at

his front door. He was wearing a backpack that contained several grams of

marijuana, a few grams of mushrooms, 1.6 grams of methamphetamine, several

unidentified pills, and three digital scales. Strapped to the backpack was a loaded

      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. 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.
handgun. Esquibel pleaded guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g). At sentencing, the district court found the

firearm possession to be connected to a drug-trafficking offense, so it applied the

4-level enhancement described in § 2K2.1(b)(6)(B) of the U.S. Sentencing

Guidelines. Esquibel challenges the district court’s conclusion as clearly

erroneous. Specifically, he asserts that the small amounts of drugs discovered

points toward personal consumption, not drug trafficking.

      We affirm.

      We review the district court’s factual findings for clear error, and under

that standard, we do not reverse unless “the sentencing court’s finding is simply

not plausible or permissible in light of the entire record on appeal.” United States

v. McClatchey, 316 F.3d 1122, 1128 (10th Cir. 2003). Esquibel has not made that

showing. The evidence plausibly suggests that, at the time of his arrest, Esquibel

was on his way to deliver drugs on his bicycle, carrying a gun for protection. The

presence of several types of drugs, the three digital scales, and the firearm amply

supports the district court’s finding of an intent to distribute drugs. See, e.g.,

United States v. Allen, 235 F.3d 482, 192 (10th Cir. 2000); United States v.

Triana, 477 F.3d 1189, 1195 (10th Cir. 2007).

      To be sure, Esquibel is likely correct that, alone, the small amounts of

drugs found on him could be consistent with a finding of personal use rather than

distribution. But that is not the standard of review. Esquibel has to show more

                                         -2-
than that his theory is possible: he must demonstrate that the district court’s

theory is implausible. After reviewing the record, we find no clear error in the

district court’s decision.

      AFFIRMED.

                                               ENTERED FOR THE COURT

                                               Timothy M. Tymkovich
                                               Chief Judge

                                         -3-


                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT

                                      No. 17-1300

RONA ROSEMOND ANSAH,

                    Plaintiff - Appellant,

             v.

WALMART STORES, INC.,

                    Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. James C. Cacheris, Senior District Judge. (1:16-cv-01351-JCC-IDD)

Submitted: July 20, 2017                                          Decided: July 24, 2017

Before DUNCAN and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Rona Rosemond Ansah, Appellant Pro Se. John Mark Murdock, BENTON POTTER
MURDOCK, PC, Falls Church, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Rona Rosemond Ansah appeals the district court’s order dismissing her civil

action for failure to state a claim under Fed. R. Civ. P. 12(b)(6). We have reviewed the

record and find no reversible error. Accordingly, we deny Ansah leave to proceed in

forma pauperis and dismiss for the reasons stated by the district court. Ansah v. WalMart

Stores, Inc., No. 1:16-cv-01351-JCC-IDD (E.D. Va. Feb. 7, 2017). We dispense with

oral argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

                                                                             DISMISSED

                                            2


430 F.2d 185
IMPERIAL APPLIANCE CORPORATION et al., Plaintiffs-Appellees,v.HAMILTON MANUFACTURING COMPANY, Defendant-Appellant.
No. 18039.
United States Court of Appeals, Seventh Circuit.
July 7, 1970.
Rehearing Denied September 3, 1970.

Arlie O. Boswell, Jr., Chicago, Ill., A. F. Rankin, Manitowoc, Wis., for defendant-Appellant.
Eugene C. Knoblock, South Bend, Ind., Paul R. Puerner, Milwaukee, Wis., for plaintiffs-appellees.
Before Justice CLARK,* SWYGERT, Chief Judge, and FAIRCHILD, Circuit Judge.
SWYGERT, Chief Judge.

1
This is an interlocutory appeal brought by Hamilton Manufacturing Company pursuant to 28 U.S.C. § 1292(b). The sole question for review is whether the district court correctly ruled that jurisdiction exists under 28 U.S.C. § 1338(a) to entertain a patent infringement suit brought by Imperial Appliance Corporation against Hamilton. We affirm.

2
The facts, which are reported fully in two prior opinions of the district court. Imperial Appliance Corp. v. Hamilton Mfg. Co., 263 F.Supp. 1015 (E.D.Wis. 1967), and Imperial Appliance Corp. v. Hamilton Mfg. Co., 239 F.Supp. 175 (E. D.Wis.1965), need not be set out in great detail here. In 1937 and 1938 James R. Moore filed applications for letters patent, serial numbers 177,123 and 236,189, describing and claiming inventions to be used in the manufacture of clothes dryers. Moore thereafter assigned his rights in the "Moore patents" to F. W. Griswold. On November 9, 1938 Griswold entered into a licensing agreement granting exclusive rights to Imperial to manufacture and sell dryers embodying the Moore applications. Subsequently Griswold assigned his interest in the Moore patents to Stanley G. Harwood.

3
In November 1941 in an agreement entitled the "New Harwood-Imperial Agreement," the 1938 Imperial license was amended to permit Imperial to sublicense to Hamilton the right to manufacture and sell dryers under the Moore applications. The 1938 license was also modified to include the following provision as paragraph 1 of the new Harwood-Imperial agreement:

4
1. That any and all improvements of the Dryer or in the process of manufacturing the same heretofore, or hereafter made by or at the instance of either Imperial or Hamilton, are understood to be and remain the property of Harwood as assignee-owner of the applications for Letters Patent and/or Patents of or relating to said Dryer in the United States of America and the Dominion of Canada; and that the aforementioned agreement of November 9, 1938 is hereby understood and declared to extend for the full term of such patents issued and to be issued, and any and all improvements thereto.

5
Imperial and Hamilton simultaneously entered into a sublicense agreement entitled "Contract and License" which incorporates the New Harwood-Imperial Agreement for reference. Under the Contract and License, Hamilton paid royalties to both Imperial and Harwood.

6
On September 18, 1945 the Moore patents issued as U. S. Patents No. 2,385,222 and No. 2,385,223. On the next day Moore applied for another patent and immediately assigned his interest in the new application to Hamilton. Thereafter, on February 6, 1951 the patent issued as U. S. Patent No, 2,540,955 in Hamilton's name as patentee. Until 1962 Harwood and Imperial received royalties on dryers manufactured and sold by Hamilton. On September 18, 1962, the date of expiration of the Moore patents, Hamilton declared the Contract and License terminated by its own provisions and ceased to pay royalties.

7
In 1963 Imperial commenced a diversity action against Hamilton alleging that the '955 patent was an improvement patent under the New Harwood-Imperial Agreement; that the Contract and License remained in effect; and that Hamilton continued to be liable for royalties on the '955 patent until its expiration on February 6, 1968. The district court, in an unpublished memorandum opinion, held that the Contract and License terminated at the expiration of the Moore patents and did not impose an obligation to pay royalties on improvement patents. The court further ruled that paragraph 1 of the New Harwood-Imperial Agreement granted Imperial an exclusive license to improvements on the Moore patents. The court described Imperial's rights as exclusive licensee as follows: "Assuming for purposes of this decision that Patent No. 2,540,955 discloses improvements to the Moore Patents, and assuming further that Hamilton has been and is now utilizing the purported improvements in the manufacture and sale of clothes dryers, the use would be in derogation of Harwood's and Imperial's rights to improvements that Hamilton acknowledged in the Contract and License. However, plaintiffs' remedy for the unauthorized use does not lie in an action based on breach of the royalty payment or unilateral termination provisions of the Contract and License as alleged in the Complaint herein."

8
On January 29, 1968 Imperial amended its complaint to allege that Hamilton's use of the '955 patent constituted infringement of its exclusive license to improvement patents. Harwood and certain heirs of Moore (Harwood had reassigned an undivided one-half interest in the Moore patents to Moore in 1946) were added as plaintiffs, thus destroying diversity of citizenship as a basis for jurisdiction. Hamilton thereupon moved to dismiss for lack of jurisdiction. The district court in another unpublished opinion denied Hamilton's motion, holding that Imperial's suit was one for infringement arising under the patent laws. This appeal followed.

9
Federal jurisdiction in patent cases exists under 28 U.S.C. § 1338(a) which provides: "The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, copyrights, and trademarks. Such jurisdiction shall be exclusive of the courts of the states in patent and copyright cases." Hamilton argues that Imperial's infringement suit does not arise under the patent laws since the district court must determine whether the '955 patent is an improvement on the Moore patents and thus the property of Harwood as patentee and Imperial as exclusive licensee. We disagree.

10
Although state courts are permitted to decide patent questions incidental to claims arising under state law, Pratt v. Paris Gas Light & Coke Co., 168 U.S. 255, 259, 18 S.Ct. 62, 42 L.Ed. 458 (1897), federal courts have exclusive jurisdiction over cases in which plaintiff's cause of action is created by the patent laws. American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 36 S.Ct. 585, 60 L.Ed. 987 (1916). The boundary between federal and state court jurisdiction is further clarified by the concise statement of Chief Justice Taft in Luckett v. Delpark, Inc., 270 U.S. 496, 510-511, 46 S.Ct. 397, 70 L.Ed. 703 (1926):

11
[W]here a patentee complainant makes his suit one for recovery of royalties under a contract of license or assignment, or for damages for a breach of its covenants, or for a specific performance thereof, or asks the aid of the Court in declaring a forfeiture of the license or in restoring an unclouded title to the patent, he does not give the federal district court jurisdiction of the cause as one arising under the patent laws. Nor may he confer it in such a case by adding to his bill an averment that after the forfeiture shall be declared, or the title to the patent shall be restored, he fears the defendant will infringe and therefore asks an injunction to prevent it.

12
We are convinced that under these rules Imperial's cause of action arises under the patent laws.

13
Hamilton maintains that the plaintiff must have unclouded legal title in order to confer federal jurisdiction in an infringement suit. See Laning v. National Ribbon & Carbon Paper Mfg. Co., 125 F.2d 565 (7th Cir. 1942); Lion Mfg. Corp. v. Chicago Flexible Shaft Co., 106 F.2d 930 (7th Cir. 1939); Dill Mfg. Co. v. Goff, 125 F.2d 676 (6th Cir. 1942). This argument constitutes a misstatement of existing principles governing patent jurisdiction. Courts have long held that jurisdiction is not defeated by a plea in the defendant's answer challenging plaintiff's title to the patent in suit, Excelsior Wooden Pipe Co. v. Pacific Bridge Co., 185 U.S. 282, 22 S.Ct. 681, 46 L.Ed. 910 (1902), or even by the anticipation of such a defense in plaintiff's complaint. Healy v. Sea Gull Specialty Co., 237 U.S. 479, 35 S.Ct. 658, 59 L.Ed. 1056 (1913). When plaintiff's title is challenged, jurisdiction depends not only upon pleading rules but also upon the extent to which the dispute concerning title rests upon patent as opposed to state law questions. Littlefield v. Perry, 88 U.S. (21 Wall.) 205, 22 L.Ed. 577 (1874).

14
In the instant case the district court decided in Imperial's diversity suit against Hamilton that Imperial is entitled to improvements on the Moore patents. Thus in contrast to cases such as Laning v. National Ribbon & Carbon Paper Mfg. Co., supra, and Lion Mfg. Corp. v. Chicago Flexible Shaft Co., supra, the essential question of contract interpretation has already been resolved. The only question remaining is whether the '955 patent is an improvement upon the Moore patents. That question is only nominally one of contract interpretation since the parties undoubtedly included "improvement" as a term of art under the patent laws. Thus the determination of whether a device is an improvement is a question of law resting upon matters such as the validity of the patent on the alleged improvement and the extent of its dependence upon existing patents. 1 A. W. Deller, Walker on Patents, § 19 at 130 (2d ed. 1964). To require this question to be decided by state courts when further questions of contract interpretation are not involved would defeat the policies of uniformity and expertise which prompted Congress to grant exclusive patent jurisdiction to the federal courts.

15
Our conclusion is fully supported by Littlefield v. Perry, 88 U.S. (21 Wall.) 205, 22 L.Ed. 577 (1874), the only Supreme Court case which speaks directly to the question before us. In that case plaintiff received an exclusive license on an 1851 patent which included the right to improvement patents. Although plaintiff lacked formal legal title, the Court neverthless, ruled that plaintiff was entitled to maintain an infringement suit against the patentee who was employing an alleged improvement. Hamilton has failed to demonstrate that this holding, which is identical to our own, has been overruled by subsequent cases.

16
The ruling appealed from is affirmed.

Notes:

*
 Honorable Tom C. Clark, Associate Justice of the United States Supreme Court, Retired, is sitting by special designation


6 So.3d 715 (2009)
William GAY, Appellant,
v.
FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Carmax Auto Superstores, Inc., Appellees.
No. 1D09-1038.
District Court of Appeal of Florida, First District.
April 13, 2009.
William Gay, pro se, Appellant.
Geri Atkinson-Hazelton, General Counsel, for Appellees.
PER CURIAM.
DISMISSED. See Raysor v. Raysor, 706 So.2d 400 (Fla. 1st DCA 1998).
ALLEN, WEBSTER, and THOMAS, JJ., concur.


February 22, 1999

NO. 4-98-0313

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

VINCENT WILLIAMS,

Defendant-Appellant.

)

)

)

)

)

)

)

)

Appeal from

Circuit Court of

Champaign County

No. 96CF395

Honorable

John R. DeLaMar,

Judge Presiding.

_________________________________________________________________

JUSTICE STEIGMANN delivered the opinion of the court:

In September 1996, defendant, Vincent Williams, pleaded guilty to unlawful possession of a stolen vehicle (625 ILCS 5/4-

103(a)(1) (West 1996), a Class 2 felony, and the trial court sentenced him to two years' probation.  In December 1997, the State filed a petition to revoke defendant's probation, alleging that defendant violated his probation by committing aggravated battery and resisting a peace officer (720 ILCS 5/12-4(b)(6), 31-

1 (West 1996)).  In March 1998, the court conducted a hearing, found in favor of the State and against defendant on the peti

tion, revoked his probation, and resentenced him to four years six months in prison.

Defendant appeals, arguing that (1) the evidence against him in the revocation hearing was not "clear beyond argument" and therefore the trial court erred by revoking his probation; and (2) the trial court abused its discretion by imposing a sentence greater than the minimum.  We affirm.

I. BACKGROUND

The State's petition to revoke defendant's probation alleged that he violated a condition of his probation by commit

ting (1) a battery against Jody Cherry, a person defendant knew to be a peace officer engaged in his lawful duties, and (2) the offense of resisting a peace officer.  In January 1998, the trial court conducted a hearing on the State's petition at which Cherry and Officer Mark Huckstep testified that, on the day in question in October 1997, they were patrolling a high-crime area in a marked squad car when they saw defendant standing by the driver's window of a stopped car.  Defendant had his hands in the car and was looking around "very heavily."  When the patrol car ap

proached defendant, he left on his bicycle.

The officers drove alongside defendant's bicycle and Cherry told defendant to stop.  Defendant did not stop but proceeded to his house.  At defendant's house, Cherry exited the car and pursued defendant into the garage on foot.  Cherry caught defendant at the door connecting the garage to the house, and a struggle ensued.  Cherry testified that he grabbed defendant by the left arm, and defendant swung his right arm back and then forward, striking Cherry in the head.  As a result, the radio earpiece that Cherry was wearing was broken, Cherry's ear was cut, and the blow left a red mark on Cherry's face.  At that point, defendant slipped out of his jacket and proceeded into the house.

Huckstep's testimony regarding the struggle in defen

dant's garage corroborated Cherry's description of the incident.  Huckstep's view was partially blocked, and he could not see defendant punch Cherry.  However, immediately afterward, Huckstep noticed that Cherry's earpiece was broken and that his ear was bleeding.

Defendant's mother testified that she resided with defendant and was in the living room when defendant rode up to the garage on his bicycle, pursued by Cherry.  She testified that she saw defendant slip out of his jacket and enter the house but she did not see defendant hit Cherry.

Defendant testified that he did not hit Cherry.  However, defendant did not deny that Cherry's ear was cut in the struggle.  When asked how Cherry's ear got cut, defendant re

sponded that it might have happened when he slipped out of his jacket and got away from Cherry.

After considering the evidence and arguments of coun

sel, the trial court found that the State had proved by a prepon

derance of the evidence that defendant had resisted a peace officer and had committed aggravated battery in violation of his probation conditions.

In April 1998, the trial court conducted a resentencing hearing.  After reviewing the presentence report and hearing the arguments of counsel, the court revoked defendant's probation and sentenced him to four years six months in prison.

This appeal followed.

II. ANALYSIS

Defendant appeals, arguing that (1) the evidence against him in the revocation hearing was not "clear beyond argument" and therefore the trial court erred by revoking his probation; and (2) the trial court abused its discretion by imposing a sentence greater than the minimum.  We disagree.

A. Defendant's Purported "Clear Beyond

Argument" Standard

Defendant first contends that the State's evidence at the revocation hearing does not support the trial court's find

ings.  Specifically, defendant claims that the State's evidence must be "clear beyond argument" to meet its burden of proving the allegations in the revocation petition by a preponderance of the evidence.  We disagree.

A probation revocation proceeding is in the nature of a civil proceeding arising in the wake of a previous conviction and sentence of probation, and the violation of previously imposed conditions of probation, not the commission of a culpable of

fense, must be proved.  Accordingly, the State's burden of proof at such a proceeding is preponderance of the evidence. 730 ILCS 5/5-6-4(c) (West 1996);
People v. Woznick,
278 Ill. App. 3d 826, 828, 663 N.E.2d 1037, 1038 (1996).

We will not disturb the trial court's findings in a proceeding to revoke probation unless they are against the manifest weight of the evidence.
Woznick,
278 Ill. App. 3d at 828, 663 N.E.2d at 1038-39;
People v. Ryan,
283 Ill. App. 3d 165, 169, 669 N.E.2d 623, 626 (1996).  When the evidence is contro

verted, the trial court, which sits as the trier of fact, has the function of weighing the evidence, assessing the credibility of the witnesses, and drawing reasonable inferences from the testi

mony presented.  We will not substitute our judgment for that of the trial court when the evidence is merely conflicting.
People v. Crowell,
53 Ill. 2d 447, 451-52, 292 N.E.2d 721, 723 (1973).

Although defendant concedes the foregoing principles of law, he nonetheless claims that the standard, "a preponderance of the evidence," means "clear beyond argument."  In so claiming, he relies on the following language from
People v. Welch,
78 Ill. App. 3d 184, 186, 397 N.E.2d 94, 96 (1979):

"Counsel for defendant properly concedes that the violation with which a probationer is charged must be proved by a preponderance of the evidence and not beyond a reasonable doubt.  [Citation].  This proposition of law has been described as 'clear beyond argu

ment.'
People v. Reese[,]
37 Ill. App. 3d 820, 826, 347 N.E.2d 451[, 456 (1976)]."

However, what
Reese
actually said was that "the law today is clear beyond argument that in a proceeding for violation of probation predicated upon commission of a crime, proof of the pertinent facts by a preponderance of the evidence is suffi

cient."
Reese,
37 Ill. App. at 826, 347 N.E.2d at 456.

Obviously, these authorities do not support defendant's argument.  To the contrary, they merely emphasize that the proper burden of proof in a proceeding to revoke probation is preponder

ance of the evidence.  The language "clear beyond argument" was not inserted in
Reese
to explain what the burden of proof should be.  Instead, that language merely emphasized just how firmly established is the principle of law that the State need prove its allegations in a hearing to revoke probation only by a preponder

ance of the evidence and not by some higher standard.

Accordingly, defendant's argument--namely, that we must reverse the trial court's finding because the State's evidence was "controverted and inconsistent"--has no merit.  Applying the proper standard of review to the evidence presented at trial, we conclude that the trial court's finding that the State had proved the allegations of the State's petition to revoke probation by a preponderance of the evidence was not contrary to the manifest weight of the evidence.

B. Defendant's Sentence

Last, defendant argues that the trial court abused its discretion by sentencing him to greater than the minimum sentence of three years in prison.  We disagree.

The trial court has broad discretion when imposing a sentence and is in a better position than a reviewing court to assess the credibility of witnesses and to weigh the evidence presented at a sentencing hearing.  When a trial court imposes a sentence within the statutory range permissible for the defen

dant's offense, this court will give great deference to that decision and not disturb it absent an abuse of discretion.
People v. Jones,
168 Ill. 2d 367, 373-74, 659 N.E.2d 1306, 1308 (1995);
People v. Brink,
294 Ill. App. 3d 295, 303, 690 N.E.2d 136, 141 (1998).

Defendant was initially convicted in this case of unlawful possession of a stolen vehicle, a Class 2 felony (625 ILCS 5/4-103(b) (West 1996)).  The trial court may sentence a defendant convicted of a Class 2 felony to a prison term ranging from three to seven years.  730 ILCS 5/5-8-1(a)(5) (West 1996).  Defendant contends that the trial court erred by not imposing the minimum sentence because this is his first term of imprisonment.  However, as noted by the trial court, this was not defendant's first conviction nor even his first felony.  The court appropri

ately considered defendant's criminal history and the need for deterrence as factors in aggravation (730 ILCS 5/5-5-3.2(a)(3), (a)(7) (West Supp. 1997)) and then imposed a prison sentence midway through the statutory range.  After reviewing the record in accordance with the appropriate standard of review, we con

clude that the trial court appropriately acted within its discretion in sentencing defendant.
Brink,
294 Ill. App. 3d at 303, 690 N.E.2d at 141.

III. CONCLUSION

For the reasons stated, we affirm the trial court's judgment.

Affirmed.

GARMAN and MYERSCOUGH, JJ., concur.


915 F.2d 1583
Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent.  This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Gene C. BRYANT, Petitioner,v.OFFICE OF PERSONNEL MANAGEMENT, Respondent.
No. 90-3269.
United States Court of Appeals, Federal Circuit.
Sept. 11, 1990.

Before (MARKEY, PAULINE NEWMAN and CLEVENGER, Circuit Judges.)
Judgment
PER CURIAM.

1
AFFIRMED.  See Fed.Cir.R. 36.


IN THE
TENTH COURT OF APPEALS

No. 10-08-00329-CV

Marrgaret Hiebeler,
                                                                                Appellant
 v.

OCC Construction Corporation,
                                                                                Appellee
And

No. 10-08-00354-CV

Margaret Meece and Patrick Meece,
                                                                                Appellants
 v.

OCC Construction Corporation,
                                                                                Appellee

From the 361st District Court
Brazos County, Texas
Trial Court No. 03-001642-CV-361
Consolidated with No.
03-001643-CV-361

DISSENT TO SEVERANCE AND REINSTATEMENT ORDER

            The Court’s opinion and judgment in
10-08-00329-CV has not issued. On September 18, 2008 we received a notice of
bankruptcy of two of the Appellants.  On October 7, 2008 we acknowledged the
automatic stay due to having received the notice of bankruptcy.  Today we
purport to sever the proceeding on our own motion.  I would not.
            I would inquire of the parties
regarding whether the matter was appropriate for severance, in particular
whether the Appellees’ claims against the Appellants as well as the Appellants’
claims and counterclaims are severable.  Before I vote to attempt to sever the
Appellants, I would request briefing on the issue of severability.  Further, it
appears we may be creating an undesirable course of proceeding because, while
represented by able counsel, none of the parties has sought this Court’s
intervention in this manner.
            Accordingly, I respectfully dissent
from the severance and reinstatement order.

                                                                        TOM
GRAY
                                                                        Chief
Justice

Dissent
to Severance and Reinstatement Order delivered and filed October 15, 2008
Publish

t: 0.388889in; margin-right: -0.0625in">      A jury convicted Cicero Jones of the offense of possession of a firearm by a felon.  Tex.
Penal Code Ann. § 46.04 (Vernon 1994).  It found “true” to an enhancement paragraph and
assessed punishment at eighteen years in prison.  Jones appeals on five points.  He complains of
the legal and factual sufficiency of the evidence, the State's use of peremptory strikes, a violation
of his right against self-incrimination, and ineffective assistance of counsel.  Although we assume
error in the admission of an ATF form into evidence, we find the error harmless.  We will affirm
the judgment.
      The State alleged that Jones, a convicted felon, had been in possession of a firearm at the time
he pawned it at Texas Jewelry in Bryan.  Jones stipulated to the jury that he had previously been
convicted of possession of cocaine.  He had been sentenced to prison and later released on parole.
SUFFICIENCY OF THE EVIDENCE
      In points one and two, Jones complains that the evidence was legally and factually insufficient
to sustain his conviction.  We will briefly review the testimony and evidence adduced at trial.
John Covey
      Covey testified that he was a clerk at Texas Jewelry and Loan on March 21, 1995.  He stated
that he “wrote” 40 to 50 loans a day.  When a customer pawned an item, Covey “always” obtained
the customer's driver's license and entered that name and address into the computer to print the
pawn ticket.  He also compared the driver's license picture with the customer and the driver's
license signature with the signature on the pawn receipt.
      Covey stated that Jones, a new customer, came into the shop that day to pawn a gun.  Covey
checked  Jones' driver's license photograph with Jones and it looked like him.  Covey completed
a pawn ticket for “Cicero Jordan Jones” which included Jones' driver's license number, height,
sex, eye color, and date of birth, all information taken from the driver's license.  Jones signed the
pawn ticket “C. Jones.”  Covey compared the signature on the pawn ticket to the signature on the
driver's license and they looked the same.  The transaction took ten to fifteen minutes.  Covey
testified that he knew the difference between a “real” gun and a toy or fake gun.  He identified the
gun Jones pawned as a Belgium Browning .25 Caliber semi-automatic pistol.
      Covey identified Jones in the courtroom.  He testified that Jones had more hair in March 1995.
He also said he had seen Jones on two other occasions—when Jones returned to pick up the
Browning and when he later pawned another item.
David Weaver
      Weaver, who also worked for the pawn shop, assisted Jones when he redeemed the gun on
April 11.  Jones provided his driver's license for identification.  Weaver checked the photograph
and signature on the license.  Jones signed the pawn ticket, “Cicero Jones.”
      Weaver stated that any customer redeeming a firearm must complete an Alcohol, Tobacco, and
Firearms form—an “ATF form.”  Jones signed the form “Cicero Jones,” and Weaver used his
driver's license to fill in additional information, including Jones' driver's license number.  He
described the man who redeemed the gun as a black male about five foot nine.  Weaver identified
Jones in the courtroom, although he had previously told the prosecutor that he was not sure he
would be able to identify the person who had redeemed the gun.  Weaver stated that by seeing
Jones in the courtroom he was able to remember him.  He stated that Jones had more hair when he
redeemed the gun.
legal sufficiency
      Evidence will sustain a conviction if, viewing it in the light most favorable to the verdict, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.  Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996) (following the standard of
Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979)).
      Jones complains that the State's case is based upon the identification testimony of Covey and
Weaver.   He argues that the State did not produce the gun or any fingerprints to corroborate the
witnesses' testimony.
      Both witnesses identified Jones at trial.  Each had compared Jones' driver's license photograph
and signature when he was in the pawn shop.  Covey testified that Jones pawned a “real” gun.
Looking only at the evidence favorable to the verdict, we find the evidence legally sufficient to
sustain the conviction.  Id.  We overrule point one.
factual sufficiency
      When conducting a factual sufficiency review, we consider all the evidence and set aside the
verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong
and unjust.  Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).
  Jones contends that
Covey's identification is suspect because Covey assisted 40 to 50 people a day and only dealt with
Jones for ten to fifteen minutes.  Jones argues that, prior to trial, Weaver had been uncertain he
could identify Jones.  When Weaver identified Jones at trial, Jones was the only black male in the
courtroom.
      Again, both witnesses identified Jones.  Covey testified that he compared the photograph and
signature on the driver's license with Jones and the forms used when the gun was pawned.  He
recognized Jones when he returned to the shop to redeem the gun.  Weaver also compared the
photograph and signature.  Covey identified the gun as a Belgium Browning .25 caliber semi-automatic weapon.
      Looking at all of the evidence, we do not find the verdict so contrary to the overwhelming
weight of the evidence as to be clearly wrong and unjust.  Id.  We overrule point two.
BATSON CHALLENGE
       Jones' third point argues that he was denied due process and equal protection under the law
when the State struck Ana Pachuca from the venire panel.  Jones asserts that Pachuca was struck
on the basis of race in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d
69 (1986).
      The prosecutor stated that Pachuca had spoken with a court bailiff during jury selection and
“did not appear to understand” the court's instructions.  Pachuca was called to the stand.  She
testified that her primary language is Spanish and that she had a “little bit” of difficulty reading
English.  The court asked Pachuca to read a sentence in English.  The court stated, “Okay.  As
long as you have a good command of the English language, you'll be okay.  All right?”  Pachuca
responded, “ I don't know.  I have a little problem for talking in English.”
      In summarizing her reasons for striking Pachuca, the prosecutor stated that Pachuca had
difficulty in understanding the proceedings, that the bailiff had difficulty understanding Pachuca,
and that the prosecutor herself had difficulty understanding her.  Service on the jury would require
her to read a jury charge containing legal information.  Further, the prosecutor believed that
Pachuca's difficulty in communicating in English would inhibit her ability to deliberate with other
jurors.  Based on these reasons, the court overruled the Batson objection.
      Because the court ruled on the ultimate question of intentional discrimination, we need not
review the issue of whether the defendant established a prima facie case.  Hill v. State, 827 S.W.2d
860, 865 (Tex. Crim. App. 1992).  We review the record of the Batson hearing and the voir dire
examination in the light most favorable to the trial court's ruling.  Adanandus v. State, 866 S.W.2d
210, 222 (Tex. Crim. App. 1993).  We will not disturb that ruling unless it is clearly erroneous.
Id.  Our review includes the racial makeup of the venire, the voir dire examination, the
prosecutor’s explanations, and any rebuttal and impeaching evidence.  See Chambers v. State, 866
S.W.2d 9, 23 (Tex. Crim. App. 1993).  Absent some evidence rebutting a race-neutral
explanation, we will not disturb the court's finding that the State's explanation is legitimate.  Id.
at 25; Pondexter v. State, 942 S.W.2d 577, 581 (Tex. Crim. App. 1996).
      The prosecutor stated race-neutral reasons for striking Pachuca.  Counsel's statements about
Pachuca's difficulty in understanding and being understood were not disputed and can be
considered.  See Yarborough v. State, 947 S.W.2d 892, 896 (Tex. Crim. App.1997).  Having
reviewed the record, we cannot say that the court's determination is clearly erroneous.  Adanandus,
866 S.W.2d at 222.  We overrule point three.
RIGHT AGAINST SELF-INCRIMINATION
      In his fourth point, Jones argues that the court erred in admitting the ATF form into evidence
over his objection.  He claims that the form's admission violated his right against self-incrimination.  U.S. Const. amend. V; Tex. Const. art. I, § 10.
      Title 26, section 5848, of the United States Code provides:
(a) No information or evidence obtained from an application, registration, or records
required to be submitted or retained by a natural person in order to comply with any provision
of this chapter or regulations issued thereunder, shall, . . . be used, directly or indirectly, as
evidence against that person in a criminal proceeding with respect to a violation of law
occurring prior to or concurrently with the filing of the application or registration, or the
compiling of the records containing the information or evidence.

26 U.S.C.A. § 5848 (West 1989).  Jones argues that the scope of the privilege extends to
prosecutions under federal and state law.  United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112,
28 L.Ed.2d 356 (1971).  When Jones raised his objection prior to trial, the court overruled his
objection, determining that section 5848 did not apply.
      The first question is whether section 5848 applies to the complained-of form, a question neither
party addresses.  State's Exhibit No. 5 is ATF Form 4473.  Federal regulations require
pawnbrokers to complete a Form 4473 when a firearm is redeemed.  See Huddleston v. United
States, 415 U.S. 814, 816, 94 S.Ct. 1262, 1265, 39 L.Ed.2d 782 (1974).  This regulation derives
from the Firearm Owners' Protection Act.  18 U.S.C.A. §§ 921-928 (West 1979 & Supp. 1997);
27 C.F.R. 178.124(a).  Section 5848 is part of the National Firearms Act (NFA) in the Internal
Revenue Code. 26 U.S.C.A. §§ 5801-5872 (West 1989 & Supp. 1997). Section 5848 is limited
to information and evidence compiled “in order to comply with any provision of [chapter 53]” of
Title 26.  Id. § 5848.  Because a weapon may be transferred under the provisions of either Title
18 or Title 26, we will assume section 5848 applies to Jones.  18 U.S.C.A. § 922(s)(1)(A), (E);
26 U.S.C.A. § 5812.
      Section 5848 was enacted in response to Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722,
19 L.Ed.2d 923 (1968).  Haynes was prosecuted for unlawful possession of a sawed-off shotgun.
At the time, federal law required the registration of weapons while simultaneously making it a
crime to possess an unregistered weapon.  Thus, a person trying to register a weapon in order to
comply with the law necessarily implicated himself as the possessor of an unregistered weapon.
Haynes successfully argued that the registration law violated his Fifth Amendment right against
self-incrimination by requiring him to furnish potentially incriminating information.  Id. at 100,
88 S.Ct. at 732.
      Section 5848 was designed to prevent registration information from being used “directly or
indirectly” against the applicant in a “criminal proceeding with respect to a violation of law
occurring prior to or concurrently with the filing of the application or registration, or the compiling
of records containing the information or evidence.”  26 U.S.C.A. § 5848; Freed, 91 S.Ct. at 1115.
The State argues that Jones' criminal proceeding is not the type of proceeding to which section
5848 is applicable.  It asserts that Jones' case “is in no way similar to the possession of
unregistered firearms” as found in Freed.  However, section 5848 states that “no information or
evidence obtained from an application . . .shall . . . be used, directly or indirectly. . . .”  The State
sought to use the ATF form to establish that Jones possessed the weapon at the time the ATF
application was completed.  Thus the court erred in admitting the document.
      Having determined that the court erred in admitting the document into evidence, we must now
determine whether the error contributed to the conviction or punishment.  See Tex. R. App. P.
44.2(a).
  In making that determination, we consider the following six factors:
      1.   the source of the error;
      2.   the nature of the error;
      3.   whether or to what extent the error was emphasized by the state;
      4.   the probable implications of the error;
      5.   how much weight a juror would probably place on the error; and
      6.   whether declaring the error harmless would encourage the state to repeat it with impunity.
See Garcia v. State, 919 S.W.2d 370, 380 (Tex. Crim. App. 1994) (citing Harris v. State, 790
S.W.2d 568 (Tex. Crim. App. 1989)).  We do not focus on the propriety of the outcome of the
trial, but on the integrity of the process that led to conviction and punishment.  Id.
      State's Exhibit No. 5, the ATF form, contains Jones' name, address, date of birth, sex,
driver's license number, height, eye color, and signature.  This same information appeared in
State's Exhibits Nos. 3 and 4—the pawn tickets completed at the time of the loan and the time of
redemption.  Jones introduced his driver's license into evidence.  His license contained the same
information.  Jones' parole certificate was introduced as State's Exhibit No. 2 and contained Jones'
signature.  In closing argument, the State urged the jury to compare the signatures on Jones' parole
certificate and driver's license with the signatures on the two pawn tickets and the ATF form.
      The ATF form contained the identical personal information that had been admitted in three
other exhibits.  The State emphasized the form once in closing argument, simultaneously urging
the jury to look at the two pawn tickets.  Having isolated the error and all its effects, we cannot say
that a rational trier of fact might have reached a different result if the error and its effects had not
resulted.  See Harris, 790 S.W.2d at 588.  We overrule point four.
INEFFECTIVE ASSISTANCE OF COUNSEL
      Jones' final point complains that he was denied effective assistance of counsel during the guilt-innocence phase of his trial because counsel allowed the State to introduce an extraneous offense
without objection.  Jones argues that State's Exhibits Nos. 1 and 1a, copies of his prior felony
conviction,  reference an extraneous offense.  Both exhibits state that Jones was sentenced to fifteen
years “to run concurrently with cause no. 15,602.”
      To prevail on this point, Jones must meet the two-pronged test used to analyze claims of
ineffective assistance of counsel.  See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984); Jackson v. State, 877 S.W.2d 768, 770-71 (Tex. Crim. App. 1994).  First,
Jones must show that his trial counsel's performance was so deficient, because she made errors of
such a serious nature, that she was not functioning as the "counsel" guaranteed by the Sixth Amendment.  Id.  Second, he must demonstrate that the deficient performance so prejudiced his defense
that he was deprived of a fair trial, i.e., that there is a reasonable probability that, but for his
counsel's unprofessional errors, the result of the proceeding would have been different.  Id.
      Jones bears the burden of proving ineffective assistance of counsel.  Jackson, 877 S.W.2d at
771.  As the reviewing court, we look to the totality of the representation.  Butler v. State, 716
S.W.2d 48, 54 (Tex. Crim. App. 1986).  We must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance.  Jackson, 877 S.W.2d
at 771.
      The State argues that the totality of the representation shows counsel was reasonably effective.
As part of her trial strategy, counsel admitted that Jones was a convicted felon and attempted in
voir dire to determine the effect of that fact on the potential jurors.  Counsel raised valid objections
to the admission of the ATF form, cross-examined the witnesses on their ability to identify Jones,
and argued the defense of misidentification.
      We have reviewed the entire record.  We cannot say that trial counsel's performance was so
deficient that she was not functioning as the “counsel” guaranteed by the Sixth Amendment.
Id.  We overrule point five.
      We affirm the judgment.

                                                                                BILL VANCE
                                                                                Justice

Before Chief Justice Davis,
          Justice Cummings, and
          Justice Vance
Affirmed
Opinion delivered and filed October 8, 1997
Do not publish


955 F.Supp. 175 (1997)
John TURNER, Plaintiff,
v.
COUNTY OF SUFFOLK, et al., Defendants.
No. CV 95-1592.
United States District Court, E.D. New York.
February 20, 1997.
Conway & Ceriello, by Darrell J. Conway, Melville, NY, for Plaintiff.
Robert J. Cimino, Suffolk County Attorney, by Robert H. Cabble, Assistant County Attorney, Hauppauge, NY, for Defendant Gaffney.
Pachman, Pachman, Brown & Farneti, by Howard Pachman, Commack, NY, for Defendants Caracciolo, Davis, Caracappa, D'Andre, Finlay, Lazio, Binder, Jones, O'Donohue, Rizzo and Blydenburgh.

MEMORANDUM AND ORDER
WEXLER, District Judge.
Plaintiff, John Turner brought the instant action pursuant to 42 U.S.C. § 1983 (the "§ 1983 claim") and § 107 of the New York Civil Service Law (the "§ 107 claim") against the County of Suffolk. Plaintiffs complaint alleges that the Legislators and County Executive of the defendant conspired to act and acted wrongfully to discharge or adversely affect Plaintiff's employment with Suffolk County on the basis of his political beliefs in violation of the First and Fourteenth Amendments. The complaint alleges that the same acts violated § 107 of the New York State Civil Service Law. Now before the Court is defendant's motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that plaintiff fails to state a claim upon which relief can be granted.

I. BACKGROUND
In January 1992, the controlling party of the Suffolk County Legislature and County Executive's office shifted from Democratic to Republican. Several days after this shift in power, the County Legislature introduced Resolution No. 1218-92 (the "Resolution") by which plaintiff's position was eliminated. Plaintiff was a Suffolk County Civil Service Competitive Class Employee since 1986 working in the Parks department. Plaintiff's claim is based upon an alleged conspiracy among the County Legislature and the County Executive "to appoint their political co-patriots to various positions in the County public service, and [engage] in the patronage practice of firing or demoting public employees *176 who had no affiliation with the Republican party." Plaintiff asserts that the Resolution was purportedly introduced as a cost saving major, but had a negligible effect upon cost savings, and was in reality a subterfuge to take adverse actions against non-Republican civil service employees in the Parks department. Although plaintiff had originally named the individual legislators and the executive in the complaint, the claims against the individuals have been discontinued through a stipulation between the parties.

II. DISCUSSION
Dismissal of a complaint under Fed. R.Civ.P. 12(b)(6) is proper only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). In considering a motion to dismiss the complaint for failure to state a claim upon which relief can be granted, the complaint will be construed in the light most favorable to the plaintiffs, and the court accepts as true all facts alleged in the complaint. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).
Relying on this Court's earlier ruling in Orange v. County of Suffolk, defendant asserts that the complaint is subject to a heightened pleading requirement because plaintiff has alleged a conspiracy to violate plaintiff's civil rights. 830 F.Supp. 701, 707 (E.D.N.Y.1993). However, plaintiff is no longer asserting a conspiracy among defendants, since plaintiff is only seeking to recover from the County. Therefore, the heightened pleading requirement upon which defendant relies does not apply. Rule 8 of the Federal Rules of Civil Procedure merely requires that any complaint be simple, direct and concise. A pleading must give the Court and defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests," Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957), so as to enable the adverse party to answer and prepare for trial. Plaintiff's complaint alleges that the County Legislators and the County Executive conspired to pass a resolution that denied plaintiff his job due to his political affiliations. The Court finds that plaintiff's complaint sufficiently pleads his § 1983 claim.
Defendant also argues that the § 107 claim must be dismissed because plaintiff never filed a notice of claim. New York County Law § 52 states that "[any] claim or notice of claim against a county for damage ... alleged to have been caused ... by ... any misfeasance, omission of duty, negligence or wrongful act on part of the county ... must be made and served in compliance with section 50-e of the general municipal law. Every action upon such claim shall be commenced pursuant to the provisions of 50-i of the general municipal law." § 50-e requires the filing of a notice of claim within 90 days of when the claim arises. New York General Municipal Law § 50-e. § 50-i prevents any action from being commenced against a municipality unless the plaintiff has complied with the notice of claim requirement of § 50-e. New York General Municipal Law § 50-i. In this case, plaintiff concedes that he has failed to file such a notice of claim. Relying upon Mills v. County of Monroe, 59 N.Y.2d 307, 464 N.Y.S.2d 709, 451 N.E.2d 456 (1983) plaintiff argues that the notice of claim requirement should not apply, because his claim is brought to vindicate a public interest.
The New York Court of Appeals has recognized an exception to the notice of claim requirement when an action is not brought merely to enforce a private right, but rather, to vindicate a public interest. See Union Free School Dist. No. 6 of Towns of Islip & Smithtown v. New York State Human Rights Appeal Bd., 35 N.Y.2d 371, 362 N.Y.S.2d 139, 320 N.E.2d 859 (1974). In that case, the Division of Human Rights was asserting a claim on behalf of a class of women plaintiffs alleging that the school board's policy with respect to maternity leave was discriminatory. In the Mills case, plaintiff was a county employee who brought a § 1983 claim seeking damages because she had been terminated from her employment on the basis *177 of her race and national origin. The Court of Appeals, in Mills, distinguished the facts of that case from the Towns of Islip & Smithtown case by stating
[i]t is clear that plaintiff's action was not brought to vindicate a public interest, insofar as that principle would entitle her to a complete waiver of the notice requirement. Her allegations of actionable conduct on the part of the county refers only to conduct that relates to her.
. . . . .
The relief she seeks is money damages for her loss of wages and damages to her reputation. Inasmuch as the disposition of plaintiff's claim was not intended to nor could it directly affect or vindicate the rights of others, her action is properly characterized as one seeking the enforcement of private rights.
Mills, 464 N.Y.S.2d at 711-12, 451 N.E.2d at 458-59. The facts in this case are governed by the rule in Mills. By its terms, plaintiff's complaint is limited to redressing plaintiff's individual injury. The prayer for relief requests money damages and reinstatement for the benefit of plaintiff and only plaintiff. The Court finds that plaintiff's § 107 claim is brought merely to enforce a private right and not to vindicate a public interest. Accordingly the § 107 claim must be dismissed.

III. CONCLUSION
Defendant's motion to dismiss is denied in part and granted in part. The motion is denied as to the § 1983 claim because no heightened pleading requirement applies to the plaintiff's claim, and granted as to the § 107 claim due to plaintiff's failure to file a notice of claim.
SO ORDERED.


300 Multiple Choices

Multiple Choices
The document name you requested (/attorneys/assets/opinions/appellate/unpublished/a4023-15.pdf) could not be found on this server.
However, we found documents with names similar to the one you requested.Available documents:

/attorneys/assets/opinions/appellate/unpublished/a4053-15.pdf (mistyped character)
/attorneys/assets/opinions/appellate/unpublished/a4723-15.pdf (mistyped character)

IBM_HTTP_Server at www.judiciary.state.nj.us Port 443


                                  Cite as 2016 Ark. App. 96

                 ARKANSAS COURT OF APPEALS
                                         DIVISION I
                                         No. E-15-630

THE BANK OF FAYETTEVILLE NA                        Opinion Delivered   February 10, 2016
                    APPELLANT

V.                                                 APPEAL FROM THE ARKANSAS
                                                   BOARD OF REVIEW
                                                   [NO. 2015-BR-01711]
DIRECTOR, DEPARTMENT OF
WORKFORCE SERVICES, and FRED
TANNER
                    APPELLEES                      APPEAL DISMISSED

                                 CLIFF HOOFMAN, Judge

       Appellant the Bank of Fayetteville NA (“Bank of Fayetteville”) appeals from the

Arkansas Board of Review’s September 18, 2015 decision, reversing the Appeal Tribunal and

finding that the claimant, Fred Tanner, was entitled to benefits because he was discharged

from employment for reasons other than misconduct connected with the work. We dismiss

due to a lack of jurisdiction.

       On October 16, 2015, Bank of Fayetteville filed its petition for appeal with this court.

Although appellant has been represented by an attorney at all stages of this case, the executive-

vice president, Robert King, signed the petition for appeal with this court. It is well-settled

law that corporations must be represented by licensed attorneys. Smithco Invs. of W. Memphis,

Inc. v. Morgan Keegan & Co., 370 Ark. 477, 261 S.W.3d 454 (2007). Furthermore, our

supreme court has held that where a party not licensed to practice law in this state attempts

to represent the interests of others by submitting himself or herself to jurisdiction of a court,
                                   Cite as 2016 Ark. App. 96

those actions, such as the filing of pleadings, are rendered a nullity. Id. Here, King is not an

attorney and may not represent Bank of Fayetteville in this case. Id. Our case law makes it

clear that invoking the process of a court of law constitutes the practice of law. Stephens Prod.

Co. v. Bennett, 2015 Ark. App. 617. Because King was practicing law when he signed the

petition, the petition is null and void. Id. As a result, we lack jurisdiction and dismiss this

appeal.

          Appeal dismissed.

          GRUBER and WHITEAKER, JJ., agree.

          Peel Law Firm, P.A., by: Dustin K. Doty, for appellant.

          Phyllis Edwards, Associate General Counsel, for appellee.

                                                2


597 S.W.2d 28 (1980)
Thomas C. BOBBITT, Appellant,
v.
NATIONAL COMP ASSOCIATES, Appellee.
No. 20180.
Court of Civil Appeals of Texas, Dallas.
March 18, 1980.
Rehearing Denied April 15, 1980.
*29 Gordon Bogen, Wm. Andress & Associates, Dallas, for appellant.
William D. Sims, Jr., Jenkens & Gilchrist, Dallas, for appellee.
Before ROBERTSON, CARVER and HUMPHREYS, JJ.
CARVER, Justice.
Thomas C. Bobbitt, a terminated insurance agent, appeals from a judgment denying him recovery of commissions on renewal premiums paid by policy holders to his former employer, National Comp Associates (hereinafter, NCA). We affirm because we find that Bobbitt's right to commissions on renewal premiums rested on a contract; that the parties' contract was conditioned on Bobbitt's refraining from competition with NCA for two years after termination; that Bobbitt engaged in competition despite his agreement; that Bobbitt's right to renewal commission was ended by his own failure to keep his agreement; and that the trial court's findings of several facts were supported by the evidence.
NCA is an insurance agency representing a number of insurance companies who pay a commission on policies at the time they are initiated and when they are renewed. Bobbitt was employed by NCA to solicit original business and to service existing business in an effort to induce the renewal of policies. In 1972, NCA and Bobbitt contracted for this relationship in a written agreement which included the agent's covenant that, upon termination of the contract, he would not, for a period of two years, (1) sell to any existing policy holder; (2) induce any policy holder to cancel; (3) induce any other employee to terminate; or (4) sell insurance for other companies in the same sales area. The parties agreed that, upon breach of any of these covenants, Bobbitt would forfeit the right to further commissions. At trial, Bobbitt was denied relief. The trial court found, in response to Bobbitt's request, that (1) Bobbitt was terminated in 1976; (2) within two years Bobbitt began selling insurance for other companies in the same sales area; (3) Bobbitt sought to induce another agent to leave NCA; and (4) Bobbitt sought to sell a renewal policy to an existing policy holder obtained by NCA.
Bobbitt complains on appeal that the restrictions imposed by the contract were in "restraint of trade" and lacked reasonableness, both as to the geographic territory as well as to the term, a practice that was condemned in Weatherford Oil Tool Co. v. Campbell, 161 Tex. 310, 340 S.W.2d 950 (1960). In Weatherford, an employer sought an injunction to prevent a former employee from engaging in competition pursuant to an agreement between them. Weatherford holds that, while agreements between an employer and an employee restricting competition by the employee after termination are a permissible "restraint of trade," the restraints must be reasonable as to geographical place and reasonable as to time. No injunction or other enforcement of such an agreement is sought here to prevent Bobbitt from doing any of the acts described in the agreement. To the contrary, Bobbitt sues to recover the commissions as if he had kept and performed the agreement. NCA challenged any obligation to pay on its part because Bobbitt had not kept the agreement. In Stancliff v. Southland Life Insurance Co., 172 S.W.2d 521 (Tex.Civ.App.Dallas 1943, no writ), this court, in a similar fact situation, held:
When plaintiff became agent to serve another life insurance company in same capacity and in same territory, it became impossible for him to be of further assistance to defendant in keeping its business in force, hence breached the very condition of the contract upon which his right to receive renewal commissions depended. The agreement placed no limitation on plaintiff's liberty to contract, or right to enter the services of a competing life insurance company, which he freely exercised; however, in accepting such employment within the two-year period, his right to receive commissions on renewal premiums terminated. The right to renewal commissions was not vested or absolute, but contingent upon compliance *30 with the terms of the contract, which plaintiff failed to do. The restriction, in our opinion, was reasonably limited as to time and territory and did not violate the rule that restraints of this character shall not be greater than reasonably necessary to protect the business involved.
172 S.W.2d at 522. Stancliff quotes, with approval, the following language from a New York case, Sutherland v. Connecticut Mutual Life Insurance Co., 87 Misc. 383, 149 N.Y.S. 1008, 1012:
There was no absolute right to these renewal commissions. The parties had a perfect right to agree upon the conditions upon which the renewal commissions should depend, and the plaintiff having agreed to remain out of the insurance business for any other company as a condition of receiving the renewal premiums, he is not in a position to claim the commissions after having engaged with the New England Life Insurance Company. The contract violates no public policy. It does not obligate the plaintiff to desist from earning a livelihood in the insurance business. It merely provides that, if he elects to engage in such business during the running of the policies which he has written, he will not demand the commissions upon the renewals. This was a lawful condition. The plaintiff had a perfect right to stipulate as to the conditions on which he was to receive the renewal commissions, and no case has yet held under these circumstances that a plaintiff was entitled to recover.
In accord with these authorities, we conclude that the agreement of the parties was not in "restraint of trade" for neither the agreement, nor any court proceeding for the agreement's enforcement, sought to prevent Bobbitt's competition with his former employer.
Bobbitt's appeal includes an attack upon certain findings of fact by the trial court. While we do not deem these points properly presented in the brief, we do not overrule them on this ground. The substance of the complaint by Bobbitt appears to be that the trial court should have given a different weight and credit to witnesses and exhibits than appears from the findings of fact. This court held in Johnson v. Lane, 524 S.W.2d 361 (Tex.Civ.App.Dallas 1975, no writ), that:
In a nonjury case, the trial court is the judge of the credibility of the witnesses and the weight to be accorded their testimony. Where there is evidence of probative force to support the findings of the judgment of the trial court, such findings will not be disturbed even though the evidence is conflicting and the reviewing court might have concluded otherwise.
524 S.W.2d at 363. Since the record contains evidence of probative force to support the challenged findings, we overrule Bobbitt's points attacking the findings of the trial court.
Affirmed.


32 B.R. 306 (1983)
In the Matter of ASSOCIATED REAL ESTATE TECHNICIANS, INC.
In re DAY-MET, INC., Debtors.
Bankruptcy No. 3-81-03069, Adv. No. 3-81-03647.
United States Bankruptcy Court, S.D. Ohio, W.D.
August 12, 1983.
William R. Coen, Dayton, Ohio, for debtors.
Bradley C. Smith, Dayton, Ohio, for Buyer.
John P. Petzold, Dayton, Ohio, for Association.
*307 CHARLES A. ANDERSON, Bankruptcy Judge.

FINDINGS OF FACT
This matter is before the Court upon "Motion to Expunge Lien; for Contempt and for Attorney Fees" filed on 5 July 1983. The Court heard the Motion on 18 July 1983. The parties have agreed to submit the matter for determination upon the record without the submission of formal testimony at hearing. The following decision is therefore based upon the record, inclusive of the parties' memoranda.
On 26 May 1983, Islander Boatel Condominium Association (hereinafter the Association) filed a mechanic's lien which was recorded in Mechanic's Lien Volume No. 10, pages 70-71 of the Logan County Recorder's Office. On 8 June 1983, Debtors' counsel informally wrote the Association and informed that it is Debtors' opinion that the mechanic's lien is "illegal" and was filed "in violation of the automatic stay of [11 U.S.C. § 362(a)]." Debtors subsequently filed the instant Motion alleging that the Association's conduct is violative of the automatic stay, and further that the Association's failure to "comply" with Debtor's written "demand" of 8 June 1983 justifies contempt sanctions including attorney fees. Debtors therefore request that the Court order the subject lien expunged and further award sanctions accordingly.
The Association responds that the lien was filed for postpetition charges incurred by Debtors while "in possession" (Note 11 U.S.C. § 1101(1)), and that 11 U.S.C. § 362(a)(1) is inapplicable to actions taken to collect or perfect postpetition claims.
No facts or argument of counsel for the parties raises any question as to the duration of the stay because of the operation of statutory provisions incorporated in 11 U.S.C. §§ 362(c) and 1141(b) and (c).
It is noted, furthermore, that the Plan of Reorganization specifically contemplates that all creditors be paid pursuant thereto and that property of the estate be free of all liens and encumbrances so that sales of condominiums constituting property of the estate may be consummated by delivery of merchantable title to good faith purchasers. During the course of the case administration, numerous bona fide purchaser for value have, in fact, purchased condominiums and have taken title thereto.
The Association also "desires to have the matter converted to a Chapter 7 proceeding, for the reason that the Debtors apparently have no intention of honoring any obligations with respect to liens created against property which it owns in the Islander Boatel Association, and in fact, apparently takes the position that it has no obligation to ever pay any assessments for services rendered to the units as a part of the Association regulations and by-laws." The Association accordingly requests that "the liens be permitted to stand, and/or that the Debtors make provision for the payment thereof, and that finally the Debtor be converted to a Chapter 7 proceeding for liquidation in accordance with the terms of the Bankruptcy Code."

DECISION AND ORDER
11 U.S.C. § 362(a)(4) provides that the filing of a petition in bankruptcy automatically operates as a stay of:

any act to create, perfect, or enforce any lien against property of the estate. . . . [Emphasis added.]
The nature of the claim underlying a contemplated lien is irrelevant to a determination of the legality of an action to create or perfect such lien if asserted against property of the estate. 11 U.S.C. § 362(a)(4) contemplates that property of the estate should be administrable without "surprise" encumbrances. Unless relief is granted pursuant to 11 U.S.C. § 362(d), 11 U.S.C. § 362(a)(4) does not admit to exception. See H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 341 (1977); S.Rep. No. 95-989, 95th Cong., 2d Sess. 50 (1978), U.S.Code Cong. & Admin.News 1978, p. 5787.
In this case, it is undisputed that the subject lien was recorded after Debtors' Petitions were filed and against property of the respective Debtors' estates. It is further *308 undisputed that the Association never sought relief from stay preliminary to the recording of the subject lien.
Given these facts, it is clear that the Association has acted in contravention to 11 U.S.C. § 362(a)(4). It is therefore the specific determination of the Court that the subject lien should be deemed void and without effect. See generally 2 Collier on Bankruptcy ¶ 362.11.
It is, nevertheless, apparently also undisputed that the Association's claim is bona fide, that no payments have been made toward the Association's claim, and that the Association has throughout its dealings with Debtors acted in good faith. The Court also notes that the Association has not commenced any action to enforce the subject lien. Although the Association has undeniably acted in violation of the stay, it is the opinion of the Court that sanctions are unwarranted under these circumstances.
The details of the contract underlying the subject lien have not been part of the record herein. It appears, however, that the "charges" may have been assessed pursuant to a prepetition executory contract. If so, then the Association's appropriate remedy would be to request that the Court order that Debtors assume or reject the underlying contract, and then to seek the appropriate remedies provided in 11 U.S.C. § 365. 11 U.S.C. § 365(d)(2); See also this Court's opinion in Allied Technology, Inc. v. R.B. Brunemann & Sons, Inc. (Matter of Allied Technology), 25 B.R. 484, 500 (Bkrtcy.1982), by analogy for appropriate remedies in the event of a postpetition breach of an executory lease or contract.
Without addressing the merits of the Association's allegations, the Association also has the alternate procedural remedies of formally seeking relief from stay pursuant to 11 U.S.C. § 362(d), or asserting a claim as an administrative expense pursuant to 11 U.S.C. §§ 364(a) and 503(b)(1).
In this regard, the Court notes that, under the instant facts, any request by the Association for conversion of Debtors' proceedings to 11 U.S.C. Chapter 7 may only be entertained upon formal request and after notice and hearing conformably with 11 U.S.C. § 1112(b), and the Rules of Bankruptcy Procedure attendant thereto.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the subject lien was recorded in violation of 11 U.S.C. § 362(a)(4) and that the act of recording is null and void.
IT IS FURTHER ORDERED that the Association file a release of the subject lien. Note O.R.C. § 1311.26.
IT IS FURTHER ORDERED that, although the Association has acted in violation of this Court's stay in 11 U.S.C. § 362(a)(4), contempt sanctions for such violation are not presently warranted.
IT IS FURTHER ORDERED that the Association's request for conversion to 11 U.S.C. Chapter 7 is DENIED without prejudice.