455 F.2d 141
7 UCC Rep.Serv. 1089
MID-EASTERN ELECTRONICS, INC., Appellee,v.FIRST NATIONAL BANK OF SOUTHERN MARYLAND, Garnishee, Appellant.
No. 13363.
United States Court of Appeals,Fourth Circuit.
Argued Dec. 5, 1969.Decided July 28, 1970.

1
Richard M. Millman, Washington, D.C., and John C. Eldridge, Annapolis, Md., on brief for appellee.

2
David F. Albright and Norman P. Ramsey, Semmes, Bowen & Semmes, Baltimore, Md., on brief for appellant.

3
Before SOBELOFF and CRAVEN, Circuit Judges, and MERHIGE, District Judge.

MERHIGE, District Judge:

4
This action is before the Court for the second time.  It involves a contest between an attaching judgment creditor, Mid-Eastern Electronics, Inc.  (hereinafter referred to as the judgment creditor) and a garnishee-bank, First National Bank of Southern Maryland (hereinafter referred to as garnishee).  The contest arises over certain assets belonging to Mid-Eastern's judgment-debtor, Continental Electronics, Inc.  (hereinafter referred to as the judgment debtor).

5
On July 14, 1965, the judgment creditor obtained a judgment against the judgment debtor in the District Court for the sum of $30,763.32.  In attempting to collect it, the judgment creditor levied upon the chattel assets, including inventory and equipment, of the judgment debtor, and in addition, on January 12, 1966, served a garnishment on the bank.  After a plea of nulla bona, it later appeared that the bank was asserting a security interest in the debtor's personalty for the payment of certain notes of the debtor held by the bank.

6
It was stipulated by the parties that the inventory and equipment should be sold by the bank under a sale it had negotiated for $12,000.00.  It was further stipulated that the respective rights of the parties should fasten on proceeds resulting from the sale.  Subsequent to the sale, the judgment creditor moved for the condemnation of the proceeds realized by the sale which the bank represented to be $4,500.00.

7
In affirming the judgment of the District Court based on the Maryland Uniform Commercial Code, Md.Code Art. 95B, we held that the garnishee-bank had failed to properly perfect and establish its security interest inasmuch as it could not proffer a security agreement which comported with the requirements of U.C.C. Sec. 9-203(1) (b).  Therefore, it was concluded that the security interest never attached, Sec. 9-204(1), and was rendered unenforceable as against the judgment creditor's lien.  Mid-Eastern Electronics, Inc. v. First National Bank of Southern Maryland, 380 F.2d 355 (4th Cir. 1967).

8
We further remanded to the District Court, based on a motion filed with this Court on April 3, 1967, "for further hearing on the assertion that the Bank concealed additional assets of the judgment debtor and so misled the District Court to pass only upon the $4,500.00 proceeds of the stipulated sale," id at 356.

9
Subsequent to remand, the garnishee filed an amended plea, by leave of Court, stating that it had in its possession a $9,500.00 note from the purchaser of certain inventory and equipment of the debtor, of which $6,275.23 had been paid, but that such note was not consideration for the sale of inventory but represented consideration for personal services to be performed by the chief officer for the debtor.  Additionally, the garnishee represented that it had received an assignment from the United States of accounts receivable due the debtor and that the bank had a valid lien in the proceeds thereby received which was claimed to be superior to the plaintiff's attachment.  Motions for summary judgment were denied and the case was heard on the merits on May 24, 1968.

10
Upon the adduced evidence, the District Court was again called upon to decide questions of conflicting claims.  In considering the proceeds resulting from the $9,500.00 note received by the garnishee from Service and Maintenance Facilities, Inc., the District Court concluded that from the factual matters presented at the May 24, 1968 hearing, the note represented only a continued payment from the sale of the inventory and equipment.  Since the respective claims of the parties had previously been adjudicated by this Court when it considered the dispute over priority claims in the $4,500.00 proceeds, Mid-Eastern Electronics, Inc. v. First National Bank of Southern Maryland, supra, the District Court accordingly held that the judgment creditor was entitled to the proceeds resulting from the $9,500.00 note.

11
We affirm the result reached by the District Court with respect to the $9,500.00 note.  From the facts as presented to the District Court and made a part of the record herein, the factual determination made by that court was certainly not "clearly erroneous" so as to require a reversal of the holding below, based upon such finding.  United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948); F.R.Civ.P. 52(a).  Furthermore, having once made its factual conclusion, and in light of this Court's prior determination in the case, the District Court was quite proper in executing judgment as it did in light of the applicable portions of the Uniform Commercial Code.  As stated in Ex parte Sibbald, 12 Pet. 488 (1838), 9 L.Ed. 1167, "Whatever was before the court, and is disposed of, is considered finally settled.  The inferior Court is bound by the decree as the law of the case; . . . They cannot vary it, or examine it for any other purpose than execution;" id at 492; see also Munro v. Post, 102 F.2d 686 (2d Cir. 1939).

12
The controversy concerning priorities of the parties in reference to the assignment by the United States to the garnishee presents a more perplexing question for this Court's determination.

13
During the first part of 1964, the judgment debtor executed five 90-day notes to the garnishee-bank which evidenced an underlying obligation owed to the bank by the judgment debtor.  In March and April, 1965, new 90-day notes were issued evidencing this debt.  On August 13, 1964, the judgment debtor assigned unto the garnishee-bank "all monies due or which may become due" arising under a contract which was entered into between the judgment debtor and the United States Air Force.  On October 1, 1964, the garnishee-bank filed a financing statement purporting to cover such assignment.  The $36,129.95 was received by the garnishee-bank on September 9, 1966, as a result of this assignment, was stipulated to by the parties.  Furthermore, the work to be performed for the Air Force under the terms of the contract was completed during the latter part of 1965.

14
The court below, in rendering judgment for the judgment creditor, held that the garnishee-bank, by issuing new notes to represent the debt as the old notes became due, was, in effect, making future advances to the judgment-debtor which were used to pay off the old notes; and, because the security agreement, pursuant to U.C.C. Sec. 9-204(5), did not represent that the subject matter of the security interest was to secure future advances, further filing of financing statements was required in order to perfect a security interest in the collateral as against future advances.  See Coin-O-Matic Service Co. v. Rhode Island Hospital Trust Co., 3 U.C.C.Rept. 1112 D.R.I. 1966), concerning the necessity of the security agreement's evidencing that future advances are to be secured.

15
The trial court found what it considered to be a "fatal variance" on the face of the financing statement.

16
Under Sec. 9-403(2), a filed financing statement, which states that the obligation secured is payable on demand, is effective for five years from the date of filing.  However, a financing statement filed for a 90-day note is effective only for a period of sixty days after the maturity date of the note.  In the event the obligation secured states a maturity date, for example, 90-day notes, a secured party must file a continuation statement within the effective date to maintain perfection in the collateral.  Because the obligation owed the garnishee-bank by the judgment debtor was in fact represented by 90-day notes, it was decided that once the original and subsequent notes reached their maturity and new notes were issued, the garnishee had sixty days in which to perfect its lien by filing a continuation statement.  The trial court found further that no continuation statement was filed when the notes dated March and April, 1965, were issued.  Therefore, the court concluded that garnishee's perfection lapsed and the judgment creditor's lien was superior.

17
We turn first to the question of whether or not the issuance of the new notes discharged the old and therefore constituted a "future advance."

18
U.C.C. Sec. 3-601, et seq., enumerates the manners in which an individual may be discharged from liability on a negotiable instrument.  The most adhered to inference in the pre-code cases, and the one followed in Maryland, was to the effect that notes given for notes previously held did not extinguish the original liability.  Philadelphia and Reading Coal and Iron Co. v. Willinger, 137 Md. 46, 111 A. 132 (1920); see also Lassiter v. Powell, 164 F.2d 186 (4th Cir. 1947).  The cases which adhere to such inference, however, acknowledge that a showing of intent by the parties to reach a different conclusion will be treated accordingly by the courts, Philadelphia and Reading Coal and Iron Co. v. Willinger, supra, and such intent is to be determined by the facts and circumstances attending the transaction.  Bradford v. Harford Bank of Belair, 145 Md. 653, 125 A. 719 (1924).  Where the intent of the parties exhibits, therefore, that the issuance of a new note, or notes, is to extinguish the obligation represented in the form of the old notes, such effect will be given.  Haggerty v. MacGregor, 9 Mich.App. 671, 158 N.W.2d 33 (1968).

19
These same inferences were applied in recent cases decided under the Uniform Commercial Code.  Commercial Bank of Middlesboro, Ky. v. Carter, 418 F.2d 705 (6th Cir. 1969); In re Rivet, 299 F.Supp. 374 (E.D.Mich.1969); Slaughter v. Philadelphia Nat. Bank, 290 F.Supp. 234 (E.D.Pa.1968).  In Safe Deposit Bank & Trust Co. v. Berman, 393 F.2d 401 (1st Cir. 1968), also decided under the Code, the Court disallowed a claim of lien priority, as against an innocent third party, in favor of the appellantbank where the security agreement represented that the collateral was to secure a specific note, and the Court found on the fact that subsequent "future advances" were made.  The note, representing the obligation purported to be secured, was subsequently paid and new notes issued which increased the debtor's obligation owed to the bank.  The new notes recited that the prior security agreement entered into likewise was to secure these notes, but no new security agreements were entered into by the parties which pledged the collateral as security for the later notes.  Recognizing the danger of security agreements referring to specific loans and subsequently being converted into security arrangements for future liabilities by extrinsic documents, the First Circuit held that "[I]n a commercial world dependent upon the necessity to rely upon documents meaning what they say, the explicit recitals on forms, without requiring for their correct interpretation other documents not referred to, would seem to be a dominant consideration." 393 F.2d at 404.

20
Unlike what transpired in Berman, the facts before us most closely present a situation similar to that in Carter, supra.

21
The record indicates that the old notes were returned to the judgment debtor as the new notes were issued, and the judgment-creditor urges that the giving up of the old notes by the garnishee-bank establishes the intent of the parties to have considered the original notes paid.  This fact, however, in and of itself, does not necessarily rebut the inference that the original indebtedness has not been extinguished.  Hanley v. Bank of America National Trust & Savings Ass'n, 255 Cal.App.2d 439, 63 Cal.Rptr. 161 (1967); Auch v. Andres, 289 Mich. 206, 286 N.W. 214 (1939).

22
Mr. G. R. Sellner, the Assistant Vice President of the judgment-debtor, testified at deposition as follows, when questioned by Mr. Millman, attorney for the judgment-creditor:

23
Q. All right, what transaction?

24
A. When the new note was presented for renewal.

25
Q. And were two notes in fact renewed, one on June 25, 1964, and one on June 29, 1964?

26
A. You say they were renewed?

27
Q. Yes.

28
A. Yes.

29
Apparently, the judgment-debtor as well as the garnishee-bank understood, at the time the new notes were issued, that they were to be merely renewals or extensions of the underlying obligation.  Also the ledger sheets contained by the garnishee on which the accounts were entered remained constant as to monies owed throughout the renewal transactions.  Therefore, and unlike what had transpired in the Berman case, no new cash advances were made to the judgment-debtor by the garnishee, but merely the tearing up of one piece of paper and the identical issuance of another in its place.

30
Further note might be taken of the fact that the judgment-debtor, having renewed his note with the garnishee, never demanded a termination statement from the garnishee which would have the effect of forcing the garnishee to cancel the security agreement if the debt secured was extinguished.  U.C.C. Sec. 9-404.

31
From the foregoing, we must conclude that the intent of the parties was not to extinguish the original obligation but merely to extend the time of payment, or, at the most, substitute the new notes as conditional payment of the old, dependent on the payment of the new notes to extinguish the original obligation.  The evidence before us does not require "the opposite conclusion that it was offered as absolute payment."  Lassiter v. Powell, 164 F.2d 186, 191 (4th Cir. 1947); see also, McRae Grocery Co. v. Independence Indemnity Co., 33 F.2d 494 (4th Cir. 1929).  Consequently, the issuing of new notes was not synonymous with the making of "future advances," Sec. 9-204(5), and the security agreement need not have recited that it covered future advances in order to effectively secure the debt represented by the subsequent notes.

32
We come now to the question of whether the owed 90-day notes represented as "demand" obligations on the filed financing statement are set out in Sec. 9-402(1).  The necessity of stating the maturity date of the obligation secured is not among the enumerated steps required to make sufficient the financing statement.  Lincoln Bank & Trust Co. v. Queenan, 344 S.W.2d 383 (Ky.1961).

33
The scope and purpose of Sec. 9-402 is to put the searcher on notice that an underlying security agreement is outstanding.  In re Osborn, 6 U.C.C.Rptr. 227 (W.D.Mich.1969); General Motors Acceptance Corp. v. Terra Contractors Corp., 6 U.C.C.Rptr. 544 (N.Y.Civ.Ct. 1969).  The creation of liabilities between the parties is controlled by the underlying security agreement, which a subsequent party will be directed to once having checked the designated place of public recordation and located the filed financing statement.  Bank of North America v. Bank of Nutley, 94 N.J.Super. 220, 227 A.2d 535 (1967); Little v. Woodall, 244 Md. 620, 224 A.2d 852 (1966).  A properly filed financing statement would thus serve its intended purpose if a subsequent party would have been put on notice of the outstanding security agreement.  At that time a third party may locate the underlying security agreement and make a decision most advantageous to himself concerning the collateral which is the substance of the prior security arrangement.  The insertion of "demand" would not seriously mislead a later party in his attempt to locate the underlying security agreement.  See In re Platt, 257 F.Supp. 478 (D.C.Pa.1966); In re Merriman, No. 1155-D (S.D.Ohio, May 2, 1967); U.C.C. Sec. 9-402(5).  Indeed, because the garnishee chose to insert the maturity date of the obligation as a "demand" obligation, which apparently is made optional at most by Sec. 9-402(1), a continuation statement was not necessary in order to maintain perfection until five years had elapsed from the date of the initial filing.  Thus the garnishee-bank had not vitiated the purpose and intent of Sec. 9-402, but simply prolonged the time in which a continuation statement had to be filed under Sec. 9-403.

34
Therefore, with respect to the assignment by the United States to the garnishee-bank, we make the following findings: that pursuant to Sec. 9-203 (1) (b), a security agreement was required in order for the security interest to be enforceable, Mid-Eastern Electronics, Inc. v. First National Bank of Southern Maryland, supra; M. Rutkin Electronics Supply Co., Inc. v. Burdette Electric, Inc., 98 N.J.Super. 378, 237 A.2d 500 (1967), and the assignment by the debtor to the garnishee-bank of the proceeds due under the Air Force contract, having been signed by the debtor and containing a description of the collateral, constituted the required security agreement, see In re Schreiber, 7 U.C.C.Rep.Serv. 365 (W.D.Wis. Nov. 7, 1969); Citizens & Southern National Bank v. Capital Construction Co., 112 Ga.App. 189, 144 S.E.2d 465 (1965); that having met the requirements of Sec. 9-204(1), the security interest held by the garnisheebank had attached; that a financing statement, necessitated by Sec. 9-302(1) was properly filed and referenced that which is required by Sec. 9-402(1); that pursuant to Sec. 9-303(1) the security interest was perfected, and inasmuch as the properly filed financing statement charged the judgment-creditor with notice of the outstanding security interest, the garnishee-bank was entitled to priority over the lien held by the judgment-creditor, Sec. 9-301(1) (b).

35
The garnishee urges a "common law" alternative ground for relief which we need not here decide.  Even assuming arguendo that the ground was interjected for the Court's review below, which is doubtful from the record, it was not asserted as a ground for relief in reference to the proceeds from the sale of inventory and equipment.  Consequently, this Court will not now consider the argument as it applies to the $9,500.00 note, United States v. Bond, 279 F.2d 837 (4th Cir. 1960), cert. den. 364 U.S. 895, 81 S.Ct. 220, 5 L.Ed.2d 189, and for obvious reasons, we need not decide the question as it may affect the assignment by the United States.

36
Accordingly, the judgment of the District Court is affirmed in part and reversed in part.


Opinion issued December 29, 2011.

In The
Court of
Appeals
For The
First District
of Texas
————————————
                                              NO.
01-10-00877-CR
NO. 01-10-00878-CR
———————————
Julio Cesar Haro, Appellant
V.
The State of
Texas, Appellee

On Appeal from the 262nd District Court
Harris County, Texas

Trial Court Case Nos. 1186350 & 1186351

O P I N I O N
          A
Harris County grand jury handed down two indictments, both charging Julio Cesar
Haro with aggravated sexual assault of a child.  See Tex. Penal Code Ann. § 22.021 (West
2011).  The jury found him guilty of both
charges and assessed his punishment at 25 years’ confinement for each
offense.  On appeal, Haro contends that
the trial court committed reversible error during voir dire in its explanation
of the beyond-a-reasonable-doubt standard of proof, and that his trial counsel
rendered ineffective assistance in failing to object to that explanation.  We hold that, while Haro failed to preserve
his objection to the trial court’s explanation of reasonable doubt, the trial
court did not commit fundamental error, and trial counsel’s failure to object
during that voir dire explanation does not satisfy the Strickland v. Washington test for showing ineffective assistance.  466 U.S. 668, 687–88, 104 S. Ct. 2052, 2064–65
(1984).  We therefore affirm.
Background
Haro’s issues on appeal both
concern the trial court’s explanation of “reasonable doubt”during voir dire:
Now, I mentioned beyond a reasonable doubt a
while ago, and that’s the standard of proof we employ here in the criminal courts.  Some of you have been on civil juries before;
the standard there is different.  Instead
of going through a civic lesson on every standard of proof, let’s just deal
with the one that we’re going to be dealing with and that’s beyond a reasonable
doubt.
Now, when I first started coming down here to
the courthouse back in 1982, . . . we had no definition for reasonable doubt. .
. and we told jurors . . . that reasonable doubt is what the individual juror
believes it to be.  Well, we rocked along
just fine that way.
And then the Court . . . of Criminal Appeals
decided no, we do have a definition for beyond a reasonable doubt and here it
is.  And so we [used] that definition for
several years. . . .  Well, they got to
looking at it again and said, you know what, I think we had it right the first
time.  So, we are back to beyond a
reasonable doubt being what the individual jurors believe[] it to be.  It’s not beyond all possible doubt, and the
Charge will tell you that, it’s beyond a reasonable doubt.  So, I can’t give you a definition.  I can give you some suggestions, kind of get
you thinking about it and really tell you what some folks on juries before have
told me they thought beyond a reasonable doubt meant to them.  But ultimately, you, individually, g[e]t to
decide what beyond a reasonable doubt means to you.  I’ve heard people say that it is an
intellectual exercise based on reason, common sense and logic.  I’ve heard people say it’s something you know
in your heart.  You listen to
everything.  You weigh it all.  You determine what you believe based on your
experience, and you filter it through the law the Court gives you.
I’ve heard other people say it’s something
you know in your gut, after considering everything brought to you, looking and
seeing what’s credible, what’s not, who has reason to fabricate, who does
not.  It’s just something that you feel
in your gut after listening to everything clearly.  Folks, I would submit to you that it’s
probably a little bit of all three; but you have to make that decision.
So, I’ve got two questions for you along
these lines.  First of all, knowing
yourself like no one else knows you, can you determine what beyond a reasonable
doubt means to you?  Can you do
that?  Anyone who cannot?  All right.
And will you hold the State to that burden as to each and every element
of the offense charged as the law says you must?  Can you do that?  All right.
Anyone who cannot?  Fair enough.
          After
the close of evidence, the trial court charged the jury that:
All persons are presumed to be innocent and
no person may be convicted of an offense unless each element of the offense is
proved beyond a reasonable doubt.  The
fact that he has been arrested, confined, or indicted for, or otherwise charged
with the offense gives rise to no inference of guilt at his trial.  The presumption of innocence alone is
sufficient to acquit the defendant, unless the jurors are satisfied beyond a
reasonable doubt of the defendant’s guilt after careful and impartial
consideration of all the evidence in the case.

The prosecution has the burden of proving the
defendant guilty and it must do so by proving each and every element of the offense
charged beyond a reasonable doubt and if it fails to do so, you must acquit the
defendant.
It is not required that the prosecution prove
guilt beyond all possible doubt: it is required that the prosecution’s proof
excludes all reasonable doubt concerning the defendant’s guilt.
Discussion
          I.       The Trial Court’s Voir Dire Comments
Haro contends that the trial court’s
comments amount to fundamental error because (1) they conditioned the jury to
believe that the beyond-a-reasonable-doubt standard was whatever they thought,
(2) they diminished the standard by failing to distinguish it from lesser burdens
of proof, and (3) the trial court’s explanation leaves the impression that the
jury “could have relied on nothing more than a ‘gut feeling’” in deciding
whether he was guilty.  Haro concedes
that trial counsel did not timely object to these comments.  See
Tex. R. App. P. 33.1(a).  As a general rule, trial counsel must object
to preserve error, even if it is “incurable” or “constitutional.”  Cockrell
v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).
According to Haro, the error in the
trial court’s statements falls within the bounds of Texas Rule of Evidence 103(d),
which authorizes appellate courts to take notice of fundamental errors
affecting substantial rights even though they were not brought to the attention
of the trial court.  Tex. R. Evid. 103(d).  The Court of Criminal Appeals has not definitively
resolved “whether and when a trial court’s comments constitute fundamental
constitutional due process error that may be reviewed in the absence of a
proper objection.”  McLean v. State, 312 S.W.3d 912, 916 (Tex. App.—Houston [1st Dist.]
2010, no pet.) (reflecting on plurality opinion in Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000)); see also Jasper v. State, 61 S.W.3d 413,
421 (Tex. Crim. App. 2001) (same).  We
review the trial court’s statements for fundamental error, assuming that the
comments here are appropriate for such a review.
We conclude that Haro has not shown
fundamental error on this record.  Haro
relies on Wansing v. Hargett, a federal
habeas corpus case, to support his contention that the trial judge’s statements
were fundamental error.  341 F. 3d 1207,
1214 (10th Cir. 2003).  In Wansing, the trial court’s comments regarding
the meaning of reasonable doubt “implied that there [wa]s an extraordinarily
broad range of possible meanings, including some which are plainly
unconstitutional, and informed the jurors that they had to resolve the
definitional issue for themselves, in the ‘individuality’ of their own
‘conscience and reason.’”  Id.
Under Texas law, however—unlike the Oklahoma law at issue in Wansing—each individual juror decides
the amount of proof required to meet the threshold of beyond a reasonable
doubt.  Murphy v. State, 112 S.W.3d 592, 597 (Tex. Crim. App. 2003); accord McKnight v. State, No.
01-09-00852-CR, 2011 WL 2923856, at *8 (Tex. App.—Houston [1st Dist.] July 21,
2011, no pet.) (mem. op., not designated for publication) (distinguishing Wansing and holding that trial court did
not commit fundamental error in explaining, “There is no definition for beyond
a reasonable doubt. You have to ask yourself what you think a reasonable doubt
is.”); Meadows v. State, No.
01-09-00443-CR, 2010 WL 2874199, at *6 (Tex. App.—Houston [1st Dist.] July 22,
2010, pet. ref’d) (mem. op., not designated for publication) (distinguishing Wansing and holding that trial court did
not commit fundamental error in stating that reasonable doubt was “whatever it
means” to each juror, “kind of like obscenity, you know it when you see it”
because statement did not convey opinion as to defendant’s guilt or innocence);
Garza v. State, 01-08-00529-CR (Tex.
App.—Houston [1st Dist.] Mar. 25, 2010, pet. ref’d) (mem. op., not designated
for publication) (distinguishing Wansing
and holding that trial court did not commit fundamental error in stating that
it is up to each individual juror to decide when she is convinced beyond a
reasonable doubt as to each element of offense); see also Copeland v. State,
No. 14-07-00475-CR, 2008 WL 4735199, at *2 (Tex. App.—Houston [14th Dist.] Oct.
30, 2008, pet. ref’d) (mem. op., not designated for publication)
(distinguishing Wansing and holding
that trial court did not abuse its discretion by overruling the appellant’s
objection to prosecutor’s statement that reasonable doubt is “whatever it means
to you”).[1]  The trial court’s comments therefore did not
deviate from the applicable law to the extent that the comments at issue in Wansing did.  Moreover, Haro has not pointed out any particular
comment as constitutionally infirm.
The plurality in Blue v. State found fundamental error of
constitutional dimension and required no objection where the trial judge had
expressed his personal view regarding appellant’s guilt and decision to go to
trial.  41 S.W.3d 129, 132 (Tex. Crim.
App. 2000).  The trial court’s comments
in this case, in contrast to those in Blue,
did not taint the presumption of innocence owed to the defendant or apply the
beyond-a-reasonable-doubt standard of proof to the cause before it.  We hold that Haro waived error by failing to
object to the trial court’s comments on reasonable doubt because the trial
court’s comments do not rise to the level of fundamental error.  See Tex. R. App. P. 33.1; see also Brumit v. State, 206 S.W.3d
639, 644–45 (Tex. Crim. App. 2006) (stating that court did not need to decide
whether objection was required to preserve alleged error regarding comments of
trial judge where record did not reflect bias or partiality of trial court); Jasper, 61 S.W.3d at 421 (holding that
trial judge’s comments “aimed at clearing up a point of confusion” did not “[rise]
to such a level as to bear on the presumption of innocence”); Fuentes v. State, 991 S.W.2d 267, 273
(Tex. Crim. App. 1999) (holding that appellant waived complaint about trial
court’s explanation of reasonable-doubt standard during voir dire by failing to
renew objection when trial court repeated explanation); Moore v. State, 907 S.W.2d 918, 923 (Tex. App.—Houston [1st Dist.]
1995, pet. ref’d) (holding that appellant waived complaint about trial court’s
comment during voir dire about weight of evidence).
II.      Ineffective
Assistance of Trial Counsel
A.      Standard of review
To prevail on a claim of
ineffective assistance of counsel, the defendant must show that trial counsel’s
performance was deficient and a reasonable probability exists that the result
of the proceeding otherwise would have been different.  Strickland
v. Washington, 466 U.S. 668, 687, 693, 104 S. Ct. 2052, 2064, 2068 (1984).  The first prong of the Strickland test requires that the defendant show that counsel’s
performance fell below an objective standard of reasonableness.  Thompson
v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).  Thus, the defendant must prove objectively, by
a preponderance of the evidence, that trial counsel’s representation fell below
professional standards.  Mitchell v. State, 68 S.W.3d 640, 642
(Tex. Crim. App. 2002).  Because the
reviewing court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance, the defendant must
overcome the presumption that, under the circumstances, the challenged action “might
be considered sound trial strategy.”  Strickland, 466 U.S. at 689, 104 S. Ct.
at 2065.  The second prong requires that
the defendant show a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.  See id.
at 694, 104 S. Ct. at 2068; Thompson,
9 S.W.3d at 812.
Any allegation of ineffectiveness
must be firmly founded in the record, which must demonstrate affirmatively the
alleged ineffectiveness.  Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500
(Tex. Crim. App. 1996)).  We will not
speculate to find trial counsel ineffective when the record is silent on
counsel’s reasoning or strategy.  See Robinson v. State, 16 S.W.3d 808,
813 n.7 (Tex. Crim. App. 2000).  In rare
cases, however, the record can be sufficient to prove that counsel’s
performance was deficient, despite the absence of affirmative evidence of
counsel’s reasoning or strategy.  Id.
B.      Analysis
No direct evidence in the record
establishes a reason that Haro’s trial attorney did not object to the trial
court’s statements concerning reasonable doubt.
Without record evidence of counsel’s motives, we presume that counsel
had a plausible reason for his actions.  Thompson, 9 S.W.3d at 814.
We also conclude that Haro has not
met the second prong for establishing ineffective assistance of counsel.  The jury charge, which Haro
does not challenge on appeal, instructs the jury on the
beyond-a-reasonable-doubt burden of proof.
Absent evidence to the contrary, a jury is presumed to follow the instructions
set forth in the court’s charge.  Paita v. State, 125 S.W.3d 708, 715
(Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (citing Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996)).  Haro does not challenge the sufficiency of the
evidence supporting his convictions.  Haro
thus has not shown that, but for the conduct he claims was ineffective, the
result of the proceeding would not likely have been different.  We hold that Haro has failed to meet either
prong of Strickland.
Conclusion
          We
hold that Haro waived his contention that the trial court erred in explaining
the beyond-a-reasonable-doubt standard of proof to the jury panel and its
comments were not fundamental error in this case.  We further hold that Haro failed to meet his Strickland burden to show that he
received ineffective assistance of counsel at trial.  We therefore affirm the judgment of the trial
court.

                                                                   Jane
Bland
                                                                   Justice

Panel
consists of Chief Justice Radack and Justices Bland and Huddle.
Publish.   Tex. R. App. P. 47.2(b).

[1]           We publish this opinion because the
authority on this issue is mainly unpublished.


65 So.2d 698 (1953)
AIR CONDITIONING ENGINEERS, Inc
v.
SMALL.
1 Div. 426.
Supreme Court of Alabama.
April 16, 1953.
Rehearing Denied June 18, 1953.
*699 Vickers & Thornton, Mobile, for appellant.
Thos. E. Twitty and Inge, Twitty, Armbrecht & Jackson, Mobile, for appellee.
PER CURIAM.
The primary question on this appeal is whether a contract was entered into between appellee, as the general contractor for an office building, and appellant, as a subcontractor for the air conditioning and heating. There was judgment for plaintiff and defendant appeals.
The first count of the complaint was a common count on account. It may be eliminated as not appropriate to the claim as developed. 3 Alabama Digest, Assumpsit. The second count is for the breach of a contract in writing, consisting of a written offer under date of August 30, 1948 made by the defendant to the plaintiff of a named figure as the amount of defendant's bid to perform certain work and furnish certain materials and equipment in accordance with specifications for alterations and addition to an office building; that the offer was accepted by plaintiff in writing on, to wit, September 16, 1948. A breach *700 was alleged as having been made by defendant's failure to perform any of the work or furnish any of the material. Appellant does not press other claim of error than that involved in the failure to prove the existence of the contract as alleged.
The Alabama State Docks Commission advertised for bids for the alteration of its office building. Plaintiff, a resident of Jacksonville, Florida, wished to make a bid and some correspondence was had with defendant about it. A letter dated August 30, 1948 was written by defendant to plaintiff, which letter constitutes defendant's bid referred to in count 2 of the complaint. It is as follows:
     "Air Conditioning Engineers, Inc.
152 St. Louis St.        P. O. Box 1567
Mobile 9, Alabama           Dial 2-1891-2
             August 30, 1948.
"Mr. James H. Small & Company
P. O. Box 4786,
Jacksonville, Florida.
  Subject: Air Conditioning and Heating,
           State Docks
           Office Building.
"Gentlemen:
"Wish to quote a price of $35,851.00 for Division XXII, air conditioning and heating page 1 through 13. We have also included under Division IX miscellaneous metals the following paragraphs:
"1. Return air conditioning floor and ceiling grilles
"2. Equipment room louvres
"3. Louvres in Dock Department walls and interior doors. We would like to point out that we only furnish the louvres in the Dock Department walls and interior doors and these are to be installed by others.
"We are using Carrier equipment throughout with the exception of the fan and coil sections. The fan and coil sections that we use will comply with the specifications.
"This bid is in accordance with specifications for alterations and additions to Office Building Alabama State Docks, Mobile, Alabama, prepared by Donald A. Hawkins, architect, Luquire Engineering Company, consulting engineers, and Addendum No. 1, Drawings M-7, M-8, M-9 dated April 1, 1948.
"We appreciate very much the opportunity of quoting and if there are any questions concerning this bid we will be glad to clarify them upon your request.
              "Very truly yours,
                   (sgd) J. H. Hastie."
Plaintiff testified that he used the named figure in his bid for the general contract. That he had not received defendant's letter of August 30, 1948, but acted in accordance with the telephone conversation. Plaintiff's bid was mailed from Jacksonville, Florida, on Saturday, August 29th. The bids were opened August 31, 1948. Mr. Hastie, vicepresident of defendant, was present, and telephoned plaintiff that his bid was low. Plaintiff was awarded the contract on the bids opened August 31st. Plaintiff came to Mobile from Jacksonville, his residence, and on September 3, 1948, advised the vicepresident that the governor had approved his general contract, and as soon as the governor signed it a formal order or contract would be sent defendant. Plaintiff Small testified:
"On September 3rd. I received a telephone call advising me to come over and see Director Sweet, which I did. I arrived here on the third. I had with me a letter listing subcontractors for submission to the architect, the contract document stated that we must not let the subcontracts unless and until the subcontractor had been approved by the architect, and in compliance with that we had made a list of the proposed subcontractors for submission. On that list, which is what you have in your hand, I have the names of these subcontractors, and the names of the men in that particular firm that we had been dealing with. When I was here on the third I called these gentlemen, including Mr. Hastie of Air Conditioning Engineers, and told them, that is, they know we were low, that I had just seen Mr. Sweet, and he had told us that the contract would be issued as soon as the Governor gave his signature, that he had already approved it; that we had used their figure in the bid, and we would send them a formal order as soon as they were approved."
*701 A list of the subcontractors was then sent to the architect, including the name of defendant with a pencil notation opposite his name of 35,800. A copy of the specifications for the work, such as were here material, was introduced in evidence as referred to in the letter from defendant to plaintiff of August 30, 1948. By it all bidders were required to examine carefully the plans and specifications. They also included specifications for the air conditioning and heating, which provided that "the compressor shall be of a multi-cylinder reciprocating type, slow speed belt driven," and that the "condenser shall be constructed entirely of stainless steel with the exception of fan shaft, wheels and scrolls."
By letter dated September 16, 1948, plaintiff wrote to defendant as follows:
"James H. Small & Co. (Not incorporated) 1528 East Adams Street,
     P. O. Box 4786,    Phone56470
         Jacksonville 1, Florida.
      General Contractors-Engineers
           September 16, 1948
"Mr. J. H. Hastie, Vice-President & Secretary,
Air Conditioning Engineers, Inc.,
P. O. Box 1567
Mobile, 9, Alabama.
   Subject: Alterations and Additions to
              Office Building,
            Alabama State Docks
            Mobile, Alabama.
"Dear Mr. Hastie:
"We are pleased to advise you have been approved as a subcontractor for air conditioning and heating for the subject job and to save time we are enclosing the original copy of the subcontract covering this work which we have executed.
"If the subcontract is satisfactory to you please complete the performance bond and return to us an executed copy of the contract and bond.
"The costs of the performance bond will be borne by us.
    "Yours very truly,
       James H. Small & Co.
          (sgd)  James H. Small
                 James H. Small."
This apparently was intended to prove plaintiff's acceptance of defendant's bid, as alleged in count 2 of the complaint. There was enclosed in that letter a proposed written contract executed by the plaintiff and for execution by defendant with request for the return of it to plaintiff. There was no acceptance in terms used in that letter. It was stated in defendant's letter of August 30th that he was using Carrier equipment for air conditioning and heating. That equipment consisted of a high speed compressor instead of a low speed compressor as required by the specifications, and the equipment also consisted of a galvanized evaporative condenser instead of one made entirely of stainless steel as required by the specifications. The proposed subcontract, submitted to the defendant for execution with the letter of September 16, 1948, contained the requirement that the subcontractor shall be bound by the terms of the original contract in so far as the same may pertain to the work and materials embraced in the subcontract. That had the effect of eliminating Carrier equipment, referred to in the letter of August 30, 1948.
In a letter dated September 30, 1948, plaintiff wrote to the defendant calling his attention to his letter of September 16th, in which he enclosed the subcontract to defendant for execution, and requested its return signed by defendant. Soon thereafter, in the early part of October of 1948, plaintiff Small and vicepresident Hastie of defendant corporation had a conversation in Mobile, as to which plaintiff testified that he asked Mr. Hastie why he had not sent back the subcontract; that he told Mr. Small, in reply, that they were having difficulty with the architect over the equipment defendant had submitted in accordance with the provisions of the subcontract, and that Small had seen Mr. Hawkins, the architect, who had told Small that he had been having trouble getting a list of equipment from defendant. Small then testified that he told Mr. Hastie that he should send in the list, and Mr. Hastie said he would like for Mr. Small to see Mr. McPherson. They went into the next room and saw Mr. McPherson, president of defendant corporation: whereupon Mr. Small told Mr. McPherson *702 that, in his opinion, they would not have any trouble with Mr. Hawkins if they complied with his reasonable demands, and Mr. McPherson said they would consider it and they would get it straightened out with Mr. Hawkins.
There was also introduced in evidence a letter of October 6, 1948, addressed to the defendant signed by the architect Hawkins, advising the defendant that their bid was not based on the plans and specifications or in accordance with the instructions to the bidder in two particulars: (1) that specifications call for stainless steel evaporator condenser, whereas the defendant quoted a galvanized condenser; and (2) the specifications call for low speed motor on the compressor, whereas defendant quoted high speed motor on the compressor, and, therefore, he has reached the conclusion that defendant's bid was not given in good faith since neither the architect or general contractor were informed of the defendant's intention not to comply with the specifications.
A letter was introduced dated October 13, 1948 to the plaintiff signed by Mr. McPherson as president of defendant corporation advising him that defendant had received a letter from Mr. Hawkins, the architect, dated October 6, 1948, stating that the Carrier compressor and evaporative condenser which they proposed to use do not meet the specifications and are not approved, and also advising plaintiff that the defendant apparently misinterpreted the specifications in so far as the condenser and compressor were concerned; and that the defendant felt that they should step aside and allow the contract to be awarded to the low bidder or some other party the plaintiff may designate. It also advised plaintiff that defendant felt that any reputable, standard air conditioning equipment, such as Carrier, would meet with the architect's approval, but that since that was not the case defendant had no alternative but to withdraw.
On October 23, 1948, plaintiff wrote to defendant in answer to the letter of October 13, 1948, (so reciting) advising defendant that plaintiff had used defendant's figures in preparing his bid and had so advised defendant, and that defendant "have an obligation to fulfill your contract with us." That plaintiff will secure other bids for the work and hold defendant responsible for any increased cost plaintiff may incur "by this procedure". In a letter dated January 20, 1949, plaintiff wrote to defendant as follows:
           "January 20, 1949.
"Air Conditioning Engineers,
Mobile, Alabama.
      Attn. Mr. J. C. McPherson.
"Dear Sir:
"Referring to your letter of October 13, 1948 and ours of October 25, 1948:
"As stated in our letter above cited we made diligent effort to secure a satisfactory subcontractor for the work of heating and air conditioning at the State Docks Office when you withdrew your accepted offer on which our bid to Alabama State Docks & Terminals was predicated.
"We received one informal bid for the work in an amount slightly more than $40,000.00 and a firm bid from Leff Engineering Company of Mobile in the amount of $38,617.00.
"As your offer, which we had accepted and which you were advised we would use in our bid to the Alabama State Docks & Terminals, was for the amount of $35,851.00, you are indebted to us for the difference of $2,766.00 for which we would be glad to have your remittance.
    "Yours very truly,
       James H. Small & Co.
          (sgd)  James H. Small
                 James H. Small."
"cc Director Sweet.
Plaintiff then made proof as to such bid by Leff Engineering Company of $38,617, and his loss of $2,766 occasioned thereby. There was a jury and verdict for plaintiff for $3,039.80.
We repeat the statement that the right of defendant to the affirmative charge depends upon whether defendant became bound by a contract in writing as alleged in count 2, supra, of the complaint. The trial court in his oral charge and in special requested charges given by him submitted that question to the jury for decision.
*703 The rule is that the minds of the parties must meet as to all the essential features of a contract. Cochran Lumber Co. v. Paterson & Edey Lumber Co., 202 Ala. 366, 80 So. 448; Bissinger v. Prince, 117 Ala. 480, 23 So. 67; Hodges v. Sublett, 91 Ala. 588, 8 So. 800. The assent of the parties must be manifest from the language used if it is certain in meaning.
In the case of Lutz v. Van Heynigen Brokerage Co., 199 Ala. 620, 75 So. 284, 288, the principle is stated as follows: "While it is the province of the court to construe written contracts, where the meaning is to be collected from the writing without the aid of evidence aliunde, yet where the meaning, the intent of the parties, depends upon the ascertainment of facts aliunde the instrument, this `admixture of parol with written evidence draws the whole to the jury,' requires the submission of the issue to, the deduction of the inference of fact by, the jury. Sewall v. Henry, 9 Ala. 24, 31; Holman v. Crane, 16 Ala. 570, 580; Boykin v. Bank, 72 Ala. 262, 269, 47 Am.Rep. 408."
The rule is thus expressed in Boykin v. Bank of Mobile, 72 Ala. 262: "It is the province of the court to construe written contracts and declare their legal effect. But, when the legal operation and effect of an instrument depends, not only on the meaning and construction of the words, but upon collateral facts in pais, and extrinsic evidence, the inference of facts to be drawn from the evidence should be submitted to the jury." See, also, Dozier v. Vizard Inv. Co., 203 Ala. 421, 83 So. 572.
In the case of Doe ex dem. Holman v. Crane, 16 Ala. 570, it is pointed out that a contract may consist of several instruments of writing and constitute but one agreement. And further, on page 580, of 16 Ala., that "where the effect of written instruments depends not merely on their construction and meaning, but upon collateral facts in pais and extrinsic circumstances, the inferences of fact to be drawn from them should be left to the jury,'an admixture of parol with written evidence draws the whole to the jury.'" That principle is also referred to in Merchants National Bank v. Cotnam, 250 Ala. 316, 326, 34 So.2d 122.
A contract may consist of several communications between the parties, some in writing and some verbal, each constituting a link in the chain which constitutes the comprehensive contract. Every such communication is a part of the contract, and is not extraneous to it nor in pais. Stephenson Brick Co. v. Bessemer Engineering & Construction Co., 218 Ala. 325, 118 So. 570; McLendon v. Eubanks, 249 Ala. 170(5), 30 So.2d 261. But extraneous matter, that is in pais, may sometimes be shown to clear an ambiguity which exists when the entire chain forming the contract is considered and it is ambiguous. Merchants National Bank v. Hubbard, 220 Ala. 372, 125 So. 335; Obermark v. Clark, 216 Ala. 564, 114 So. 135, 55 A.L.R. 1153. Matter in pais used in that connection is that which is in opposition to that of record. This means in opposition to those incidents which constitute the contract. 2 Bouv.Law Dict., Rawle's Third Revision, p. 2441; 31 Corpus Juris 358, note 82, 42 C.J.S., In, p. 487.
The rule is also frequently stated that where there is no conflict in the evidence as to what are the terms of the contract involved in the suit, and its terms and conditions are certain, the construction of the contract is one of law for the court. That statement was made with reference to a chain of communications creating a contract. McFadden v. Henderson, 128 Ala. 221, 29 So. 640, and applies to verbal transactions when there is no conflict in the evidence, and the terms are positively stated. Swanner v. Swanner, 50 Ala. 66; Barnhill v. Howard, 104 Ala. 412, 16 So. 1.
It is also said that when the contract is plain and unambiguous there is no room for interpretation. Dunlap v. Macke, 233 Ala. 297, 171 So. 721; McLendon v. Eubanks, supra.
We think our cases mean that the court, and not the jury, will analyze and determine the meaning of a contract, whether verbal or written when its terms are clear and certain, and also ascertain *704 whether or not it is ambiguous in the light of its terms, and if it is found to be ambiguous, but not void for uncertainty, its meaning may be clarified by a consideration of the facts and circumstances aliunde and in pais, and when so it is the province of the jury to ascertain those facts and draw inferences from them which carries to the jury the whole issue upon proper instructions by the court.
The contract claimed by plaintiff in this case, as alleged in count two of the complaint, is that defendant made an offer in writing on August 30, 1948 to perform certain work and furnish certain materials and equipment in accordance with certain specifications, and that the offer was accepted by plaintiff in writing on, to wit, September 16, 1948. A proper construction of that bid and its alleged acceptance is not dependent upon any fact or circumstance extraneous to the incidents of the contract, supplied by parol evidence. The general specifications are referred to in the bid and became a part of it. They are not extraneous to the contract nor in pais of the record of the contract. The subcontract enclosed with the letter of September 16th is a part of it as an acceptance to the extent that it is an acceptance.
On that status this Court construes the bid of September 30, 1948, as the architect did, manifested by his letter of October 6th to defendant to furnish Carrier equipment (except as specifiednot material here), expressing in the bid the opinion that such equipment was in accordance with the specifications of the architect named. But the bid was not in accordance with those specifications.
The letter of September 16th by plaintiff to defendant, with the enclosed document which is supposed to be an acceptance of the bid, specifies in the enclosed document that defendant must comply with the specifications. That was in effect a counter proposal eliminating the Carrier equipment. To be a contract, therefore, defendant must accept the counter proposal. The description of the contract in the complaint stops with the letter of September 16th. Those two communications do not constitute the acceptance of a bid made in clear and certain terms, 17 C.J.S., Contracts, § 36, pp. 364, 365, as the complaint in effect alleges. But the letter of September 16th being a counter proposal, defendant set about to see if it could accept it; but failed to convince the architect that Carrier equipment would be satisfactory. Therefore, instead of accepting the counter proposal and signing the proffered subcontract, defendant wrote plaintiff on October 13, 1948, in effect, that it was unable to accept the counter proposal and withdrew its bid. There was never a meeting of the minds.
That, we think, is a proper interpretation of the situation, and is one for the court, and not the jury, to make.
The foregoing opinion was prepared by FOSTER, Supernumerary Judge of this Court while serving on it at the request of the Chief Justice, under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
For the refusal of the affirmative charge requested by defendant, the judgment is reversed and the cause remanded.
Reversed and remanded.
LAWSON, SIMPSON, STAKELY and MERRILL, JJ., concur.


103 U.S. 222 (1880)
RELFE
v.
RUNDLE.
Supreme Court of United States.

Mr. James Carr and Mr. George D. Reynolds for the appellant.
Mr. Armand Pitot for the appellee.
MR. CHIEF JUSTICE WAITE delivered the opinion of the court.
The Life Association of America was, on the 5th of November, 1879, a corporation of the State of Missouri, for the purpose of doing a life insurance business, with its chief office at St. Louis, in that State. By the laws of Missouri, the superintendent of the insurance department of the State government might, under certain circumstances, institute proceedings in the courts of the State for the dissolution of such a corporation and the winding up of its affairs. Sect. 6043 of the Revised Statutes of Missouri is as follows:
"Upon the rendition of a final judgment dissolving a company, or declaring it insolvent, all the assets of such company shall vest in fee-simple and absolutely in the superintendent of the insurance department of this State, and his successor or successors in office, who shall hold and dispose of the same for the use and benefit of the creditors and policy-holders of such company, and such other persons as may be interested in such assets."
On the 13th of October, 1879, L.E. Alexander, a citizen of Missouri, and the receiver of the Columbia Life Insurance Company of Missouri, recovered a claim against the Life Association *223 of America for $1,100,000, and thereupon William S. Relfe, the superintendent of the insurance department of the State, commenced proceedings under the statute to dissolve the last-named corporation and wind up its affairs. In his petition he prayed that the company might be enjoined from doing any further business, and that an agent might be appointed to take charge of its property temporarily. Such an order was made in the cause, and D.M. Frost, a citizen of Missouri, appointed temporary agent and receiver. Frost at once qualified under this appointment.
On the 5th of November, 1879, Rundle and wife, the appellees, policy-holders of the company, commenced suit in the Fifth District Court of the Parish of New Orleans, against the life association, Frost, the temporary agent and receiver, John R. Fell, the local agent of the company at New Orleans, and L.E. Alexander, receiver of the Columbia Life Insurance Company, the object of which was to have the assets of the company in Louisiana declared a trust fund and applied to the payment of the claims of Louisiana creditors and policy-holders in preference to others. In the bill the decree in favor of the receiver of the Columbia Life Insurance Company, and the proceedings by Relfe, the superintendent of the insurance department, with the appointment of Frost as temporary receiver, were set out in detail, and the whole object and purpose of the suit was to keep the Louisiana assets out of the hands of Relfe and his successors in office. No special relief was asked against the receiver of the Columbia Life Insurance Company. Upon the filing of the bill, Walter B. Wilcox was appointed receiver. Service of process was made on Alexander only through Francis B. Lee, who was appointed curator ad hoc at the same time that Wilcox was appointed receiver. Fell was made a party only for the purpose of reaching property in his hands.
On the 10th of November the company was dissolved by a decree of the Missouri court, and its property vested in Relfe, superintendent of the insurance department, as provided by the statute. On the 17th of the same month Relfe was, on his own motion, made a party to the suit in New Orleans, as the legal representative of the late corporation, and on the 28th he filed a petition for the removal of the cause to the Circuit Court of *224 the United States for the District of Louisiana. In his petition he set forth his own citizenship in Missouri, and that of the appellees in Louisiana. The citizenship of all the other persons named as parties to the suit appeared in the pleadings. He also gave the security required by the act of Congress, and on the 5th of December, which was in time, filed in the Circuit Court a copy of the record in the State court. On the 9th of the same month the receiver appointed in the State court moved to dismiss the cause and strike it from the docket of the Circuit Court: 1, Because that court was without jurisdiction either of the person or the subject-matter; 2, because Relfe had no standing in court, he being a creature of the State of Missouri, without capacity to sue or remove causes in Louisiana; 3, because the suit was improperly removed; and, 4, because the State court having first taken charge of the property, the Circuit Court could not interfere with the possession of the receiver of that court. While this motion was pending, and on the 30th of December, the life association and Frost filed their petition in the State court, setting forth the former petition of Relfe, and adopting it and all that had been done under it as their own, and also asking that the suit be removed on their own account. They also gave the security required by the act of Congress. On the 5th of January the Circuit Court heard the motion of the State court receiver made on the 9th of December, and remanded the cause. From that order the life association, Relfe, and Frost took this appeal, under the fifth section of the act of 1875, c. 137. 18 Stat., pt. 3, p. 472.
We think the Circuit Court erred in remanding the cause. The entire controversy is between the appellees, representing the Louisiana creditors and policy-holders, on one side, and Relfe, the statutory representative of the corporation and its property, on the other, as to their respective rights to what the appellees claim are Louisiana assets belonging primarily to Louisiana creditors. Fell and the receiver of the Columbia Life Insurance Company are formal parties only. Fell has in his possession, as a naked trustee, some of the Louisiana assets, and the receiver of the Columbia Life Insurance Company is, so far as anything appears, no more than a general creditor of the dissolved corporation whom, necessarily, under the law, *225 Relfe represents. After the decree of dissolution the Life Association Company had no longer any corporate existence, and the temporary agency and receivership of Frost was ended when the property of the corporation was transferred to Relfe and he became under the law entitled to the possession.
Relfe is not an officer of the Missouri State court, but the person designated by law to take the property of any dissolved life insurance corporation of that State, and hold and dispose of it in trust for the use and benefit of creditors, and other parties interested. The law which clothed him with this trust was, in legal effect, part of the charter of the corporation. He was the statutory successor of the corporation for the purpose of winding up its affairs. As such he represents the corporation at all times and places in all matters connected with his trust. He is the trustee of an express trust, with all the rights which properly belong to such a position. He is an officer of the State, and as such represents the State in its sovereignty while performing its public duties connected with the winding up of the affairs of one of its insolvent and dissolved corporations. His authority does not come from the decree of the court, but from the statute. He appeared in Louisiana not by virtue of any appointment from the court, but as the statutory successor of a corporation which the court had in a legitimate way dissolved and put out of existence. He was, in fact, the corporation itself for all the purposes of winding up its affairs.
We are aware that, except by virtue of some statutory authority, an administrator appointed in one State cannot generally sue in another, and that a receiver appointed by a State court has no extra-territorial power; but a corporation is the creature of legislation, and may be endowed with such powers as its creator sees fit to give. Necessarily it must act through agents, and the State which creates it may say who those agents shall be. One may be its representative when in active operation, and in full possession of all its powers, and another if it has forfeited its charter and has no lawful existence except to wind up its affairs. No State need allow the corporations of other States to do business within its jurisdiction unless it chooses, with perhaps the exception of commercial corporations; but if it does, without limitation, express or implied, the *226 corporation comes in as it has been created. Every corporation necessarily carries its charter wherever it goes, for that is the law of its existence. It may be restricted in the use of some of its powers while doing business away from its corporate home, but every person who deals with it everywhere is bound to take notice of the provisions which have been made in its charter for the management and control of its affairs both in life and after dissolution.
By the charter of this corporation, if a dissolution was decreed, its property passed by operation of law to the superintendent of the insurance department of the State, and he was charged with the duty of winding up its affairs. Every policy-holder and creditor in Louisiana is charged with notice of this charter right which all interested in the affairs of the corporation can insist shall be regarded. The appellees, when they contracted with the Missouri corporation, impliedly agreed that if the corporation was dissolved under the Missouri laws, the superintendent of the insurance department of the State should represent the company in all suits instituted by them affecting the winding up of its affairs. Relfe, therefore, became, by operation of law, the successor of the corporation in the litigation these appellees instituted in Louisiana. He was, in legal effect, their only opponent in the suit they had begun, and as he appeared in time and was a citizen of Missouri, representing a Missouri corporation, he was entitled to remove the cause and require citizens of Louisiana to litigate their claims with him in the courts of the United States.
The order of the Circuit Court remanding the suit will, therefore, be reversed, and the record remanded to that court with instructions to proceed according to law as with a pending suit within its jurisdiction by removal; and it is
So ordered.


191 Kan. 650 (1963)
383 P.2d 959
GROSSHANS & PETERSEN, INC., a Corporation, Appellee,
v.
TOM GIVENS, Defendant, and W.O. HOMER, d/b/a PLAZA DEVELOPMENT COMPANY, a Partnership, Appellant.
No. 43,283
Supreme Court of Kansas.
Opinion filed July 10, 1963.
Robert A. Schermerhorn, of Junction City, argued the cause, and C.L. Hoover and William R. King, both of Junction City, were with him on the brief for the appellant.
Howard Harper, of Junction City, argued the cause, and Robert F. Galloway and Edward F. Wiegers, both of Marysville, and Lee Hornbaker, Richard F. Waters and Bob Abbott, all of Junction City, were with him on on the brief for the appellee.
The opinion of the court was delivered by
PRICE, J.:
This was an action in which plaintiff sought recovery in the amount of $7,461.34 against defendants Givens and Homer, doing business as Plaza Development Company, a partnership, for material, services and the use of construction machinery and equipment furnished by plaintiff to the alleged partnership. The petition was in the usual form and, among other things, alleged the partnership of defendants.
We are advised that defendant Givens filed no pleadings, and he is not a party to this appeal.
Defendant Homer filed an answer in the form of a general denial, and specifically denied that he and Givens were partners during the period in question or at any time subsequent thereto.
As abstracted, it appears that the answer was not verified. (See G.S. 1949, 60-729.)
Notwithstanding the unverified answer, plaintiff pleaded over by filing a reply, thus leaving in the case the issue as to the existence of the alleged partnership. (See Livingston v. Lewis, 109 Kan. *651 298, syl. 1, 198 Pac. 952, and Tuggle v. Johnson, 190 Kan. 386, syl. 1, 375 P.2d 622.)
A pre-trial conference was had at which ten written exhibits were offered and admitted. These exhibits will not be discussed in detail and it is sufficient to say they consisted of written contracts, agreements and letters executed and entered into by the parties in the course of their real-estate development projects, and each of which clearly indicated the partnership between Givens and Homer, as contended by plaintiff. The amount of the debt alleged by plaintiff to be due from the Plaza Development Company, and for which suit was brought, was admitted to be correct. A pre-trial order was made to the effect that whether the Plaza Development Company was a partnership between defendants Givens and Homer was a mixed question of law and fact, and, there being no dispute concerning the mentioned pre-trial exhibits, defendant Homer's request for a trial by jury was denied.
Following a trial of the action the court rendered judgment for plaintiff against defendants Givens and Homer as partners, doing business as the Plaza Development Company, in the amount heretofore mentioned. Special findings and conclusions were made, and we quote two of them:
"10. The Court is of the opinion that in the various instances where Mr. W.O. Homer represented himself to be a partner that he was not merely holding himself out as such but was speaking the truth and was in truth and in fact at all such times an actual partner. The Court further determined that the actual contract of partnership between W.O. Homer and Tom Givens, d/b/a Plaza Development Company, may be found in the mutual acts and conduct of the parties, and the Court so finds.
"11. All of the admissions, statements, and exhibits as admitted in the pre-trial are hereby made a part of these findings and conclusions by reference.
"The Court is impelled to conclude that W.O. Homer and Tom Givens were in fact partners d/b/a Plaza Development Company, and that the merchandise, materials and equipment furnished to this partnership by plaintiff having a value of $7,461.34 is a debt of this partnership, and that judgment should be rendered herein against W.O. Homer and Tom Givens as partners, d/b/a Plaza Development Company, for this sum together with interest at six percent per annum from August 16, 1956, being the date of the last credit on this account."
Judgment was entered accordingly, and defendant Homer has appealed.
As heretofore stated, it was admitted the amount sued for was owed by Plaza Development Company to plaintiff. The only question *652 thus remaining in the case was whether Givens and Homer were partners doing business in that name. The trial court found that they were, and in this appeal the principal question raised by Homer is whether he was entitled to a trial by a jury on the question of partnership, under G.S. 1949, 60-2903, which provides that:
"Issues of fact arising in actions for the recovery of money or of specific real or personal property shall be tried by a jury, unless a jury trial is waived or a reference be ordered as hereinafter provided. All other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by a jury or referred as provided in this code."
One of the obvious purposes of the statute is to guarantee to a litigant the right to a trial by jury when there is a dispute as to the facts concerning a claimed indebtedness. The general rule is that the issues raised by the pleadings determine the nature of the action, and where the issue is essentially one justiciable at common law a jury trial may be demanded as a matter of right. (Nusz v. Nusz, 155 Kan. 699, 127 P.2d 441.)
Standing alone, the issues raised by the pleadings in this case fall within the classification calling for a trial by jury  if demanded. The matter, however, does not end there. At the pre-trial conference it was admitted by defendant Homer that the amount sued for was correct and was owed to plaintiff by the Plaza Development Company. This concession removed that issue from the case  leaving only the question whether Homer was a partner in the company.
Generally speaking the question as to the existence of partnership relations is a mixed question of law and of fact. What constitutes a partnership is a question of law and must be decided by the court. The existence or nonexistence of the facts necessary to bring the relation within the rule of partnership is a question of fact for the jury. On the other hand, where the facts in the case are undisputed, or are susceptible of only one inference, the question whether a partnership exists between particular persons is one of law for the court. (68 C.J.S., Partnership, §§ 24b and 59 pp. 444 and 484; 40 Am. Jur., Partnership, § 87, p. 190.)
The execution and existence of the written instruments received at the pre-trial conference were neither disputed nor denied. Several of them were executed and signed by Givens and Homer as partners, doing business as the Plaza Development Company. In *653 fact, from the record presented, there was very little, if anything, remaining to be "tried." The instruments were completely unambiguous and presented purely a question of law as to their construction, rather than questions of fact for a jury. In the two cases relied upon by defendant Homer  Stalker v. DeWitt, 142 Kan. 709, 51 P.2d 1012, and Johnson v. Jones, 6 Kan. App. 755, 50 Pac. 983  the question of the right to a trial by jury was not an issue. Under the record presented in the case before us it was not error to deny defendant's request for a trial by jury.
We agree with the two above-quoted findings and conclusions of the trial court. It is clear that a correct decision was reached in this case, and the judgment is affirmed.


569 So.2d 859 (1990)
Manuel ROJAS and Vayola S. Rojas, Appellants,
v.
Thomas DRAKE, Appellee.
Nos. 89-02431, 89-02979 and 90-00799.
District Court of Appeal of Florida, Second District.
November 7, 1990.
*860 Marcus Viles of Associates and Bruce L. Scheiner, Fort Myers, for appellants.
Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for appellee.
SCHEB, Judge.
These consolidated appeals[1] concern attorney's fees granted pursuant to section 57.105, Florida Statutes (1987), which entitles the prevailing party in a frivolous civil action to an award of attorney's fees. The appellants, Manuel and Vayola Rojas, raise four points. We need reach only the first.
The Rojases filed their complaint against Appellee Thomas Drake, who had rear-ended the Rojas vehicle while it was stopped at a traffic light. They also sued Melissa Faulkner, who set in motion the multi-car accident when her vehicle struck the Drake car. Drake answered and moved for summary judgment and for attorney's fees pursuant to section 57.105. The court granted both motions. In granting the motion for attorney's fees, the trial court found that the Rojases' complaint "completely lacked a justiciable issue of either law or fact." We reverse.
The Rojases argue that the trial court abused its discretion in finding their action against Drake to be frivolous. First, they correctly point out that merely prevailing on a motion for summary judgment does not mean an action is frivolous. Whitten v. Progressive Casualty Ins. Co., 410 So.2d 501 (Fla. 1982). Further, they contend their suit against Drake could not have been frivolous since the very fact that Drake rear-ended the Rojas vehicle while it was lawfully stopped created a prima facie case of negligence against him. See Stephens v. Dichtenmueller, 207 So.2d 718 (Fla. 4th DCA 1968). We agree.
Although section 57.105 requires that plaintiffs and their attorneys make reasonable efforts to investigate their claims before filing suit, absolute verification often is impractical. See McHan v. Huggins, 459 So.2d 1172 (Fla. 5th DCA 1984). This is especially true where, as here, the nature of the accident and number of people involved may make it difficult for the plaintiff to know exactly who was at fault.
Thus, the requirement of frivolousness for an award of attorney's fees is not equivalent to the standard required to prevail on a summary judgment, judgment on the pleadings, or even a motion to dismiss for failure to state a cause of action. Whitten; Maryland Casualty Ins. Co. v. Semmer Elec., Inc., 535 So.2d 670 (Fla. 2d DCA 1988). Rather, an award of attorney's fees under section 57.105 is only proper where the action is so clearly devoid of merit both on the facts and the law as to be completely untenable. Ferm v. Saba, 444 So.2d 976 (Fla. 2d DCA 1983).
We cannot say that the Rojases' action against Drake was completely untenable. As the Rojases point out, the fact that they were struck from behind put them at a disadvantage of knowing the precise details of what caused the multi-car accident. Accordingly, they sued the owners of the two *861 vehicles immediately behind them in the collision. It became apparent that Drake was merely a passive projectile put into motion by Faulkner. At the time the suit was filed, however, there was the possibility that allegations might be made that Drake was comparatively negligent. Consequently, we conclude that the Rojases' action against Drake was not so lacking in possible merit as to be frivolous.
Drake argues that even if the claim against him was not frivolous when suit was filed, it became frivolous when the Rojases continued their suit after Mr. Rojas admitted in deposition that he did not think Drake was at fault. We reject Drake's argument. A determination of legal liability in a negligence action cannot rest solely on a lay opinion. Therefore, Mr. Rojas' non-expert opinion was insufficient to make the suit thereafter frivolous. See Wall v. Dep't of Transp., 455 So.2d 1138 (Fla. 2d DCA 1984) (suit against county was not frivolous even after interrogatories revealed that county was not responsible for allegedly defective traffic light).
We distinguish the instant case from Galbraith v. Inglese, 402 So.2d 574 (Fla. 4th DCA 1981), which Drake contends is analogous. There, in taking the deposition of a defendant, the plaintiff's attorney admitted that he needed to eliminate unnecessary defendants because he had no idea who was responsible. The court held that the attorney implicitly admitted that the suit against the defendant was begun recklessly. The difference between Galbraith and the instant case is that in Galbraith, there was no good faith belief on the part of the plaintiff's attorney that Galbraith had any involvement whatsoever. Here, there was no dispute that the defendant was involved in the accident; the only question was whether he was a responsible party.
Reversed.
SCHOONOVER, C.J., and DANAHY, J., concur.
NOTES
[1]  The appellants challenge three separate orders, but the first two are incorporated into the last order, rendered February 22, 1990 and entitled "Final Judgment Taxing Costs and Attorney's Fees."


944 N.E.2d 579 (2011)
ZOBOROSKY
v.
ZOBOROSKY.
No. 46A04-1010-DR-702.
Court of Appeals of Indiana.
February 28, 2011.
BAKER, J.
Disposition of Case by Unpublished Memorandum Decision Affirmed.
VAIDIK, J., concurs.
BARNES, J., concurs.


                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                       F I L E D
                      UNITED STATES COURT OF APPEALS
                                                                        June 14, 2007
                          FOR THE FIFTH CIRCUIT
                                                                    Charles R. Fulbruge III
                                                                            Clerk

                               No. 06-41569
                             Summary Calendar

     ALLYSON A DYE,

                                                Plaintiff-Appellant,

                                      v.

     ASSOCIATES FIRST CAPITAL CORPORATION LONG-TERM DISABILITY
     PLAN 504; ASSOCIATES FIRST CAPITAL CORPORATION CAFETERIA
     PLAN 502,

                                                Defendants-Appellees.

         Appeal from the United States District Court for the
                  Eastern District of Texas, Marshall
                              2:03-CV-289

Before DAVIS, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Allyson Dye challenges the termination of her short term

disability     benefits   and   the   denial     of   long   term    disability

benefits.    The district court held that her claims were barred by

the Plan’s limitations period.        We AFFIRM.

     Dye    was   a   project   manager    at    Associates    First     Capital

     *
       Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
Corporation (“Associates”) when she underwent surgery to replace

her right knee in June, 2000.             She applied for and received

approval for short term disability benefits under the Associates

First Capital Corporation Cafeteria Plan 502 (“Plan 502"), which

ran from June 30, 2000, to September 25, 2000.        On October 9, 2000,

the plan’s third-party administrator, Kemper National Services,

Inc. (“Kemper”), sent Dye a letter terminating her benefits after

exhausting only 12 of the 26 weeks of short term disability

coverage    available.     Dye   subsequently    applied   for   long    term

disability benefits, but her claim was denied by letter dated March

28, 2001, on account of her failure to fully exhaust the short-term

benefits.    On April 11, 2001, Kemper’s Appeal Review Committee

affirmed the denial of her short term benefits.

     Approximately two years after the Appeal Review Committee

upheld the denial of benefits, Dye, through counsel, unsuccessfully

sought     information     concerning      her   claim,    including      the

administrative record, from Kemper.          In August, 2003, she filed

suit seeking to recover benefits under the Employee Retirement

Income   Security   Act   of   1974   (“ERISA”).     The   district     court

dismissed this case as untimely given the contractual limitations

period of 120 days.      Dye appeals.     The validity of the contractual

limitations period is a question of law which we review de novo.

Harris Methodist Fort Worth v. Sales Support Servs. Inc. Employee

Health Care Plan, 426 F.3d 330, 333 (5th Cir. 2005).

                                      2
     ERISA does not provide a statute of limitations for denial of

benefits lawsuits.     In the absence of such a statute, courts apply

the most analogous state statute of limitations.         Id. at 337; Hogan

v. Kraft Foods, 969 F.2d 142, 145 (5th Cir. 1996).           In Texas, the

most analogous state statute of limitations is the four year

limitation governing suits on contracts.            Tex. Civ. Prac. & Rem.

Code § 16.004(a).     “Where a plan designates a reasonable, shorter

time period, however, that lesser limitations schedule governs.”

Harris, 426 F.3d at 337.      Because the Plan in this case provides

that “no legal action may be commenced against an ERISA covered

plan more than 120 days after . . . receipt of the decision on

appeal,” the question is whether that shorter period is reasonable.

     In approving the use of a “reasonable, shorter time period,”

we cited two decisions from sister circuits which enforced shorter

time periods.     See Northlake Regional Medical Center v. Waffle

House,   160   F.3d   1301,   1303   (11th   Cir.    1998)   (enforcing   as

reasonable a 90-day contractual limitations period, triggered by

plan’s decision on administrative appeal); Doe v. Blue Cross Blue

Shield of Wisconsin, 112 F.3d 869, 874-75 (7th Cir. 1997)(enforcing

as reasonable a 39-month contractual limitations period from first

date on services on which action based).       In particular, the 90-day

limitations period upheld in Northlake was shorter than the 120-day

period now at issue.     While this suggests that the 120-period is

not presumptively unreasonable, however, it does not automatically

                                     3
mean that it is reasonable.     Rather, we must look to other factors

to determine whether the 120-day period was reasonable in this

particular case.

        Dye argues that a period less than two years is unlawful and

unreasonable under section 16.070(a) of the Texas Civil Practice &

Remedies Code, which prohibits an agreement to shorten a statute of

limitation to less than two years.       The only Texas court to address

this statute in the ERISA context, however, held that it was

inapplicable to an ERISA contract.        Hand v. Stevens Trans., Inc.

Employee Benefit   Plan,   83   S.W.3d    286,   290   (Tex.   App.   Dallas

2002)(“A state statute prohibiting the shortening of a statute of

limitations is not binding on ERISA claims.”).

     In the alternative, Dye argues that the 120-day period is not

reasonable under federal common law for a long term disability

plan.   She bases this argument on the fact that federal cases have

not previously enforced a 120-day limitation period in the context

of disability benefits, as opposed to health, death, or pension

benefits.    Courts have enforced short contractual limitations

provisions in several analogous contexts, however.              See, e.g.,

Northlake, 160 F.3d at 1302-03 (applying 90-day period in health

care context); Sheckley v. Lincoln Nat’l Corp., 366 F.Supp.2d 140

(D.Me. 2005)(applying six-month period in retirement plan context);

Davidson v. Wal-Mart Associates Health and Welfare Plan, 305

F.Supp.2d 1059 (S.D. Iowa 2004)(applying 45-day period in health

                                   4
care context).   Dye does not offer any federal cases in which a

court expressly refused to enforce such a limit in the disability

benefits context, and there is no apparent reason that a court

should treat a limitations period differently in this context.

     The Plan gives notice, specifying the 120-day period.            The

Plan also   requires   prompt   notification   to   the   employee   of a

decision on appeal.    Moreover, the period does not begin to run

until after the disposition of the internal appeal process.          Given

these other factors, the 120-day period is reasonable in this

specific case.

     For the foregoing reasons, we AFFIRM the district court.

                                   5