NUMBER 13-01-353-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
___________________________________________________________________

TECO-WESTINGHOUSE MOTOR COMPANY,         Appellant,

v.

JOEL GONZALEZ AND ROBERT PASCIAK,        Appellees.
___________________________________________________________________

On appeal from the 107th District Court of Cameron County, Texas.
__________________________________________________________________

O P I N I O N
Before Chief Justice Valdez and Justices Yañez and Castillo
Opinion by Justice Yañez
This is an interlocutory, accelerated appeal under section 15.003 of the Texas Civil Practice and Remedies Code.  See Tex.
Civ. Prac. & Rem. Code Ann. § 15.003 (Vernon Supp. 2001).  Appellant, Teco-Westinghouse Motor Company ("TWMC"
or "the company"), appeals from the trial court's order denying its motion to transfer venue.  Appellees, Joel Gonzalez and
Robert Pasciak, filed suit against TWMC, alleging retaliatory discharge in violation of the Texas Commission on Human
Rights Act ("TCHRA") (1) and intentional infliction of emotional distress.  In two issues, appellant contends that the trial
court: 1) erred in ruling that Pasciak established venue in Cameron County under section 15.003 of the civil practice and
remedies code; and 2) abused its discretion in accepting appellees' response to the motion to transfer venue, which was
filed the day before the venue hearing.  We affirm.
Background
In 1996 or 1997, (2) Gonzalez and Pasciak began working for TWMC at its Williamson County facility.  Both were
terminated in 1999, for reasons which are in dispute.  Appellees contend they were discharged because Gonzalez, who was
a supervisor, refused to lower his evaluations of two Hispanic employees; Pasciak supported Gonzalez's decision.  The
company contends they were terminated after the company discovered they were using company e-mail to send and/or
receive inappropriate sexually graphic images and material.
Appellees filed suit in Cameron County, alleging retaliation in violation of the TCHRA and intentional infliction of
emotional distress.  Gonzalez also alleged that the company fraudulently induced him to accept employment in Williamson
County.  Gonzalez,  a resident of Cameron County, alleges venue is proper in Cameron County because he received a
telephone call in Cameron County from a TWMC representative, who offered him employment in Williamson County.
Pasciak is a resident of Williamson County.  He  contends that venue is proper in Cameron County pursuant to section
15.003 of the civil practice and remedies code regarding multi-plaintiff lawsuits.  See Tex. Civ. Prac. & Rem. Code §
15.003 (Vernon Supp. 2001).  TWMC asserts that its only Texas facility is in Williamson County.
On December 29, 2000, TWMC filed a motion to transfer venue to Williamson County.  After receiving Pasciak's
discovery responses, TWMC filed an amended motion to transfer on April 18, 2001 and incorporated  Pasciak's discovery
responses.  A hearing on TWMC's motion was set for April 26, 2001.  The day before the hearing, on April 25th,  appellees
filed a response, with attached affidavits.  In the response, Pasciak conceded that he cannot independently establish venue
in Cameron County, but argued venue is  proper there because he has established the four elements necessary for joinder set
out in section 15.003(a) .  See Tex. Civ. Prac. & Rem. Code § 15.003(a) (Vernon Supp. 2001).  Following the hearing, the
trial court denied the motion to transfer venue as to both appellees.  This interlocutory appeal followed.  Appellees do not
challenge the trial court's ruling finding venue proper in Cameron County as to Gonzalez.
Standard of Review
The issue before us is whether Pasciak could properly join the lawsuit filed by Gonzalez in Cameron County.  We review
the propriety of a trial court's section 15.003 joinder decision by conducting an independent de novo review of the entire
record.  Tex. Civ. Prac. & Rem. Code § 15.003(c)(1) (Vernon Supp. 2001); Am. Home Prods. v. Clark, 38 S.W.3d 92, 99
(Tex. 2000); Surgitek, Bristol-Myers Squibb Co. v. Abel, 997 S.W.2d 598, 600 (Tex. 1999); Am. Home Prods. Corp. v.
Bernal, 5 S.W.3d 344, 347 (Tex. App.-Corpus Christi 1999, no pet.).
Analysis
Texas Civil Practices and Remedies Code section 15.003,  which governs multi-plaintiff lawsuits, provides:
(a) In a suit where more than one plaintiff is joined, each plaintiff must, independently of any other plaintiff, establish
proper venue.  Any person who is unable to establish proper venue may not join or maintain venue for the suit as a plaintiff
unless the person, independently of any other plaintiff, establishes that:

(1) joinder or intervention in the suit is proper under the Texas Rules of Civil Procedure;

(2) maintaining venue in the county of suit does not unfairly prejudice another party to the suit;

(3) there is an essential need to have the person's claim tried in the county in which the suit is pending; and

(4) the county in which the suit is pending is a fair and convenient venue for the person seeking to join in or maintain venue
for the suit and the persons against whom the suit is brought.

Tex. Civ. Prac. & Rem. Code § 15.003(a) (Vernon Supp. 2001).

The plaintiff bears the burden of proof to establish proof of each joinder element.  Surgitek, 997 S.W.2d at 602-03;
Bernal,5 S.W.3d at 346.  The trial court has discretion to consider a broader range of evidence in making a section
15.003(a) joinder determination than it would in a venue hearing.  Surgitek, 997 S.W.2d at 603; Bernal, 5 S.W.3d at 347.
The court of appeals is not constrained solely to review the pleadings and affidavits, but considers the entire record,
including any evidence presented at the hearing.   Bernal, 5 S.W.3d at 347.  Any affidavit evidence relied upon in support
of venue allegations must be made on personal knowledge, set forth specific facts as would be admissible in evidence, and
show affirmatively that the affiant is competent to testify.  See Tex. R. Civ. P. 87(3)(a); Blalock Prescription Ctr., Inc. v.
Lopez-Guerra, 986 S.W.2d 658, 662 (Tex. App.-Corpus Christi 1999, no pet.).
Trial Court's Acceptance of Response
By its second issue, TWMC contends the trial court abused its discretion by granting appellees' request to file a late
response to TWMC's motion to transfer on the day before the venue hearing.  TWMC contends it was materially prejudiced
by the trial court's decision because it was unable to investigate or respond to the statements in appellees' affidavits, which
were attached to the response,  and was therefore denied the opportunity to rebut the appellees' prima facie proof.  The
evidence offered by appellees and attached to their response included: 1) Gonzalez's affidavit; 2) Pasciak's affidavit; 3) the
affidavit of appellees' counsel; and 4) Gonzalez's responses to TWMC's request for admissions.
Appellees argue that they filed their response the day before the hearing because TWMC's amended motion to transfer and
attached affidavits, which first raised the issue of joinder under section 15.003, was filed only a week earlier, on April 18,
2001.  Under rule 87 of the Texas Rules of Civil Procedure, a nonmovant's response and affidavits in opposition to a
motion to transfer venue are to be filed thirty days before the hearing date.  Tex. R. Civ. P. 87.1.  However, the trial court
has the discretion to grant leave to file late affidavits and supporting materials in support or opposition to a motion to
transfer venue.  Id.  Moreover, in making a section 15.003 determination, the trial court has the discretion to consider all
available evidence, including evidence presented at the hearing.  Bernal, 5 S.W.3d at 347.
Here, TWMC raised the issue of joinder under section 15.003(a) in its April 18, 2001 amended motion.  Appellees'
response and affidavits address the joinder issue under the section 15.003(a) criteria.  Pasciak's affidavit states that
Gonzalez is an "indispensable witness" in Pasciak's case, that it is "indispensably necessary" that the lawsuit be tried in
Cameron County because Gonzalez can only afford to pursue it there and Pasciak cannot afford to pursue it alone, that
Pasciak could not find an attorney to take the case in Williamson or Travis counties, and that the cost would be too high for
him to pursue the case if it were to proceed in Williamson or Travis County.  We are unpersuaded that TWMC was
materially prejudiced by being unable to investigate or respond to these statements.  Given the trial court's discretion to
allow a broad range of proof in making its determination, we conclude that the trial court did not abuse its discretion by
allowing appellees to submit their response to TWMC's amended motion to transfer venue.  We overrule TWMC's second
issue.
Joinder
We now turn to TWMC's first issue, which is whether Pasciak satisfied the four-part test set out in section 15.003(a).
Because TWMC does not appeal the first element of the four-part joinder test, (3) we do not address it.
A.  Unfair Prejudice
We begin by addressing the second element, whether maintaining suit in Cameron County unfairly prejudices another
party.  Tex. Civ. Prac. & Rem. Code § 15.003(a)(2) (Vernon Supp. 2001).  Pasciak argues that TWMC will not be unfairly
prejudiced by defending against his lawsuit in Cameron County because regardless of the disposition of Pasciak's claim,
Gonzalez's case will be tried in Cameron County and it will be necessary for TWMC to travel to Cameron County.  Pasciak
also contends that TWMC regularly conducts business in South Texas.  Appellees offered as evidence their own affidavits,
the affidavit of their attorney, and Gonzalez's discovery responses.  In his affidavit, Gonzalez stated that
"Teco-Westinghouse regularly conducts business in South Texas and in Northern Mexico and regularly sends management
representatives to South Texas to conduct this business."  Pasciak's affidavit states that if the suit were to proceed in Travis
or Williamson counties, the cost would be too high for him to pursue it.  Pasciak's affidavit is silent as to whether TWMC
would suffer any  unfair prejudice as a result of defending against his suit in Cameron County.  In his affidavit,  appellees'
attorney states that TWMC "is a large multi-national corporation with unlimited resources and the maintenance of the
instant action in Cameron County, Texas would hardly be an economic and personal hardship to Defendants.  Furthermore,
said Defendant regularly does business in South Texas."  The affidavit also states that Gonzalez has established proper
venue in Cameron County, and because Pasciak's claims are identical to those of Gonzalez and requires the presence of the
same witnesses, TWMC would not be prejudiced by trying Pasciak's case in Cameron County.  TWMC specifically denied
that venue was proper as to Pasciak in Cameron County.  In its amended response, TWMC further denied that  Pasciak
could establish joinder and stated that it would suffer an injustice if forced to defend the suit in Cameron County.
Affidavits must be made on personal knowledge, shall set forth specific facts as would be admissible in evidence, and shall
show affirmatively that the affiant is competent to testify.  Tex. R. Civ. P. 87(3)(a); Blalock, 986 S.W.2d at 662.  We
conclude that Gonzalez's statements as to TWCM's business activities in South Texas are not made on personal knowledge
and do not establish lack of prejudice.  Similarly, the statement by appellees' attorney regarding TWMC's "unlimited
resources" is not made on personal knowledge, is conclusory, and does not establish lack of prejudice.  However, we find
that because Gonzalez's lawsuit will be tried in Cameron County, (4)  TWMC's representatives and witnesses will be present
at Gonzalez's trial.  Because Pasciak's claims are the same as Gonzalez's and involve the same witnesses, we conclude that
Pasciak has established that trying his suit in Cameron County will not unfairly prejudice TWMC.
B.  Essential Need
Pasciak also had to establish that he had an "essential need" to have his claim tried in Cameron County.  See Tex. Civ. Prac.
& Rem. Code § 15.003(a)(3) (Vernon Supp. 2001); Surgitek, 997 S.W.2d at 604;  Bernal, 5 S.W.3d at 348; Dayco Prods.,
Inc. v. Ebrahim, 10 S.W.3d 80, 84 (Tex. App.-Tyler 1999, no pet.).  A plaintiff seeking joinder must show a compelling
reason why he must be joined in that county, and not merely that he has an "essential need" to join with other plaintiffs in
order to pool resources.  Surgitek, 997 S.W.2d at 604 (holding that proving a need to pool resources is insufficient to
establish essential need); Bernal, 5 S.W.3d at 348 (same).
Pasciak argues he has an essential need for his case to be tried in Cameron County because: 1) Gonzalez is his main witness
and is a resident of Cameron County; 2) other witnesses who can testify as to the events at issue are currently located in
Cameron County; and 3) he has been unable to locate an attorney willing to take his case in Williamson County and is
currently being represented on a contingency fee basis by Gonzalez's attorney, who is located in Cameron County.  Pasciak
acknowledges that both the supreme court and this Court have rejected claims that the need to pool resources is sufficient
to establish essential need.  See Surgitek, 997 S.W.2d at 604; Bernal, 5 S.W.3d at 348.  He denies, however, that his
arguments should be so characterized; he argues, instead, that his reasons demonstrate why there is an essential need for his
case to be tried in Cameron County.
The evidence Pasciak offered to establish his right to join the Cameron County lawsuit included his own affidavit,
Gonzalez's affidavit, and the affidavit of his attorney.  In his affidavit, Pasciak states he is unemployed and has no resources
to pay an attorney.  He also says that Gonzalez can only afford to pursue his case in Cameron County and that Gonzalez is
an indispensable witness in his case.  He also asserts that he contacted six or eight attorneys in Williamson and Travis
counties and was unable to obtain representation.  He says that if he is required to proceed in Travis or Williamson County,
the cost will be too high for him to pursue it.  Gonzalez's affidavit states that he is currently a resident of Cameron County
and has been since before 1996.  He says he is currently working in Monterrey, Mexico and that his job does not allow for
travel to Williamson or Travis County.  He further asserts that the cost would be too high for him to litigate his own case in
Williamson or Travis counties because of the time demands and costs associated with travel.  He also states that TWMC
regularly conducts business in South Texas. (5)
TWMC argues that Pasciak's claim that he contacted six or eight attorneys and was unable to obtain representation does not
establish that there is no Austin-area attorney willing to represent him.  In addition, TWMC notes that Pasciak's current
attorney could continue to represent him in Williamson County. (6)  Moreover, TWMC notes that one of the appellees'
attorneys, Ms. Gina Hinojosa, is located in Austin. (7)  With regard to Pasciak's claim that there is an essential need to try his
case in Cameron County because Gonzalez is an indispensable witness, TWMC notes that Pasciak has offered no proof that
Gonzalez would refuse to appear as a witness in Williamson County.  TWMC also argues that Pasciak has also failed to
establish that the other identified witnesses would refuse or be unable to testify in Williamson County.
TWMC's evidence includes the affidavit of Richard Fesmire, a TWMC senior management official, who stated, among
other things, that TWMC does not have a facility in or near Cameron County.  TWMC also submitted the affidavit of Josie
Carlin Hernandez, a TWMC employee in the Human Resource department at the Williamson County facility, who stated
that Gonzalez began working for TWMC in January 1996.
Applying the principles announced in Surgitek, and considering the entire record de novo, we conclude that Pasciak
established that he has an essential need to try his lawsuit in Cameron County.  Gonzalez's affidavit states that he is an
indispensable witness in Pasciak's lawsuit.  It also states that the demands of his present job in Monterrey, Mexico "do not
allow for travel to Williamson or Travis County."  Pasciak's affidavit also states that Gonzalez is an indispensable witness
in Pasciak's case.  In its reply brief, TWMC argues that because it will be necessary for Gonzalez to take some time off
from his job to attend his own trial, he could also take a day or two of vacation time to serve as a witness for Pasciak in
Williamson County.  TWMC also argues that if Gonzalez is  unable to appear at Pasciak's Williamson County trial, his
testimony could be presented to the jury by videotape.
We acknowledge that the need to pool resources is insufficient to establish essential need.  See Surgitek, 997 S.W.2d at
604; Bernal, 5 S.W.3d at 348.  In Bernal, this Court interpreted the "essential need" element as enunciated by the supreme
court:
The court pointed out that the essential need component of the test must be tied to the specific county where the suit is
filed.  That is, the plaintiffs seeking joinder must show a compelling reason why they must be joined in that county, and not
merely that they have an "essential need" to join with the other plaintiffs in order to pool resources.  Otherwise, the
plaintiffs have an alternative that makes their "need" not essential: they may sue in the county of the defendants' residence.
Bernal, 5 S.W.3d at 348 (emphasis supplied) (citations omitted).
In Bernal, a multi-plaintiff lawsuit involving injuries allegedly arising from the use of diet drugs commonly known as
"fen/phen," this Court held that the plaintiffs failed to establish an essential need to try their claims in Cameron County.
Bernal, 5 S.W.3d at 347.  The affidavit evidence presented in Bernal addressed the "economic benefit" derived from
sharing discovery and witnesses.  Id. at 347-48.  None of the evidence discussed in Bernal, however, established that the
plaintiffs' need was tied to the specific county where the suit was filed.  Id. at 348.  In contrast, the evidence in the present
case establishes Pasciak's essential need to try his case in Cameron County because the testimony of Gonzalez, an
indispensable witness, is only available in Cameron County.  We conclude that TWMC's suggestion as to the likelihood of
Gonzalez taking time off from work to attend Pasciak's trial is no more than mere speculation.  In contrast, Gonzalez's
affidavit states that the demands of his job do not allow for travel to Travis or Williamson County.  With regard to
TWMC's argument that Pasciak has the option of presenting Gonzalez's testimony by videotape, we are unable to say with
confidence that a jury would give the same weight to testimony presented by videotape as it would to live witness
testimony.
In Blalock, which also involved a plaintiff alleging injuries arising from the use of "fen/phen," this Court found, as it did
inBernal, that the plaintiff failed to establish an essential need to maintain suit in Hidalgo County.  Blalock, 986 S.W.2d at
665.  In Blalock, the plaintiff's attorney stated in an affidavit that the "only way" the plaintiff could prosecute her claims
was by combining resources, and if not allowed to maintain suit in Hidalgo County, her ability to pursue her claims would
be "severely compromised."  Id.  In rejecting the plaintiff's claim, this Court noted that the evidence failed to tie the
plaintiff's claim to a particular county.  Id.  We find that unlike the affidavit evidence presented in Bernal and Blaclock, the
evidence in the case before us establishes that Pasciak has an essential need to try his suit in Cameron County, the only
county that can provide him with the availability of his indispensable witness.  Accordingly, we find that Pasciak has
established the essential need element of joinder.
C.  Fair and Convenient
Pasciak also had to establish that Cameron County is a fair and convenient venue for himself and TWMC.  Although
Pasciak is a resident of Williamson County, his affidavit establishes that Cameron County is a fair and convenient venue
for him. With respect to TWMC, Pasciak points to the same evidence that he offered to prove TWMC would not be
unfairly prejudiced by trying his suit in Cameron County.  We have already examined the evidence and determined that
TWMC would not be unfairly prejudiced.  This Court has held that the evidence establishing absence of unfair prejudice
will generally establish fairness and convenience.  Blalock, 986 S.W.2d at 665.  Here, we conclude that venue in Cameron
County for Pasciak's claim is convenient for TWMC because it will already be in Cameron County defending against
Gonzalez's lawsuit.  Moreover, we note that allowing Pasciak to join Gonzalez's Cameron County lawsuit serves the
interest of preserving judicial and public resources.
We conclude that Pasciak has met his burden to establish the second, third and fourth joinder elements under section
15.003(a).  Tex. Civ. Prac. & Rem. Code § 15.003(a) (Vernon Supp. 2001).  Accordingly, we overrule TWCM's first issue
and AFFIRM the trial court's order denying TWMC's motion to transfer venue as to Pasciak.

LINDA REYNA YAÑEZ
Justice

Publish.  Tex. R. App. P. 47.3.

Opinion delivered and filed this the
31st day of August, 2001.
1. See Tex. Lab. Code § 21.055 (Vernon 1996).
2. The date Gonzalez was hired by TWMC is in dispute.  Gonzalez alleges that in January 1997, TWMC agents recruited
him in Brownsville, Texas to work for the company at its Williamson County facility.  TWMC contends Gonzalez began
his employment at the company's Williamson County facility on January 2, 1996.  The company notes that one explanation
for Gonzalez's assertion that he was contacted in 1997, rather than 1996, is that his claim for fraudulent inducement, which
has a four-year statute of limitations, would otherwise be barred by limitations.
3. TWMC notes that it does not concede that Pasciak has established the first element of the four-part joinder test.
However, because only limited discovery has taken place, TWMC argues that the record is insufficiently developed at this
time to thoroughly examine the issue.
4. Gonzalez asserted in the trial court that venue is proper in Cameron County because he is a resident of Cameron County
and all or a substantial part of the events giving rise to his claims occurred in Cameron County.  See Tex. Civ. Prac. &
Rem. Code § 15.002(a) (Vernon Supp. 2001). When a trial court decides, even erroneously, that venue is proper under
section 15.002, an interlocutory appeal under section 15.003(c) is unavailable.  See Tex. Civ. Prac. & Rem. Code §
15.003(c) (Vernon Supp. 2001); Am. Home Prods. Corp. v. Clark,38 S.W.2d 92, 96 (Tex. 2000).
5. TWMC challenges Gonzalez's statement as conclusory because Gonzalez no longer works for TWMC and therefore
lacks personal knowledge of TWMC's activities.  TWMC also notes that neither Gonzalez nor Pasciak state that the
TWMC representatives who allegedly travel to South Texas would be the same persons whose presence would be required
in any lawsuit involving TWMC.
6. Pasciak's affidavit states, in pertinent part: "Magallanes, Hinojosa & Mancias can only provide representation in
Cameron County on my claims in conjunction with the representation of Mr. Gonzalez."
7. Appellees state that Ms. Hinojosa and her law firm are not lead counsel, but were brought into the lawsuit to assist on
employment law issues.


971 P.2d 798 (1998)
Louise P. GRAYSON, Appellant,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE, Respondent.
No. 29832.
Supreme Court of Nevada.
December 30, 1998.
As Modified on Denial of Rehearing March 19, 1999.
Parker, Nelson & Arin, Las Vegas; Beckley, Singleton, Jemison, Cobeaga & List and Daniel F. Polsenberg, Las Vegas, for appellant.
Pearson & Patton and Theodore J. Kurtz, Las Vegas, for respondent.

OPINION
ROSE, J.
Appellant Louise P. Grayson (Grayson) sought to recover underinsured motorist (UIM) coverage benefits from her insurance carrier, State Farm Mutual Automobile Insurance (State Farm). The district court found that the statute of limitations barred Grayson's cause of action because she filed her claim more than six years after her accident. Thus, the district court entered summary judgment in favor of State Farm.
*799 On appeal, Grayson contends that the district court erred in finding that the six-year limitations period began to run on the date of the accident. We agree, and for the reasons set forth below, we reverse the district court's grant of State Farm's motion for summary judgment and remand for trial.

FACTS
On June 12, 1990, Ms. Grayson was involved in an automobile accident with Jerardo Menchaca-Estrada (Estrada). Grayson's former attorney failed to file suit against Estrada within the two-year tort statute of limitations. As a result, Grayson filed suit against her former attorney alleging legal malpractice.
During the course of Grayson's legal malpractice action against her former attorney, Grayson discovered that Estrada had automobile bodily injury liability insurance with the statutory minimum limits of $15,000.00 per person. Grayson, believing that the value of her injuries exceeded the $15,000.00 per person limits of Estrada's insurance, filed suit against State Farm, her UIM carrier. State Farm moved for summary judgment, arguing that the six-year statute of limitations[1] barred Grayson's claim for benefits because she filed her claim on August 2, 1996, six years and two months after the accident. The district court agreed and granted State Farm's motion for summary judgment. Grayson now appeals.

DISCUSSION
This case presents an issue of first impression in Nevada: When does the statute of limitations begin to run on a cause of action for benefits under an UIM provision of an automobile policy? Courts in other jurisdictions have addressed this issue and the overwhelming majority of these jurisdictions have concluded that the limitations period begins to run on a UIM claim upon the insurer's breach of the insurance contract.[2]
These cases are based on the rationale that it would be illogical to begin the statute of limitations before the insured even has a justiciable claim for breach of contract. See Allstate Ins. Co. v. Spinelli, 443 A.2d 1286 (Del.1982). Although our UIM statutory scheme provides the insured with the option to file a suit against her UIM carrier prior to obtaining a judgment against the tortfeasor,[3] if the insured chooses not to do so, an action for breach of contract will not lie at the time of the accident because the UIM carrier has not yet been called upon to fulfill a promise under the contract. See Lane v. Nationwide Mut. Ins. Co., 321 Md. 165, 582 A.2d 501, 505 (Md.1990).
Moreover, practically speaking, it would be fundamentally unfair to time-bar an insured from compensation that she bargained for because an insured may not be aware until long after the accident that she will need to pursue a claim against her UIM insurer. Specifically, at the time of the accident or even several years thereafter, the insured may not know the extent of her injuries, the amount of the tortfeasor's available coverage, or whether the cost of her medical treatment *800 will exceed the value of the tortfeasor's insurance policy and available assets. We note that such a circumstance occurred in the present case because it was not until several years after the accident, when Grayson was involved in the legal malpractice action, that Grayson learned that Estrada's insurance coverage was insufficient to cover her claims arising from the accident.
Further, the policy underlying UIM insurance supports our conclusion. We note that "[t]he Nevada Legislature intended that uninsured and underinsured motorist benefits be available to Nevada citizens." Mann v. Farmers Insurance Exchange, 108 Nev. 648, 650, 836 P.2d 620, 621 (1992) (citation omitted). UIM insurance serves an important public purpose to "provide maximum and expeditious protections to the innocent victims of financially irresponsible motorists..." Green v. Selective Insurance Co. of America, 144 N.J. 344, 676 A.2d 1074, 1078 (N.J.1996). Accordingly, in our view, there is no reason to time-bar an insured from claiming benefits bargained for in an insurance contract by beginning the statute of limitations before the insured is notified that her UIM carrier has failed to fulfill its promise to pay a claim.
Although State Farm does not allege that they were prejudiced by Grayson's delay in making a claim, State Farm contends that tolling the statute of limitations until the insurer refuses to pay a claim results in a cause of action without any time limitation.[4] However, the fallacy in this argument is that the insurer can protect itself from claims that are remote in time by including explicit, unambiguous time limitations in its insurance contracts. See Blutreich v. Liberty Mut. Ins. Co., 170 Ariz. 541, 826 P.2d 1167, 1171 (Ariz.Ct.App.1991); see also National Union Fire Ins. v. Reno's Executive Air, 100 Nev. 360, 364, 682 P.2d 1380, 1382 (1984). Additionally, the equitable remedy of laches would protect insurers from the costs associated with any unreasonable delay on the part of the insured. Southward v. Foy, 65 Nev. 694, 705-06, 201 P.2d 302, 307 (1948).
Accordingly, we conclude that the district court erred in granting State Farm's motion for summary judgment because Grayson's claim was not time-barred. The statute of limitations did not begin to run until State Farm refused payment of Grayson's claim. The date of this refusal is an issue of fact to be determined upon remand. Therefore, we reverse the judgment of the district court and remand this case for proceedings consistent with this opinion.
SPRINGER, C.J., and SHEARING, J., concur.
MAUPIN, J., with whom, YOUNG, J., agrees, dissenting:
Under our scheme for the recovery of UIM benefits, the insured has a right to bring a direct action against the carrier after a collision with an uninsured motorist, regardless of whether a judgment has been obtained against the tortfeasor. See Lee v. Allstate Ins. Co., 648 F.Supp. 1295 (D.Nev.1986). Implicit in this is the right to bring the direct action at any time after the cause of action against the actual tortfeasor accrues. Accrual occurs, consistent with the ruling in Lee, when a person insured under the policy becomes "legally entitled to recover damages"[1] from the uninsured motorist. Since rights under the contract exist as of the collision, the six-year limitation period should start to run at that time.
I realize that the major treatises and the majority recognize a trend toward accrual from the time of claim denial.[2] However, six years from the date of an accident with an *801 uninsured motorist is not an unreasonable time for a claimant to commence direct proceedings for UIM benefits.
YOUNG, J., concurs.
NOTES
[1]  NRS 11.190(1)(b) provides that an action upon a written contract must be brought within six years.
[2]  See, e.g., Blutreich v. Liberty Mut. Ins. Co., 170 Ariz. 541, 826 P.2d 1167 (Ariz.Ct.App.1991); Allstate Ins. Co. v. Spinelli, 443 A.2d 1286 (Del.1982); Eidemiller v. State Farm Mut. Auto. Ins., 22 Kan.App.2d 278, 915 P.2d 161 (Kan.Ct.App.1996); Whitten v. Concord General Mut. Ins. Co., 647 A.2d 808 (Me.1994); Lane v. Nationwide Mut. Ins. Co., 321 Md. 165, 582 A.2d 501 (Md.1990); Metro. Prop. & Liability v. Walker, 136 N.H. 594, 620 A.2d 1020 (N.H.1993); Uptegraft v. Home Ins. Co., 662 P.2d 681 (Okla.1983); Vega v. Farmers Ins. Co., 134 Or.App. 372, 895 P.2d 337 (Or.1995); Alvarez v. American General Fire & Cas., 757 S.W.2d 156 (Tex.Ct.App.1988); Safeco Ins. Co. v. Barcom, 112 Wash.2d 575, 773 P.2d 56 (Wash.1989); Plumley v. May, 189 W.Va. 734, 434 S.E.2d 406 (W.Va.1993). We recognize that a minority of jurisdictions hold that the statute of limitations begins to accrue at the time of the accident. See, e.g., Bayusik v. Nationwide Mutual Ins. Co., 233 Conn. 474, 659 A.2d 1188 (Conn.1995); State Farm Mut. Auto. Ins. Co. v. Kilbreath, 419 So.2d 632 (Fla.1982); Commercial Union Ins. Co. v. Wraggs, 159 Ga.App. 596, 284 S.E.2d 19 (Ga.Ct.App.1981).
[3]  Under NRS 690B.020, an insured has a claim against the carrier as soon as the insured under the policy becomes "legally entitled to recover damages" from the uninsured motoristthat is, as of the time of the accident. See also Lee v. Allstate Ins. Co., 648 F.Supp. 1295 (D.Nev.1986).
[4]  Additionally, State Farm contends that Grayson's claim is time-barred because she failed to "demand" payment from State Farm. We note that State Farm's argument defies logic because if Grayson failed to make a demand, then State Farm could not have possibly breached by refusing Grayson's claim, and thus the statute of limitations would not even have started to accrue, much less have barred Grayson's claim.
[1]  NRS 690B.020 (1).
[2]  A. Widiss, A Guide to Uninsured Motorist Coverage § 2.25 (Supp.1981), cited with approval in Blutreich v. Liberty Mut. Ins. Co., 170 Ariz. 541, 826 P.2d 1167 (Ariz.Ct.App.1991).


                                                                           FILED
                             NOT FOR PUBLICATION                            AUG 31 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS

                             FOR THE NINTH CIRCUIT

RAFAEL AREVALO-OROZCO, a.k.a.                    No. 06-70913
Rafael Arevalo Orosco,
                                                 Agency No. A092-750-172
               Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.

                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted August 23, 2010 **

Before:        LEAVY, HAWKINS, and THOMAS, Circuit Judges.

       Rafael Arevalo-Orozco, a native a citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order denying his motion to

reconsider. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of

discretion the denial of a motion to reconsider, and review de novo questions of

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
law and constitutional claims. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.

2002). We deny the petition for review.

      The BIA did not abuse its discretion in denying Arevalo-Orozco’s motion to

reconsider because the motion failed to specify an error in the BIA’s underlying

order. See 8 C.F.R. § 1003.2(b)(1). Contrary to his contention, Arevalo-Orozco is

ineligible for relief under former section 212(c), 8 U.S.C. § 1182(c) (repealed

1996), because his ground of removability lacks a statutory counterpart in a ground

of inadmissibility. See 8 C.F.R. § 1212.3(f)(5); Abebe v. Mukasey, 554 F.3d 1203,

1207 & 1208 n.7 (9th Cir. 2009) (en banc). Arevalo-Orozco’s remaining legal and

constitutional challenges to the BIA’s determination that he is ineligible for section

212(c) relief are unavailing. See Abebe, 554 F.3d at 1207 & 1208 n.7.

      PETITION FOR REVIEW DENIED.

                                           2                                    06-70913


902 F.2d 1576
Seibert (Joseph)v.Bowen (Cliff)
NO. 90-1147
United States Court of Appeals,Eighth Circuit.
FEB 16, 1990

1
Appeal From:  W.D.Mo.

2
DISMISSED.


594 F.3d 423 (2010)
Ricky D. FOX, Plaintiff-Appellant,
v.
Billy Ray VICE, Chief of Police for the Town of Vinton; Town Of Vinton, Defendants-Appellees.
No. 08-31135.
United States Court of Appeals, Fifth Circuit.
January 19, 2010.
*424 Deborah Ann Pearce, Law Offices of Deborah Pearce, New Orleans, LA, *425 Randall Earl Hart, Broussard & Hart, L.L.C., Lake Charles, LA, for Fox.
Christopher Paul Ieyoub, Plauche, Smith & Nieset, L.L.C., Lake Charles, LA, for Vice.
John Mark MIller, Joseph Bath Stamey, Stamey Law Firm, Natchitoches, LA, for Town of Vinton.
Before REAVLEY, CLEMENT and SOUTHWICK, Circuit Judges.
REAVLEY, Circuit Judge:
This is an appeal from the district court's order granting Defendants-Appellees attorneys' fees and costs after the dismissal of Appellant Fox's federal claims. Fox argues that the district court erred because Appellees were not prevailing parties, and because Fox still maintains state-law claims against Appellees. For the following reasons, we AFFIRM.

I. BACKGROUND
Fox's causes of action stem from two incidents that took place in 2005 after Fox and Appellee Vice each announced his candidacy to be police chief in the Town of Vinton, Louisiana. The first event took place in January, when incumbent Vice sent Fox an "anonymous" letter in which Vice attempted to blackmail Fox into not running for office. The second event took place at a local high school basketball game in February, when a third party accused Fox of uttering a racial slur and, at the instigation of Vice, filed a false police report regarding Fox's alleged utterance.
In December 2005, Fox brought a suit in Louisiana state court against Vice and the Town of Vinton, alleging the above-stated facts and claiming federal and state causes of action. In January 2006, the case was removed to federal court. In April 2007, Vice was tried and found guilty of extortion in state criminal court for the anonymous letter. Meanwhile, discovery in the civil case produced evidence of Vice's participation in the filing of the false police report. In September 2007, the defendants brought a motion for judgment on the pleadings and for summary judgment. In their motion, they argued that Fox's claims had no basis in federal law. In his response to the motion, Fox admitted that he had failed to properly present any federal cause of action. Specifically, Fox stated:
Defendants correctly argue that Fox presents no valid claim pursuant to 42 U.S.C. § 1983. As to the extortion letter, it was sent anonymously. Vice did not act under "color of law" concerning the extortion letter.
As to the fabricated basketball game incident, Fox cannot show a deprivation of a right, privilege or immunity secured by the United States Constitution and its laws. Although Vice and Cary acted under "color of law" whenever they conspired to fabricate the basketball game incident and file a false police report, Fox was not prevented from running for election. Nor is the defamation Fox suffered as a result of this fabrication deprivation of a property right.
In light of Fox's own admissions, the district court dismissed Fox's federal claims with prejudice and remanded the remaining state-law claims to state court.
The defendants moved for attorneys' fees pursuant to 42 U.S.C. § 1988[1] and for *426 costs pursuant to Federal Rule of Civil Procedure 54,[2] arguing that Fox's federal claims were frivolous, unreasonable and without foundation. The district court granted that motion, and Fox now appeals.

II. ANALYSIS
We review a district court's award of attorneys' fees under 42 U.S.C. § 1988 for abuse of discretion. Merced v. Kasson.[3] We review findings of fact for clear error and conclusions of law de novo. Dearmore v. City of Garland.[4]
For the district court to properly award a defendant attorneys' fees in a § 1983 action, the court must find that (1) the defendant is a prevailing party, and (2) that the plaintiff's claims are frivolous, unreasonable, or without foundation. Hughes v. Rowe;[5]Stover v. Hattiesburg Pub. Sch. Dist.[6] An award of costs simply requires a determination that the defendant was a prevailing party.[7]

1. Whether Appellees are prevailing parties
We address first whether Appellees are prevailing parties for purposes of § 1988 and Rule 54. See Dean v. Riser.[8] The record shows that the court granted Appellees' motion for judgment on the pleadings and dismissed Fox's § 1983 claims with prejudice after Fox conceded that he had failed to state a federal claim. All other things being equal, this makes Appellees prevailing parties. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res.;[9]Sheets v. Yamaha Motors Corp., U.S.A.;[10]Anthony v. Marion County Gen. Hosp.[11] However, Fox argues that Appellees are not prevailing parties because Fox voluntarily dismissed his federal claims. Fox points to our decision in Dean, where we held that when a plaintiff voluntarily dismisses his claims in a § 1983 action, the defendant is not a "prevailing party" for attorneys' fees purposes "unless the defendant can demonstrate that the plaintiff withdrew to avoid a disfavorable judgment on the merits."[12]
Fox did not file a motion to voluntarily dismiss his federal claims before defendants *427 responded.[13] Rather, Fox allowed the case to proceed for more than eighteen months in federal court and through considerable discovery before he was challenged on the legal sufficiency of his federal claims. At that point, Fox was forced to concede their lack of legal merit and shifted focus to his state claims. Therefore, any decision Fox made to abandon his federal claims did not "merely indicate[] his preferred forum," or a change in the law or decisive facts.[14] Rather, it represented recognition that Fox's federal claims should never have been brought. Moreover, without decisive action by Appellees, Fox's baseless federal claims would have proceeded to trial. He chose to dismiss the federal claims because he could manufacture no argument to support them when he was challenged. To deny fees under these circumstances would defeat the purpose of ever recognizing defendants as "prevailing parties," which is to "`protect defendants from burdensome litigation having no legal or factual basis.'"[15]
We hold, therefore, that Appellees are "prevailing parties" for purposes of Rule 54 and § 1988.

2. Whether Fox's § 1983 claims are frivolous, unreasonable, or without foundation
We next look to the merit of Fox's claims. When determining whether a claim is frivolous, unreasonable, or without foundation, a district court should consider (1) whether the plaintiff established a prima facie case, (2) whether the defendant offered to settle, and (3) whether the court held a full trial. Myers v. City of West Monroe.[16] In making these determinations, a court must "resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation."[17] Instead, a court must ask whether "`the case is so lacking in arguable merit as to be groundless or without foundation rather than whether the claim was ultimately successful.'"[18]
Looking to the first factor, the district court correctly concluded that Fox failed to establish any prima facie federal claim. Contrary to Fox's assertions on appeal, the dismissal of Fox's federal constitutional claims is not based on evidentiary hurdles that he faced at the end of discovery. Rather, Fox's claims are groundless because the offenses as alleged in his Complaint have no redress in the Constitution or laws of the United States.[19]*428 The anonymous nature of Vice's letter to Fox and the lack of constitutionally-protected harm stemming from the false police report were circumstances of which Fox was aware from the outset of litigation. Consequently, no evidence produced in the discovery process could change the underlying deficiencies in Fox's Complaint.
Looking to the second factor, the district court did not clearly err in finding that Appellees did not engage in settlement negotiations with Fox. The evidence presented by both parties shows that all the documented settlement attempts were one-sided, with Fox asserting the settlement demands. No evidence points to Appellees making their own settlement offers. While Fox points to billing statements from Appellees' counsel showing charges for discussions of settlement and possible mediation with Fox, these statements alone do not show clear error in the district court's finding. They only show that Appellees considered Fox's demands, not that they replied with their own.
Regarding the third factor, it is undisputed that Fox's federal claims were all dismissed without trial.
In conclusion, all the factors establishing a frivolous case have been satisfied. Accordingly, we hold the district court did not abuse its discretion in finding Appellees entitled to attorneys' fees.

3. Whether Appellees must prevail over the entire case to be awarded fees
In the alternative, Fox argues that even if his federal claims are meritless, Appellees are not entitled to attorneys' fees and costs because Appellees did not prevail over the entire action. Specifically, Fox points to the fact that the district court remanded Fox's state claims that were based on the same alleged facts.
When speaking of whether a defendant is entitled to attorneys' fees, the Supreme Court describes a "suit,"[20] an "action,"[21] and both a "claim" and an "action"[22] as the proper quanta for determining frivolity, with little guidance as to which is the final determinant. There also appears to be no Fifth Circuit precedent on whether a defendant must prevail over an entire suit before that defendant may seek attorneys' fees or whether success on an individual claim is sufficient. Indeed, other circuits appear to be split on the issue.[23]
Having reviewed the other circuits' holdings, we agree with the majority of circuits that a defendant does not have to prevail over an entire suit in order to recover attorneys' fees for frivolous § 1983 claims. We agree with the Ninth and Eleventh Circuits that "it would `undermine the intent of Congress to allow plaintiffs to prosecute frivolous claims without consequences merely because those claims were joined'" with additional non-frivolous claims.[24] Such a rule would also make a *429 defendant's entitlement to attorneys' fees "depend not upon the district court's review of the merits of a plaintiff's § 1983 claims, but upon how a plaintiff chose to draft his complaint."[25]
However, even though a defendant need not prevail on all claims in a suit to be entitled to attorneys' fees, a defendant is only entitled to attorneys' fees for work which can be distinctly traced to a plaintiff's frivolous claims.[26] Inasmuch as a non-frivolous claim in the same suit can be the basis for the work of a defendant's attorney, the court must consider the interrelated nature of the frivolous and nonfrivolous claims to determine the appropriate fee.[27] We recognize that "[t]here is no precise rule or formula for making these determinations," and much should be left to the district court's equitable discretion.[28] Nevertheless, "we are confident that the district court will be able properly to weigh and assess the amount of attorney's fees attributable exclusively to [a plaintiff's] frivolous ... claim[s]."[29]
In its order awarding Appellees attorneys' fees, the district court noted that "the focus of both plaintiff and defendants was plaintiff's § 1983 claim." The court also noted in the second order that "defendant's [sic] request for attorney's fees relates only to proceedings before this court." Finally, the court noted that "Defendant's [sic] do not appear to request attorney's fees related to the defense of the state law claims remanded for decision to the Louisiana state court." Because the district court specifically restricted its award of attorneys' fees to the proceedings before it, and because the court found that Appellees did not seek attorneys' fees for the defense of the state law claims, we do not find its award of attorneys' fees an abuse of discretion.

III. CONCLUSION
The district court's order granting Appellees attorneys' fees is AFFIRMED.
LESLIE H. SOUTHWICK, Circuit Judge, dissenting:
The majority has ably identified the relevant facts and discussed legal issues that arise with claims for attorneys' fees. My disagreement is narrow, but it has consequence in this case.
*430 I agree with the majority that we should affirm on the finding that the plaintiff continued too long after it became clear that there was no federal case. So some attorneys' fees should be reimbursed. The District Court properly stated that usually a party seeking attorneys' fees must allocate the fees separately between the successful claims and the unsuccessful. That was not done here because the claims were found to be too interrelated. It is at that point that I depart from the reasoning we are affirming.
The standard quoted by the Magistrate Judge was taken from a precedent that applied a Texas statute that allowed attorneys' fees:
The district court did not require that File-Steele segregate its fees into those fees incurred for successful claims and those incurred for unsuccessful claims. Instead, the court found that no segregation was required because the claims arose out of the same transaction and were so interrelated that their prosecution or defense entailed proof or denial of essentially the same facts.
U.S. for Varco Pruden Bldgs. v. Reid & Gary Strickland Co., 161 F.3d 915, 919 (5th Cir.1998). The relevant Texas statute in Varco authorized payment of fees for the collection of a debt. TEX. CIV. PRAC. REM.CODE ANN. § 38.001 (Vernon 1986). The court found an explanation of that fee statute in a state decision. Varco, 161 F.3d at 919 (citing Flint & Assocs. v. Intercont'l Pipe & Steel, Inc., 739 S.W.2d 622 (Tex.App.-Dallas 1987, writ denied)). The Flint court stated that the recoverable fees were only those necessary for the claim for which the statute authorized fees. Flint, 739 S.W.2d at 624. However, fees were also permitted for legal services "rendered in connection with all claims, even if recovery of attorney fees is not authorized for [some of the] claims, if they arise out of the same transaction and are so interrelated that their prosecution or defense entails proof or denial of essentially the same facts." Id. at 624-25.
I find the Magistrate Judge erred in using this standard from a debt collection statute for allowing fees to a creditor, then applying it equivalently to plaintiffs and defendants in civil rights cases. Congress wanted plaintiffs of limited financial means to bring meritorious suits and recover their attorneys' fees, while also permitting defendants to recover fees when the action was "frivolous, unreasonable, or groundless," or, even if not initially clear, the plaintiff continued to litigate the case after its frivolousness was clear. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). No such limitation would likely exist, nor was one mentioned, in Varco or Flint.
We have held that "the standard for awarding attorneys' fees differs if a defendant rather than a plaintiff prevails." White v. South Park Indep. Sch. Dist., 693 F.2d 1163, 1169 (5th Cir.1982). We instead apply a "more rigorous standard for awarding attorney's fees to prevailing defendants." Dean v. Riser, 240 F.3d 505, 508 (5th Cir.2001) (citing Christiansburg, 434 U.S. at 421, 98 S.Ct. 694).
This demanding framework stems from Congress's admonition that plaintiffs in civil rights actions occupy a unique and protected role in vindicating the rights enumerated in Section 1983. See Dean, 240 F.3d at 507. Viewing a civil rights plaintiff as a "private attorney general," we do not permit awards of attorneys' fees against a civil rights plaintiff absent a showing that his suit was "vexatious, frivolous, or otherwise without merit." Id. at 508.
In the debt collection precedent the Magistrate Judge cited, we declined to require the plaintiff to segregate the work *431 done in support of its successful claims from its unsuccessful ones because the work on each was so interrelated as not to be divisible. Varco, 161 F.3d at 919. The majority here does not refer to that same caselaw, but it is the legal standard used by the Magistrate Judge after deciding that the legal work on the various claims could not be disentangled. As I will explain, in my view that was error and it affected the manner in which the facts were analyzed.
The Varco approach is sensible when attorneys' fees are being awarded to plaintiffs. A plaintiff's counsel may perform legal services that support successful and unsuccessful legal theories. When it is factually impossible to allocate the services, requiring a defendant to reimburse them all will assure that a plaintiff is recovering what was necessary to bring the suit, a payment to which the plaintiff is entitled. Any artificial discount because of the interrelated services may lead to less than total fee reimbursement. In such a case, the approach of the Texas debt collection statute makes sense because the interests are the same  allowing a plaintiff fully to recover, including attorneys' fees.
On the other hand, when a defendant has successfully fended off some but not all claims as frivolous, there is still one or more claims for which the defendant has not been found to deserve any attorneys' fees. The plaintiff may well  it has not been resolved  be entitled to bring those claims. So long as the plaintiff's remaining claims are not found to be frivolous, no reimbursement to the defendant for the fees on those claims is permissible even if the plaintiff does not prevail. Consequently, when some claims are dismissed as frivolous and others are not, allowing a defendant full recovery of his fees because the services for the various claims are too interrelated gives too much.
In summary, when work done on a plaintiff's successful and unsuccessful claims is confusingly interrelated, not requiring attorneys' fees awarded to be artificially segregated avoids an unfair discount. Quite differently, using interrelatedness as the reason not to segregate fees awarded to a defendant causes an inequitable windfall. See Blum v. Stenson, 465 U.S. 886, 893-94, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) (Section 1988 should not produce windfalls to attorneys).
In the present case, it appears that almost all the defendant's discovery and factual analysis would have been necessary even if no federal claims had been brought. Generally, the same witnesses would be deposed, the same documents produced, and the same factual disputes resolved. Only the legal work allocable solely or dominantly to the dismissed federal claims was unnecessary.
The suit will proceed now in state court. If the state to which a case such as this is remanded has a fee-shifting statute similar to Section 1988, and if the state claims prove frivolous, the defendant can then recover the fees for the overlapping work performed in federal court. Only then will it be known that the highly interrelated legal services were all on groundless claims. If the plaintiff prevails, then all he recovers is for the legal work necessary to succeed, plus such fees as were too interrelated to allocate with the dismissed federal claims. Finally, if the plaintiff loses but at least the claims are not found to be groundless, no one receives any fee reimbursement.
If there is no fee-shifting statute for the state law claims that operates similarly to Section 1988, then this approach still avoids a windfall. When there is no specific authority for awarding fees, each party bears its own. We would only be enforcing *432 in advance the state's refusal to shift fees.
Accordingly, I would reject the Magistrate Judge's application of the Varco standard to this case. The majority refers to another part of the Magistrate Judge's decision in which she stated that both parties focused throughout litigation on the federal claim. That finding does not affect my view that any fee for services by Vice's counsel that was also necessary for the state claims is not recoverable, no matter what the focus of counsel might have been.
Therefore, I find an abuse of discretion by the district court. See Merced v. Kasson, 577 F.3d 578, 595 (5th Cir.2009). The only fees Fox should be required to pay are those solely applicable to his federal claims. The defendant is entitled to be paid for the legal services necessary to remove the action and now to address the remand, as well as any services uniquely arising from the legal work to have the Section 1983 claims dismissed. If those cannot be segregated from the other fees, then it would appear the defendant's fee records are suspect. If that much can be shown but no other division can be made, then I would end the award there.
Requiring all interrelated fees to be reimbursed intrudes on the right of a civil right's plaintiff to bring a non-frivolous claim without having to pay attorneys' fees to the defense even when the case is unsuccessful.
I respectfully dissent.
NOTES
[1]  This section states, in relevant part, that "[i]n any action or proceeding to enforce a provision of section[] ... 1983 ..., the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs...." 42 U.S.C. § 1988(b).
[2]  This section states, in relevant part, that "[u]nless a federal statute, these rules, or a court order provides otherwise, costs  other than attorney's fees  should be allowed to the prevailing party." FED.R.CIV.P. 54(d)(1).
[3]  577 F.3d 578, 595 (5th Cir.2009).
[4]  519 F.3d 517, 520 (5th Cir.2008).
[5]  449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980) (citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978)).
[6]  549 F.3d 985, 997 (5th Cir.2008).
[7]  See FED.R.CIV.P. 54(d)(1).
[8]  240 F.3d 505, 508 (5th Cir.2001).
[9]  532 U.S. 598, 603-04, 121 S.Ct. 1835, 1839-40, 149 L.Ed.2d 855 (2001) (judgment on the merits altering legal relationship of parties establishes a prevailing party).
[10]  891 F.2d 533, 539 (5th Cir.1990) (dismissal with prejudice is tantamount to judgment on the merits, rendering defendants prevailing parties for costs purposes under Rule 54).
[11]  617 F.2d 1164, 1169-70 (5th Cir.1980) (dismissal of claims with prejudice is an adjudication on the merits for purposes of res judicata, making defendant a prevailing party)
[12]  See Dean, 240 F.3d at 511.
[13]  See FED.R.CIV.P. 41(a) (allowing plaintiff to dismiss claims before opposing party files answer or motion for summary judgment).
[14]  See Dean, 240 F.3d at 510 (stating potentially valid grounds for voluntarily dropping federal claims).
[15]  Id. at 510 (quoting Christiansburg, 434 U.S. at 420, 98 S.Ct. at 694).
[16]  211 F.3d 289, 292 (5th Cir.2000).
[17]  Christiansburg, 434 U.S. at 421-22, 98 S.Ct. at 700 (emphasis in original).
[18]  Stover, 549 F.3d at 997-98 (quoting Jones v. Tex. Tech Univ., 656 F.2d 1137, 1145 (5th Cir.1981)).
[19]  Fox attempts to argue in his appellate brief that the evidence provided through discovery actually provided federal grounds for relief pursuant to § 1983. Because Fox abandoned these arguments at the district court, we will not consider them now. See Martinez v. Tex. Dep't of Criminal Justice, 300 F.3d 567, 574 (5th Cir.2002) (noting the general rule that "failure to timely raise an issue in district court waives that issue on appeal").
[20]  Hensley v. Eckerhart, 461 U.S. 424, 429 n. 2, 103 S.Ct. 1933, 1937 n. 2, 76 L.Ed.2d 40 (1983).
[21]  Hughes, 449 U.S. at 14, 101 S.Ct. at 178.
[22]  Christiansburg, 434 U.S. at 421-22, 98 S.Ct. at 700.
[23]  Compare Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1064 (9th Cir.2006); Quintana v. Jenne, 414 F.3d 1306, 1312 (11th Cir.2005); Ward v. Hickey, 996 F.2d 448, 455-56 (1st Cir.1993); Curry v. A.H. Robins Co., 775 F.2d 212, 220-21 (7th Cir.1985); Lotz Realty Co. v. United States Dep't of Hous. & Urban Dev., 717 F.2d 929, 931 (4th Cir.1983) with Balmer v. HCA, Inc., 423 F.3d 606, 616-17 (6th Cir.2005); Colombrito v. Kelly, 764 F.2d 122, 132 (2d Cir.1985).
[24]  Tutor-Saliba Corp., 452 F.3d at 1064 (quoting Quintana, 414 F.3d at 1312). The courts in Tutor-Saliba and Quintana addressed situations where the non-frivolous claims were ultimately unsuccessful. See Tutor-Saliba Corp., 452 F.3d at 1064; Quintana, 414 F.3d at 1312. However, we hold that the ultimate success of a non-frivolous claim is not dispositive of whether the defendant is entitled to attorneys' fees on a frivolous claim, particularly when the remaining claims are no longer under the federal court's jurisdiction. See Head v. Medford, 62 F.3d 351, 356 (11th Cir. 1995) (defendants potentially entitled to attorneys' fees on frivolous civil rights claims when district court declines supplemental jurisdiction over state-law claims and dismisses them).
[25]  Tutor-Saliba Corp., 452 F.3d at 1064. Our holding is reinforced by dicta in Hensley, where the Supreme Court stated that a defendant may recover attorneys' fees incurred in responding to a frivolous claim when a plaintiff also brought unrelated and presumably non-frivolous claims in the same suit. See Hensley, 461 U.S. at 435 & n. 10, 103 S.Ct. at 1940 & n. 10.
[26]  Cf. Hensley, 461 U.S. at 434-35, 103 S.Ct. at 1940 (noting that a plaintiff may not seek fees for work on unsuccessful claims that are not related to the plaintiff's § 1983 claims).
[27]  See Ward, 996 F.2d at 455-56 (noting that a district court may not deny fees "because calculation would be difficult" or use interrelation of claims as grounds "not to grant any fees").
[28]  Hensley, 461 U.S. at 436-37, 103 S.Ct. at 1941.
[29]  Quintana, 414 F.3d at 1312.


     Case: 11-31098     Document: 00511959350         Page: 1     Date Filed: 08/16/2012

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          August 16, 2012
                                     No. 11-31098
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CALVIN ODOM, also known as Butch Wilson, also known as Calvin Odon,

                                                  Defendant-Appellant

                   Appeals from the United States District Court
                       for the Western District of Louisiana
                             USDC No. 5:00-CR-50050

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Calvin Odom, federal prisoner # 16638-112, has filed a motion for leave to
proceed in forma pauperis (IFP) on appeal from the district court’s denial of his
18 U.S.C. § 3582(c)(2) motion for a reduction in sentence based on Amendment
706 to § 2D1.1 of the United States Sentencing Guidelines. He currently is
serving a life sentence for conspiring to commit money laundering and
conspiring to possess with intent to distribute fifty or more grams of cocaine base
and five or more kilograms of cocaine.

       *
         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.
   Case: 11-31098    Document: 00511959350      Page: 2    Date Filed: 08/16/2012

                                  No. 11-31098

      The district court determined that Odom was not eligible for a § 3582(c)(2)
reduction in his sentence because Amendment 706 did not have the effect of
lowering his guidelines range of imprisonment. Odom acknowledges that fact
but argues that the district court should have granted his § 3582(c)(2) motion
based on consideration of the 18 U.S.C. § 3553(a) factors. Citing the “unique
circumstances of [his] case,” he contends that “failure to reduce his sentence
resulted in the district court’s sanctioning of a draconian and discriminatory
punishment [that violated his] rights to equal protection and due process.”
Odom asserts that his sentence was unduly harsh because it was calculated in
violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), based on an amount of
crack cocaine that was neither alleged in the indictment nor established beyond
a reasonable doubt and because he was sentenced at a time when the Guidelines
unjustly applied a 100:1 ratio in calculating sentences for defendants convicted
of crimes involving crack cocaine as opposed to powder cocaine.
      Because Amendment 706 did not have the effect of lowering Odom’s
applicable guidelines range, Odom was ineligible for a sentence reduction under
§ 3582(c)(2) as a matter of law. See U.S.S.G. § 1B1.10(a)(2)(B). Thus, the
district court had no cause to determine whether a sentence reduction would be
appropriate in light of the relevant § 3553(a) factors. See Dillon v. United States,
130 S. Ct. 2683, 2691-92 (2010). Moreover, Odom’s arguments challenged
aspects of his original sentence that were not affected by Amendment 706 and
were not cognizable in a § 3582(c)(2) proceeding.           See United States v.
Hernandez, 645 F.3d 709, 711-12 (5th Cir. 2011).
      Odom has not shown that he will present a nonfrivolous issue with respect
to the district court’s denial of his § 3582(c)(2) motion. See Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983). Accordingly, Odom’s motion for leave to proceed
IFP on appeal is DENIED, and the appeal is DISMISSED. See 5TH CIR. R. 42.2.

                                         2


           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

584
KA 16-00350
PRESENT: CENTRA, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND SCUDDER, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

KASIM SAKINOVIC, DEFENDANT-APPELLANT.

JOHN J. RASPANTE, UTICA, FOR DEFENDANT-APPELLANT.

JEFFREY S. CARPENTER, DISTRICT ATTORNEY, HERKIMER (JACQUELYN M. ASNOE
OF COUNSEL), FOR RESPONDENT.

     Appeal from a judgment of the Herkimer County Court (John H.
Crandall, J.), rendered December 16, 2014. The judgment convicted
defendant, upon his plea of guilty, of burglary in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him, upon his
plea of guilty, of burglary in the second degree (Penal Law § 140.25
[2]), defendant contends that County Court abused its discretion in
determining that granting defendant youthful offender status would not
serve the interest of justice. We reject that contention (see CPL
720.20 [1] [a]; People v Agee, 140 AD3d 1704, 1704-1705, lv denied 28
NY3d 925), and we decline to exercise our interest of justice
jurisdiction to adjudicate defendant a youthful offender (see Agee,
140 AD3d at 1704-1705). Contrary to defendant’s further contention,
the agreed-upon sentence is not unduly harsh or severe.

Entered:    April 28, 2017                         Frances E. Cafarell
                                                   Clerk of the Court


                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-10-00234-CR
        ______________________________

         THE STATE OF TEXAS, Appellant

                          V.

           MISTY LYNN DILL, Appellee

      On Appeal from the County Court at Law
              Fannin County, Texas
              Trial Court No. 45056

     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Moseley
                                                OPINION

         The State of Texas has appealed the grant of relief under an application for writ of habeas

corpus which was filed pretrial by Misty Lynn Dill. Dill had claimed that the State’s information

alleging misdemeanor theft was barred because it exposed her to double jeopardy. 1 Because we

find the State’s prosecution does not expose Dill to double jeopardy, we reverse the trial court’s

order.

Underlying Facts

         Dill was charged in trial cause number 44613 with theft, alleging that she had stolen ―food

and personal hygiene products‖ from Wal-Mart Supercenter and, with leave of the trial court,

amended the information to reflect the owner of the purloined property to be Shane Hilger. 2 At

trial, however, the testimony was that Dill had taken dog treats, dog nail clippers, a bottle of hair

coloring, and various items of makeup––secreting them on her person and about the scooter in

which she was riding while shopping––not paying for them. The trial court determined that the

State had failed to prove that Dill had taken the alleged food and personal hygiene products as

alleged in the information and granted Dill’s motion for a directed verdict of not guilty.

1
 See U.S. CONST. amend. V; TEX. CONST. art. I, § 14. The United States Constitution’s Fifth Amendment’s double
jeopardy protection applies to the states through the Fourteenth Amendment. See Benton v. Maryland, 395 U.S. 784,
794 (1969). The United States and Texas Constitutions provide substantially identical double jeopardy protection.
See Ex parte Mitchell, 977 S.W.2d 575, 580 (Tex. Crim. App. 1997).
2
 Hilger testified at Dill’s first trial that he was an asset protection manager for Wal-Mart. Such allegation of
ownership is permissible. See TEX. CODE CRIM. PROC. ANN. art. 21.08 (West 2009); Harrell v. State, 852 S.W.2d
521, 523 (Tex. Crim. App. 1993).

                                                       2
       Responding to the directed verdict, the State then filed a second information in trial cause

number 45056; this information once again alleged theft from Hilger on the same date as the first

information, but alleged that the stolen merchandise was makeup, not the items previously alleged.

       Dill filed a pretrial request for habeas corpus relief, claiming that the allegations in the

second information would involve the same evidence and proof of the same matters and conduct

that had resulted in the earlier directed verdict. Based on this, Dill claimed that she was being

subjected to double jeopardy. The trial court granted the requested relief and the State has

appealed that determination.

Same Offense?

       Dill argues that subjecting her to trial under the State’s second information (alleging theft

of makeup) would amount to trial for the same offense for which the trial court previously directed

a verdict of not guilty (i.e., the alleged theft of food and personal hygiene products). The Double

Jeopardy Clause protects against three different circumstances: (1) a second prosecution for the

same offense after acquittal; (2) a second prosecution for the same offense after conviction; and

(3) multiple punishments for the same offense. Bigon v. State, 252 S.W.3d 360, 369 (Tex. Crim.

App. 2008).

       Based on the statements by the parties in the trial court during argument in the court below

and at oral argument before this Court, on the reporter’s record of the previous trial, and on the

parties’ briefs, it appears virtually certain that a second trial would involve evidence which was

                                                 3
almost identical to that presented in Dill’s first trial, a trial which ended with a directed verdict. In

order to meet the burden of proof for the second information, the State would have to prove that

Dill unlawfully appropriated makeup which had a value of $50.00 or more, but less than $500.00

from Hilger, without Hilger’s effective consent with the intent to deprive Hilger of the named

property. At the first trial, the State offered evidence of all those elements; the problem arose

because (using the apparently archaic phrase which was usually employed in civil cases) there

arose a ―fatal variance in the allegata and probata.‖ Amsler v. D. S. Cage & Co., 247 S.W. 669,

671 (Tex. Civ. App.—Beaumont 1923, no writ). That is, because the information upon which the

first trial was held alleged the property taken was food and personal hygiene products, but the

evidence proffered involved something other than food and personal hygiene products being

taken.

         It is unquestioned that Dill’s double jeopardy rights protect her against a subsequent

prosecution for the same offense following the trial court’s rendition of a directed verdict in her

favor. The central question to be resolved is whether trying Dill for theft of makeup (after

jeopardy had attached regarding the charge that she had taken food and personal hygiene products)

amounts to a prosecution for the same offense, where all of the thefts are alleged to have occurred

at the same time and place from the same owner.3 We find it would not. Accordingly, we will

reverse the trial court’s order.

3
 The crux of Dill’s argument, before the trial court and this Court, is that because the same items allegedly stolen, in
the same incident occurring at the same time, are the basis of the criminal allegations, the second information charges

                                                           4
            The defendants in Bailey v. State4 were accused of theft from the City of Houston. It was

alleged the defendants, workers on construction projects, committed theft 5 by falsifying time

sheets which they submitted. Although the indictment alleged that the City of Houston was the

theft victim, the evidence at trial instead proved that the owner of the company with whom the city

contracted (not the City of Houston) made payments to the defendants. Thus, the actual victim of

the thefts was the contractor, not the City of Houston. Bailey, 87 S.W.3d at 125. The State

subsequently reindicted, alleging the owner of the property to be the contractor. ―Traditionally,

courts in Texas have held that an acquittal because of a variance between the pleading and the

proof does not bar reprosecution on a new charge alleging that version of the offense which the

State’s evidence proved in the first trial.‖ Id. at 126–27 (citations omitted). The Bailey court

found the two allegations (the first charging the defendants with theft from the city and the second

charging them with theft from the contractor) were not the same offense for double jeopardy

the same conduct as was alleged in the first trial. Thus, argues Dill, she cannot be subjected to prosecution for the
same conduct as she was found not guilty of at the first trial. This ―same conduct‖ theory of double jeopardy
protection has been rejected by the United States Supreme Court. United States v. Dixon, 509 U.S. 688, 704, 711
(1993).
4
    87 S.W.3d 122 (Tex. Crim. App. 2002).
5
    The defendants were also charged with engaging in organized criminal activity. Id. at 124.

                                                           5
purposes. Id. at 127 (citing Fulmer v. State, 731 S.W.2d 943, 948 (Tex. Crim. App. 1987)

(Clinton, J., concurring) (opinion adopted by majority)).6

        Although not deciding a claim of double jeopardy, we also find instructive Byrd v. State,

336 S.W.3d 242 (Tex. Crim. App. 2011). Byrd was charged with stealing various items from

Morales; no evidence was presented at trial to connect Morales with Wal-Mart, the store from

which the items were stolen. Writing for the unanimous Texas Court of Criminal Appeals, Judge

Cochran discussed the importance and degrees of variances between allegations in charging

instruments and proof at trial: ―Variances are mistakes of one sort or another. Sometimes they

make no difference at all, sometimes they make all the difference.‖ Id. at 246. Proving a

defendant killed an entirely different victim than was named in the indictment would be ―a big

mistake.‖ Id. But if, instead, the proof amounted only to a slight difference in the victim’s

correct name (e.g., that the defendant killed Don McGrew when it was alleged the victim’s name

was Dan McGrew or Dan Magoo), such variances would be deemed ―little mistakes, generally not

likely to prejudice a defendant’s substantial rights by either (1) failing to give him notice of who it

was he allegedly killed, or (2) allowing a second murder prosecution for killing the same person

with a different spelling of his name.‖ Id. at 247. 7 The Texas Court of Criminal Appeals

6
  We obviously are aware of Judge Keasler’s thorough and reasoned dissent in Bailey, pointing out potential
inconsistencies with other cases and criticizing the majority’s reasoning and holding. Nonetheless, the Bailey
opinion, as well as United States v. Dixon, 509 U.S. 688 (1993), are the precedential authorities here.
7
  Cf. Fuller v. State, 73 S.W.3d 250 (Tex. Crim. App. 2002) (defendant indicted for injuring Olen M. Fuller; the
witnesses, though, only referred to the victim as ―Mr. Fuller‖ or ―Buddy,‖ and the State offered no proof the victim
was Olen M. Fuller; held to be immaterial variance).

                                                         6
concluded that Byrd involved a failure of proof; in other words, the State failed to prove what it

had alleged. Id. at 258. Although double jeopardy was not the primary issue in the Byrd case,

the reasoning and some statements in the opinion strongly indicate that the State could prosecute

Byrd if it were to allege Wal-Mart as the victim.8

         We find that the State’s second information, charging Dill with theft of makeup, was not

barred by prosecution of the previous case against Dill. The allegation in the second information

charged Dill with a different theft than the theft alleged in the first information.9

         We reverse the trial court’s order and remand this case to that court for further proceedings

not inconsistent with this opinion.

                                                       Bailey C. Moseley
                                                       Justice

Date Submitted:            June 29, 2011
Date Decided:              July 21, 2011

Publish

8
 The court’s long discussion and reliance upon Bailey’s reasoning suggests this; as does the opinion’s statement that
the extant information, ―coupled with the trial transcript, [would not] prevent the State from charging [Byrd] with a
theft from Wal-Mart or one of the loss prevention officers who testified at trial.‖ Byrd, 336 S.W.3d at 254–55.
9
 See Swindel v. State, 32 Tex. 102, 103–04 (1869) (defendant acquitted for theft of horse; subsequent charge of theft of
gelding held not to be barred). Dill attempts to distinguish Swindel by saying, ―[T]here is no specific statute creating
a separate crime for the stealing of cosmetics as opposed to personal hygiene products as the trial court
understood. . . . The two are not separate parts of the statute as horse and gelding hence Swindel is not applicable.‖
We do not find this distinction persuasive.

                                                           7


        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

390
CA 13-01737
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND WHALEN, JJ.

HECTOR ORTIZ AND MARIA SANTOS, FORMERLY KNOWN
AS MARIA ORTIZ, AS PARENT AND NATURAL GUARDIAN
OF JAZMINE CASADO, AN INFANT UNDER THE AGE OF
EIGHTEEN, PLAINTIFFS-RESPONDENTS,

                    V                              MEMORANDUM AND ORDER

GARY P. LEHMANN, INDIVIDUALLY AND DOING BUSINESS
AS HERITAGE DEVELOPMENT CORPORATION,
DEFENDANT-RESPONDENT,
GENESEE VALLEY GROUP, LTD., DEFENDANT-APPELLANT,
AND HERITAGE DEVELOPMENT CORPORATION, DEFENDANT.

SCHNITTER CICCARELLI MILLS PLLC, EAST AMHERST (PATRICIA S. CICCARELLI
OF COUNSEL), FOR DEFENDANT-APPELLANT.

LIPSITZ & PONTERIO, LLC, BUFFALO (ZACHARY JAMES WOODS OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.

WOODS OVIATT GILMAN LLP, ROCHESTER (GRETA KATRIN KOLCON OF COUNSEL),
FOR DEFENDANT-RESPONDENT.

     Appeal from an order of the Supreme Court, Monroe County (John J.
Ark, J.), entered January 11, 2013. The order denied the motion of
defendant Genesee Valley Group, Ltd. for summary judgment seeking
dismissal of the plaintiffs’ claims against it and dismissal of the
cross claim asserted by defendant Gary P. Lehmann, individually and
doing business as Heritage Development Corporation.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries allegedly sustained by plaintiff Hector Ortiz and Jazmine
Casado, an infant under the age of 18, between 1994 and 1997 as a
result of exposure to lead paint while residing in a rental unit in
Rochester that was owned by defendant Heritage Development Corporation
(Heritage) and managed by defendant Genesee Valley Group, Ltd. (GVG).
At all times relevant, defendant Gary P. Lehmann was the president of
Heritage and one of two shareholders. During the occupancy of the
rental unit by Hector and Jazmine, Heritage retained GVG to provide
real property management services. In April 1994, the Monroe County
Department of Health (DOH) issued a lead paint violation notice to
Heritage and GVG. On June 23, 1994, following abatement by GVG in May
                                 -2-                           390
                                                         CA 13-01737

1994, DOH confirmed that lead paint violations at the unit had been
“corrected.” However, blood lead level tests performed on Hector and
Jazmine on June 7, 1994 indicated increases from tests conducted prior
to the abatement process performed by GVG.

     In a single cause of action, plaintiffs asserted claims for
negligent ownership and maintenance of the premises, as well as
negligent abatement of the lead paint hazard. GVG moved for summary
judgment dismissing the complaint and Lehmann’s cross claim for
contribution and/or indemnification on the ground that it did not own
or exclusively control the rental unit or perform any affirmative act
of negligence with respect thereto. Supreme Court denied the motion.

     Contrary to GVG’s contention, the court properly denied that part
of its motion for summary judgment dismissing plaintiffs’ claim based
on nonfeasance and Lehmann’s cross claim. There are issues of fact
concerning the scope and extent of GVG’s control over the property,
which if “complete and exclusive” could render GVG liable for
nonfeasance in abating the lead-based paint condition (see Ortiz v Gun
Hill Mgt., Inc., 81 AD3d 512, 513; German v Bronx United in Leveraging
Dollars, 258 AD2d 251, 252).

     Also contrary to GVG’s contention, the court properly denied that
part of its motion seeking summary judgment dismissing the claim for
negligent abatement of the lead-based paint hazard. A managing agent
may be liable for affirmative acts of negligence, such as negligent
lead paint abatement, notwithstanding a lack of ownership or exclusive
control (see Jones v Park Realty, 168 AD2d 945, 946, affd 79 NY2d
795), and GVG failed to meet its initial burden of establishing that
it performed no affirmative acts of negligence in its paint abatement
efforts. Even assuming, arguendo, that GVG met its initial burden
with respect to that claim, we conclude that the evidence submitted by
plaintiffs raised triable issues of fact whether GVG took reasonable
measures to abate the lead paint hazard after it received actual
notice thereof and whether plaintiffs sustained additional injuries
after GVG received such notice (see Pagan v Rafter, 107 AD3d 1505,
1506-1507). We therefore conclude that the court properly denied
GVG’s motion in its entirety.

Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court


598 P.2d 138 (1979)
COUNTY OF CLEARWATER, MINNESOTA, Petitioner,
v.
Richard PETRASH, Respondent.
No. C-1764.
Supreme Court of Colorado, En Banc.
July 23, 1979.
Rehearing Denied August 20, 1979.
Robert R. Gallagher, Jr., Dist. Atty., 18th Judicial District, Ray L. Weaver, Chief Deputy Dist. Atty., Littleton, for petitioner.
Madsen & Rome, P. C., Gerald M. Madsen, Littleton, for respondent.
ERICKSON, Justice.
We granted certiorari to review the decision of the court of appeals that a violation by one parent of the terms of a custody decree may be raised as a defense in an *139 action against the other parent to obtain support under the Uniform Reciprocal Enforcement of Support Act, sections 14-5-101, et seq., C.R.S.1973 (1978 Supp.). County of Clearwater, Minnesota v. Petrash, Colo.App., 589 P.2d 1370 (1979). We reverse, and remand for further proceedings.

I
Richard and Kathryn Petrash were married in 1961. Three children were born of that marriage. Richard and Kathryn were divorced in 1971. Custody of the three children was awarded to Richard by decree of the Arapahoe County district court. Both parties remarried. Kathryn moved to Minnesota.
In June, 1974, the eldest child traveled to Minnesota to live with Kathryn. The child still resides in Minnesota. Richard did not initiate legal action to secure the child's return. It does not appear from the record that Richard has paid support for the child since June, 1974. Kathryn obtained public assistance from Clearwater County, Minnesota, to provide that support.
In November of 1974 and January of 1976, Clearwater County initiated actions in Minnesota under the Uniform Reciprocal Enforcement of Support Act (URESA) in order to obtain a decree from the Arapahoe County district court to secure reimbursement from Richard for support already provided, and to obtain future continuing support for the child. Both actions were dismissed by that court on the ground that Kathryn had violated the custody decree by refusing to return the child to Richard, and that in such circumstances no action for support under URESA could be brought against Richard. Neither of the dismissal orders was appealed.
In April of 1976, the Clearwater County court found that the child was a "neglected child" and ordered custody of the child to be transferred to the Clearwater County Welfare Board. Richard contended before the court of appeals that Minnesota lacked jurisdiction to effect that transfer of custody, but that issue is not before us for review. The Welfare Board placed the child with Kathryn, and brought this URESA action, seeking reimbursement for past support and to obtain future support for the child.
The Arapahoe County district court dismissed the action. The court of appeals affirmed in part and reversed in part. County of Clearwater, Minnesota v. Petrash, supra. We granted certiorari to review the court of appeals' determination that Kathryn's alleged violation of the Colorado decree awarding custody of the child to Richard may be raised as a defense in an action under URESA to obtain support for the child from Richard. C.A.R. 53(a)(3). We reverse.

II
There is no disagreement among the parties that, absent some compelling reason to the contrary, parents have an obligation to support their children. McQuade v. McQuade, 144 Colo. 11, 354 P.2d 597 (1960); Graham v. Graham, 38 Colo. 453, 88 P. 852 (1906). However, on the question whether the duty of one parent to support his[1] children may be discharged by the misconduct of the other parent, the decisions of this court and of the court of appeals are not wholly reconcilable. Compare, Grosso v. District Court, 149 Colo. 183, 368 P.2d 561 (1962); Scheer v. District Court, 147 Colo. 265, 363 P.2d 1059 (1961); McQuade v. McQuade, supra, and Vigil v. Vigil, 30 Colo. App. 452, 494 P.2d 609 (1970), with Griffith v. Griffith, 152 Colo. 292, 381 P.2d 455 (1963).
We are of the opinion that the better reasoned view is that a child's right to support is unaffected by the misconduct of his parents. "Certainly the dissensions of the parents shall not deprive their children of the right to support commensurate with the (parents') means and station in life." McQuade v. McQuade, supra. When matters concerning children appear before the courts, the welfare and best interests of the child are of paramount importance. *140 See, e. g., Fry v. Ball, 190 Colo. 128, 544 P.2d 402 (1975); Smith v. Organization of Foster Families, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977). A parent's right to the company and affection of his child is of great value, Reiter v. Reiter, 225 Ark. 157, 278 S.W.2d 644 (1955), and an aggrieved parent is not without remedies to ensure compliance with custody orders. See, the Uniform Child Custody Jurisdiction Act, sections 14-13-101, et seq., C.R.S.1973 (1978 Supp.); URESA, section 14-5-104, C.R.S. 1973. But when a child is in need of support, questions relating to custody are immaterial. Reiter v. Reiter, supra.
We note the better reasoned decisions of the courts of other states are in accord with our view. See, Reiter v. Reiter, supra; Gaidos v. Gaidos, 48 Wash.2d 276, 293 P.2d 388 (1956).

III
We are also supported in our decision by what we perceive to be the intent of the legislature to make matters relating to child support and child custody independent of each other.
The Uniform Dissolution of Marriage Act, section 14-10-121, C.R.S.1973 provides:
"Independence of provisions of decree or temporary order. If a party fails to comply with a provision of a decree or temporary order or injunction, the obligation of the other party to make payments for support or maintenance or to permit visitation is not suspended; but he may move the court to grant an appropriate order." (Emphasis added)
The Uniform Reciprocal Enforcement of Support Act, section 14-5-124, C.R.S.1973 (1978 Supp.) provides, in part, that:
"If the action is based on a support order issued by another court, a certified copy of the order shall be received as evidence of the duty of support, subject only to any defenses available to an obligor with respect to parentage or to a defendant in an action or a proceeding to enforce a foreign money judgment. The determination or enforcement of a duty of support owed to one obligee shall be unaffected by any interference by another obligee with rights of custody or visitation granted by a court." (Emphasis added)
Thus, if the present action had arisen because either the County of Clearwater or Kathryn[2] had attempted to use the procedures provided by URESA to enforce the terms of a support decree already entered, section 14-5-124 would prevent Richard from raising Kathryn's alleged violation of the terms of a prior or subsequent custody decree as a defense in this action. It would be anomalous indeed if Richard were allowed to raise that defense here, merely because the appellant in this case is attempting to obtain a new support order through use of the URESA procedures, rather than attempting to enforce the support decree of another court through those same procedures.
Accordingly, that part of the court of appeals' decision which is before us for review is reversed, and the cause remanded for further proceedings not inconsistent with this decision.
GROVES and ROVIRA, JJ., dissent.
CARRIGAN, J., did not participate.
NOTES
[1]  This duty, of course, is incumbent upon both parties. See, Colo.Const., Art. II, Sec. 29.
[2]  It is immaterial that Clearwarter County, rather than Kathryn, is attempting to secure a support order against Richard. See, section 14-5-109, C.R.S.1973.