433 N.E.2d 1214 (1982)
ETHYL CORPORATION AND CAPITOL PRODUCTS CORPORATION, Appellants (Defendants and Counter-Claimants below),
v.
FORCUM-LANNOM ASSOCIATES, Inc., Appellee (Plaintiff and Counter-Defendant below).
No. 3-181A7.
Court of Appeals of Indiana, Fourth District.
April 20, 1982.
Rehearing Denied June 3, 1982.
*1215 Stephen Bower, Kentland, for appellants.
George Vann, Barce, Vann & Ryan, Kentland, for appellee.
MILLER, Presiding Judge.
Appellant Ethyl Corporation and its subsidiary Capitol Products Corporation (owner) are appealing a judgment in favor of appellee Forcum-Lannom Associates, Inc. (builder) which enforced the builder's mechanic's lien, and awarded it $34,500 in damages, plus prejudgment interest and $17,505 in attorneys' fees. The owner claims the trial court erroneously entered judgment in favor of the builder on his complaint and against the owner on his counterclaim by: 1) failing to find the contract required the builder to construct the building addition in question in compliance with state building code regulations; 2) allowing prejudgment interest; and 3) awarding excessive attorneys' fees. We find the contract specifically obligated the builder to construct the addition in accordance with the building code regulations; thus we reverse and remand for a new trial on damages only. Because of our disposition of the appellant's first issue we need not address the other two; prejudgment interest and attorneys' fees for the builder were contingent upon judgment in his favor.

FACTS
In the fall of 1977 appellant owner desired to build an addition to his Capitol Products plant in Kentland, Indiana, and to that end contacted appellee builder. On December 22, 1977 the parties executed a written contract whereby the builder would "design and construct" an approximately 45,000 square foot addition to the plant for a sum in excess of $667,700. The contract called for the removal of the west wall of the existing building, resulting in a single, undivided building whose approximate size was in excess of 100,000 square feet. The transaction proceeded without incident until February 17, 1978 when the Indiana State Fire Marshal wrote to the builder and informed him that the builder's plans and specifications for the project did not comply with all required rules and regulations, specifically, that the building "shall have smoke and heat vents... in accordance *1216 with Sec. 3205, UBC 1973," and "an annunciator panel in accordance with Sec. 3113-E, UBC 1973."[1] The contract was silent with respect to the vents and annunciator, but the "Scope of the Work" section did specifically obligate the builder to "install an ordinary hazard wet sprinkler fire protection system" in the addition. However, the agreement also provided the "CONTRACTOR ... shall be responsible for all work which is implicit or accessory to this Scope of Work whether or not such work is expressly called for ... [a]ll work ... shall be in conformance with all current and applicable codes, rules, regulations, and standards." Furthermore, the "General Conditions" section of the contract explicitly stated:
"[t]he Contractor shall give all notices, comply with all laws, ordinances, rules and regulations bearing on the Work. The Contractor agrees to indemnify and hold Owner harmless from any loss, liability or penalty which might be imposed by reason of asserted or established failure of the Contractor or its employees or agents and/or its subcontractors and/or their employees or agents to comply with any applicable laws, ordinances, rules or regulations."
For several months both parties disputed their contractual liability to pay for the vents and annunciator panel required by the Fire Marshal, until the owner informed the builder, in a letter dated October 10, 1978, that it was going to withhold $34,500 of the contract balance as the estimated cost of engineering, buying and installing the additional equipment for the addition.
After filing its notice to hold a mechanic's lien, the builder brought suit to foreclose the lien, seeking $34,500 in damages plus interest and attorneys' fees. The owner filed a counterclaim in which he alleged the builder breached their contract by failing to place the addition in compliance with the building regulations; the counterclaim sought $47,642 in direct and consequential damages. Following a bench trial, the trial judge entered findings of fact and conclusions of law which stated in relevant part:
"the contract here involved may not reasonably be construed to require the builder (Forcum-Lannom) to pay for and install smoke and heat vents and an enunciator [sic], which are required to be installed in buildings in excess of 50,000 square feet when the plaintiff in this case clearly contracted to build an addition which consisted in floor area of approximately 45,000 square feet."
... .
"Moreover, it is a cardinal rule of construction that legal documents will be strictly construed against its author [sic]. Likewise, it is not incumbent upon the non-drafting party (in this case Forcum-Lannom) to demonstrate that its version of the contract terms is the only reasonable interpretation that can be made, since an interpretation of a contract against a party who prepared the instrument is preferred where different interpretations are possible or where ambiguities are present."
... .
"Business contracts must be construed with business sense, as they naturally would be understood by intelligent men of affairs. The plaintiff in this case ought not to be required to furnish and install the costly items involved in this dispute when neither the scope of work, plaintiff's bid proposal, nor any other contract document specified that they be furnished."
*1217 Accordingly, the trial court denied the owner's counterclaim, upheld the builder's lien on the owner's real estate and assessed damages against the owner in the sum of $34,500, plus pre-judgment interest from October 10, 1978 and $17,505.05 attorneys' fees.
At trial the owner argued the regulations regarding smoke and heat vents applied when a building is enlarged to exceed 50,000 square feet, and the annunciator regulations applied if the enlarged building were greater than 100,000 square feet. To support its counterclaim it presented evidence of the installation cost of the vents and annunciator for the 45,000 square foot addition. The builder, inter alia, argued that he only contracted to build a structure containing 45,000 square feet and thus was only obligated to comply with regulations pertaining to structures of 45,000 square feet. Additionally, the builder introduced parol evidence which attempted to establish that at a meeting of representatives of both parties prior to the execution of the agreement it was agreed that the "scope of the work" section of the contract would establish the outer limits regarding what the builder had to do under the contract.[2]

DISCUSSION AND DECISION
The critical question in this case is whether or not the builder was bound under the contract to pay for the smoke and heat vents and annunciator panel required by the State Fire Marshal. We hold the builder was obligated to do so.[3]
"In deciding cases involving disputes over the meaning of written contracts, courts resort to the application of rules of construction and the receipt of extrinsic evidence only after their careful study of the entire contract itself has failed to make clear its meaning." Evansville-Vanderburgh School Corp. v. Moll, (1976) 264 Ind. 356, 362, 344 N.E.2d 831, 837. In the absence of ambiguity it is not within the function of the judiciary to look outside the instrument to arrive at the parties' intent. Jenkins v. King, (1946) 224 Ind. 164, 171, 65 N.E.2d 121, 123; See Bellew v. Byers, (1979) Ind., 396 N.E.2d 335, 337. In other words Indiana applies the so-called "four corners" rule in the construction of written instruments. E.g., Hauck v. Second National Bank of Richmond, (1972) 153 Ind. App. 245, 286 N.E.2d 852. This rule provides that in construing written instruments, the express language found within the four corners of the instrument, if unambiguous, determines the intent of the parties such that parol or extrinsic evidence is inadmissible to expand, vary or explain the instrument unless there has been a showing of fraud, mistake, ambiguity, illegality, duress or undue influence (defect in the formation of the contract). Lippeatt v. Comet Coal & Clay Co., Inc., (1981) Ind. App., 419 N.E.2d 1332. While an ambiguous adhesion contract is construed in the non-drafting party's favor, an unambiguous contract must be enforced according to its terms. Drake Ins. Co. v. Carroll Cty. Sheriff's Dept., (1981) Ind. App., 427 N.E.2d 1153; Cincinnati Ins. Co. v. Mallon, (1980) Ind. App., 409 N.E.2d 1100. A contract is ambiguous only where reasonable people could find its terms susceptible to more than one *1218 interpretation. Marksill Specialties, Inc. v. Barger, (1981) Ind. App., 428 N.E.2d 65; Piskorowski v. Shell Oil Co., (1980) Ind. App., 403 N.E.2d 838. Further, ambiguity is not established by the mere fact the parties assert different interpretations of the contract. Marksill Specialties, Inc. v. Barger, supra; Equitable Life Assurance Society of U.S. v. Short, (1975) 165 Ind. App. 338, 332 N.E.2d 273. Finally, whether an ambiguity exists must be determined by the application of the following principles:
1) Words used in a contract must be given their common meaning unless, from the entire contract and its subject-matter, it is clear that some other meaning was intended, and
2) Words, phrases, sentences and paragraphs of a contract are not to be read alone; the intention of the parties must be gathered from the entire contract.
Marksill Specialties, Inc. v. Barger, supra; Piskorowski v. Shell Oil Co., supra.
We find the contract in the present case is not ambiguous as the builder contends because the express language of the instrument taken as a whole shows the parties contemplated the cost of compliance with state administrative regulations and assigned this responsibility to the builder.
The instant agreement stated the "CONTRACTOR [builder] shall provide all required engineering, labor, supervision, materials, construction equipment, tools, facilities and supplies to: design and construct a building addition, equipment foundations and utility services" at the owner's plant in Kentland, Indiana. (Emphasis added.) We noted earlier other significant language in the agreement. It provided, generally, the builder "shall be responsible for all work which is implicit or accessory to this Scope of Work whether or not such work is expressly called for," and "[a]ll work shall be done in a good and workmanlike manner, to the satisfaction of OWNER, and shall be in conformance with all current and applicable codes, rules, regulations, and standards." (Emphasis added.) Moreover, the "General Conditions" section of the contract expressly declared:
"PERMITS, REGULATIONS AND RECORDINGS
a. The Contractor [builder] shall give all notices, comply with all laws, ordinances, rules and regulations bearing on the Work. The Contractor agrees to indemnify and hold Owner harmless from any loss, liability or penalty which might be imposed by reason of asserted or established failure of the Contractor or its employees or agents and/or its subcontractors and/or their employees or agents to comply with any applicable laws, ordinances, rules or regulations."
Clearly the plain meaning of the contract called for the builder to "design and construct" the addition "in conformance with all current and applicable codes, rules, regulations and standards," and it placed responsibility on the builder for all work "implicit or accessory" to the project. We conclude, therefore, the contract is unambiguous on this issue and thus it would be erroneous to apply rules of construction or to consider extrinsic evidence as there were no allegations or evidence of a defect in the formation of the contract. Evansville-Vanderburgh School Corp. v. Moll, supra; Jenkins v. King, supra.
Additionally, the builder also argues the trial court correctly determined the builder did not have to comply with the building regulations because the regulations applied only to buildings in excess of 50,000 square feet whereas he had agreed to construct a structure of only 45,000 square feet. We disagree. The contract called for the addition to adjoin and expand the existing building, specifically requiring the builder to remove the west exterior wall of the existing building. The resulting single building exceeded 100,000 square feet. We conclude, therefore, the builder did not contract simply to build a 45,000 square foot structure but explicitly agreed to enlarge an existing building by 45,000 square feet. Consequently, the trial court erred in entering judgment for the builder on his complaint and not finding, on the owner's counterclaim, the builder liable for the cost of complying with the regulations.
*1219 In reaching our conclusion we draw support from Superior Trailer Mfg. Corp. v. J.W. Scatterday, Inc., (1962) 243 Ind. 473, 185 N.E.2d 417 (opinion after remand);[4] and Dollman v. Pauley, (1931) 202 Ind. 387, 174 N.E. 729 (per Travis, J., Roll, J. concurring in result). In Superior Trailer Mfg. Corp. v. J.W. Scatterday, Inc., supra, a "qualified builder," Scatterday, agreed to design and construct a new building to adjoin an existing building in a "skillful, careful and workmanlike manner." Each building was to have an independent wall along the adjoining line, with the exception of a small section serving as a common wall, and the footings of the new wall were expected to provide needed underpinning for the original wall. In carrying out his design for the footings, Scatterday constructed them by cutting away to the sheer perpendicular lines of the wall of the original building to and including the digging of a trench to a depth approximately eight inches below the grade for a spur track. The exposed earth formed the interior wall of the footings, and wooden forms about two feet in height into which concrete was poured were constructed as an exterior wall for the footings. Initially this method of construction proved to be successful; however, after a weekend of rain two different sections of the wall of the existing building collapsed while Scatterday was waiting for cement to be delivered to fill the forms. In its findings of fact and conclusion of law the trial court found the contract "did not, in its written terms, require the plaintiff [owner] to underpin, to shore up or to do anything with regard to the ... [e]ast walls of the [original] building." In reversing the trial court's judgment, our Supreme Court stated that this finding was not material because the contract obligated Scatterday to install "all footings as required and necessary." Superior Trailer Mfg. Corp. v. J.W. Scatterday, Inc., supra, 243 Ind. at 480, 185 N.E.2d at 421. The Supreme Court also noted the evidence showed a regulation of the Administrative Building Council of Indiana provided "[n]o excavation for any purpose shall extend within one foot of the angle or repose or natural slope of the soil under any footing or foundation, unless such footing or foundation is first properly underpinned or protected against settlement." Id. at 481, 185 N.E.2d at 421. Our Supreme Court concluded that based on the above finding of fact, the trial court "misconstrued the law governing the case by assuming that appellees' [Scatterday's] responsibility for underpinning the east wall of the building was contingent upon a written agreement which expressly so provided." Id. Similarly the trial court in the present case stated in its findings of fact and conclusions of law:
"the contract expressly required that Forcum-Lannom `provide and install an ordinary hazard wet sprinkler fire protection system in the building addition guaranteed to meet Factory Mutual approval.' Conversely, the contract omitted and failed to mention any obligation or requirement of the plaintiff to provide smoke and heat vents and an [an]nunciator. Since these latter items were not mentioned in the contract they necessarily must be excluded as an obligation of Forcum-Lannom under the doctrine of `expressio unius est exclusio alterius.' [the expression of one thing is the exclusion of another.]"
Disregarding the contractual language concerning compliance with administrative regulations, the trial court misconstrued the law bearing on the issue by assuming the builder's responsibility for smoke and heat vents and an annunciator was contingent upon a provision expressly calling for such items.
In Dollman v. Pauley, supra, defendant Pauley undertook to erect a four-story building on his land adjacent to Dollman's land and building. Dollman alleged that as part of Pauley's project it was necessary to excavate alongside the foundation of Dollman's building; consequently the parties entered a contract where Pauley agreed to "underpin" and "do all things necessary to protect" Dollman's wall. Dollman also alleged *1220 the excavation made by Pauley was greater than ten feet, and during the course of the project Dollman's building settled, resulting in cracked and strained walls. At the time the contract was executed a city ordinance was in effect which specified "the legal depth for excavation to the bottom of footings" to be either seven or ten feet depending on the type of building involved. The contract was silent regarding the depth of the excavation or footings for the underpinning. On appeal Judge Travis stated:
"[i]t must be presumed, the contrary not being alleged, that the parties did not intend to contract in violation of law, but according to its provisions. The ordinance provides for `the legal depth for excavations, etc.,' which fits the situation of these parties, also the objection of each party to the other. Here was a law which determined the depth of excavations for footings for walls, and which also determined the rights of the parties, and the obligation each owed to the other. These parties knew, as a matter of law, their obligations one to the other, as prescribed by the ordinance. The contract, as alleged, was made with the view of the provisions of this ordinance. No more precise language can be found to state the principle that statutes and the law as otherwise existing became a part of every contract, and must be read into it, than made by Chief Justice John Marshall in the words, `in every forum a contract is governed by the law with a view to which it was made.' Wayman v. Southard (1825) 10 Wheat. 1, 48, 6 L.Ed. 253."
Dollman v. Pauley, supra 202 Ind. at 393-94, 174 N.E. at 731.[5]
It is well settled in Indiana that generally, unless the contract provides otherwise, all applicable law in force at the time the agreement is made impliedly forms a part of the agreement without any statement to that effect, but laws enacted subsequent to the execution of the agreement are not deemed part of the agreement unless the contractual language clearly indicates such to have been the intention of the parties; the parties are presumed to have had the law in mind. E.g., Mouch v. Indiana Rolling Mill Co., (1926) 93 Ind. App. 540, 151 N.E. 137 (existing statutes and settled law of the land at the time a contract is made become a part of it and must be read into it unless expressly excluded by the contractual language); Evansville-Vanderburgh School Corp. v. Moll, supra (parties to a contract may agree to be bound by subsequent legislation and to perform only after such legislation is in effect; they may also agree to perform according to statutes which will govern performance at the time it is undertaken); see generally 4 S. Williston, A Treatise on the Law of Contracts § 615 (3d ed. 1961 & Supp. 1981).[6]
*1221 Based upon the foregoing reasoning and authorities this Court could readily hold, in the absence of contractual language to the contrary and in a proper case, a builder to have impliedly agreed to comply with all applicable building codes and regulations when he agrees to "design and construct" a building or an addition. However, the instant case is an even more compelling one in which to hold, as we do, a designer-builder to be responsible for compliance with all applicable building regulations, where the express language of the agreement reveals the parties affirmatively made such an agreement.[7]
With respect to the scope of our holding and in response to the builder's assertion in his brief that the owner claims the builder is obligated under the contract to place the entire, 100,000 square foot building in compliance with the regulations, we note the owner proceeded both at trial and on appeal on the theory the compliance costs associated with the older, pre-addition building rest with the owner. Thus we are called upon to construe and our holding only reaches, the contract provisions as they apply to the addition. We find the contract unambiguously required the builder to construct the addition in compliance with applicable regulations and thus to pay for the proportionate compliance costs fairly allocable to the addition only.
Having held the builder was obligated under the contract to comply with the building regulations and thus the trial court erred in not finding such for the owner on his counterclaim, we now turn to the question of damages. In the memorandum accompanying his motion to correct error the owner requested a "new trial," and he has again raised the matter in his appellant's brief. Given our holding, we remand the case for a new trial on damages only at which the owner will be restricted to damages upon his theory presented at the original trial and on appeal  that is, the compliance costs allocable to the addition only. Boss v. Deak, (1936) 210 Ind. 449, 4 N.E.2d 180.
For purposes on remand, we also note that, generally, the measure of damages in a breach of contract case is the loss actually suffered as a result of the breach; consequently a plaintiff is not entitled to be placed in a better position than he would have been had the breach not occurred. Crestwood Park, Inc. v. Apostal, (1982) Ind., 431 N.E.2d 789; Downing v. Dial, (1981) Ind. App., 426 N.E.2d 416. Specifically in cases where a builder has breached a construction contract, the measure of damages is the reasonable cost of completion, or alternatively, the actual cost of completion. Blade Corp. v. American Drywall, Inc., (1980) Ind. App., 400 N.E.2d 1183. Also, a party who suffers damage due to the refusal of the other party to perform under a contract has a right to recover his expenses if he completes the work at his own expense. Ogle v. Wright, (1977) 172 Ind. App. 309, 360 N.E.2d 240, (cost of completing installation of a septic tank).[8] An explanatory example of these principles is found in illustration 12 of Restatement (Second) of Contracts § 347 comment e (1981) which states:
"12. A contracts to build a house for B for $100,000, but repudiates the contract *1222 after doing part of the work and having been paid $40,000. Other builders would charge B $80,000 to finish the house, but B finds a builder in need of work who does it for $70,000. B's damages are limited to the $70,000 that he actually had to pay to finish the work less the $60,000 cost avoided or $10,000, together with damages for any loss caused by the delay."
Reversed and remanded for a new trial consistent with this opinion.
CONOVER and YOUNG, JJ., concur.
NOTES
[1]  "UBC" refers to the Uniform Building Code which, apparently, was applicable in this case by virtue of the Administrative Building Council of Indiana regulations found at Ind.Admin. Rules & Regs. (XX-XX-X-XX)-A12 (Burns Code Ed.) (repealed) and Ind.Admin.Rules & Regs. (XX-XX-X-XX) A33 (Burns Code Ed.) (repealed). Ind. Code 22-11-5-6 makes it the duty of the State Fire Marshal to enforce all laws of the state, including local laws, which provide for the prevention of fires.

The IEEE Standard Dictionary of Electrical and Electronics Terms (1972) defines an "annunciator" as: "a visual signal device consisting of a number of pilot lights or drops, each one indicating the condition that exists or has existed in an associated circuit, and being labeled accordingly."
[2]  We also observe the builder did not object to the trial court's admission into evidence of the letter by the Fire Marshal or a letter, written by the owner, which purported to summarize the UBC rule regarding smoke and heat vents, and also purported to quote the rule concerning annunciators. In this regard we note while courts cannot take judicial notice of municipal ordinances, Carpenter v. Whitley Cty. Plan Comm'n., (1977) Ind. App., 367 N.E.2d 1156, courts are to take judicial notice of state agency regulations, Ind. Code 4-22-2-11.
[3]  Citing Ind.Rules of Procedure, Appellate Rule 8.2(B)(4), the builder argues the owner has waived the issue for failure to reproduce the relevant provisions of the Uniform Building Code in its brief. We disagree. Both parties agree that at a minimum the regulations apply to buildings in excess of 50,000 square feet; however the builder contends the contract does not obligate the builder to pay for compliance with the regulations at all, and furthermore the regulations are inapplicable because the terms of the contract called for the builder to construct a structure of only 45,000 square feet. Thus the issue does not involve a determination of what the regulations provided but what the contract required.
[4]  The earlier opinion in Superior may be found at 241 Ind. 459, 169 N.E.2d 721.
[5]  The Dollman opinion also specifically found a city ordinance within the ambit of the rule. Accord, Lutz v. New Albany City Plan Comm'n, (1951) 230 Ind. 74, 101 N.E.2d 187.
[6]  The Supplement to Williston notes an interesting case germane to our discussion here. Denice v. Spotswood I. Quinby, Inc., (1968) 248 Md. 428, 237 A.2d 4. Denice involved an agreement to construct and sell a residence where the builder was obligated "to finish" a large recreation room in the basement of the house. When the carpenters were in the process of putting in the ceiling, the home buyer noticed the height of the room measured between six feet eight inches and six feet nine inches. The contract was silent as to the height of the finished room, although the plans showed a "rough basement" with the distance between the basement slab and the finished floor above being eight feet eight inches. The home buyer complained in writing to the builder about the height of the room, and called the builder's attention to the relevant section of the county building code which required the height of the room to be "not less than 7 1/2 feet." The buyer refused to go to "settlement" until the problem was rectified, whereupon the builder considered the contract breached and the buyer's $10,000 deposit to be forfeited. The Maryland Court of Appeals held that compliance on the part of the builder with the county building code (adopted by ordinance) was an implied condition of the contract, and thus the builder's failure to comply with the building code, being substantial, excused the buyer's performance and entitled the buyer to a refund of the deposit. Denice v. Spotswood I. Quinby, Inc., supra at 438, 237 A.2d at 9. To arrive at its holding the Denice court relied on the traditional rule that, generally, applicable existing law at the time of a contract's execution becomes an implied term of the contract as if it were expressly so written. Id. at 433-34, 237 A.2d at 7.
[7]  We note our conclusion is not inconsistent with this Court's suggestion in Drost v. Professional Building Service Corp., (1972) 153 Ind. App. 273, 286 N.E.2d 846 that the failure to obtain a building permit is not a valid defense in a suit to foreclose a mechanic's lien. The rationale behind the cases cited in Drost is where the failure to obtain the permit is an oversight and there is no evidence the building, in fact, is not in compliance with the provisions of the building code, then the failure to obtain the permit is insufficient to declare the contract illegal. Meissner v. Caravello, (1954) 4 Ill. App.2d 428, 124 N.E.2d 615; Amoco Oil Co. v. Toppert, (1978) 56 Ill. App.3d 595, 14 Ill.Dec. 241, 371 N.E.2d 1294; and Annot., 26 A.L.R.3d 1395 (1969). We also note the issue here is not whether the contract was illegal, but a determination of what the contract terms required.
[8]  There was evidence the owner incurred engineering costs in connection with the cost of installing the annunciator and smoke and heat vents.


                                          PD-0651-15
                                        NO.

                                 IN THE COURT OF CRIMINAL             APPEALS
                                                                                RECEIVED IN
                                          OF   THE   STATE    OF   TEXAS        COURT OF CRIMINAL APPEALS
                                                                                MAY 2 9 2015
JOSEPH MICHAEL PIERCE,                                  §

                               Uopeiiant)                                       Abel Acosta, Clerk

VS                                                                   CO.A. NO.: 12-14-00073-CR
                                                        § •

J. ii ill   OX A i&   U JT   liAI-iO;
                                                        §
                                ^Appellee)
                                                                         FILED IN
                               MOTION TO EXTEND TIME TO FILE PRO SJOURT OF CRIMINAL APPEALS
                                 PETITION FOR DISCRETIONARY REVIEW                   MAY 2 9 2015

                                                                                Abel Acosta, Clerk
TO

      -NOW COMES, JOSEPH MICHAEL PIERCE, Appellant, proceeding

prose in the above styled and. numbered cause, respectfully

requests that this Court grant his Motion to Extend Time to
File his Petition For Discretionary Review. In support thereof,

Appellant would show the following:

                                                        I.

            Appellant's conviction.affirmed on April .30, 2015, by the
12th Court of Appeals in Cause No. 12-14-00073-CR. Appellant's

Petition For Discretionary Review is due Hay 30, 2015. This is

Appellant's first request for an extension of time to file his
Petition For Discretionary Review.
                                         II.

   Appellant is requesting an extension of time so that Appellant

may file a pro se Petition For Discretionary Review. An extension

of time is necessary so that Appellant, who is not an attorney,

may familiarize himself with the rules governing the filing of

a Petition For Discretionary Review, adequately research his

case,    and draft his own PDR.        This motion      is not made for the

purpose of delay.

                                        III.

   WHEREFORE, PREMISES CONSIDERED,             Appellant requests this Court

to grant an additional •:( 50-) sixty days, from the deadline date,

to file his PDR, allowing the filing deadline date to JULY 29, 2015.

Executed on this 3l3TcI              day of    fT\o^^        , 2015.

           ji_e     MJLSJLs

fOSEPH MICHAEL PIERCE                    IV.

                      OATH    AND   CERTIFICATE    OF   SERVICE

   I, JOSEPH i'lIC'IASL PIERCE, do declare under the penalty of perjury

pursuant to Tex.Civ.Prac.Rem. Code,             §132.001 - §132.003, that

the facts stated herein are true and correct, and do certify

that a true and correct copy of my Motion to Extend Time for

Filing my PDR was served on Appellee,              by U.S. Mail, postage pre

paid, addressed to: Mr.. Michael :;Jest (District Attorney), 100

U. Broadway, 4th Fl.,         Tyler, Texas,    75702.

Executed on this       d%^rk        day of        (Y\cinJ
                                                  fYNc*>j         2015

  5EPH    MICHAEL   PIERCE

3060 FM    3514   ^1919200
BEAUMONT,    TEXAS,   77705


6 Cal.App.3d 87 (1970)
85 Cal. Rptr. 479
THE PEOPLE, Plaintiff and Respondent,
v.
GUS SAMUEL ARIAS, Defendant and Appellant.
Docket No. 16797.
Court of Appeals of California, Second District, Division Five.
March 27, 1970.
*88 COUNSEL
G.G. Baumen for Defendant and Appellant.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Frederick R. Millar, Jr., Deputy Attorney General, for Plaintiff and Respondent.
OPINION
AISO, J.
Defendant and codefendant Joseph Edward Gonzales were charged by information with having committed burglary at John Marshall *89 High School (count I) (Pen. Code, § 459), and receiving stolen property (count II) (Pen. Code, § 496). Motions were made under sections 995 and 1538.5 of the Penal Code to set aside the information and to suppress evidence. The 995 motion was granted as to count I, but denied as to count II. Defendant and codefendant pleaded "not guilty" and then submitted the 1538.5 motion on the preliminary hearing transcript and three exhibits offered in evidence. The court denied this 1538.5 motion.
Defendant and codefendant duly waived their right to a jury trial. It was stipulated that the issue of guilt be submitted on the testimony and exhibits presented at the preliminary hearing, subject to the court's rulings, and with both the prosecution and defense reserving the right to offer additional evidence. At trial, the testimony of defendant and a Mrs. Mickey Curtis[1] and two exhibits offered by defendant were received into evidence. The court found defendant "guilty" on count II. Sentence to one year in the county jail was imposed but suspended; probation was granted on condition, inter alia, that defendant spend the first 120 days in the county jail and pay a fine of $200 plus penalty assessment. While the notice of appeal is ambiguous in stating that defendant appeals from the final judgment of conviction "being the Order Granting Probation," we construe the appeal to encompass both the judgment and order granting probation.
(1a) Defendant contends: (1) there was no probable cause for arrest; (2) the evidence is insufficient to support a conviction for receipt of stolen property; (3) the arrest and search and seizure were unlawful because the police failed to comply with the provision of Penal Code section 844.[2] We have concluded that the third assignment of error has merit compelling a reversal of the judgment and that it is therefore unnecessary to discuss the other two contentions.
Viewing the evidence in the light most favorable to the respondent People, as required on appellate review (People v. Redmond (1969) 71 Cal.2d 745, 755 [79 Cal. Rptr. 529, 457 P.2d 321]; People v. Sweeney (1960) 55 Cal.2d 27, 33 [9 Cal. Rptr. 793, 357 P.2d 1049], the facts are as follows:
Elijah Robinson, the custodian of John Marshall High School in Los *90 Angeles, was the last person to leave the school building on Sunday, September 15, 1968.[3] To his knowledge no one had permission to enter the building after he had locked it at 5 p.m. that day. When he returned to the building at about 6:20 the following morning, September 16, 1968, he noticed that a window had been broken and that the door to room 208 was open. From the open doorway of the room, Robinson further discovered that the business machines which he had previously helped place on tables in the room were missing.
Defendant was a 19-year-old student in his second year at Los Angeles City College. He attended school daily from approximately 9 a.m. until 3 p.m. and held a full-time job at All-Mailing Service from 4:30 p.m. to 12:30, 1 or 2 a.m. Defendant lived in a two-bedroom apartment, which he shared with fellow students, codefendant Joseph Edward Gonzales and Gary Widman, at 4411 Lockwood Street, Los Angeles, California. The apartment, #307, was on the third floor of the building and could be approached on the outside via a walkway or deck. From this walkway-balcony one could enter the apartment living room through an entrance door on the left or enter the front bedroom through the bedroom sliding glass door (full-length window) to the right. Defendant and Gonzales occupied this front bedroom, sleeping in individual beds on the right side of the room, while Widman used the back bedroom. Since all three roommates were under 21 years, Gonzales had asked Tom Sunseri, an adult, to add his signature to those of the minors on the apartment lease. In exchange for Sunseri signing the lease, it was agreed that he could "keep some of his stuff in the apartment from time to time." Sunseri lived somewhere in Westwood and never lived at defendant's apartment. He was characterized at various times as Gonzales' friend, uncle, and co-worker at Kentucky Fried Chicken. Defendant had met Sunseri on only one occasion, and had not talked to him nor made any effort to find him since the arrest.
Defendant worked the evening of Thursday, September 26, 1968, then came home and went to bed at about 1 a.m. During the night, around 2 a.m., he was awakened by a tapping on the bedroom window. In response to the tapping, Gonzales got out of bed and went to the window. A tall thin boy entered the apartment and spoke with Gonzales. In this conversation defendant heard mention of "something about Tom, they were Tom's." The boy walked outside, where there was someone else, and then came back into the apartment rolling a shopping cart containing approximately 10 to 15 adding machines. He took the machines out of the cart and placed them against the left wall, which separated the bedroom *91 from the living room, and underneath the coffee table situated in front of the beds. Defendant had never before seen the boy who came into the apartment or the individual who remained outside that night, and has never questioned or spoken to either of them. Defendant got up from his bed, looked at the machines, and noticed that they had tags indicating "L.A. City Schools." Upon defendant inquiring about the machines, Gonzales stated, "Don't worry about it; it's Tom's [Tom Sunseri's]." Defendant had been given to understand that Sunseri "worked for different companies, and cleaning machines and different things." Defendant then went back to bed without handling, moving or touching the machines.
The following morning, Friday, September 27, 1968, defendant arose and went to school and work in accordance with his usual daily schedule. When he returned to his apartment at 1 a.m. he noticed that the machines were still present. Gonzales told defendant that he had spoken with Sunseri at work earlier in the night, and that Sunseri stated that he had a buyer for the machines and would come to the apartment the following Tuesday to pick them up. From this information defendant and Gonzales concluded that the machines were stolen property. At this point defendant wanted to call the police but did not do so for fear of getting in trouble. Defendant then thought about calling his father or a lawyer; however, since it was then about 3 a.m. he decided to wait until morning.
Sometime around 9:30 in the morning (Saturday, September 28, 1968) when defendant got up to go to the bathroom, he heard the landlady, Mrs. Curtis, talking with Gonzales. Mrs. Curtis had called into the apartment: "Are you boys sleeping? ... I had a complaint that you kids play your music late at night, so will you knock it off." Mrs. Curtis testified that at the time of this incident the sliding bedroom door was a "little bit open" but the curtains on the door were closed and she could not see into the apartment. Defendant immediately went back to bed and fell asleep lying on his stomach.
William J. Delong, a police officer for the City of Los Angeles assigned to Rampart Division Patrol, arrived at the address of 4411 Lockwood, apartment 307, at approximately 11:15 that Saturday morning, in response to a radio call informing him "459 [burglary] suspects there now, see the manager in Apartment 102." Two other officers, Acosta and Tyler, arrived on the scene shortly thereafter. Officer Delong went up to the front door of apartment 307 which faced on the outdoor balcony and noticed that 2 feet to the right of the front door there was a large sliding glass bedroom door that was open. The opening was wide enough for a person to walk into the bedroom and was not covered by a screen or drapes, which were *92 partially open.[4] Through the open door and curtains Delong was able to observe about two adding machines, with Los Angeles City Schools stickers on their sides, against the left bedroom wall and approximately 2 to 3 feet from where he was standing. At that time Officer Delong believed the machines to be stolen and that if there were any people inside the apartment they were in possession of stolen property. He did not, however, have an arrest or search warrant. From his position at the bedroom door entrance he did not see anyone sleeping in the room. When Officer Delong entered the apartment through the large sliding glass door he saw defendant and Gonzales sleeping in separate beds on the right side of the room approximatel 5 to 7 feet distant from where the machines were. Lying beside the beds were two large butcher knives. The officer removed the knives to another part of the room and awoke defendant and Gonzales. Delong asked them if they had called the police and both replied "no." When asked whether they resided in the apartment, they both stated "yes."
Officer Acosta then entered the room and was advised of the situation by Delong. Acosta informed defendant and Gonzales of their constitutional rights and each replied "yes" when queried whether they wished to waive their rights.[5] Acosta then asked defendant and Gonzales where they had obtained the adding machines. Both stated that Thomas Sincereni (sic) asked them to keep the machines for him. Upon being asked whether the machines were stolen, defendant replied: "Yes, when I saw Los Angeles City Schools on the side of the machines, I knew the machines were stolen."
Officer Delong found approximately 15 adding machines and calculators at the apartment, all bearing the identification of the Los Angeles City Schools. He recorded the serial numbers of the machines and took the property into custody. Also found in the apartment were a Remington shotgun, a .22 caliber rifle, and a 12-gauge shotgun, identified by defendant as the property of Gonzales.
At the preliminary hearing all parties stipulated that it be deemed that Mr. Walter Marshall, an employee of the Board of Education of the City of Los Angeles, was called and testified that he has access to the books and records of the board of education and that according to those records the approximately 15 machines recovered by Officer Delong were the *93 property of John Marshall High School and the Board of Education of the City of Los Angeles.
When Officer Delong entered the apartment through the open bedroom door he had neither knocked nor employed any other means reasonably calculated to notify the apartment occupants of his presence or of his authority and purpose of desiring admittance. The question presented on this appeal is whether such an unannounced entry through an open door in the daytime violates Penal Code section 844. We answer this question, "yes."
The recent case of People v. Bradley (1969) 1 Cal.3d 80, 87 [81 Cal. Rptr. 457, 460 P.2d 129], holds that section 844 must be complied with where officers walk into a dwelling through an open door at nighttime when the occupant apparently is asleep. Here the officer states that he did not observe anyone sleeping in the apartment when he effected entry; yet the fact is that there were occupants inside, sleeping with large butcher knives alongside their beds. The reality of the potential harm from an occupant being suddenly aroused in his sleep and grabbing a knife for self-defense purposes is evident. The officer, not knowing the actual interior circumstance, could have and should have avoided possible repercussions from such a hazardous situation by simply knocking or otherwise attracting the attention of persons who might be inside, as section 844 enjoins. Given the important social policies underlying section 844, we see no reason in the factual context of this case to distinguish between nighttime and daytime open-door entries, and we hold that the entry herein was a type of "breaking" covered by section 844.
(2) Section 844 was enacted by the Legislature to protect the fundamental right of privacy of dwelling occupants and to insure the safety of the police, innocent bystanders, and occupants, who may be injured as a consequence of violent resistance to unannounced entries. (Greven v. Superior Court (1969) 71 Cal.2d 287, 291-293 [78 Cal. Rptr. 504, 455 P.2d 432]; People v. Rosales (1968) 68 Cal.2d 299, 304 [66 Cal. Rptr. 1, 437 P.2d 489]; People v. Bradley (1969) supra, 1 Cal.3d 80, 90, Tobriner, J. concurring and dissenting; Miller v. United States (1958) 357 U.S. 301, 313 [2 L.Ed.2d 1332, 1340, 78 S.Ct. 1190, 1197]; Ker v. California (1963) 374 U.S. 23, 47-59 [10 L.Ed.2d 726, 746-753, 83 S.Ct. 1623, 1636-1642], Brennan, J. dissenting.) (3) Since the privacy of an individual may be invaded during the daytime equally as well as during the nighttime and unexplained daytime entries may frequently be met with *94 violent reaction, we agree with People v. Beamon (1968) 268 Cal. App.2d 61, 65 [73 Cal. Rptr. 604], that "... an open door does not excuse noncomplaince with section 844 unless noncompliance is otherwise excused under the rule declared in Rosales. Accordingly, a peace officer may not enter through an open door of a house without first demanding admittance and explaining the purpose for which admittance is desired unless he reasonably and in good faith believes that such compliance would increase his peril, frustrate an arrest, or permit the destruction of evidence. We are persuaded to this conclusion by the purpose of section 844 as declared in Rosales and by the clear language of the section which does not restrict the required announcement to any particular type of entry by the police officers. [Citation.] Moreover, if analogy to the law of burglary is required, we note that in California no breaking or forceable [sic] entry is required in proof of the commission of a burglary [citations] and, accordingly, that a burglary can be committed by entering through an open door or window. [Citation.]" (Footnote omitted.) (Accord: People v. Norton (1970) 5 Cal. App.3d 955 [86 Cal. Rptr. 40].) As pointed out in People v. Bradley (1969) supra, 1 Cal.3d 80, 88, "[t]he burden of complying with the demand and explanation requirements of section 844 is slight, and in view of the special circumstances under which noncompliance with section 844 is excused, insistence upon compliance in the absence of those circumstances in a case like the instant one should not result in any undue impairment of lawful police action." Furthermore, it should be noted that the court in Bradley, while not deciding, suggested that officers should always demand admittance and explain the purpose for which admittance is desired (unless strict compliance with section 844 is otherwise excused) before they enter a dwelling through an open door for the purpose of executing an arrest. (Id. at p. 88, fn. 1.)
(1b) By failing to knock at the bedroom door or employ other reasonable means to give notice of his presence and to identify himself as a police officer, Delong did not meet the minimum essential requirements of section 844, nor did he substantially comply therewith. (Duke v. Superior Court (1969) 1 Cal.3d 314, 319 [82 Cal. Rptr. 348, 461 P.2d 628]; Greven v. Superior Court (1969) supra, 71 Cal.2d 287, 290-292; People v. Marshall (1968) 69 Cal.2d 51, 55-56 [69 Cal. Rptr. 585, 442 P.2d 665].) (4) Any evidence obtained as a result of an illegal entry in violation of that statute must be excluded. (Duke v. Superior Court (1969) supra, 1 Cal.3d 314, 325; People v. De Santiago (1969) 71 Cal.2d 18, 30 [76 Cal. Rptr. 809, 453 P.2d 353]; Mapp v. Ohio (1961) 367 U.S. 643, 655, *95 660 [6 L.Ed.2d 1081, 1089-1090, 1093, 81 S.Ct. 1684, 1691, 1694, 84 A.L.R.2d 933].) (1c) The fact that two stolen business machines may have been in "plain view" from outside the apartment does not otherwise render them admissible in evidence. (See People v. Berutko (1969) 71 Cal.2d 84 [77 Cal. Rptr. 217, 453 P.2d 721]; People v. Douglas (1969) 2 Cal. App.3d 592 [82 Cal. Rptr. 718].)
Defendant's motion to suppress the real evidence under the Penal Code section 1538.5 motion should have been granted.
The judgment and order granting probation are reversed.
Stephens, Acting P.J., and Reppy, J., concurred.
NOTES
[1]  Although the witness' name appears as Mrs. Mickey Curtis in the reporter's transcript and Miki Curtis in the clerk's transcript, the same individual is intended.
[2]  Penal Code section 844: "To make an arrest, a private person, if the offense be a felony, and in all cases a peace-officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired."
[3]  We judicially notice that September 15, 1968, fell on a Sunday.
[4]  Defendant testified that the curtains and screen door were closed on the morning in question. Mrs. Curtis agreed that the curtains were closed but apparently found the screen door to be open. Later she stated she did not notice whether "the screen" was open or closed.
[5]  The adequacy of the warnings and waivers under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974] is not an issue on this appeal.


104 F.3d 1254
97 FCDR 772, 10 Fla. L. Weekly Fed. C 688
UNITED STATES of America, Plaintiff-Appellee,v.John BROWN, Jr., Defendant-Appellant.
No. 96-8134Non-Argument Calendar.
United States Court of Appeals,Eleventh Circuit.
Feb. 3, 1997.

Harry D. Dixon, U.S. Atty., Joseph D. Newman, Asst. U.S. Atty., Savannah, GA, for plaintiff-appellee.
Don L. Waters, Hunter, MacLean, Exley & Dunn, P.C., Savannah, GA, for defendant-appellant.
Appeal from the United States District Court for the Southern District of Georgia.
Before BIRCH, BLACK and CARNES, Circuit Judges.
PER CURIAM:

1
Appellant John Brown, Jr., appeals the district court's sua sponte order denying the sentence reduction that would have accompanied retroactive application of an amendment to the Sentencing Guidelines.  We affirm.

I. BACKGROUND

2
After a trial, a jury convicted Brown of (1) conspiracy to possess cocaine with intent to distribute and conspiracy to distribute cocaine (Count 1) and (2) possession of a firearm during a drug trafficking offense (Count 3).  The district court sentenced Brown to 405 months' imprisonment on Count 1, followed by a 60-month consecutive sentence on Count 3.  This Court affirmed the judgment on direct appeal.  See United States v. Newton, 44 F.3d 913 (11th Cir.1994), cert. denied, --- U.S. ----, 116 S.Ct. 162, 133 L.Ed.2d 104 (1995).

3
In arriving at its sentence, the district court assigned Brown a base offense level of 40.  Subsequently, Amendment 505 to the Sentencing Guidelines established an upper limit of 38 on base offense levels calculated using drug quantity.  U.S.S.G. App.  C, amend. 505.  As Brown's base offense level would have been lower had he been sentenced after the effective date of Amendment 505, § 1B1.10 of the Sentencing Guidelines authorized the district court to reduce his sentence.  The district court sua sponte reviewed Brown's conviction in light of this amendment and declined to give him the benefit associated with retroactive application.

II. DISCUSSION

4
Brown asserts that the district court abused its discretion by failing to set forth the analysis that a court must engage in when deciding whether to apply a sentencing amendment retroactively.  The Government responds that the court did consider the relevant factors and provided an adequate explanation for its refusal to reduce Brown's sentence.

5
When a sentencing guideline is amended to benefit an offender and retroactive application is authorized, the district court may reduce the previously imposed sentence "after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with the applicable policy statements issued by the Sentencing Commission."  18 U.S.C. § 3582(c)(2).  The factors to be considered under section 3553(a) include:  (1) the nature and circumstances of the offense and the history and characteristics of the defendant;  (2) the need for the sentence imposed;  (3) the kinds of sentences available;  (4) the applicable sentencing range under the guidelines;  (5) any pertinent Sentencing Commission policy statement;  (6) the need to avoid unwarranted sentence disparities among defendants;  and (7) the need to provide restitution to victims.  18 U.S.C. § 3553(a).  The law therefore permits, but does not require, a district court to resentence a defendant.  United States v. Vazquez, 53 F.3d 1216, 1227-28 (11th Cir.1995).  The decision turns upon the district court's evaluation of the factors enumerated above.  Id.

6
This Circuit has not addressed whether the district court must make specific findings explaining why it chose not to resentence a defendant.  At least two other circuits, however, have held that specific findings are not required.  United States v. Dorrough, 84 F.3d 1309, 1311 (10th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 446, 136 L.Ed.2d 342 (1996);  United States v. LaBonte, 70 F.3d 1396, 1411-12 (1st Cir.1995), cert. granted, --- U.S. ----, 116 S.Ct. 2545, 135 L.Ed.2d 1066 (1996).  Those courts considered it sufficient that the sentencing court had stated the reasons for its action, Dorrough, 84 F.3d at 1311, or that the record clearly demonstrated the judge had considered the section 3553(a) factors, LaBonte, 70 F.3d at 1411.

7
In this case, the district court based its decision on the extent to which Brown was involved in a large crack cocaine conspiracy.  The court found that Brown's involvement was significant, as evidenced by the large quantities of money for which he was responsible. The court noted that Brown had not held a legitimate job for nearly two years, during which time he actively participated in the crack distribution scheme.  The district court also emphasized Brown's lack of remorse or acceptance of responsibility.  Although the district court did not present particular findings on each individual factor listed in 18 U.S.C. § 3553, the court clearly considered those factors and set forth adequate reasons for its refusal to reduce Brown's sentence.  See Dorrough, 84 F.3d at 1311.

8
AFFIRMED.


785 F.2d 1035
*Jonesv.Heckler
85-3533
United States Court of Appeals,Eleventh Circuit.
2/25/86

N.D.Fla.
REMANDED

1
---------------

* Fed.R.App.P. 34(a);  11th Cir.R. 23.


806 F.Supp.2d 201 (2011)
David JACKSON, Plaintiff,
v.
UNITED STATES PAROLE COMMISSION, et al., Defendants.
Civil Action No. 11-0474 (ESH).
United States District Court, District of Columbia.
August 30, 2011.
*203 Geoffrey Edward Gettinger, Cadwalader, Wickersham & Taft, Washington, DC, for Plaintiff.
Carl Ezekiel Ross, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION
ELLEN SEGAL HUVELLE, District Judge.
David Jackson has sued Isaac Fulwood, Jr., Cranston J. Mitchell, Patricia K. Cushwa, Patricia Wilson Smoot, Aprille Cole, and Jamie Brand in their official capacities, as well as the United States Parole Commission ("USPC"), alleging that the special restrictions imposed on his parole deprive him of his Fifth Amendment right to due process and his First Amendment right to freedom of speech and freedom of association, and that the imposition of these restrictions was arbitrary and capricious under the Administrative Procedure Act ("APA"). The USPC voluntarily withdrew the parole conditions Jackson complained of on March 30, 2011, and subsequently moved to dismiss the case under Fed.R.Civ.P. 12(b)(1), arguing that the Court lacks subject matter jurisdiction because Jackson's claims are moot. For the reasons stated herein, defendants' motion will be denied.

BACKGROUND
Jackson pled guilty to Attempted Carnal Knowledge, a misdemeanor, in Superior Court on September 25, 1981, and was sentenced to three years' probation. (Compl. ¶¶ 12-13, 18.) Jackson was not required to register as a sex offender. (Id. ¶ 15.) Jackson was subsequently incarcerated and, on January 3, 2005, was "released after serving time for a technical violation of the terms of his parole."[1] (Id. ¶ 17.) On January 19, 2005, the Court Services and Offender Supervision Agency ("CSOSA"), which provides "community supervision oversight for D.C. Code offenders," assigned Jackson to its Sex Offender Unit. (Id. ¶¶ 9, 18.) Jackson alleges that the CSOSA assigned him to that Unit because of his 1981 conviction. (Id. ¶ 18.) In 2007, a CSOSA officer ordered Jackson to participate in a six-month Sex Offender Treatment program. (Id. ¶ 20.) Jackson completed the program in November 2007, and was found to pose a "low risk for the recurrence of deviant sexual acts." (Id.)
In November 2009, Jackson was incarcerated for an "administrative violation" of his parole conditions and, on November 18, 2010, was again released. (Id. ¶ 21.) Upon Jackson's release, the USPC issued a Notice of Action that stated that Jackson *204 "need[ed] . . . substance abuse treatment," but that did not impose any sex offender monitoring. (Id. ¶ 22.) Nevertheless, CSOSA again assigned Jackson to supervision by the Sex Offender Unit. (Id. ¶ 23.) At some point between November 18 and November 30, Jamie Brand, a CSOSA officer, issued a notice of "Modification of Release Conditions" recommending that Jackson be subject to a number of "special conditions." (Id., Ex. 2, at 1.) The document stated: "[b]y copy of this proposal, NOTICE is hereby given to the releasee, who may object or comment to the Commission within ten days after he receives this NOTICE." (Id.) Although Jackson's complaint is ambiguous, he appears to allege that he never received this notice. (See id. ¶ 24.) On November 30, 2010, the USPC notified Jackson that it had adopted a Memorandum imposing special restrictions on his parole, including: (A) a required "mental health program with `special emphasis' on long-term sex offender testing and treatment"; (B) required evaluation for sex-offense treatment therapy and periodic, random physiological testing, to be paid for, in part, by Jackson himself; (C) restrictions on any contact with children under eighteen, including his own children and step-children, without prior written approval, and a requirement that he provide the "name, address, and phone number of anyone he `socialized with,'" if the person cared for a child under the age of eighteen; (D) restrictions on coming within 200 yards of "any place where children under age eighteen often gather" without prior written approval; (E) restrictions on owning or using any "device with access to any on-line computer service" without prior approval; (F) restrictions on owning any pornographic material; (G) required, annual polygraph examinations; (H) periodic, unannounced examinations of his computer; and (I) GPS monitoring. (Id. ¶ 24.) Jackson alleges that these restrictions were instituted "without prior notice, a hearing or individualized investigation," were unjustified, and were an "atypical and significant hardship." (Id. ¶ 25.)
On December 6, 2010, Jackson sent a letter to CSOSA formally challenging the restrictions, but was denied any relief. (Id. ¶ 26.) On March 4, 2011, he filed suit in this Court, seeking to enjoin the imposition of these conditions of his parole. (Id. ¶ 1.) On March 30, the parole provisions at issue "were lifted." (Defs.' Mem. of P. & A. In Supp. of Defs.' Mot. to Dismiss ("Defs.' Mot.") at 1.) On July 6, defendants moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1).

ANALYSIS

I. STANDARD OF REVIEW
On a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing by a preponderance of the evidence that the court has subject matter jurisdiction. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The Court must accept all factual allegations in the complaint as true and give the plaintiff the benefit of all reasonable inferences from the facts alleged. See Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C.Cir.2005). A court may dismiss for lack of subject matter jurisdiction only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Richardson v. United States, 193 F.3d 545, 549 (D.C.Cir.1999) (quoting Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1086 (D.C.Cir.1998)). Where a court's subject matter jurisdiction is called into question, it may consider matters outside the pleadings to ensure it has power of the case. *205 See Jerome Stevens Pharms., Inc., 402 F.3d at 1253.

II. MOOTNESS
Article III of the Constitution limits the Court to adjudication of "actual, ongoing controversies." Sierra Club v. Jackson, 648 F.3d 848, 852 (D.C.Cir.2011). Thus, if "an event occurs while a case is pending on appeal that makes it impossible for the court to grant `any effectual relief whatever' to a prevailing party, the appeal must be dismissed." Beethoven.com LLC v. Librarian of Cong., 394 F.3d 939, 950 (D.C.Cir.2005) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895)). However, in "at least two kinds of cases the fact that the specific conduct that gave rise to the case has ceased does not mean that the challenge to the legality of that conduct is moot." Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 321 (D.C.Cir.2009). A claim for declaratory relief will not be moot if the claim "fits the exception for cases that are capable of repetition, yet evading review, or falls within the voluntary cessation doctrine." City of Houston, Tex. v. Dep't of Housing & Urban Dev., 24 F.3d 1421, 1429 (D.C.Cir.1994) (internal citations and quotation marks omitted).
Defendants argue that the case is moot because the USPC has removed the parole conditions to which Jackson objected and, therefore, the violation Jackson alleged is no longer occurring. (Defs.' Mot. at 5-6.) Jackson concedes that the defendants have "removed the Special Restrictions" from his parole. (See Pl.'s Opp'n at 3.) Thus, the specific conduct giving rise to his lawsuit has ceased. Nevertheless, he argues that the case is not moot because the voluntary cessation doctrine applies (id. at 6-11), because his claim is capable of repetition, yet evading review (id. at 11-12), and because his complaint seeks nominal damages. (Id. at 12-13.) Because the Court agrees that the voluntary cessation doctrine applies, it need not determine whether Jackson's claim is capable of repetition, yet evading review.[2]

A. Voluntary Cessation
"As a general rule, `voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.'" Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979). Where a defendant voluntarily ceases allegedly unlawful activity, the case will only be moot if the defendant shows that there is "no reasonable expectation" that the violation will recur and "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Larsen v. U.S. Navy, 525 F.3d 1, 4 (D.C.Cir.2008) (quoting Cnty. of Los Angeles, 440 U.S. at 631, 99 S.Ct. 1379). Defendants have the "heavy burden" of showing that "`subsequent events'" make it "`absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.'"[3]*206 Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)).
Defendants point out that Jackson's parole restrictions have been completely withdrawn. (Defs.' Mot. at 9.) Therefore, they argue, the effects of the alleged violation have been "completely eradicated," and there is no reasonable expectation that the restrictions will be reimposed. (Defs.' Mot. at 9-10.) To support this claim, they have attached a declaration from Deirdre Jackson, a Case Services Administrator for the USPC.[4] (Defs.' Mot., Ex. 2, Decl. of Deirdre Jackson ("Jackson Decl.") at 1.) Ms. Jackson, whose duties include "making recommendations to the [USPC] concerning conditions of supervision for releasees," states:
because the United States Probation Office ["USPO"] for the Eastern District of Virginia . . . determined that [Jackson] was no longer in need of sex offender special conditions, and because he has not committed any sex-related offenses since that time, I do not expect that the USPO supervising Mr. Jackson will request any such conditions unless new sexual misconduct by Mr. Jackson were to raise a legitimate concern that such condition(s) have become newly necessary.
(Jackson Decl. ¶ 10.) Defendants suggest that a declaration that "it is unlikely that [Jackson] will be subjected to the conditions again" (Def.'s Mot. at 9) is sufficient to make it "absolutely clear that the allegedly wrongful behavior could not reasonable be expected to recur." Parents Involved in Cmty. Sch., 551 U.S. at 719, 127 S.Ct. 2738. Perhaps recognizing the weakness of this argument, defendants also argue that even if Jackson's parole officer were inclined to reimpose the restrictions, she could not do so without providing Jackson ten days to comment and, therefore, the wrongful behavior Jackson alleges cannot recur. (Defs.' Reply at 4.)

1. No Reasonable Expectation That Conduct Will Recur
"[T]he government cannot escape the pitfalls of litigation by simply giving in to a plaintiff's individual claim without renouncing the challenged policy, at least where there is a reasonable chance of the dispute arising again between the government and the same plaintiff." Legal Assistance for Vietnamese Asylum Seekers v. Dep't of State, Bureau of Consular Affairs, 74 F.3d 1308, 1311 (D.C.Cir.1996), vacated on other grounds, 519 U.S. 1, 117 S.Ct. 378, 136 L.Ed.2d 1 (1996). Thus, because defendants have merely withdrawn the special parole restrictions, without explanation, the voluntary cessation doctrine will apply if there is a reasonable chance the dispute could arise again. Jackson argues that the violations he allege could recur because he could be again imprisoned and again released on parole, because defendants could simply conduct a new review of his case, or because defendants could re-impose the restrictions if the supervision of his parole is transferred back to the District of Columbia or to another jurisdiction. (Pl.'s Opp'n at 7-9.)
Jackson's argument that the restrictions could be re-imposed "if he were found to have violated his parole, returned *207 to prison, and again released on parole" (Pl.'s Opp'n at 9) fails because Jackson himself is "ableand indeed required by lawto prevent such a possibility from occurring." Lane v. Williams, 455 U.S. 624, 632 n. 13, 102 S.Ct. 1322, 71 L.Ed.2d 508 (1982) (rejecting argument that case was not moot because a "possibility exists under state law that respondents' parole violation may be considered in a subsequent parole determination"). Indeed, the Supreme Court has "rejected analogous claims to Article III standing in other contexts." Spencer v. Kemna, 523 U.S. 1, 15, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (citing O'Shea v. Littleton, 414 U.S. 488, 497, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (no standing where threat of injury depended on plaintiffs being "prosecuted for violating valid criminal laws"); Los Angeles v. Lyons, 461 U.S. 95, 102-03, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). Courts are "reluctant to find a reasonable probability of repetition where the action will be repeated based on the petitioner's own wrongdoing." See Pierce v. Thomas, No. 08-705, 2009 WL 2476606, at *3 (D.Or. Aug. 10, 2009); cf. also Toor v. Holder, 717 F.Supp.2d 100, 106 (D.D.C.2010) (case was moot because it was "quite unlikely" that plaintiff would be "charged, convicted, and incarcerated in the United States for another crime and then appl[y] for transfer"). Thus, the possibility that Jackson could violate his parole, return to prison, and be paroled once again does not prevent the case from being moot.
Jackson's argument that his parole conditions may be reexamined at any time, or that the restrictions may be re-imposed if supervision of his parole is transferred to a different location, is more convincing. (Pl.'s Opp'n at 8-9.) In a similar case in which the plaintiff challenged "Special Conditions" on his parole, the Court found that the voluntary cessation doctrine applied. Goings v. Court Servs. & Offender Supervision Agency, 786 F.Supp.2d 48, 56-58 (D.D.C.2011). In that case, the government revoked two of the conditions plaintiff complained of, then argued that the case was moot. Id. at 62-63, at *10. Although the Court found that the case was not moot because only a "portion" of the conditions had been modified, id. at 61-62, at *9, it also found that, "even with respect to the modified conditions," the defendant's "subsequent modification of the conditions amounts to a voluntary cessation." Id. Specifically, the Court noted that CSOSA "remain[ed] free to re-impose conditions" on the plaintiff at any point, because the "conditions placed on the plaintiff's probation are assessed on `an ongoing basis.'" Id. at 63, at *11. Defendants attempt to distinguish Goings by pointing out that, in that case, the CSOSA had altered "some, but not all" of the conditions, while here, all of the conditions that Jackson objects to have been removed.[5] (Defs.' Reply at 5.) However, the Court in Goings was clear that even those conditions that had been altered could be "re-impose[d]," and, therefore, the defendants had failed to show that there was "no reasonable expectation that the alleged violation will recur." 786 F.Supp.2d at 63, 2011 WL 1837749, at *11.
The "rationale supporting" voluntary cessation "as an exception to mootness" is that, without an order from the Court preventing it from continuing the allegedly illegal practice, "the defendant is *208 `free to return to [its] old ways'thereby subjecting the plaintiff to the same harm but, at the same time, avoiding judicial review." Qassim v. Bush, 466 F.3d 1073, 1075 (D.C.Cir.2006) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)). This case illustrates the importance of this doctrine. Defendants do not allege that they have altered their procedures for imposing special parole restrictions or that the type of restrictions they impose have changed. Nor do they promise to refrain from imposing those restrictions on Jackson. All defendants offer is a declaration from a USPC administrator stating that she "does not expect" the parole officer supervising Jackson to request that the special parole restrictions be reimposed. (Jackson Decl. ¶ 10.) The declaration fails to even comment as to whether such a request would or could be approved. Because defendants remain free to "return to [their] old, allegedly illegal ways," the voluntary cessation doctrine will be applied. See Natural Law Party v. Fed. Election Comm'n, 111 F.Supp.2d 33, 40-41 (D.D.C.2000).
Defendants argue that even if there were a reasonable expectation that Jackson's parole officer would re-impose the special restrictions, it would be impossible for the precise legal wrong alleged by Jackson"the imposition of parole provisions without notice and an opportunity to be heard"to recur because USPC regulations prevent "amending or modifying parole conditions" without a ten-day notice and comment period. (Defs.' Reply at 2 (citing 28 C.F.R. § 2.204(c)(2)).) Because the "specific safeguards . . . governing the amendment of parole conditions" render defendants "incapable of re-imposing the provisions at issue without notice and opportunity to be heard," it is impossible for the alleged constitutional violations to recur. (Defs.' Reply at 2.) This argument fails for two reasons. First, defendants ignore the fact that the original notice of the restrictions "modify[ing] the conditions of release," which Jackson apparently never received (Compl. ¶ 24), offered him the opportunity to "object or comment to the Commission within ten days." (Compl. Ex. 2, at 1.) They do not attempt to explain why he was not sent the original notice and offer no assurances that they will notify him of proposed restrictions in the future. Second, and more importantly, Jackson's complaint does more than simply allege that he was denied "notice and opportunity to be heard,"it alleges that the process of imposing restrictions on his parole was deficient because there was no notice, hearing, or individualized investigation, and that the restrictions were "unjustified." (Compl. ¶ 25.) Moreover, it alleges that the USPC violated the APA by imposing the restrictions "without any findings that their imposition would benefit public safety or [Jackson's] rehabilitation." (Id. ¶ 40.) Defendants suggest that, by providing notice and ten days to comment on future restrictions, they have rendered Jackson's complaint moot because the legal wrong he complains of could not reasonably recur. To address this argument, the Court would need to find that the process offered by defendants is sufficient to satisfy the Fifth Amendment and the APA. This is not a mootness argument but, rather, an invitation to rule on the merits of Jackson's claim, "which is precisely the dispute that the Court is tasked with deciding." See Goings, 786 F.Supp.2d at 64, 2011 WL 1837749, at *12.

CONCLUSION
For the reasons stated herein, the Court concludes that defendants have failed to show that there is "no reasonable expectation" that the alleged violation will recur and, therefore, the voluntary cessation *209 doctrine applies.[6] Defendants' motion to dismiss for lack of subject matter jurisdiction will be denied, and a separate Order accompanies this Memorandum Opinion.
NOTES
[1]  The Complaint and pleadings do not specify why Jackson was on parole or what "technical violation" he committed.
[2]  Defendants argue in their reply that sovereign immunity bars Jackson from seeking nominal damages from the USPC or USPC and CSOSA officials in their official capacities. (Defs.' Reply at 6-7 (citing Fletcher v. Dist. of Columbia, 481 F.Supp.2d 156, 161-62 (D.D.C.2007)).) Because the Court finds that the voluntary cessation doctrine applies, and because defendants have not separately moved to dismiss this claim for damages, the Court need not address this argument.
[3]  There is law in this Circuit suggesting that, at least when a plaintiff challenges an agency's policy, the burden may shift to plaintiff to point to "evidence indicating that the challenged [policy] will likely be reenacted." Larsen, 525 F.3d at 4 (quoting Nat'l Black Police Ass'n v. Dist. of Columbia, 108 F.3d 346, 349 (D.C.Cir. 1997)). Here, however, Jackson challenges specific action taken by defendants, not a general policy. Moreover, unlike in Larsen, Jackson has alleged that defendants are "likely to" reimpose the parole restrictions. See id.
[4]  As noted above, the Court may consider materials outside of the pleadings in order to assure itself that it has subject matter jurisdiction. See supra, Part I.
[5]  Defendants also observe that Jackson, unlike the plaintiff in Goings, raises a "general challenge to an alleged blanket failure to provide notice and an opportunity to be heard." (Defs.' Reply at 4-5.) Defendants do not explain how or why this should affect the Court's inquiry into the likelihood that the conditions on Jackson's parole may be reinstated.
[6]  Because defendants have failed to show that there is no reasonable expectation that the conduct at issue will recur, the Court need not consider whether the effects of the violation have been "completely eradicated."


495 S.E.2d 172 (1998)
Douglas R. JONES, Plaintiff,
v.
CAPITOL BROADCASTING COMPANY, INC., and Carolina Ford Dealers Advertising Association, Inc., Defendants.
No. COA97-94.
Court of Appeals of North Carolina.
January 6, 1998.
*173 Clark Wharton & Berry by Frederick L. Berry, Greensboro, for plaintiff-appellant.
Adams, Kleemeier, Hagan, Hannah & Fouts by W. Winburne King, III, and Benjamin A. Kahn, Greensboro, for defendants-appellees.
LEWIS, Judge.
Plaintiff appeals from an order granting defendants' motion to dismiss under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.
According to the allegations of the complaint, during the 1995-1996 football season, defendants conducted a promotional campaign to promote the Carolina Panthers football team and the Ford Dealers of North Carolina, the "One Half Ton of Fun" Contest ("Contest"). Defendants advertised to the general public a contest for which the grand prize was a new Ford F-150 pickup truck. Plaintiff filled out an entry form and entered the Contest. On 16 January 1996, defendants' agent, Brittany Foster, notified plaintiff that he had been selected as the winner. Plaintiff alleged that Ms. Foster stated: "Congratulations, you have won a F-150 Ford truck." At first plaintiff did not believe that he had won the Contest, but after repeated assurances from Ms. Foster, he was convinced. Later that day, Scott Crites, Manager of the Carolina Panthers Radio Network, called plaintiff and told him that he *174 had not won the Contest and that the prize had been given to someone else.
Defendants maintained that plaintiff was not the winner because his name was not the first selected from the drawing. Unable to reach the first person whose name was drawn, defendants selected plaintiff's name during a second drawing. Subsequently, the first winner appeared to claim his prize and defendants awarded him the truck.
Plaintiff initiated this suit alleging breach of contract, violation of N.C.Gen.Stat. § 75-32, "Representation of Winning a Prize," and violation of N.C.Gen.Stat. § 75-1.1 for unfair and deceptive trade practices. Defendants moved to dismiss plaintiff's complaint for failure to state a claim for which relief could be granted. The motion was granted, and plaintiff appeals.
Plaintiff assigns error to the trial court's dismissal of its complaint on the three aforementioned grounds. We find that plaintiff has stated a claim for breach of contract and violation of G.S. § 75-32, but not for unfair and deceptive trade practices.
Our standard of review of a motion to dismiss is "whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory." Harris v. NCNB Nat'l Bank of N.C., 85 N.C.App. 669, 670, 355 S.E.2d 838, 840 (1987). In ruling upon such a motion, the complaint is to be liberally construed, and the trial court should not dismiss the complaint "unless it appears beyond doubt that [the] plaintiff could prove no set of facts in support of his claim which would entitle him to relief." Dixon v. Stuart, 85 N.C.App. 338, 340, 354 S.E.2d 757, 758 (1987).
With these principles in mind, we find that plaintiff has stated a claim for breach of contract against defendants. Plaintiff alleges that a contract was formed when he submitted his entry ticket according to contest rules. Defendants respond that no contract exists because the contest was completely voluntary, unconnected to the purchase of an automobile, and placed no obligation on plaintiff. As a result, defendants contend that there is no consideration supporting the purported contract.
Whether the entry of a contest ticket into a raffle or contest gives rise to a binding contract is an issue of first impression for North Carolina courts. We choose to follow the majority of jurisdictions that hold contract law governs the issue. See Annotation, Private Contests and Lotteries: Entrants' Rights and Remedies, 64 A.L.R.4th 1021, 1045-52 (1988). We adopt the rule that advertising a promotional contest to the public is in the nature of an offer. An enforceable contract is formed when a party accepts that offer and consideration is provided by entering the contest and complying with all of the terms of the offer. See Walters v. National Beverages, Inc., 18 Utah 2d 301, 422 P.2d 524 (1967) (public promotion program offering automobile as first prize governed by contract law); Johnson v. BP Oil Company, 602 So.2d 885 (Ala.1992) (running a promotional contest is in the nature of offer and enforceable contract is formed when party accepts); Haynes v. Department of Lottery, 630 So.2d 1177 (Fla.1994) (lottery winner's entitlement to a prize is governed by the principles of contract law), review denied, 642 So.2d 746 (1994); Lucas v. Godfrey, Reader's Digest Association, 161 Wis.2d 51, 467 N.W.2d, 180 (1991) (contract law governs relationship between sponsor and contestant, so that contestant who returns card accepts offer to enter the contest and if number is selected, contestant is entitled to prize).
In this case, plaintiff alleged that he entered the Contest by submitting an entry form in exchange for an opportunity to have it drawn as the winning ticket. Plaintiff's name was drawn and plaintiff was notified by defendant that he had won the prize or its cash equivalent. Plaintiff has never received the truck or anything else. We find these allegations sufficient to state a claim for breach of contract.
Next, we also find that plaintiff has stated a cause of action under G.S. § 75-32. The statute provides:
No person, firm or corporation engaged in commerce shall, in connection with the sale or lease or solicitation for the sale or lease *175 of any goods, property, or service, represent that any other person, firm or corporation has won anything of value or is the winner of any contest, unless all of the following conditions are met:
(1) The recipient of the prize must have been selected by a method in which no more than ten percent (10%) of the names considered are selected as winners of any prize;
(2) The recipient of the prize must be given the prize without any obligation; and
(3) The prize must be delivered to the recipient at no expense to him, within 10 days of the representation.
The use of any language that has a tendency to lead a reasonable person to believe he has won a contest or anything of value, including but not limited to "congratulations," and "you are entitled to receive," shall be considered a representation of the type governed by this section.
G.S. § 75-32 (1994).
Defendants argue that plaintiff has not stated a claim under the statute because they were not engaged "in commerce ... in connection with the sale or lease or solicitation for the sale or lease of any goods" while operating the Contest. Plaintiff counters by claiming that while the purchase of a car was not necessary, the clear purpose of the contest was to advertise, generate interest in, and solicit customers for the purchase of Ford automobiles. This purpose qualifies as commerce in "connection with the sale or solicitation of goods."
Defendants admit in their own brief that, "as a promotion, Capitol Broadcasting and Carolina Ford dealers organized a contest to give away a Ford F-150 truck." Advertising and promoting consumer interest in one's products are clearly business activities. Defendants rely on our decision in Malone v. Topsail Area Jaycees, Inc., 113 N.C.App. 498, 439 S.E.2d 192 (1994), in which we found that promotional activity did not amount to "business activities ... in commerce." However, Malone is distinguishable from the facts of this case. In Malone, we held that a golfing contest which was sponsored by a nonprofit corporation in order to raise money did not, "in the absence of any other evidence or allegations relating to the business activities" of the nonprofit corporation, "affect[ ] commerce" for purposes of the unfair and deceptive trade practices statute. Id. at 502, 439 S.E.2d at 194.
In the instant case, defendants are in the business of advertising and selling automobiles. The Contest was calculated to promote and encourage additional sales of those automobiles. Defendants used language which had a tendency to lead plaintiff to believe that he had won a new truck in its contest; he was told "Congratulations, you have won a F-150 Ford truck," thereby triggering the statute. Defendants then failed to deliver the truck to plaintiff within ten days of its representation to him that he had won. We find these allegations sufficient to state a claim for violation of G.S. § 75-32.
Finally, plaintiff contends that he has also stated a claim for violation of the unfair and deceptive trade practices act under G.S. § 75-1.1. We disagree.
Under G.S. § 75-1.1, an act or practice is unfair if it "is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers." Marshall v. Miller, 302 N.C. 539, 548, 276 S.E.2d 397, 403 (1981). An act or practice is deceptive if it "has the capacity or tendency to deceive." Id. at 548, 276 S.E.2d at 403. A mere breach of contract, even if intentional, is not an unfair or deceptive act under G.S. § 75-1.1. Bartolomeo v. S.B. Thomas, Inc., 889 F.2d 530, 535 (4th Cir.1989); Mosley & Mosley Builders, Inc. v. Landin Ltd., 97 N.C.App. 511, 518, 389 S.E.2d 576, 580, disc. review denied, 326 N.C. 801, 393 S.E.2d 898 (1990). "[A] plaintiff must show substantial aggravating circumstances attending the breach to recover under the Act." Bartolomeo, 889 F.2d at 535.
A claim is properly dismissed where there is "an absence of facts sufficient to make a good claim." Garvin v. City of Fayetteville, 102 N.C.App. 121, 401 S.E.2d 133 (1991). Here, plaintiff's complaint does not allege any aggravating circumstances. Plaintiff merely contends that defendants engaged *176 in unfair and deceptive business practices by breaching its contract in failing to award him a truck. We conclude that these facts do not present aggravating circumstances surrounding defendant's breach of contract and are insufficient to raise a claim of unfair and deceptive practices pursuant to G.S. § 75-1.1.
In conclusion, we find that plaintiff has stated a claim for breach of contract and a claim under G.S. § 75-32, but has not stated a claim of unfair deceptive trade practices under G.S. § 75-1.1. The trial court's order is therefore affirmed in part and reversed in part.
Affirmed in part and reversed in part.
JOHN C. MARTIN and McGEE, JJ., concur.