731 P.2d 582 (1987)
Mark SHINDLE, Appellant,
v.
STATE of Alaska, Appellee.
No. A-1070.
Court of Appeals of Alaska.
January 16, 1987.
As Amended on Denial of Rehearing February 4, 1987.
*583 John M. Murtagh, Anchorage, for appellant.
James V. Gould, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for appellee.
Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION
BRYNER, Chief Judge.
After a non-jury trial before Superior Court Judge Karl Johnstone, Mark Shindle was convicted of one count of misconduct involving a controlled substance in the fourth degree (possession of cocaine), and three counts of misconduct involving a controlled substance in the third degree (sale or possession for sale of cocaine). He appeals, contending that the trial court erred in failing to suppress certain evidence, because the police failed to record statements that Shindle made following his arrest. Shindle also contends that there was insufficient evidence to sustain his conviction on one of the charges. We affirm.
Shindle was arrested at the Big Timber Motel in Anchorage after an investigation by the Metropolitan Drug Enforcement Unit (Metro) revealed that a room at the motel was being used for distribution of cocaine. Shindle's arrest was recorded by his arresting officer. After being arrested, Shindle was held at the motel while Metro officers completed their on-the-scene investigation. Approximately fifty minutes after being arrested, while still at the motel, Shindle executed a written waiver of his fourth amendment rights, authorizing Metro officers to conduct warrantless searches of Shindle's house and of his pickup truck. After consenting to the searches, Shindle gave a statement describing his involvement in the cocaine distribution scheme. Shindle's statement was recorded. However, during the fifty-minute interval between Shindle's arrest and his statement, no recordings were made. Thus, conversations between Shindle and the police dealing with Shindle's execution of the fourth amendment waivers were not recorded.
Prior to trial, Shindle moved to suppress his statement, as well as evidence seized from his truck and his house. In an affidavit, Shindle claimed that his consent to the searches was not voluntary. According to Shindle, Metro officers improperly induced him to waive his fourth amendment rights by threatening to forfeit his truck and to arrest his girlfriend if he refused. Shindle also claimed that his only reason for giving the police a statement was that he had already consented to searches that he knew would yield incriminating evidence: "Once I signed the consent papers, I felt I might as well make a statement since they [the police] were getting the evidence."
Following an evidentiary hearing, the superior court denied Shindle's motion to suppress. The court relied on the testimony of Shindle's arresting officers, who denied making any threats. According to the officers, before executing the waivers, Shindle asked if his truck would be forfeited after it was searched and if his girlfriend would be arrested when his house was searched. In response to these inquiries, the officers assured Shindle that, if he consented to the searches, his truck would not be forfeited and his girlfriend would not be arrested.
Judge Johnstone's reliance on the officers' suppression hearing testimony was expressly objected to by Shindle. During the suppression hearing, the officers had acknowledged that they could have recorded all of their conversations with Shindle. Apart from the testimony of one officer that he turned off his recorder after Shindle's arrest and had "no particular reason" for not recording the ensuing conversations, no explanation was offered for the failure to record. In urging the superior court to grant his suppression motion, Shindle argued that the officers' unexplained failure to record rendered their testimony *584 unbelievable, requiring suppression of the challenged evidence.
This argument, reinforced by the intervening opinion in Stephan v. State, 711 P.2d 1156 (Alaska 1985), is renewed by Shindle on appeal.
In Stephan, the Alaska Supreme Court held that the due process clause of the Alaska Constitution requires police officers, when feasible, to record custodial interrogations occurring in places of detention:
In summary, the rule that we adopt today requires that custodial interrogations in a place of detention, including the giving of the accused's Miranda rights, must be electronically recorded. To satisfy this due process requirement, the recording must clearly indicate that it recounts the entire interview. Thus, explanations should be given at the beginning, the end and before and after any interruptions in the recording, so that courts are not left to speculate about what took place.
Since its announcement, the Mallott [Mallot v. State, 608 P.2d 737, 743 n. 5 (Alaska 1980) (stating that as part of their duty to preserve evidence, the police are obligated to record any questioning)] rule has always included a proviso, "when feasible." The failure to electronically record an entire custodial interrogation will, therefore, be considered a violation of the rule, and subject to exclusion, only if the failure is unexcused.

Stephan, 711 P.2d at 1162 (emphasis in the original). The court in Stephan went on to hold that violation of this rule would result in suppression. Id. at 1163-65.
In the present case, Shindle acknowledges that his arrest occurred before the supreme court decided Stephan. He nevertheless maintains that he should receive the benefit of that decision. The state vigorously opposes this argument, insisting that Stephan should be given effect only prospectively.
There may well be strong arguments for giving at least partially retrospective application to the rule adopted in Stephan. See Farleigh v. Anchorage, 728 P.2d 637, (Alaska, 1986) (giving partially prospective application to a rule requiring the police, as a matter of due process, to preserve breath samples in DWI cases where a breathalyzer test is administered). However, in the present case, we find it unnecessary to resolve the issue of retrospectivity, because Shindle's case falls outside the Stephan rule in at least three respects.
The first, and perhaps the most obvious, reason Shindle's case does not qualify under the Stephan rule is that Shindle's waivers were executed at the scene of his arrest in the Big Timber Motel. The Stephan rule "applies only to custodial interrogations conducted in a place of detention, such as a police station or jail... ." Stephan at 1165 n. 33 (emphasis omitted). Since Shindle was not in a place of detention, his case fails to comply with the literal requirements of Stephan.
Second, Shindle does not directly challenge the voluntariness of his confession. He argues that his fourth amendment waivers were induced by improper threats and that electronic recording would have cast light on the voluntariness of those waivers. Although Shindle seeks suppression of the statement he made to the police, this claim hinges solely on the allegation that the statement was a fruit of the coerced fourth amendment waivers. In his affidavit, Shindle merely asserts that, after consenting to warrantless searches of his house and his truck, he thought that he "might as well" make a statement.
In contrast to Shindle's situation, the focus of the Stephan rule is on the importance of assuring that confessions are voluntarily made. While the court in Stephan did not expressly limit the rule it adopted to cases involving the voluntariness of a confession, the court's discussion makes it clear that the court's primary concern was with the problem of involuntary confessions and the related fifth and sixth amendment violations:

*585 In the absence of an accurate record, the accused may suffer an infringement upon his right to remain silent and to have counsel present during the interrogation. Also, his right to a fair trial may be violated, if an illegally obtained, and possibly false, confession is subsequently admitted.
Stephan, 711 P.2d at 1161. See also id., at 1158 n. 5, 1160 n. 12, and 1161 n. 15.
The Stephan court's focus on the problem of involuntary confessions is understandable, for, unlike fourth amendment violations, violations of the fifth and sixth amendment that result in involuntary confessions directly implicate the integrity of the verdict at trial. As the Stephan court put it, recording in such cases is "essential to the adequate protection of the accused's right to counsel, his right against self incrimination, and, ultimately, his right to a fair trial." Id. at 1159-60 (footnotes omitted).
Claims based solely on alleged violations of fourth amendment rights do not call into question the accuracy of the jury's verdict. The suppression rule in fourth amendment cases is founded on considerations of policy extrinsic to the integrity of the fact finding process. See, e.g., Moreau v. State, 588 P.2d 275 (Alaska 1978). Thus, the due process rationale relied on in Stephan is not directly applicable where the only disputed issue is one relating to the violation of the defendant's fourth amendment rights.
A third, closely related, feature distinguishing this case from Stephan is the absence of police interrogation. The Stephan rule applies only to custodial interrogations. Although Shindle was unquestionably in custody, his fourth amendment waivers were not induced in the course of police interrogation. The waivers were not the product of an interview in which the police sought to obtain incriminatory statements from Shindle. By his own account, Shindle waived his rights because the police pressured him to consent to warrantless searches, not because they pressured him for information.[1] Absent an attempt to elicit involuntary statements, efforts by the police to obtain a fourth amendment waiver do not constitute interrogation. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 232-33, 93 S.Ct. 2041, 2050, 36 L.Ed.2d 854 (1973); Frink v. State, 597 P.2d 154, 169 (Alaska 1979). Accordingly, the Stephan requirement of custodial interrogation was not present in this case.
Assuming Stephan were given retrospective application, each of the three factors distinguishing Shindle from Stephan, if considered alone, might be insufficient to preclude application of Stephan to this case. When these three differences are viewed together, however, they are of sufficient magnitude to preclude relief under Stephan. The rule adopted in Stephan reflects a careful balancing of competing interests. Although the Stephan court acknowledged that it might be necessary to expand the rule in future cases, it made clear its view that any such expansion is to be undertaken cautiously, and only if the need for expansion is demonstrated by experience with the current rule:

Caveat. We recognize that many custodial interrogations must take place in the field, where recording may not be feasible. Because of this, the rule that we announced today has limited application; it applies only to custodial interrogations conducted in a place of detention such as a police station or jail, where it is reasonable to assume that recording equipment is available, or can be made available with little effort. In a future case, however, we may be persuaded to extend the application of this rule, particularly if it appears that law enforcement officials are engaging in bad faith efforts to circumvent the recording requirements set forth in this opinion.

*586 Stephan, 711 P.2d at 1165 n. 33 (emphasis in the original).
While Shindle raises many legitimate concerns in arguing for expansion of the Stephan rule, we think the holding in Stephan makes it clear that, at this juncture, any attempt to expand the rule would be premature. We therefore conclude that the superior court did not err in denying Shindle's motion to suppress.
Shindle next contends that insufficient evidence was adduced at his trial to support his conviction on Count I. In Count I, Shindle was charged as an accomplice with the sale of cocaine. The charge was based on a transaction between a Metro undercover officer and a third person, Kemo Crosby, which occurred at the Big Timber Motel prior to Shindle's arrest. Shindle was not present at the time, and his involvement in the cocaine distribution at the motel was not yet known.
Although Shindle admitted that he supplied cocaine to Crosby knowing that it would eventually be resold, he argues that this evidence was not a sufficient predicate for accomplice liability. Shindle contends that, at most, the evidence shows the existence of a "wholesaler-retailer" relationship between him and Crosby. Such a relationship, according to Shindle, does not suffice to establish accomplice liability, because, as a mere "wholesaler," Shindle had no knowledge of specific transactions contemplated by Crosby, and he had no intent to assist Crosby in the particular sale charged.
In the evidentiary context of the present case, Shindle's argument is unpersuasive. Accomplice liability is governed by AS 11.16.110, which provides, in relevant part:
Legal accountability based upon the conduct of another: complicity.
A person is legally accountable for the conduct of another constituting an offense if
.....
(2) With intent to promote or facilitate the commission of the offense, the person
.....
(B) aids or abets the other in planning or committing the offense... .
In order to establish Shindle's liability as an accomplice under this statute, it was incumbent on the state to prove, first, that Shindle was aware of Crosby's plan to resell the cocaine, and, second, that in supplying Crosby with cocaine, Shindle acted with the intent to promote Crosby's plan. See Bowell v. State, 728 P.2d 1220, 1222 (Alaska App., 1986). It is well settled, however, that the state was not required to show Shindle's awareness of and intent to promote the specific sale that actually occurred. As long as Shindle acted with the intent to promote resale, he could be held liable as an accomplice for any sale to Crosby that was reasonably foreseeable. See Carman v. State, 602 P.2d 1255 (Alaska 1979).
While evidence merely showing that Shindle was aware of Crosby's plan to resell might be insufficient to establish a specific intent to promote Crosby's plan,[2] the evidence actually presented in this case showed more than mere knowledge on Shindle's part. By Shindle's own admission, he was supplying Crosby and others with cocaine for resale. During a cocaine transaction between a Metro officer and Crosby that occurred several hours after the transaction for which Shindle was charged, Shindle called by telephone to the Big Timber Motel to ask how well Crosby's sales were progressing. A Metro undercover officer answered the call and expressed interest in another purchase. In response, Shindle later appeared at the motel with additional cocaine. Upon arrest, marked money from the initial transaction between the undercover officer and Crosby was found on Shindle's person.
In considering the sufficiency of this evidence, we must determine whether a fair-minded *587 juror could find beyond a reasonable doubt that the state carried its burden of proving that Shindle acted with intent to promote Crosby's sale of cocaine. Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Brown v. State, 693 P.2d 324, 328 (Alaska App. 1984). In making this determination, we must view the evidence and all inferences arising therefrom in the light most favorable to the state. Applying this standard, we conclude that there was sufficient evidence to allow a finding of specific intent. See Abdulbaqui v. State, 728 P.2d 1211, 1213-1214 (Alaska App., 1986).
The conviction is AFFIRMED.
NOTES
[1]  In fact, at oral argument, Shindle's counsel conceded that his fourth amendment waiver was not obtained during police interrogation.
[2]  See, e.g., United States v. Fountain, 768 F.2d 790, amended on other grounds, 777 F.2d 345 (7th Cir.1985), cert. denied, Fountain v. United States, ___ U.S. ___, 106 S.Ct. 1647, 90 L.Ed.2d 191 (1986).


327 P.2d 283 (1958)
Oliver T. CLIBON, Plaintiff in Error,
v.
Glenn M. WAYMAN, Defendant in Error.
No. 18194.
Supreme Court of Colorado, En Banc.
June 23, 1958.
Rehearing Denied July 21, 1958.
*284 Wormwood, O'Dell & Wolvington, Denver, Tarter & Tarter, Colorado Springs, for plaintiff in error.
Aman & Enoch, Rector & Kane, Colorado Springs, for defendant in error.
DAY, Justice.
Plaintiff in error was the defendant and defendant in error was plaintiff in the trial court, and we will refer to the parties as they there appeared.
Defendant seeks reversal of a judgment entered against him in the amount of $4,122.55 as a result of a jury verdict in favor of the plaintiff in an action arising out of an automobile collision. The defendant admits negligence and assigns only one point of error, namely that the court should have ruled that the plaintiff's actions amounted to contributory negligence as a matter of law and therefore he was barred from recovery.
The record discloses no serious factual dispute.
Defendant, for the purpose of this proceeding on error, admits that the evidence warrants a finding of negligence per se on his part in that he failed to yield the right of way. Plaintiff, on the other hand, appears to have been so inattentive and careless that he did nothing and made no effort to avoid the accident. The defendant was the only one who did. He applied his brakes, swerved to avoid the impact, and came to a complete stop at the point of impact. In contrast, the plaintiff drove into the intersection at an admitted speed of 25 miles per hour with his view obstructed by a wall over which it was difficult to see, and he testified he didn't see the defendant's car. He violated a city ordinance providing that it is unlawful for the driver of a vehicle to drive the same at a speed exceeding the following:
"Fifteen miles an hour when approaching within fifty feet and in traversing an intersection of highways when the driver's view is obstructed. A driver's view shall be deemed to be obstructed when at any time during the last fifty feet of his approach to such intersection, he does not have a clear and uninterrupted view of such intersection and of the traffic upon all of the highways entering such intersection for a distance of two hundred feet from such intersection."
Such conduct is negligence per se and negligence as a matter of law.
In addition to the speed of 25 miles per hour, plaintiff testified that he revisited the scene of the accident and that he was able to see in the direction from which the defendant came for a distance of 100 feet or more before he entered the intersection. Yet he did not see the defendant at any time until the moment of impact. The physical facts show, and plaintiff admits, he did not apply his brakes or make any effort to slow his car or bring it under control so as to be able to avoid the collision. As this court has said many times, most recently in Werner v. Schrader, 127 Colo. 523, 258 P.2d 766, 768:
"Our Court has repeatedly held that, for a person to look in such a manner as not to see what must plainly be visible, is of no more effect than if he does not look at all. We said in Fabling v. Jones, 108 Colo. 144, 114 P.2d 1100, 1103: `To have looked in such a manner as to fail to see what must have been plainly visible was to *285 look without a reasonable degree of care and is of no more effect than if she had not looked at all.' See, also, Brickey v. Herring, 96 Colo. 181, 41 P.2d 298; Aaron v. Wesebaum, 114 Colo. 61, 162 P.2d 232.
"The failure of a driver to maintain a proper lookout and to see what he could and should have seen on approaching or traversing a street intersection, may constitute negligence as a matter of law."
Plaintiff urges that he had the right of way in the instant case. This court has repeatedly stated that although one may have the right of way he is not absolved from a duty to exercise reasonable care. Moreover it has been held that a driver who does not have the right of way is entitled to assume the car on his right is not approaching at a negligent rate. See Golden Eagle Dry Goods Co. v. Mockbee, 68 Colo. 312, 189 P. 850; Campion v. Eakle, 79 Colo. 320, 246 P. 280, 47 A.L.R. 289; Parker v. Ullom, 84 Colo. 433, 271 P. 187; Hicks v. Cramer, 85 Colo. 409, 277 P. 299; Denver Equipment Company v. Newell, 115 Colo. 23, 169 P.2d 174.
The police diagram and oral testimony show that while the defendant came to a complete stop at a point of impact after laying down skid marks for 30 feet, plaintiff failed to see defendant approaching the intersection, either through carelessness or because of the obstruction, did not apply his brakes and entered the intersection at a speed of 25 miles an hour in violation of the city ordinance. This, we are persuaded, was contributory negligence as a matter of law. The trial court should have directed a verdict for defendant.
The judgment is reversed and the cause remanded with directions to dismiss the complaint.
SUTTON, J., does not participate.

On Petition for Rehearing.
Rehearing denied.
FRANTZ, J., dissenting.


32 So.3d 60 (2010)
THE FLORIDA BAR
v.
MARTIN (PETER).
No. SC09-1307.
Supreme Court of Florida.
March 8, 2010.
Decision Without Published Opinion Reinstated.


911 N.E.2d 13 (2005)
361 Ill. App.3d 1103
WILCOX
v.
DILLON HARDWARE.
No. 3-04-0917.
Appellate Court of Illinois, Third District.
November 4, 2005.
Affirmed.


                            Fourth Court of Appeals
                                   San Antonio, Texas
                                          June 22, 2018

                                      No. 04-18-00383-CV

                        IN THE INTEREST OF M.A.L.R., A CHILD,

                   From the 131st Judicial District Court, Bexar County, Texas
                                Trial Court No. 2017-PA-01819
                      The Honorable Linda A. Rodriguez, Judge Presiding

                                         ORDER
         The court reporter has filed a notification of late record, requesting an extension of time
to file the reporter’s record to July 5, 2018. The extension is GRANTED. The reporter’s record is
due on July 5, 2018.

                                                     _________________________________
                                                     Karen Angelini, Justice

       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 22nd day of June, 2018.

                                                     ___________________________________
                                                     KEITH E. HOTTLE,
                                                     Clerk of Court


IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-69,258-01

EX PARTE GREGORY DAVIS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 11,534 IN THE 115TH DISTRICT COURT

FROM UPSHUR COUNTY

 Per curiam.

O R D E R

	Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of
the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418
S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated sexual assault and
sentenced to thirty years' imprisonment. The Twelfth Court of Appeals affirmed his conviction. Davis v.
State, No. 12-96-00106-CR (Tex. App.-Tyler, delivered Sept. 24, 1997, no pet.).
	Applicant contends that his appellate counsel rendered ineffective assistance because he failed to
timely notify Applicant that his conviction had been affirmed and failed to advise him of his right to petition
for discretionary review pro se.
	Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466
U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these
circumstances, additional facts are needed. Pursuant to Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex.
Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall provide
appellate counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel
on appeal. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the
appropriate case, the trial court may rely on its personal recollection.  Id.
	If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If
Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to
represent him at the hearing. Tex. Code Crim. Proc. art. 26.04.
	The trial court shall make findings of fact as to whether Applicant's appellate counsel timely
informed Applicant that his conviction had been affirmed and that he had a right to file a pro se petition for
discretionary review. The trial court shall also make findings of fact as to whether the destruction of prison
mail logs prejudiced the State's ability to respond. Ex parte Carrio, 992 S.W.2d 486, 488 (Tex. Crim.
App. 1999). The trial court shall make any other findings of fact and conclusions of law that it deems
relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.
	This application will be held in abeyance until the trial court has resolved the fact issues. The issues
shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting
the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and
interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with
the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within
120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: February 13, 2008
Do not publish


                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                      No. 10-4741
                                     ____________

                                GARY E. SMITH, SR.,

                                                Appellant

                                           v.

             HOUSING AUTHORITY OF THE COUNTY OF DAUPHIN
                            ____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                               (D.C. No. 1-09-cv-00765)
                     District Judge: Honorable John E. Jones, III
                                    ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    July 12, 2011

               Before: RENDELL, SMITH and FISHER, Circuit Judges.

                                 (Filed: July 26, 2011)
                                     ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      Gary E. Smith, Sr., appeals from the District Court’s entry of summary judgment

disposing of his Title VII employment discrimination claims arising from his not being
selected for a new position with the Dauphin County Housing Authority (“DCHA”). For

the reasons set forth below, we will affirm.

                                               I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we set forth only those facts necessary to our

analysis.

       Gary E. Smith, Sr., a black male, has been employed by the DCHA as a Project

Manager since 1998. Throughout his employment, Smith has shown himself to be

competent and dedicated to his work responsibilities, as reflected in several favorable

evaluations. However, his employment record also reveals a pattern of aggression and

conflict with tenants and coworkers, including his supervisor, Charles Gassert, Executive

Director of DCHA.

       In January 2007, Gassert contacted the Pennsylvania Civil Service Commission

requesting to create a position for a Social Services Director, which would ultimately

come to be known as the Senior Citizens Service Coordinator. The duties of the position

included counseling elderly residents and assisting them in obtaining services and

coordinating activities.

       Later that January, Gwen Copeland, a white female and project manager from the

City of Harrisburg Housing Authority, contacted Gassert to express her interest in the

new position and met with him to discuss it. In mid-February, Smith also met with

Gassert to discuss his interest in the new position. At such time, the position had not

                                               2
been officially announced. After the position was posted, Smith and Copeland applied,

and Gassert selected Copeland.

       Smith filed administrative complaints with the Pennsylvania Human Relations

Commission and the Equal Employment Opportunity Commission (“E.E.O.C.”) for

discrimination. Smith was granted permission to sue by the E.E.O.C. and filed suit

immediately thereafter. Smith’s original complaint contained claims for “sex” and “race”

discrimination and “retaliation” under Title VII, 42 U.S.C. § 2000e, et seq., and for

“retaliation” under the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons. Stat.

§§ 951-963. Smith subsequently dropped his retaliation claims under Title VII and

PHRA.

       At the close of discovery, the DCHA moved for summary judgment. Finding that

Smith had failed to discredit the DCHA’s legitimate nondiscriminatory reason for not

selecting Smith, the District Court granted summary judgment in favor of the DCHA.

Smith timely appealed.

                                            II.

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and supplemental

jurisdiction over the state law claim pursuant to 28 U.S.C. § 1367. We have jurisdiction

under 28 U.S.C. § 1291. We review grants of summary judgment de novo, construing all

conflicting facts and reasonable inferences in the light most favorable to the non-moving

party. P.N. v. Clementon Bd. of Educ., 442 F.3d 848, 852 (3d Cir. 2006).

                                            III.

                                             3
       Title VII employment discrimination analysis involves a three-step burden-shifting

paradigm. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The plaintiff

carries the initial burden of establishing a prima facie case of discrimination. 1 Id. The

burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the

challenged employment action. Id. The burden then shifts back to the plaintiff. Id. To

survive summary judgment, a plaintiff must show that the employer’s proffered reasons

were merely pretexts for discrimination by pointing to sufficient evidence, “direct or

circumstantial, from which a factfinder would reasonably either (1) disbelieve the

employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory

reason was more likely than not a motivating or determinative cause of the employer’s

action.” Jones v. Sch. Dist. of Phila., 198 F.3d 403, 413 (3d Cir. 1999) (quoting Fuentes

v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)) (the “Fuentes prongs”). To discredit the

proffered nondiscriminatory reasons and satisfy the first Fuentes prong, “the nonmoving

plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s proffered legitimate reasons for its

actions that a reasonable factfinder could rationally find them unworthy of credence.” Id.

(quoting Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108-09 (3d Cir. 1997)).

       1
        A prima facie case can be made by showing “(i) that [plaintiff] belongs to a
racial minority; (ii) that [plaintiff] applied and was qualified for a job for which the
employer was seeking applicants; [and] (iii) that, despite [plaintiff’s] qualifications, he
was rejected . . . .” McDonnell, 411 U.S. at 802. Solely for the purposes of the summary
judgment, DCHA conceded that Smith was able to make a prima facie case.

                                              4
       Smith contends that he provided sufficient evidence to discredit DCHA’s claim

that it was Smith’s aggressive and confrontational personality that compelled it not to

select him for the position of SCCC. We are not persuaded. Smith relies mostly on his

annual work evaluations from 1998 to 2007 for his current position with the DCHA.

While it is true that these evaluations provide positive comments about his work ethic and

dedication to his job, they do not, as Smith argues, indicate that he is objectively the most

qualified for the position, nor do they adequately rebut the articulated reasons for his

nonselection. Smith does not respond to the litany of documentation revealing a pattern

of conflicts, confrontations, and aggression toward tenants and coworkers. (See App. at

305-22.) We hold that Smith failed to discredit DCHA’s proffered reason for not

selecting him for the position. The DCHA met its burden, and Smith failed to establish

sufficient evidence that could lead a factfinder to reasonably disbelieve DCHA’s

assertion that it believed Smith’s temperament made him ill-suited for a position that

requires patience, demonstrable compassion, and social mediation skills. See Tex. Dept.

of Cmty. Affairs v. Burdine, 450 U.S. 248, 256-57 (1981) (holding that the employer

“need only produce admissible evidence which would allow the trier of fact rationally to

conclude that the employment decision had not been motivated by discriminatory

animus”).

       Smith next argues that pretext can be inferred from an employer giving a

significant advantage exclusively to the selected candidate. Smith only mentions two

alleged advantages. He asserts that Copeland received an unfair advantage when she was

                                              5
allowed to meet with Gassert to discuss the position before it was posted. But Smith also

met with Gassert to discuss the position before it was posted. Smith also argues that

Gassert’s secretary assisted Copeland in completing the application paperwork for the

position and that he did not receive similar assistance. But the assistance provided was

minor and bears no relation to the DCHA’s decision to hire Copeland instead of Smith.

The sole, articulated reason for Smith’s nonselection was Smith’s history of

confrontations. Construing all conflicting facts and reasonable inferences in the light

most favorable to Smith, we find that the grant of summary judgment was proper.

                                            IV.

       For the foregoing reasons, we will affirm the order of the District Court.

                                             6


695 F.2d 424
112 L.R.R.M. (BNA) 2417, 96 Lab.Cas.  P 13,959
FOLEY-WISMER & BECKER and Shurtleff & Andrews Construction,Petitioners,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 80-7272.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Dec. 17, 1981.Decided Dec. 28, 1982.

Wesley M. Wilson, Yakima, Wash., for petitioners.
Ruah Donnelly Lahey, Washington, D.C., for respondent;  Margery E. Lieber, N.L.R.B., Washington, D.C., on brief.
Petition for Review from the National Labor Relations Board.
Before SKOPIL and POOLE, Circuit Judges, and KENYON,* District Judge.
SKOPIL, Circuit Judge:

1
Petitioners, Foley-Wismer & Becker and Shurtleff & Andrews, seek review of a decision and order of the National Labor Relations Board quashing notice of hearing under section 10(k) of the NLRA ("the Act"), 29 U.S.C. Sec. 160(k).  We deny the petition for review.

I.

2
Shurtleff & Andrews Constructors ("Shurtleff") and Foley-Wismer & Becker ("Foley-Wismer") (together, "the Companies") each employed members of the Teamsters, Operating Engineers, and other unions.  The Companies both utilize large cranes to pull 40-foot flatbed trailers which are loaded with construction material from the storage yard to the construction site.  Both Companies had previously awarded the operation of the cranes to a member of Operating Engineers, and the craft employees whose materials were being transported customarily assisted the crane operator by signaling the operator, tying down loads and hooking and unhooking the trailer.

3
On July 31, 1979 the Teamsters and the Operating Engineers executed a jurisdictional agreement providing that the work of pulling flatbed trailers would be manned by a composite crew consisting of an Operating Engineer and a Teamster, with the Operating Engineer operating the crane and the Teamster assisting by rigging or signaling the driver, directing the loading to ensure a balanced load, tying down the load, hooking and unhooking the trailer and dolly, landing the crane in proper position for the loading, and performing certain light maintenance tasks.  The Unions notified the Companies of their jurisdictional agreement and requested that the Companies reassign crane operation to a composite crew.  The Companies refused.  The Teamsters struck and picketed Shurtleff for ten days, and after Shurtleff filed unfair labor practice charges gave assurances that it would not engage in further strikes.  The Teamsters threatened Foley-Wismer with strike action, but later gave assurances against such strikes.

4
The Companies separately filed charges with the National Labor Relations Board ("the Board") alleging that the Teamsters had violated section 8(b)(4)(D) of the Act by picketing, striking, and threatening to picket and strike the Companies to force them to reassign crane operation work to a composite crew.  The Companies also charged that the Teamsters' demand for the employment of composite crews constituted an unlawful attempt at featherbedding in violation of section 8(b)(6).  The Board's Regional Office found insufficient evidence to support the allegations of a violation of section 8(b)(6) and dismissed the charges.  The Board's regional director issued an order consolidating the cases filed by each Company and scheduled a hearing pursuant to section 10(k).

5
After the hearing, the Board found that the Companies had failed to establish the existence of a jurisdictional dispute between the unions since the two unions had not made rival claims to the same work.  The Board, with one member dissenting, concluded there was no reasonable cause to believe that section 8(b)(4)(D) had been violated, and issued an order quashing the notice of hearing in the section 10(k) proceeding.  249 NLRB No. 10.  This petition for review was filed challenging the Board decision and order.

6
The Board petitioned this court for an original en banc hearing, asserting that this court lacks appellate jurisdiction because the order to quash is not a final order subject to review by this court1 and that prior Ninth Circuit precedent to the contrary should be overruled.   See Stromberg-Carlson Communications, Inc. v. NLRB, 580 F.2d 939 (9th Cir.1978);  Waterway Terminals Co. v. NLRB, 467 F.2d 1011 (9th Cir.1972).  No judge requested a vote on the original en banc hearing suggestion, and thus the suggestion was deemed denied.  General Order 5.2(a).

7
After argument, the panel requested en banc review to determine whether the Board's order quashing notice of hearing of the section 10(k) proceeding was reviewable and whether Waterway Terminals should be overruled.  This court en banc determined that such a quashing order was reviewable.   Foley-Wismer & Becker v. NLRB, 682 F.2d 770 (9th Cir.1982) (en banc).  The case was accordingly returned to this three-judge panel for a decision of the merits.

II.

8
The issue presented for review is whether there was substantial evidence to support the Board's finding that no jurisdictional dispute existed within the meaning of section 10(k) of the Act.2

III.

9
The Board's findings of facts must be upheld if supported by substantial evidence, 29 U.S.C. Sec. 160(e);  NLRB v. ILWU, 378 F.2d 33, 35 (9th Cir.), cert. denied, 389 U.S. 1004, 88 S.Ct. 562, 19 L.Ed.2d 599 (1967), and the Board's legal conclusions as to the jurisdictional dispute must be upheld unless arbitrary and capricious.   NLRB v. International Ass'n of Ironworkers, Local 433, 549 F.2d 634, 640 (9th Cir.), cert. denied, 434 U.S. 832, 98 S.Ct. 116, 54 L.Ed.2d 92 (1977);  NLRB v. ILWU, Local 50, 504 F.2d 1209, 1214 (9th Cir.1974), cert. denied, 420 U.S. 973, 95 S.Ct. 1393, 43 L.Ed.2d 652 (1975);  NLRB v. ILWU, 413 F.2d 30, 33 (9th Cir.1969).

10
Section 10(k) empowers the Board to hear and determine a jurisdictional dispute when it finds reasonable cause to believe that such a dispute exists.  A jurisdictional dispute is defined as "a dispute between two or more groups of employees over which is entitled to do certain work."   NLRB v. Radio & Television Broadcast Engineers Union, 364 U.S. 573, 579, 81 S.Ct. 330, 334, 5 L.Ed.2d 302 (1961).  A jurisdictional dispute cannot by definition exist unless there are rival claims to the same work.   NLRB v. Plasterers Union, 404 U.S. 116, 134, 92 S.Ct. 360, 371, 30 L.Ed.2d 312 (1971).  Accordingly, in the absence of active and competing claims section 10(k) is not applicable.  For example, under the Safeway rule announced by the Board in 1962 and followed since, if one of the unions claiming work effectively renounces its claim, section 10(k) proceedings are aborted, even where the employer maintains an interest in securing a Board decision on the merits of the dispute.  NLRB v. Plasterers Union, supra, at 134, 92 S.Ct. at 371, approving Highway Truckdrivers Local 107 (Safeway Stores, Inc.), 134 NLRB 1320 (1961).  Similarly, this court has held that section 10(k) does not apply when there is no conflicting claim to the same work by competing unions, but where one union pickets to get future work, even if the employer would have a valid unfair labor practice claim under some other section.    Stromberg-Carlson Communications, Inc. v. NLRB, supra, at 941.  The section 10(k) proceedings' "function evaporates when one of the unions renounces and refuses the work."   Plasterers Union, supra, 404 U.S. at 135, 92 S.Ct. at 371.

11
In the present case, the Board found that the Teamsters and the Operating Engineers were not competing for the same work, and concluded that no jurisdictional dispute existed that was remediable under section 10(k).

12
The Companies principally contend that the Operating Engineers' disclaimer of the disputed work was ineffective in that it involved no giving up of work and because the Operating Engineers wages were not reduced by reason of the disclaimer.  The cases cited in support of the contention that a genuine jurisdictional dispute still existed notwithstanding disclaimer all dealt with situations in which the disclaiming union had performed the disputed work in the past and would continue to perform it if required.  IBEW Local 610 (Landow Outdoor Sign Co.), 225 NLRB 320 (1976);  Local 1291, ILA (Pocahontas Steamship Co.), 152 NLRB 676 (1965), aff'd, 368 F.2d 107 (3d Cir.1966).  Here, however, Operating Engineers has never performed and does not request the work claimed by the Teamsters.

13
There is substantial evidence to support the Board's finding that no jurisdictional dispute existed.  The Teamsters explicitly stated that it had no interest in the work assigned to employees represented by Operating Engineers, i.e., the actual operation of the crane, and the Operating Engineers had claimed no work other than the operation of the crane which its employees had traditionally performed.  The work that the Teamsters claimed for its members--the hookup work, guiding and signaling work, trailer maintenance functions, and loading, unloading, and load tie-down assistance functions--had never been performed by or sought by Operating Engineers employees.  Instead, this work had traditionally been performed by members of the craft with jurisdiction over the particular material to be loaded onto the trailer at that particular time.

14
The Board noted that there was a possible jurisdictional dispute between the Teamsters and the craft employees that had traditionally performed the work of assisting the Operating Engineer.  However, since the companies did not assert or present any evidence of a competing claim by the craft employees or that the craft employees are party to the present dispute, it would have been improper for the Board to speculate on whether such a dispute might exist.

15
In the absence of rival jurisdictional claims establishing a "dispute" cognizable under section 10(k), the Board was not arbitrary and capricious in quashing the notice of hearing in the section 10(k) proceeding.  We accordingly deny the petition for review.

16
DENIED.

17
POOLE, Circuit Judge, concurring specially.

18
I concur in Judge Skopil's conclusion but only under the compulsion of this court's en banc determination that an order of the Board quashing notice of hearing under section 10(k) proceeding is reviewable.   Foley-Wismer & Becker v. NLRB, 682 F.2d 770 (9th Cir.1982) (en banc).

19
I thought that decision en banc to be wrong and I still believe it to be wrong.  To the extent it rests upon Waterway Terminals Co. v. NLRB, 467 F.2d 1011 (9th Cir.1972), it is on infirm ground, for the logic of that prior decision is no more compelling today than it was 10 years ago.  It was certainly inconsistent, when decided, with NLRB v. Plasterers Union, 404 U.S. 116, 92 S.Ct. 360, 30 L.Ed.2d 312 (1971), and with our own still earlier holding in Henderson v. International Longshoremen's and Warehousemen's Union Local 50, 457 F.2d 572, 577 (9th Cir.1972).  Today's adherence to an illogical precedent erodes the statutory-administrative scheme and promises to increase contest in an area which should be left to the Board's expert determination.  I venture the speculation that this decision may not outlast time.

*
 The Honorable David V. Kenyon, United States District Judge for the Central District of California, sitting by designation

1
 Except as authorized by statute, a court of appeals does not have jurisdiction to review actions of the Board.   American Federation of Labor v. NLRB, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940).  An employer or union may only have review of a "final order of the Board."    29 U.S.C. Sec. 160(f)

2
 The Company also asks for review of the General Counsel's dismissal of the Sec. 8(b)(6) charge.  However, it is clearly established that the General Counsel has "final authority" on whether to issue a complaint on unfair labor practice charges, and that this decision is not reviewable in any judicial forum.   NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138-39, 95 S.Ct. 1504, 1510-11, 44 L.Ed.2d 29 (1975);  Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 912, 17 L.Ed.2d 842 (1967);  Bays v. Miller, 524 F.2d 631, 634 (9th Cir.1975);  Henderson v. ILWU Local 50, 457 F.2d 572, 578 (9th Cir.), cert. denied, 409 U.S. 852, 93 S.Ct. 65, 34 L.Ed.2d 95 (1972).  Therefore the General Counsel's dismissal of the section 8(b)(6) charges is not appealable.  Counsel for the Companies conceded this at oral argument


                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        APR 16 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

NICOLAS ANTONIO MEDRANO-                        No.    13-72557
PONCE,
                                                Agency No. A200-117-985
                Petitioner,

 v.                                             MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

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

                              Submitted April 11, 2018**

Before:      SILVERMAN, PAEZ, and OWENS, Circuit Judges.

      Nicolas Antonio Medrano-Ponce, a native and citizen of El Salvador,

petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming

an immigration judge’s decision denying his application for asylum, withholding

of removal, and relief under the Convention against Torture (“CAT”). We have

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law, Cerezo v.

Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except to the extent that deference

is owed to the BIA’s interpretation of the governing statutes and regulations,

Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We review for

substantial evidence the agency’s factual findings. Silaya v. Mukasey, 524 F.3d

1066, 1070 (9th Cir. 2008). We deny the petition for review.

      Substantial evidence supports the agency’s determination that Medrano-

Ponce failed to establish that any harm he experienced or fears in El Salvador was

or would be on account of a protected ground. See Zetino v. Holder, 622 F.3d

1007, 1016 (9th Cir. 2010) (an applicant’s “desire to be free from harassment by

criminals motivated by theft or random violence by gang members bears no nexus

to a protected ground”); Santos-Lemus v. Mukasey, 542 F.3d 738, 747 (9th Cir.

2008) (rejecting petitioner’s claim where he “provided no evidence that his

opposition to the gang’s criminal activity was based on political opinion”),

abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093

(9th Cir. 2013) (en banc); see also Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir.

2016) (to demonstrate membership in a particular group, “[t]he applicant must

‘establish that the group is (1) composed of members who share a common

                                         2                                       13-72557
immutable characteristic, (2) defined with particularity, and (3) socially distinct

within the society in question.’”) (citation omitted). Thus, Medrano-Ponce’s

asylum and withholding of removal claims fail. See Zetino, 622 F.3d at 1016.

      Substantial evidence also supports the agency’s denial of Medrano-Ponce’s

CAT claim because he did not demonstrate it is more likely than not that he would

be tortured by or with the consent or acquiescence of the government of El

Salvador. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

      The BIA’s issuance of a summary affirmance without opinion did not violate

Medrano-Ponce’s due process rights. See Falcon Carriche v Ashcroft, 350 F.3d

845, 851 (9th Cir. 2003).

      PETITION FOR REVIEW DENIED.

                                          3                                     13-72557


                            NONPRECEDENTIAL DISPOSITION
                             To be cited only in accordance with
                                      Fed. R. App. P. 32.1

              United States Court of Appeals
                                      For the Seventh Circuit
                                      Chicago, Illinois 60604

                                       Argued July 10, 2013
                                       Decided July 31, 2013

                                              Before

                               WILLIAM J. BAUER, Circuit Judge

                               JOHN DANIEL TINDER, Circuit Judge

                               DAVID F. HAMILTON, Circuit Judge

No. 13‐1539

UNITED STATES OF AMERICA,                           Appeal from the United States District
     Plaintiff‐Appellee,                            Court for the Northern District of Illinois,
                                                    Eastern Division.
       v.
                                                    No. 11 CR 570‐1
GREGORY BLALOCK,
    Defendant‐Appellant.                            Ruben Castillo,
                                                    Chief Judge.

                                            O R D E R

        Federal agents in Chicago witnessed what they believed was a drug transaction between
defendant‐appellant Gregory Blalock and Marcel Cook. Some agents stopped and searched
Cook’s  car,  in  which  Blalock  had  been  a  passenger  just  moments  before.  Other  agents
approached Blalock, who fled. Those agents caught Blalock and found that he was carrying a
bag of cash. The agents then obtained the consent of Blalock’s girlfriend to search the apartment
she was renting for his use. The agents found crack cocaine and other evidence in addition to
the money.

        Blalock and Cook were indicted together, and they both moved to suppress, claiming
that the evidence was tainted by arrests without probable cause. After the district court denied
No. 13‐1539                                                                                Page 2

both motions, Blalock pled guilty to possessing and distributing crack, 21 U.S.C. § 841(a)(1),
and possessing a firearm as a convicted felon, 18 U.S.C. § 922(g). He was sentenced to a total
of 180 months in prison. Cook pled guilty to a drug charge. In their separate plea agreements,
each defendant reserved the right to challenge the denial of his motion to suppress. Cook’s
appeal  has  already  been  resolved.  We  agreed  with  appointed  counsel  that  the  appeal  was
frivolous and thus granted the lawyer’s motion to withdraw under Anders v. California, 386 U.S.
738  (1967).  See  United  States  v.  Cook,  500  F.  App’x  537  (7th  Cir.  2013).  In  that  decision,  we
concluded that it would be frivolous for Cook to argue that the agents had lacked probable
cause to arrest him after witnessing what they reasonably believed was a drug transaction. In
this appeal, Blalock raises essentially the same argument that was rejected in Cook. Blalock’s
argument  is  even  weaker  than  Cook’s.  The  agents  had  authority  to  stop  Blalock  for
investigatory purposes, but when they tried to do so, he added to their suspicions by running
from them.

        The district court denied Blalock’s motion to suppress without an evidentiary hearing.
In lieu of live testimony, the court relied on police reports and affidavits, which did not present
any factual disputes that would have required a hearing. Blalock did not object to proceeding
in this manner and does not make an issue of it here. The following facts are drawn from the
documents submitted to the district court.

        Federal agents received a tip in late 2010 concerning drug trafficking at an apartment
building on the south side of Chicago. In March 2011 they contacted the building manager, who
confirmed receipt of complaints from tenants about drug dealing in a specific apartment. Two
days later, while watching the apartment’s parking lot and entrances, the agents saw a pickup
truck—driven  by  Blalock—pass  through  the  lot,  circle  the  block,  and  then  return.  Blalock
parked  his  truck  and  walked  into  the  building,  stopping  along  the  way  to  peer  into  the
windows of the agents’ surveillance van. Almost simultaneously, two other men—one of whom
the agents recognized as the brother of the subject of the informant’s tip—arrived in another
vehicle and also entered the building. Forty minutes later, Blalock left the building through the
back door. He was carrying a jacket slung over his left hand, apparently concealing something
bulky. Cook then drove into the parking lot, and Blalock climbed in the passenger’s side of the
car. The agents could not see what happened inside the car, but they watched as Cook left the
parking lot and drove just halfway around the block before stopping. Blalock exited Cook’s car
holding a brown paper bag and walked into the apartment building through the front door.
Concluding that a drug deal had probably just occurred, agents approached the rear entrance
of the building. Other agents stopped Cook’s car.

        When Blalock saw the agents—who were wearing vests and police insignia—he ran
away from them toward the elevator. Blalock ignored the agents’ calls to stop. They reached
the elevator just before the doors closed. Blalock’s left hand was hidden under his jacket. When
No. 13‐1539                                                                                Page 3

he disregarded a command to show his hands, an agent drew his gun and ordered Blalock to
lie on the floor. Blalock complied and dropped the paper bag. An agent looked inside and
found currency. (A later count would show the amount to be approximately $7,000.) The agents
handcuffed Blalock, searched him for weapons, and detained him in a squad car. Meanwhile,
agents also arrested Cook, who admitted driving without a license or proof of insurance. The
agents found 244 grams of crack in the car’s center console.

        The building manager was interviewed and identified Blalock as the boyfriend of a
lessee, Sherita Burt, who was renting the apartment for him in her name. Burt consented to a
search of the apartment after the agents had assured her that she was not the focus of the
investigation.  Inside  the  apartment  was  a  handgun,  200  more  grams  of  crack,  and  other
evidence.  Blalock  was  transported  to  the  police  station  where  he  gave  a  confession  after
receiving Miranda warnings.

        Blalock’s motion to suppress encompassed the bag of money, the items in the apartment,
and his incriminating statements. The motion rested on his contention that he was arrested
without probable cause, which he argued tainted all the later seizures and his statements. He
did not challenge Burt’s consent to search. The district court denied the motion, concluding that
the informant’s tip about drug dealing at the apartment building and the agents’ observations
of activities consistent with drug trafficking had provided probable cause to arrest Blalock.
Because there was probable cause, the court reasoned, the arrest had not tainted any of the
seized evidence, including the items found during the search of Burt’s apartment. The court
also found in any event that the agents had reasonable suspicions about Blalock sufficient to
support  a  brief  investigatory  stop  under  Terry  v.  Ohio,  392  U.S.  1  (1968),  which  led  to  the
discovery of the cash and provided further support for probable cause for arrest.

        On appeal the parties debate whether the agents had probable cause to arrest Blalock.
Our non‐precedential decision in Cook effectively answered that question yes. That decision is
not binding on this panel, but we agree with it. In Blalock’s case, moreover, probable cause was
even stronger because of his flight. The agents certainly had reasonable suspicion to approach
and stop Blalock to investigate actions consistent with a drug deal, including his swapping a
package for a paper bag while riding just half a block in a car with someone who had picked
him up at an apartment building where tenants were complaining about drug trafficking. See
Terry, 392 U.S. at 21–22; United States v. Kenerson, 585 F.3d 389, 392–93 (7th Cir. 2009); United
States v. Ocampo, 890 F.2d 1363, 1368 (7th Cir. 1989). After Blalock saw the agents, ran for the
elevator, and refused an order to show his hands, the agents were justified in looking into the
dropped  paper  bag  to  make  sure  it  did  not  contain  weapons.  See  United  States  v.  LePage,
477 F.3d 486, 488 (7th Cir. 2007); Cady v. Sheahan, 467 F.3d 1057, 1061–62 (7th Cir. 2006). At that
point the totality of the circumstances readily gave the agents probable cause to arrest Blalock
No. 13‐1539                                                                                Page 4

based on their observation of an apparent drug deal, see United States v. Parra, 402 F.3d 752, 765
(7th Cir. 2005); United States v. Funches, 327 F.3d 582, 586–87 (7th Cir. 2003), Blalock’s flight
when he saw the agents approaching, see United States v. Schaafsma, 318 F.3d 718, 722 (7th Cir.
2003); Tom v. Voida, 963 F.2d 952, 959–60 (7th Cir. 1992), and the significant amount of currency
in the paper bag. See United States v. Moreland, 703 F.3d 976, 988 (7th Cir. 2012); United States
v. Cervantes, 19 F.3d 1151, 1153 (7th Cir. 1994). The initial stop and arrest were lawful, and
Blalock was not entitled to suppress any of the evidence obtained by the stop, arrest, or later
investigation.
                                                                                AFFIRMED.


740 F.2d 954
Delutrov.U.S.
84-2046
United States Court of Appeals,Second Circuit.
6/29/84

1
S.D.N.Y.

AFFIRMED


257 B.R. 691 (2001)
Demetrios B. HASEOTES, Appellant,
v.
CUMBERLAND FARMS, INC., Appellee.
No. CIV. A. 00-40120-EFH.
United States District Court, D. Massachusetts.
January 31, 2001.
*692 Stephen Wald, Craig & Macauley, P.C., Whitton E. Norris, III, Davis, Malm & D'Agostine, P.C., William F. Macauley, Craig and Mcauley, Boston, MA, for Demetrios B. Haseotes, Appellants.
Patrick P. Dinardo, Sullivan & Worcester, LLP, Pamela S. Holleman, Sullivan & Worcester, Patrick P. DiNardo, Sullivan and Worcester, Boston, MA, for Cumberland Farms, Inc., Appellees.

MEMORANDUM AND ORDER
HARRINGTON, District Judge.
Appellant Demetrios B. Haseotes is before this Court appealing a decision by the United States Bankruptcy Court for the District of Massachusetts in favor of Appellee Cumberland Farms, Inc. ("CFI"). At issue is whether the Bankruptcy Court erred in disallowing proofs of claim filed by Haseotes in CFI's bankruptcy proceedings based on its finding that Haseotes breached his fiduciary duty of loyalty and fair dealing to CFI. After hearing oral argument on the matter, this Court affirms the Decision and Order of the Bankruptcy Court.
Haseotes is the eldest of seven children who together own all of the shares in CFI, a highly profitable family business begun by their parents in 1938. Haseotes served as CFI's Chairman of the Board of Directors and Chief Executive Officer from 1960 until the late 1980s when he was asked to step down from those positions. Since then, and at all relevant times, Haseotes has remained on the Board of Directors and has served as an "executive employee" of CFI.[1] In May, 1992, CFI submitted to the Bankruptcy Court a petition for reorganization under Chapter 11. Eighteen months later, Haseotes submitted two proofs of claim for prepetition indebtedness owed on CFI promissory notes.[2] In 1998, when CFI's reorganization was complete, Haseotes sought payment on his proofs of claim. CFI objected, based on a setoff claim against Haseotes arising from his decisions to have his wholly-owned corporation, Cumberland Crude Processing, Inc. (CCP), repay debts it owed to him and to others, rather than to repay sizable overdue debts it owed to CFI. CFI claimed that a 1988 subordination agreement between CCP and CFI required that as long as CCP was in default on debts owed to *693 CFI, CCP would not, directly or indirectly, make payment on its existing note to Haseotes "or any substitution or additional promissory note." CFI further claimed this contractual obligation only formalized Haseotes' inherent duties as a fiduciary to prioritize repayment to CFI. Following a three-day evidentiary hearing, the Bankruptcy Court ruled that by reason of CFI's valid setoff claim against Haseotos in the amount of $5,753,179.05, which exceeded Haseotes' allowable claims totaling less than $2.949 million, CFI owed Haseotes nothing on his proofs of claim, and, in fact, has a net claim against Haseotes in the amount of at least $2.804 million.
Haseotes argues that Judge Queenan was in error in finding that Haseotes breached his fiduciary duty of loyalty and fair dealing to CFI, which gave rise to CFI's setoff claim, and in barring Haseotes' statute of limitations defense. Haseotes claims he did not owe CFI a fiduciary duty with respect to his separately owned businesses, but, even if he did, the decisions he made regarding CCP were good faith business decisions made with CFI's best interests in mind. Further, Haseotes urges that CFI was aware of the repayments by CCP when they were made in 1992 and 1993. As a result, CFI is barred by the statute of limitations from even raising its setoff claim, as the three-year period for bringing such a claim expired well before it was raised in the Bankruptcy Court in 1999.
This Court reviews factual findings of the Bankruptcy Court for clear error and reviews conclusions of law de novo. See In re Strangie, 192 F.3d 192, 194 n. 1 (1st Cir.1999) citing Adams v. Coveney, 162 F.3d 23, 25 (1st Cir.1998). As noted by the appellant, this Court, under Fed. R.Bank.P. 8013, must determine not whether it would have made the findings the trial court did, but whether after reviewing the evidence it is "left with the definite and firm conviction that a mistake has been committed." In re GSF Corp., 938 F.2d 1467, 1474 (1st Cir.1991), quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); In re Green, 934 F.2d 568, 570 (4th Cir.1991), citing United States v. U.S. Gypsum, 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). The Court of Appeals for the First Circuit has stated, "[t]he bankruptcy judge is on the front line, in the best position to gauge the ongoing interplay of factors and to make the delicate judgment calls which a [discretionary] decision entails." In re I Don't Trust, 143 F.3d 1, 4 (1st Cir.1998) quoting In re Martin, 817 F.2d 175, 182 (1st Cir. 1987).
Indeed, Judge Queenan has been "on the front line" throughout the lengthy court battle between Haseotes and CFI. The dispute over the setoff claim now before this Court represents the culmination of nearly eight years of proceedings in front of Judge Queenan in the Bankruptcy Court. Judge Queenan's intimate knowledge of the details of this case is reflected in his meticulous, well-reasoned, thirty-one page Decision and Order. His thorough presentation and analysis of the facts, and his sound application of the law, do not leave this Court "with a definite and firm conviction that a mistake has been committed." In re GSF Corp., 938 F.2d 1467, 1474 (1st Cir.1991), quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); In re Green, 934 F.2d 568, 570 (4th Cir.1991), citing United States v. U.S. Gypsum, 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). Consequently, this Court adopts Judge Queenan's findings of fact and recites herein only those facts relating to the ultimate issue of the debt repayments by CCP.
Judge Queenan correctly relied on Massachusetts law in defining the wide parameters of a fiduciary's duty of loyalty.
The directors of a corporation stand in a fiduciary relationship to the corporation. . . . They owe to the corporation both a duty of care and . . . a paramount *694 duty of loyalty. . . . They are bound to act with absolute fidelity and must place their duties to the corporation above every other financial or business obligation. . . . They cannot be permitted to serve two masters whose interests are antagonistic.
Demoulas v. Demoulas Super Markets, Inc., 424 Mass. 501, 677 N.E.2d 159, 179-80 (Mass.1997).
Although Judge Queenan noted that the present case does not fit squarely within the traditional category of the corporate opportunity doctrine at issue in Demoulas, he correctly invoked its articulation of the breadth of the principles governing a fiduciary's duty of loyalty:
[C]orporate directors and officers are bound by their duty of loyalty to subordinate their self-interests to the well being of the corporation. A person who owes a fiduciary duty to a corporation is prohibited from taking, for personal benefit, an opportunity or advantage that belongs to the corporation. . . . In selecting a test for determining which ventures rightfully belong to a corporation, and are subject to the corporate opportunity doctrine, the corporation deserves broad protection. Rather than limiting the doctrine's coverage only to those instances where the proposed venture is demonstrably similar to existing and prospective corporate activities, the focus is on the paramount obligations of the fiduciary. In keeping with this principle . . . "the true basis of the governing doctrine rests fundamentally on the unfairness in the particular circumstances of a director, whose relation to the corporation is fiduciary, `taking advantage of an opportunity [for his personal profit] when the interests of the corporation justly call for protection. This calls for the application of ethical standards of what is fair and equitable . . . [in] particular sets of facts.'" [citation omitted]. This "fundamental fairness" test places the burden on the fiduciary who acquires a corporate (or partnership) opportunity, or who engages in self-dealing, "to prove that his or her actions were intrinsically fair, and did not result in harm to the corporation or partnership." [citations omitted].
Demoulas, 677 N.E.2d at 180.
Judge Queenan found the dispute between Haseotes and CFI factually similar to Zimmerman v. Bogoff, 402 Mass. 650, 524 N.E.2d 849 (Mass.1998), which involved a corporation owned in equal shares by a plaintiff and defendant, each of whom also owned separate businesses. The defendant was in charge of the jointly-owned finances. When the corporation ran into financial difficulties, the defendant caused it to pay debts owed to his companies, but not to the plaintiff's companies. The court looked to the fiduciary obligations which shareholders of a close corporation owe to each other. In summary fashion, the court concluded that the defendant had violated these obligations, stating, "In his position as `control[ler] of the purse strings of the enterprise,' [defendant] caused [the jointly-owned corporation] to withhold from [plaintiff's corporation] substantial sums which were legitimately due. . . . This was a clear breach of fiduciary duty." Id. at 855. Judge Queenan ruled that there is no significant difference between the fiduciary duties owed each other by shareholders of a close corporation and the fiduciary duties owed by a director to his corporation, and that in Zimmerman and Demoulas, the Supreme Judicial Court has made clear the principles of fundamental fairness that define the law of fiduciary duty.
The appellant breached his fiduciary duty to the appellee based on the principles of fundamental fairness. Appellant chose to purchase CCP, and although he told his siblings that they or CFI would somehow benefit from its operation, Judge Queenan found that they had no legally enforceable rights to the profits from, or ownership interest in, the corporation, as *695 appellant was the sole beneficiary of CCP. The acquisition of CCP proved a financial disaster and CFI suffered major financial consequences as a result. These facts alone might not have amounted to a breach of fiduciary duty if the purchase and operation of CCP had been financed solely with appellant's funds. However, CFI was a principal financier of CCP. Appellant's decisions, from which only he stood to gain, left CFI in the position of being a large creditor of an untried and risky enterprise. More significantly, appellant was bound  by both contract and fiduciary duty  to subordinate his personal interests to the interests of CFI with respect to the repayments of the loans. Judge Queenan characterized appellant's conduct in seeking his own financial interests at CFI's expense "deplorable" and this Court cannot conclude that it was error for him to hold that appellant's decisions to cause CCP to repay him and his shipping companies, rather than to repay CFI, was a breach of his fiduciary duty of loyalty to CFI.
Next, the appellant contends that the Bankruptcy Court erred in even allowing appellee's setoff claim because the applicable three-year statute of limitations had expired. Judge Queenan heard oral argument on the matter and from the bench denied appellant's motion to dismiss for two independent reasons: the tolling provision in the reorganization plan and the motion's timeliness. In his written Decision and Order, Judge Queenan also articulated a third ground for denial of the motion: res judicata.
Judge Queenan ruled that despite appellant's insistence that CFI learned of CCP's loan repayments to him in 1993, which would trigger the running of the statute of limitations and would require that setoff claims be brought by 1996, a tolling of the statute preserved such setoff claims so that they were timely raised in 1999. According to the tolling provision found at Article 6.1(e)(9)(C) of CFI's reorganization plan, the three year statute was tolled from December 30, 1993, the effective date of the plan, to December 31, 1998, when payment of Class 12 Certificates of Indebtedness had been made in full.[3]
Appellant is correct in urging that he and CFI never executed the specific tolling agreement contemplated in the reorganization plan, but Judge Queenan ruled, in unequivocal terms, that appellant was obligated to execute such a tolling agreement. Appellant cannot escape tolling of the statute on the ground that no agreement was formally executed because the terms of the agreement were clear and binding in the reorganization plan. Judge Queenan correctly recognized the equitable maxim which treats as done that which should be done. See, e.g., Independent Wireless Telegraph Co. v. Radio Corp., 269 U.S. 459, 473, 46 S.Ct. 166, 70 L.Ed. 357 (1926); Camp v. Boyd, 229 U.S. 530, 559, 33 S.Ct. 785, 57 L.Ed. 1317 (1913)("Equity regards that as done which ought to be done. It looks to the true intent and meaning rather than the form."); Institut Pasteur v. Cambridge Biotech Corp. (In re Cambridge Biotech Corp.), 186 B.R. 9, 16 (Bankr.D.Mass.1995), aff'd, 212 B.R. 10 (D.Mass.1997), aff'd, 186 F.3d 1356 (Fed. Cir.1999); Morris Gordon & Son, Inc. v. Totoni, 324 Mass. 182, 185-86, 85 N.E.2d 319 (Mass.1949); Lonergan v. Highland Trust Co., 287 Mass. 550, 559, 192 N.E. 34 (Mass.1934). This Court agrees with Judge Queenan that the maxim has extra force in this case because of the heavy fiduciary obligations imposed on Haseotes as a director to be fair in his dealings with CFI. Therefore, the failure to execute a separate, written tolling agreement does *696 not negate its obligations as required under the reorganization plan.
Judge Queenan found that appellant voted in favor of the plan and thereby consented to the tolling provision of the plan. Further, he was represented by two attorneys who reviewed the plan on his behalf. Having received proper notice of the confirmation process, and having failed to object to any of its provisions, confirmation of the plan binds him under principles of res judicata. As a result, the statute of limitations was tolled on December 30, 1993, the effective date of plan confirmation, until it began running again on December 31, 1998, the date by which all Class 12 Certificates of Indebtedness were to be paid in full.
In reviewing the denial of appellant's motion to dismiss based on a statute of limitations defense, this Court rules the motion properly denied based on the tolling provision of the reorganization plan. As a result, we need not reach the issue of the timeliness of the filing of the motion, which was an independent basis for Judge Queenan's decision. However, both the rules[4] and the case law dictate the denial of appellant's motion to dismiss because a statute of limitations defense should be pleaded in a timely manner. See, e.g. Venters v. City of Delphi, 123 F.3d 956, 968-69 (7th Cir.) (court "must not countenance attempts to invoke [statute of limitations] defenses at the eleventh hour, without excuse and without adequate notice to the plaintiff"); International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers  Local 1603 v. Transue & Williams Corp., 879 F.2d 1388, 1396 (6th Cir.1989) (defense untimely when plead long after action was initiated); Strauss v. Douglas Aircraft Co., 404 F.2d 1152, 1155-56 (2d Cir.1968) (defense of limitations must be pleaded at earliest possible moment); Peckham v. Ronrico Corp., 211 F.2d 727, 731 (1st Cir.1954) (statute of limitations defense raised too late where party initially asserted only laches in defense to motion); Perlmutter v. Shatzer, 102 F.R.D. 245, 246 (D.Mass.1984) (limitations defense waivable if not raised timely); Steiner v. City of New York, 920 F.Supp. 333, 342 (E.D.N.Y.1996) (statute of limitations defense is affirmative and must be asserted at earliest possible moment and is waived if not promptly pleaded).
Here, appellant raised his affirmative defense for the first time on the first day of trial. Such a motion cannot be considered timely and a decision to grant the motion would have resulted in unfair prejudice to the appellee. See Keeler v. Hewitt, 697 F.2d 8, 14 (1st Cir.1982) (finding that although court has discretion to allow amended pleadings, deriving opposing party of the opportunity to do appropriate legal research on eleventh-hour defense constitutes prejudice, and the trial court acts within its discretion in refusing to allow amendment to include defense).
Accordingly, the Decision and Order of the United States Bankruptcy Court for the District of Massachusetts is affirmed.
SO ORDERED.
NOTES
[1]  Currently, CFI's shareholders are in dispute as to the composition of its board and are amidst deadlock proceedings in the Delaware Chancery Court.
[2]  CFI did not dispute its basic liability under the notes, but challenged the amount of the claims and the obligation to pay them at all in the face of setoff claims.
[3]  The pertinent part of Article 6.1(e)(9)(C) states:

D.B. Haseotes and the D.B. Haseotes-related entities will agree to enter into a tolling agreement with respect to the statute of limitations relating to any such allegedly improper payments, which tolling agreement will expire on the date the Class 12 Certificates of Indebtedness have been paid in full.
[4]  The rule provides:

In any opposition to a motion, the opposing party shall admit or deny each allegation of the motion, state any affirmative defense to the motion, and state specifically why the relief requested in the motion should not be granted.
M.L.B.R. 9013-1(j).
Further, pursuant to Fed.R.Bank.P. Rule 7008(c), the statute of limitations is a waivable defense which must be raised in the first responsive pleading. Rule 7008(c) provides, in pertinent part:
(c) Affirmative Defenses: In pleading to a preceding pleading, a party shall set forth affirmatively . . . statute of limitations . . . and any other matter constituting an avoidance or affirmative defense.


                               THIRD DIVISION
                                BARNES, P. J.,
                            BOGGS and BRANCH, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules/

                                                                   February 10, 2015

In the Court of Appeals of Georgia
 A14A1575. CRIMLEY v. STATE OF GEORGIA.

      BOGGS, Judge.

      In this civil forfeiture case pursuant to OCGA § 16-13-49, the trial court

granted the State of Georgia’s motion to strike the answers of Christopher S. Crimley

(“Crimley”) and his wife and entered an order of disposition and distribution of the

seized property.1 Crimley appeals, asserting that he had no fair opportunity to respond

to the motion to strike, that service of the motion was inadequate, and that his answer

was sufficient. We find his answer sufficient to withstand a motion to strike under the

authority of Williams v. State of Georgia, 222 Ga. App. 270 (474 SE2d 98) (1996).

We therefore reverse the trial court’s order striking Crimley’s answer and making

      1
        Crimley’s wife, Judy Crimley, failed to appear at the hearing on the motion to
strike her handwritten, pro se answer. She is not a party to this appeal.
disposition of the property and remand for further proceedings consistent with this

opinion.

      The record shows that on November 8, 2013, the State of Georgia filed an in

rem “Complaint for Forfeiture” against approximately $18,000.00 and a Cadillac

DeVille, alleging that the property was seized by police during execution of a search

warrant on September 12, 2013. The State requested a disposition hearing 60 days

after service of the complaint. OCGA § 16-13-49 (o) (5) provides: “If an answer is

filed, a hearing must be held within 60 days after service of the complaint unless

continued for good cause and must be held by the court without a jury.” There is no

rule nisi in the file, but after the State filed its motion to strike the answers and for

disposition, the trial court continued the hearing “for good cause” to January 16,

2014, finding that the State’s motions were “potentially dispositive.”2

      After the hearing,3 the trial court found:

      2
       Crimley contends that the State originally filed a notice under OCGA § 16-13-
49 (n); the State denies it. But the analysis of the required contents of Crimley’s
responsive pleadings remains the same, as the language of the two subsections is
“nearly identical.” Arreola-Soto v. State of Georgia, 314 Ga. App. 165, 166 (1) n.6
(723 SE2d 482) (2012).
      3
       Appellant requested in his notice of appeal that the transcript of the hearing
on the motion to strike not be filed.

                                           2
      [T]he answers submitted provide insufficient detail, and do not provide
      the State the statutorily required information necessary to expedite the
      forfeiture proceedings. If a Claimant fails to comply with the strict
      pleading requirements of OCGA § 16-13-49 by not providing required
      particularized details, this failure supports a trial court’s ruling that the
      claimant’s answer is deficient. A property owner’s rights to seized
      property are dependent upon the filing of a statutorily sufficient claim
      to the property in response to the notice of forfeiture.

(Citations and punctuation omitted.) This appeal followed.

      OCGA §16-13-49 (o) (3) provides:

      An owner of or interest holder in the property may file an answer
      asserting a claim against the property in the action in rem. Any such
      answer shall be filed within 30 days after the service of the summons
      and complaint. Where service is made by publication and personal
      service has not been made, an owner or interest holder shall file an
      answer within 30 days of the date of final publication. An answer must
      be verified by the owner or interest holder under penalty of perjury. In
      addition to complying with the general rules applicable to an answer in
      civil actions, the answer must set forth:

             (A) The caption of the proceedings as set forth in the complaint
             and the name of the claimant;

             (B) The address at which the claimant will accept mail;

                                           3
             (C) The nature and extent of the claimant’s interest in the
             property;

             (D) The date, identity of transferor, and circumstances of the
             claimant’s acquisition of the interest in the property;

             (E) The specific provision of this Code section relied on in
             asserting that the property is not subject to forfeiture;

             (F) All essential facts supporting each assertion; and

             (G) The precise relief sought.

The trial court may strike an answer when it fails to comply with the requirements of

the Code section, and in the absence of a sufficient answer, no hearing is required

pursuant to OCGA § 16-13-49 (o) (5). Holmes v. State of Georgia, 270 Ga. App. 882,

882 (1) (608 SE2d 325) (2004). The trial court’s ruling on a motion to strike is

reviewed for abuse of discretion. Howard v. State of Georgia, 321 Ga. App. 881, 883

(743 SE2d 540) (2013). “However, we conduct a de novo review of the trial court’s

application of the law to undisputed facts, owe no deference whatsoever to the trial

court’s conclusions of law, and are free to apply anew the legal principles to the

                                           4
facts.” (Citation and footnote omitted.) Morgan v. State of Georgia, 323 Ga. App.

852, 853 (748 SE2d 491) (2013).

      The body of Crimley’s first verified answer, filed on December 16, 2013, does

not comply with OCGA § 16-13-49 (o) (3) (A) through (G), other than by stating the

caption of the proceedings and the name of the claimant as required by subsection

(A). It pleads none of the specific facts required, and while it refers to an Exhibit “A,”

no document is so designated. However, as the State acknowledges, a verified

document titled “Notice of Claim” was filed with this first answer, and that document

refers to and incorporates 16 pages of supporting documents. Three days later, on

December 19, Crimley filed a second verified answer, identical to the first, but

apparently omitting the “Notice of Claim” while attaching additional documents.

      Neither of the two answers, standing alone, complies with the statutory

requirements. But in Williams v. State, supra, a 5-4 whole court decision, this Court

concluded that the use of attached documents to show the required elements of §16-

13-49 (o) (3) is sufficient to overcome a motion to strike. There, rather than formally

incorporating the documents by reference, the claimant attached to her answer a

                                            5
certificate of title and tag registration for a vehicle subject to forfeiture.4 Id., 222 Ga.

App. at 271. The trial court struck her answer as insufficient, and we reversed,

holding that these attachments were sufficient to show her ownership, the party from

whom purchased, and her interest in the vehicle: “To deny [claimant] a hearing

because she incorporated documents showing this but did not repeat elsewhere in her

answer that she purchased the car from [the seller] on that date would elevate form

over substance to an intolerable degree.” Id.

       In determining whether Crimley complied with the requirements of OCGA §

16-13-49 (o) (3), therefore, we must consider all of his filings in response to the

State’s complaint as constituting his answer – even though they are not formally or

       4
       While the majority in Williams asserted that the answer “incorporates copies
of her certificate of title to the subject car and the tag registration,” id. at 271, the
dissent pointed out that the documents were not incorporated by reference, but merely
attached to the answer, and argued that the statute’s “specific statutory requirements”
should control. Id. at 273. But a majority of this Court disagreed and found
attachment without an explicit incorporation in the answer to be sufficient.

                                             6
expressly incorporated in the two documents styled “Answer.”5 And in considering

the sufficiency of the answer, we must also bear in mind the legislative intent:

      [T]he intent of the General Assembly when it enacted OCGA § 16-13-49
      was twofold: to protect the interest of innocent property owners and to
      provide for prompt disposition of contraband property. Furthermore,
      while compliance with the strict pleading requirements is necessary,
      these requirements must be interpreted reasonably. Put another way,
      while a claimant must satisfy each of the pleading requirements
      contained in OCGA § 16-13-49 (o) (3), the trial court must consider the
      claimant’s compliance with these requirements in a reasonable manner.

(Citations, punctuation, and footnotes omitted.) Morgan, supra, 323 Ga. App. at

854-855. The answer should “assure[] some degree of legitimacy to the Appellants’

prima facie claim of ownership, and . . . otherwise contain[] factual information

necessary to expedite the proceeding.” Arreola-Soto v. State of Georgia, 314 Ga.

App. 165, 167 (1) (723 SE2d 482) (2012); see also Harris v. State of Georgia, 222

Ga. App. 267, 269 (474 SE2d 201) (1996).

      5
       The amendment provisions of the Civil Practice Act apply to forfeiture
proceedings, and amendments to answers therefore “must be considered in
determining the legal sufficiency of a property owner’s answer under [OCGA] §
16-13-49 (o) (3).” (Citation and punctuation omitted.) Jackson v. State, 231 Ga. App.
320, 321 (1) (498 SE2d 159) (1998).

                                         7
       Construing Crimley’s answer in light of these authorities, we conclude that it

is sufficient to show the address at which he will accept mail, the nature and extent

of his interest in the property, the date, identity of transferor, and circumstances of his

acquisition of that interest, the Code section relied on, the relief sought, and the facts

supporting those assertions. The “Notice of Claim” states that Crimley “will accept

mail through his attorney” and then gives the address of his attorney under his

signature. The notice attaches income tax returns showing the amounts that Crimley

alleges he saved from income tax refunds and gifts from a named individual, and a

ledger card from a named car dealer showing the price, date of purchase, and loan

payments on the vehicle.6 While Crimley does not cite a specific subsection relied

upon in asserting that the property is not subject to forfeiture, citing only OCGA § 16-

13-49 (n) generally, this is not fatal to his claim if his contentions can be gleaned

from his answer. See Morgan, supra, 323 Ga. App. at 855 (2) (citing incorrect

subsection not fatal when substance alleged). Crimley’s Notice of Claim recites the

       6
       Compare Serchion v. State of Georgia, 230 Ga. App. 336 (496 SE2d 333)
(1998), cited by the trial court, in which the claimant gave no details of the
circumstances of his acquisition of a vehicle, and only an approximate date for the
alleged purchase from an unidentified “car lot on Thornton Road.” Id. at 338 (2).

                                            8
language of OCGA § 16-13-49 (d) (3) and (6) in denying that the property was

subject to forfeiture.

      In sum, Crimley’s answers and their various attachments, while inartfully

drafted and poorly presented, are sufficient as a whole to survive a motion to strike.

See Harris, supra, 222 Ga. App. at 268-269 (lack of detail concerning property “does

not render his claim ‘insufficient’ or ‘deficient’ as a matter of law”); Glenn v. State

of Georgia, 320 Ga. App. 214, 218 (2) (739 SE2d 692) (2013) (failure to provide “a

more precise accounting” of funds “does not render his claim ‘insufficient’ as a

matter of law.”)

      Moreover, “[a]s we have recognized, this is merely the pleading stage,” and

Crimley is not required to prove his case in his answer. (Citations, punctuation, and

footnotes omitted). Baker v. State of Georgia , 269 Ga. App. 722, 727 (605 SE2d 126)

(2004). But because this is merely a question of sufficiency of pleadings, we also note

that “[w]hile we find [Crimley]’s answer met the pleading requirements entitling him

to a hearing as to whether the property should be forfeited, we do not address the

merits of either the State’s forfeiture case or [Crimley]’s ultimate claims to the

property.” Glenn, supra, 320 Ga. App. at 218 (2) n.5.

                                          9
      The trial court’s judgment is accordingly reversed, and the case remanded for

a hearing within 60 days after receipt of the remittitur. See OCGA § 16-13-49 (o) (5).7

      Judgment reversed and case remanded with direction. Barnes, P. J., concurs.

Branch, J., concurs in the judgment only.

      7
      We therefore need not address Crimley’s remaining enumerations of error,
which concern notice of the hearing on the State’s motion to strike.

                                          10