314 F.Supp.2d 495 (2004)
PARADISE MOTORS, INC., Plaintiff,
v.
TOYOTA DE PUERTO RICO, CORP., Toyota Motor Corporation, and Toyota Motor Sales, U.S.A., Inc., Defendants.
Nos. CIV.2002-158, CIV.2002-161.
District Court, Virgin Islands, D. St. Thomas and St. John.
April 15, 2004.
*496 Ronald W. Belfon, Belfon & Evert, St. Thomas, VI, for Plaintiff.
Bennett Chan, Esq., Law Offices of Dudley, Clark & Chan, St. Thomas, VI, for Defendants.

MEMORANDUM
MOORE, District Judge.

I. INTRODUCTION
Before the Court is Toyota Motor Corporation's ["Toyota Motor" or "defendant"] motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2). Defendant argues that it does not transact any business under the local long-arm statute and that it does not have the sufficient minimum contacts with this jurisdiction to satisfy the due process clause of the Constitution. Since I find that the plaintiff has made a prima facie showing that Toyota Motor transacts business and does have sufficient contacts with this jurisdiction, I will deny the defendant's motion to dismiss.

II. FACTUAL AND PROCEDURAL BACKGROUND
On October 21, 1976, automobile distributor Gomez Hermanos, Inc., sent a letter agreeing to sell new Toyota vehicles to Paradise Motors, Inc., a Virgin Islands Corporation, if it got bank approval for a credit line of one hundred (100) units a year. Paradise contends that this was a unilateral contract offer that they in turn accepted by performance. Starting in 1976, Paradise sold Toyota motor vehicles in the Virgin Islands that were supplied by Gomez Hermanos, Inc. In 1995, defendant Toyota de Puerto Rico Corp. ["Toyota PR"] purchased Gomez Hermanos, Inc.'s Toyota distributorship. Toyota PR then sent a letter terminating their "business relationship" with Paradise on September 2, 1998. The letter states that Toyota PR was discontinuing Toyota distribution in the Virgin Islands. Paradise contends that this was merely a pretext to force a re-negotiation of the terms of the agreement pointing out that Toyota PR still distributes in the Virgin Islands through one of the plaintiff's competitors.
On October 17, 2000, Paradise sued Toyota PR in the Territorial Court for wrongful termination of franchise and breach of contract. On May 15, 2002, after discovery had commenced, the Territorial Court granted Paradise's motion to amend its complaint to include the parent companies Toyota Motor Corp. ["Toyota Motor"] and Toyota Motor Sales ["Toyota Sales"] as defendants.[1] Toyota Motor was Toyota *497 PR's parent at the time of the alleged wrongful termination and breach. On July 1, 1999, Toyota Motor sold all of the common stock in Toyota PR to its export arm, Toyota Sales. The amended complaint also charges Toyota Motor and Toyota Sales with wrongful termination of franchise and breach of contract. The amended complaint asserts that both parent companies were "doing business" in the Virgin Islands for the purposes of personal jurisdiction through their subsidiary Toyota PR. It also alleges that both Toyota Motor and Toyota Sales had direct franchise relationships with Paradise. Paradise thus claims that the two parents should be held liable either (1) for actually directing the illegal conduct,[2] or (2) under a theory of respondeat superior.
Both Toyota Motor and Toyota Sales timely filed notices of removal to this Court. Plaintiff moved to remand the case as prohibited by 28 U.S.C. § 1446(b), but this Court denied that motion. Paradise Motors, Inc. v. Toyota de Puerto Rico Corp., 249 F.Supp.2d 698 (D.Vi.2003). Toyota Motor, the parent corporation when the agreement was terminated, now moves to dismiss the claims against it for a lack of personal jurisdiction.

III. DISCUSSION

A. Personal Jurisdiction over the Defendant is Proper
This Court may only exercise personal jurisdiction over Toyota Motor pursuant to the forum's long-arm statute and in compliance with the Due Process Clause of the Fourteenth Amendment's "minimum contacts" requirement.[3]See In re Tutu Wells Contamination Litig., 846 F.Supp. 1243, 1264 (D.Vi.1993) (citing International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). As Toyota Motor has moved under Rule 12(b)(2) to dismiss for lack of personal jurisdiction, plaintiffs must make a prima facie showing of sufficient contacts between the defendants and the forum territory to support in personam jurisdiction. See Mellon Bank (East) PSFS Nat'l Ass'n v. Farino, 960 F.2d 1217, 1223 (3d Cir.1992). The court must accept all of the plaintiff's allegations as true while construing disputed facts in their favor. See Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 143 n. 1 (3d Cir.1992). Plaintiff's burden is to establish by a preponderance of the evidence that personal jurisdiction is proper. In re Tutu Wells, 846 F.Supp. at 1264; Carteret Savings Bank, 954 F.2d at 146; see also Provident National Bank v. California Federal Savings & Loan Assn., 819 F.2d 434, 437 (3d Cir.1987) ("Once a jurisdictional defense has been raised, the plaintiff bears the burden of establishing with reasonable particularity sufficient contacts between the defendant and the forum state to support jurisdiction.").

1. Personal Jurisdiction is appropriate under local long-arm statute

The Virgin Islands long-arm statute, 5 V.I.C. § 4903, provides in pertinent part that
(a) A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief *498 arising from the person's ... (1) transacting any business in this territory ...
(b) When jurisdiction over a person is based solely upon this section, only a claim for relief arising from acts enumerated in this section may be asserted against him.
Toyota Motor argues that it does not transact business in the territory. Paradise refutes this and outlines Toyota Motor's activities within the territory which include: (1) shipping vehicles purchased by Toyota PR directly to Paradise to avoid paying import taxes in both Puerto Rico and the Virgin Islands, (2) shipping product literature written in English because Toyota PR only offered such literature in Spanish, (3) sending sales representatives to the Virgin Islands to visit Paradise's business to ensure that vehicles were not being shipped to United States for resale in violation of territorial sales agreements, and (4) receiving a profit share of the $2,0000,0000 average annual sales of Toyota vehicles in the Virgin Islands. (Dennis Aff. ¶¶ 4-10.) Construing disputed facts in Paradise's favor, I find that Toyota Motor's activities qualify under section 4903(a)(1) as "transacting business." Hendrickson v. Reg O Company, 17 V.I. 457, 463 (D.V.I.1980) (interpreting section 4903(a)(1) as requiring "less than doing business but more than performing some inconsequential act within a jurisdiction."); Guardian Ins. Co. v. Bain Hogg Int'l Ltd., Civ. No.1996-180, 2000 WL 1690315, *2-3, 2000 U.S. Dist. LEXIS 17184 at *8 (D.Virgin Islands 2000) (holding that "transacting any business" can be satisfied by "only a single act which in fact amounts to the transaction of business within a state or territory").[4]
Accordingly, Paradise's claims for wrongful termination of franchise and breach of contract also may be asserted against Toyota Motor under section 4903(b), because Paradise's claims against it arise from Toyota Motor's transacting business in the territory.

2. The Defendants'"Minimum Contacts" in the Virgin Islands Meet the Constitution's Due Process Requirements

Because I find personal jurisdiction is appropriate under the Virgin Islands long-arm statute, I now turn to the constitutional due process requirements. The Due Process Clause of the Fourteenth Amendment requires that a court determine whether a defendant had the "minimum contacts" with the forum necessary for the defendant to have "reasonably anticipated being haled into court there." World-Wide Volkswagen v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490. A finding of minimum contacts demands the demonstration of "`some act by which the defendant purposely availed itself of the privilege of conducting business within the forum State, thus invoking the protection and benefits of its laws.'" Pennzoil Prods. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 203 (3d Cir.1998). A plaintiff can meet this burden in one of two ways: by establishing either specific or general jurisdiction over a defendant. Mesalic v. Fiberfloat Corp., 897 F.2d 696, 699 (3d Cir.1990). I find that Paradise has established general jurisdiction over Toyota Motor.

a. Plaintiff has established general jurisdiction over the defendants
A court's general jurisdiction "is based on the defendant's general business contacts *499 with the forum [territory] and permits a court to exercise its power in a case where the subject matter of the suit is unrelated to those contacts." Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 568 (2d Cir.1996). Under this test, the plaintiff must establish that the defendant's contacts with the forum jurisdiction are "continuous and systematic." Toyota Motor maintains that its contacts are insufficient to support general jurisdiction citing this Court's decision in Kressen v. Federal Insurance Co., 122 F.Supp.2d 582, 585-587, and another district court's unreported decision in Electro Medical Equipment Ltd. v. Hamilton Medical AG, 1999 WL 1073636 *3-4 (E.D.Pa.1999). I find neither case persuasive on the issue of general jurisdiction.
In Kressen, this Court found that asserting jurisdiction over a Virginia corporation did not satisfy the minimum contacts requirements of due process because it did not conduct business in the Virgin Islands or maintain a registered agent for service of process therein. 122 F.Supp.2d at 587. Although Toyota Motor also does not maintain such an agent in the territory, I find that it does conduct business here.
In Electro Medical, a district court in this Circuit found general jurisdiction inappropriate when a foreign defendant manufacturer's only contact with the forum state was its wholly-owned subsidiary's distribution and marketing of the product nationally and within that state. 1999 WL 1073636 at *3. Although Electro Medical is an unreported decision and at best can only serve as persuasive authority, I find it inapplicable here. As recited below and unlike Electro Medical's foreign defendant, Toyota Motor does have other contacts with this forum besides its prior ownership of the subsidiary Toyota PR.
Although Toyota Motor does not have a business license, it does have contacts with this jurisdiction that are continuous and systematic. It is undisputed that Toyota Motor has shipped Toyota vehicles directly to Paradise in the Virgin Islands. Through their distributor Toyota PR, Toyota Motor has shipped vehicles from at least 1976 until the present day. Paradise's president testifies that their sales of Toyota vehicles average $2,000,000 dollars per year. (Dennis Aff. ¶ 11.) Furthermore, Toyota Motor does not deny that it continues to manufacture Toyotas sold in the Virgin Islands. Additionally, Toyota Motor has sent representatives and materials to Paradise to facilitate the continued sale of its products. For these reasons, I find that Toyota Motor is subject to general jurisdiction.[5]

b. Asserting jurisdiction over this defendant does comport with traditional notions of fair play and substantial justice
Having concluded that Toyota Motor has minimum contacts in the forum, I turn to the issue of whether compelling this out-of-territory defendant to submit to jurisdiction in the Virgin Islands comports with traditional notions of fair play and substantial justice. Grand Entm't Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 481 (3d Cir.1993) (citing International Shoe, 326 U.S. 310 at 316, 66 S.Ct. 154, 90 L.Ed. 95). The factors considered are:
the burden on the defendant, the forum State's interest in adjudicating the dispute, the plaintiff's interest in obtaining convenient and effective relief, the interstate judicial system's interest in obtaining the most efficient resolution of controversies, *500 and the shared interest of the several States in furthering fundamental substantive social policies.
Pennzoil Prods. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 205 (3d Cir.1998). Applying these factors here, I find it reasonable to assert jurisdiction over Toyota Motor. The burden on the defendant to defend this lawsuit in the Virgin Islands is not severe, because it has admittedly sent personnel to St. Thomas in the past to do its business.
The Virgin Islands obviously has a valid interest in protecting its resident corporations acting under agreements with non-resident companies. The plaintiff's interest in obtaining relief will be served by asserting jurisdiction, for it would not be convenient or effective for Paradise to sue this defendant separately in Japan. After balancing the factors, it is clear that traditional notions of fair play and substantial justice support this Court's assertion of personal jurisdiction over Toyota Motor.

IV. CONCLUSION
I will deny the motion to dismiss for lack of jurisdiction because plaintiffs have met their burden of establishing that defendants come under the local long-arm statute and that asserting jurisdiction would not violate the due process clause.
NOTES
[1]  Toyota Motor Corp. is incorporated in Japan and Toyota Motor Sales is incorporated in California.
[2]  Toyota Motor's affiant refutes this allegation saying "[t]he decision to terminate dealers of a distributor is within the discretion of the distributors, and the decision to terminate [Toyota PR's] relationship with Paradise Motors was made by [Toyota PR]." (Sugawara Decl. at 2.)
[3]  The Due Process Clause has been made applicable to the Virgin Islands by the Revised Organic Act of 1954, § 3, 48 U.S.C. § 1561, reprinted in V.I. CODE ANN., Historical Documents, Organic Acts, and U.S. Constitution at 86-88 (1995) (preceding V.I. CODE ANN. tit. 1).
[4]  Toyota Motor relies on this Court's decision that a Virginia corporation did not transact business under section 4903(a)(1). Kressen v. Federal Insurance Co., 122 F.Supp.2d 582, 585 (D.Vi.2000). Kressen is inapposite because, unlike the Virginia corporation, Toyota Motor has "sought to participate in [some] business activity in the United States Virgin Islands and does [ ] receive substantial revenue" from this activity.
[5]  Because I find that Paradise has established that this Court has general jurisdiction over Toyota Motor, I need not decide the question of whether specific jurisdiction exists.


126 S.W.3d 807 (2004)
Robert A. RIDGWAY and Bonita M. Ridgway, Plaintiffs-Respondents,
v.
TTnT DEVELOPMENT CORP., et al., Defendants-Appellants.
No. 25359.
Missouri Court of Appeals, Southern District, Division Two.
February 20, 2004.
*809 David L. Baylard, Union, MO, for Appellants.
*810 Michael J. McKitrick, St. Louis, MO, for Respondents.
JEFFREY W. BATES, Judge.
Defendants TTnT Development Corp., Jerry Tuma, William Tillman and Jeffrey Tillman ("Developers") appeal from a judgment awarding Robert and Bonita Ridgway ("the Ridgways") $150,000 in damages and $103,393.98 in attorney fees on their claim for trespass to realty. Developers present three points on appeal. They contend that the trial court erred in the following respects: (1) using the wrong measure of damages in awarding the Ridgways actual damages of $50,000 as compensation for the trespass committed by Developers; (2) trebling the Ridgways' actual damage award pursuant to § 537.340; and (3) granting the Ridgways' request for attorney fees.[1] For the reasons stated below, we conclude that the trial court properly awarded the Ridgways $50,000 as actual damages for common law trespass, but the trial court erred when it trebled the Ridgways' damages and awarded them attorney fees. Accordingly, we affirm in part, reverse in part and remand the case to the trial court with directions to enter a judgment for the Ridgways and against Developers in the amount of $50,000, plus court costs.

I. Facts and Procedural History
This case is on appeal to this Court for the second time. A detailed statement of the facts can be found in our prior opinion, Ridgway v. TTnT Development Corp., 26 S.W.3d 428 (Mo.App.2000) ("Ridgway I"), and will not be repeated here. Instead, we will briefly summarize what took place in the first appeal and explain the limited purposes for which the case was remanded. Thereafter, we will recount only such additional facts as are relevant and necessary to decide Developers' points in this second appeal.

A. Ridgway I

The Ridgways' petition was pled in three counts. Count I alleged that the roadway being constructed by Developers exceeded the scope of a roadway easement granted by the Ridgways. The remedy sought in Count I was ejectment as to all portions of the roadway that constituted an encroachment on the Ridgways' property. Count II alleged that, during construction of the roadway bed, Developers destroyed trees on the Ridgways' property, altered the natural grade of a portion of the real estate, and redirected the flow of water so as to cause erosion. The remedy sought in Count II was injunctive relief. Count III alleged that the aforementioned actions of Developers constituted a trespass to the Ridgways' realty. The remedy sought in Count III was actual damages for trespass to realty, treble damages for trespass pursuant to § 537.340, and punitive damages. Id. at 430. Thus, the allegations in Count III of the Ridgways' petition stated a cause of action for damages due to trespass under both common law and statutory theories of recovery.
The trial court's original judgment determined that Developers were guilty of trespass. That conclusion was based, inter alia, upon the following findings: (1) the Ridgways' property was subject to a roadway easement 40 feet wide; (2) the new road exceeded the boundaries of the roadway easement and encroached upon 0.7235 acres of the Ridgways' property; (3) during the construction process, Developers destroyed a number of trees on the Ridgways' property that were outside of the easement; (4) Developers' use of the cut and fill method of construction to create *811 a smoother, wider road raised the roadbed several feet above the existing terrain; and (5) this change in elevation of the new roadway allowed Developers better access to their property, but it limited the Ridgways' access to their property.
Despite these findings, the trial court denied the Ridgways' requests for ejectment and injunctive relief that would have required the encroaching portions of the roadway to be removed from their property. Furthermore, Developers were only ordered to pay the Ridgways nominal damages for trespass in the amount of one dollar because the trial court concluded that the construction of the roadway had increased the value of the Ridgways' property by twenty percent. The trial court apparently reached its conclusion by using a condemnation-like measure of damages, which offset any damages resulting from Developers' trespass by the benefit which the trial court perceived to have been conferred upon the Ridgways by the construction of the new roadway. Id. at 433. The Ridgways appealed from the trial court's judgment.
On appeal, this Court affirmed the trial court's determination that Developers had committed trespass to the Ridgways' realty.[2]Id. at 433-35. However, we reversed the trial court's judgment that the Ridgways were not entitled to injunctive relief and should only be awarded nominal damages as recompense for Developers' trespass. Id. at 434. With respect to the latter issue, we also reviewed the applicable Missouri law concerning the proper measure of damages rules that could be applied on remand to the Ridgways' theories of recovery based on common law and statutory trespass to realty. Id. at 434-36. The following paragraph from our opinion defined the two purposes for which the case was remanded:
The judgment is reversed and the cause remanded for the trial court to enter a mandatory injunction ordering the removal of the roadway and other alterations outside of the easement, allowing a reasonable time for this to be accomplished and, if necessary, a reasonable time for improvements within the easement in order that there be continued access for those wishing to go to and from the condominiums and Defendants' property. The trial court must also determine, consistent with this opinion, and take additional testimony if necessary, Plaintiffs' damages as a result of Defendants' encroachments on Plaintiffs' property.
Id. at 436.

B. Proceeding on Remand
After the case was remanded, the trial court entered a mandatory injunction as ordered, and all encroaching portions of *812 the roadway were removed. On June 11, 2001, Developers filed a certification of compliance with the mandatory injunction order.
Thereafter, the parties agreed to submit the case to the trial court for a determination of damages on the existing record without taking any additional testimony. Each party also submitted legal memoranda to the trial court addressing the issue of damages. In the Ridgways' legal memorandum, they requestedfor the first time during the long life span of this litigation an award of attorney fees from Developers in the amount of $103,393.98.[3] In Developers' damages memoranda, that request was opposed on several grounds which will be discussed in more detail, infra.
After reconsidering the evidence in light of our opinion and reviewing the parties' legal memoranda on damages, the trial court entered a new judgment awarding actual damages and attorney fees to the Ridgways. The basis for the trial court's decision is set forth below:
The measure of damages for real property is the difference in value of the property before and after the damage or the cost of restoration, whichever is less. All parties conceded the correct measure of damages to be the diminution of value. The diminution of value is also the measure of damages under the statutory trespass claim since the trees destroyed and the land removed to alter the terrain have no market value in their severed state. The Court finds the actual damages to be $50,000. The Court further finds that Plaintiffs are entitled to treble damages under 537.340, RSMo because the Defendants were aware of the encroachments during the construction of the road and yet proceeded to its conclusion. The Court also awards attorney fees in the amount of $103,393.98. No punitive damages are awarded.
Developers filed a timely notice of appeal from the judgment and assert three points of error, described above, for determination in this second appeal.

II. Standard of Review
In this court-tried case, our review is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) and Rule 84.13(d).[4]Schubert v. Trailmobile Trailer, L.L.C., 111 S.W.3d 897, 899 (Mo.App.2003). The judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Pelligreen v. Wood, 111 S.W.3d 446, 450 (Mo.App.2003).
At the parties' request, the trial court prepared findings of fact and conclusions of law. See Rule 73.01(c). In reviewing issues of fact in this case, we bear in mind that the credibility of witnesses and the weight to be given to their testimony is a matter for the trial court, which is free to believe none, part or all of the testimony of any witness. Herbert v. Harl, 757 S.W.2d 585, 587 (Mo. banc 1988). Accordingly, we view the evidence and all reasonable inferences derived therefrom in a light most favorable to the judgment, and we disregard all contrary evidence and inferences. Schubert, 111 S.W.3d at 899; Reardon v. Newell, 77 S.W.3d 758, 760 (Mo.App.2002). We defer to factual findings made by the trial court because it is *813 in a superior position to assess the credibility of witnesses. Pelligreen, 111 S.W.3d at 450; Rathbun v. CATO Corp., 93 S.W.3d 771, 777 (Mo.App.2002). No such deference is afforded the trial court, however, when we review its conclusions of law. We independently evaluate whether the trial court properly declared or applied the law to the facts presented. Schubert, 111 S.W.3d at 899; Rathbun, 93 S.W.3d at 777.

III. Analysis
In Developers' first point relied on, they assert that the trial court erred in using the wrong measure of damages to assess the damages caused by Developers' trespass. They argue that, because the encroaching portions of the roadway were ultimately removed after remand in compliance with the trial court's mandatory injunction order, their trespass was merely temporary. Based on that premise, Developers then argue that the trial court was limited to awarding the Ridgways the diminution in the fair rental value of their property during the period of the encroachment. To support Developers' argument that this is the appropriate measure of damages, they rely on Macios v. Hensley, 886 S.W.2d 749 (Mo.App.1994) and Mondelli v. Saline Sewer Co., 628 S.W.2d 697 (Mo.App.1982). We reject Developers' argument for two reasons.
The first reason Developers' argument lacks merit is that the measure of damages utilized in Macios and Mondelli only applies when an easement holder seeks damages for a temporary obstruction of his right of ingress and egress granted by the easement. Since that is not an issue here, these cases are factually distinguishable and thus inapposite.
In Macios, the trial court determined that the plaintiffs were the holders of a prescriptive easement granting them ingress and egress to a lake. Defendants obstructed plaintiffs' easement by erecting trellises and installing a chain link fence that prevented plaintiffs from using the easement to launch their pontoon boat. These obstructions, which the trial court ordered to be removed, were temporary in nature. In addition to seeking injunctive relief, plaintiffs also requested damages for the time period that their easement was obstructed by defendants. In that factual setting, the appellate court in Macios concluded that the proper measure of damages for temporary obstruction of an easement holder's right of ingress and egress is the reduction in the fair rental value of the property during the maintenance of the obstruction, as well as any special damages which may be established. Macios, 886 S.W.2d at 753.
In Mondelli, the plaintiff was the grantee of an easement connecting his landlocked property to a highway. During the construction of a sewer, plaintiff's right of access via the easement was temporarily obstructed. The appellate court in Mondelli recognized that interference with or obstruction of an easement is a nuisance. Mondelli, 628 S.W.2d at 699. The holder of a roadway easement has a cause of action under Missouri law to recover such damages as are proximately caused by the wrongful interference with or obstruction of the easement. Id. If the obstruction is temporary, the measure of damages is the reduction in the fair rental value of the property during the maintenance of the obstruction. Id.
We are aware of no instance in which the measure of damages set out in either Macios or Mondelli has been applied in a case involving trespass on a servient estate (i.e., real property burdened by an easement). As we pointed out in Ridgway I, the proper measure of damages that applies when a party builds *814 a roadway outside of a clearly-defined easement was correctly set forth in the following quotation from Smith v. Woodard, 15 S.W.3d 768 (Mo.App.2000):
The measure of damages to real property, where the property can be restored to its former condition, is the difference in its fair market value before and after the injury, or the cost of restoring it, whichever is less. In cases alleging trespass, it is not necessary that damage result because trespass entitles the wronged party to nominal damages. The general rule is that the measure of damages for tortious injury to real property is the difference in the fair market value of the property before and after the injury or the cost of restoring the property, whichever is the lesser amount. This rule for measure of damages is similar to that for trespass, except with trespass no actual damage must be proven; the claimant is entitled to at least nominal damages.
(Citations omitted.) Id. at 773.
The second reason the Developers' argument lacks merit is that the damages caused by the trespass upon the Ridgways' property were permanent, rather than temporary, in nature. The evidence before the trial court established that in constructing the roadway, Developers committed trespass on the Ridgways' property in the following ways: (1) many trees outside of the easement were bulldozed down, hauled off and burned; (2) the bulldozing disturbed a significant area of the soil outside of the easement; (3) some of the soil from areas outside the easement was collected by Developers and moved within the portion of the property burdened by the easement as a part of the cut and fill method used to construct the roadway; (4) due to the removal of the aforementioned trees and soil and the installation of significantly larger culverts under the new roadway to handle runoff, there has been some erosion of the Ridgways' property outside of the easement; and (5) the new roadbed was raised several feet above its original elevation, creating a steep embankment that severely limited the Ridgways' access to the portions of their property on each side of the road. None of these damages caused by Developers' trespass ended when the encroaching portions of the roadway outside the easement were removed to comply with the trial court's mandatory injunction order. In our view, these damages are permanent in nature. Thus, the factual predicate necessary to invoke the rule upon which Developers rely is absent. Point I is denied.
In Developers' second point relied on, they contend that the trial court erred in awarding actual damages for trespass in the amount of $50,000 and in trebling that award pursuant to § 537.340. Developers argue that the award was against the weight of the evidence and was not supported by substantial evidence in two respects: (1) the Ridgways failed to present evidence that the trees in their severed state had no substantial market value; and (2) the Ridgways failed to present evidence that Developers' removal of trees from the Ridgways' property caused the diminution in its fair market value. The genesis of this argument apparently stems from our discussion in Ridgway I concerning the potential measure of damages rules that the trial court could utilize on remand. These rules varied somewhat, depending on whether the trial court awarded damages to the Ridgways based on their common law or statutory theory of recovery.[5]
*815 If the trial court awarded damages to the Ridgways for common law trespass, the proper measure of damages would be the difference in the fair market value of their property before and after the injury or the cost of restoring the property, whichever is less (subject to the caveat that the Ridgways would be entitled to recover at least nominal damages for the trespass even if no actual damages were proven). Ridgway, 26 S.W.3d at 435-36. Under the common law trespass theory, the trial court also could award punitive damages (which the Ridgways had requested in their petition) if there was clear and convincing evidence that the trespass was malicious, willful, intentional or reckless. See Hostler v. Green Park Development Co., 986 S.W.2d 500, 507 (Mo. App.1999); Hyre v. Becker, 18 S.W.2d 137, 139 (Mo.App.1929).
If the trial court awarded damages to the Ridgways for statutory trespass pursuant to § 537.340, the proper measure of damages would be determined by whether the property removed from the real estate had substantial market value in its severed state. If so, the measure of damages would be the market value of the property at the time it was removed from the land. If not, the measure of damages would be the difference in the fair market value of the real estate caused by the removal of the property from the realty. Ridgway, 26 S.W.3d at 435. We also noted that, if the trial court awarded damages for statutory trespass, it would have to decide whether to assess treble damages pursuant to § 537.340 or single damages pursuant to § 537.360. That decision would turn on whether Developers' had probable cause to believe that their roadway construction activities were being conducted entirely within the easement granted by the Ridgways. Id. at 435-36. With that review of the damages discussion in Ridgway I completed, we now proceed to address Developers' argument.
The first prong of the argument attacks the trial court's factual finding that the trees on the Ridgways' property outside the easement, which Developers admittedly destroyed, had no market value in their severed state. The evidence demonstrated without dispute that Layne Helton, the contractor hired by Developers to construct the new roadway, bulldozed down between 100 to 150 of the Ridgways' trees that were outside the boundaries of the easement. He had these trees cut up, placed in a pile and burned. The trial court could reasonably infer that these trees had no substantial market value since they were treated like refuse and destroyed after they were severed from the realty. See Tong v. Kincaid, 47 S.W.3d 418, 421 (Mo.App.2001). Accordingly, the trial court's conclusion is supported by substantial evidence and is not against the weight of the evidence. See Reardon v. Newell, 77 S.W.3d 758, 760 (Mo.App.2002) (an appellate court must view the evidence and all reasonable inferences derived therefrom in a light most favorable to the judgment); Rathbun v. CATO Corp., 93 S.W.3d 771, 784 (Mo.App. 2002) (an appellate court should exercise the power to set aside a judgment on the ground that it is against the weight of the evidence with caution and a firm belief that it was wrong).
In the second prong of Developers' argument, they assert that the trial court erred in awarding actual and treble damages because the Ridgways did not prove that the diminution in the fair market value of their real estate was caused by the removal of the trees outside the area of the easement. Because we determine that *816 Developers' argument has merit, but only with respect to the trial court's action in trebling the Ridgways' damages, we review the propriety of these awards separately.
We first examine whether the trial court's award of $50,000 in actual damages was proper. The Ridgways presented the testimony of a certified real estate appraiser, David Nunn, to establish that the fair market value of their property had decreased because of the construction of the new roadway.[6] Nunn's testimony was the only evidence presented by the Ridgways on this issue. Nunn testified that the value of the Ridgways' property before construction of the new road was $184,000. After construction had concluded, the property was worth only $126,000. Nunn attributed this $58,000 decline in value to only two factors: (1) the 0.7235 acres of land taken by the roadway encroachments was worth approximately $8,000; and (2) the elevation of the roadbed by several feet steepened the terrain and reduced the Ridgways' access to their property, requiring approximately $50,000 in additional development costs to remedy.[7]
Nunn's testimony was presented prior to the first appeal, and no new evidence was adduced on remand. Since the encroaching portions of the roadway were removed prior to the retrial on damages, Nunn's testimony would, at best, support a finding that the Ridgways' property had diminished in value by $50,000. Moreover, that change in value was based entirely on the additional development costs necessary to provide the Ridgways with a reasonable level of access to their property. We find this evidence to be sufficient to support the trial court's award of damages, but only as to the Ridgways' common law trespass theory of recovery. Our conclusion is based on the difference in the rules of causation that apply to the Ridgways' common law and statutory theories of recovery.
Under the Ridgways' common law trespass theory, Developers are liable for all damages proximately caused by their trespass, regardless of whether they acted in good faith and with reasonable care, in ignorance of plaintiff's rights, or under a mistake of fact or law. See Brand v. Mathis & Associates, 15 S.W.3d 403, 406 (Mo.App.2000). Developers' elevation of the roadbed in such a manner as to severely restrict the Ridgways' ability to access their property constituted a trespass for which the Ridgways could recover damages. See footnote 2, supra. The testimony from appraiser Nunn provided the trial court with substantial evidence from which to conclude that the Developers' trespass caused a $50,000 diminution in value to Ridgways' property. Therefore, we affirm that part of the trial court's judgment awarding the Ridgways' $50,000 in actual damages for common law trespass.
*817 The foregoing evidence, however, is insufficient to prove causation with respect to the Ridgways' cause of action for statutory trespass pursuant to § 537.340. Since § 537.340 is a penal statute, it must be strictly construed. Ridgway, 26 S.W.3d at 435; Fondren v. Redwine, 905 S.W.2d 156, 157 (Mo.App.1995). The version of the statute that was in effect in 1993 stated:
If any person shall cut down, injure or destroy or carry away any tree placed or growing for use, shade or ornament, or any timber, rails or wood standing, being or growing on the land of any other person, or shall dig up, quarry or carry away any stones, ore or mineral, gravel, clay or mold, or any ice or other substance or material being a part of the realty, or any roots, fruits or plants, or cut down or carry away grass, grain, corn, flax or hemp in which he has no interest or right, standing, lying or being on land not his own, or shall knowingly break the glass or any part of it in any building not his own, the person so offending shall pay to the party injured treble the value of the things so injured, broken, destroyed or carried away, with costs.
Section 537.340. The last clause of this statute states that the offending party is required to pay the injured party "treble the value of the things so injured, broken, destroyed or carried away...." Id. Thus, "the statute fixes the damages at treble the value of the thing removed from plaintiff's land by the trespasser." Cox v. St. Louis, M. & S.E. Ry. Co., 111 Mo.App. 394, 85 S.W. 989, 992 (1905). When the thing removed from the realty has substantial market value in its own right, the measure of damages in an action for statutory trespass pursuant to § 537.340 is the market value of the property at the time it was taken from the land. See Breiding v. Wells, 800 S.W.2d 789, 791-92 (Mo.App. 1990).
A narrow exception to this general measure of damages rule was adopted by this Court in Barnes v. Arkansas-Missouri Power Co., 220 Mo.App. 141, 281 S.W. 93 (1926). Barnes "approved the use of before and after values of the real estate as a measure of damages in a § 537.340 action where the things taken, injured, or destroyed by a willful trespass have no substantial market value, when considered in their severed state." Breiding, 800 S.W.2d at 791. When we strictly construe the language of § 537.340, as we must, a necessary corollary of Barnes becomes evident: its special measure of damages rule only applies when the change in the fair market value of the realty is caused by the trespasser's severance from the realty of one or more things listed in the statute.
Here, the only statutory items severed from the Ridgways' realty were the trees that were bulldozed down and burned. Although the trial court properly found that the destroyed trees had no substantial market value in their severed state, that finding, standing alone, would not authorize a recovery for statutory trespass based on § 537.340.[8] In order to support *818 a judgment for trespass based on this statute, there would have to be evidence that the severance of the destroyed trees from the Ridgways' realty caused the $50,000 decline in the fair market value of that real estate. No such proof was presented at trial. Accordingly, there was no substantial evidence to support a judgment for $50,000 in actual damages on the Ridgways' statutory trespass claim.
The trial court's judgment states that the damages in this case were trebled pursuant to § 537.340 because Developers "were aware of the encroachments during the construction of the road and yet proceeded to its conclusion." While such intentional conduct might have furnished a proper basis upon which to award punitive damages in this case, that issue is not before us. The trial court denied the Ridgways' request for such damages, and they have not appealed that decision. The only issue we must consider is whether the trial court's decision to treble the Ridgways' damages pursuant to § 537.340 was correct. In the absence of substantial evidence to support a recovery under the Ridgways' statutory trespass theory, we conclude that the trial court erroneously applied the law in trebling the Ridgways' $50,000 award for actual damages. See McKinsey v. Guthrie, 212 S.W. 563, 563 (Mo.App.1919) (when the elements necessary to prove statutory trespass are not met, treble damages may not be awarded). Therefore, Developers' second point is granted, but only as to the treble damage award.
Developers' third point relied on challenges the trial court's action in awarding the Ridgways $103,393.98 in attorney fees. Developers contend that the attorney fee award was erroneous because: (1) the Ridgways' request for attorney fees was not pled in their petition; (2) the circumstances of this case were not so unusual as to justify a departure from the American Rule that each party bears its own attorney fees; and (3) the Ridgways' request for attorney fees was barred by the doctrine of res judicata. Because we find the first two arguments dispositive, we do not address whether the attorney fee request was also barred by the doctrine of res judicata.
The Ridgways' petition did not contain any request for attorney fees in either the body of the petition or the prayer for relief. They first requested attorney fees in a memorandum outlining their request for damages after remand. In Developers' opposing memorandum on damages, they specifically objected to any award of attorney fees because such relief had not been pled. Despite that objection being raised, the Ridgways' attorneys did not seek leave to amend the petition to request such relief. "Attorney's fees are special damages which must be specifically pleaded to be recovered." Fisher v. Fisher, 874 S.W.2d 543, 546-47 (Mo.App.1994). See also Conley v. Rauschenbach, 863 S.W.2d 617, 620-21 (Mo.App.1993); Washington University v. Royal Crown Bottling Co. of St. Louis, 801 S.W.2d 458, 469-70 (Mo.App.1990). The trial court erroneously applied the law by awarding attorney fees to the Ridgways when their petition did not request such relief.
Reversal of the trial court's attorney fee award is required for another reason as well. The basic rules governing a party's right to recover attorney fees were recently summarized by this Court in the case of In re Morrison, 987 S.W.2d 475 (Mo.App.1999):
Missouri has adopted the "American Rule" which provides that litigants are to bear the expense of their own attorney's fees. Attorney's fees may be recovered, however, if the situation falls within one of the following categories:

*819 (1) recovery pursuant to contract or provided by statute; (2) recovery as damages to a wronged party involved in collateral litigation; or (3) reimbursement ordered by a court of equity to balance benefits. The equitable balancing of benefits by awarding attorney's fees occurs only if "very unusual circumstances" can be shown. "Very unusual circumstances," as it relates to the reimbursement of attorney's fees, has been interpreted to mean an unusual type of case or unusually complicated litigation. "Balancing of benefits" under "very unusual circumstances" has been confined to very limited fact situations.
(Citations and footnote omitted.) Id. at 478. The Ridgways' argue that the trial court was authorized to award them attorney fees in order to balance benefits. As we noted in Morrison, however, this exception to the American Rule only applies if "very unusual circumstances" can be shown. Id. This exception is confined to very limited factual situations and requires that either the case is of an unusual type, or the litigation is unusually complicated. Id.
A lawsuit brought to recover damages for either common law or statutory trespass is not an unusual type of case, as is demonstrated by the significant number of appeals involving this type of litigation decided in recent years by Missouri appellate courts. See, e.g., Tong v. Kincaid, 47 S.W.3d 418 (Mo.App.2001); Smith v. Woodard, 15 S.W.3d 768 (Mo.App.2000); Brand v. Mathis & Associates, 15 S.W.3d 403 (Mo.App.2000); Fondren v. Redwine, 905 S.W.2d 156 (Mo.App.1995); Anderson v. Howald, 897 S.W.2d 176 (Mo.App.1995); Breiding v. Wells, 800 S.W.2d 789 (Mo. App.1990). There was nothing unusually complicated about this litigation. The manner in which this case was litigated by the Ridgways and Developers fails to measure up to the requirement that "the legal actions taken by the parties significantly differ from other actions taken by other parties in similar situations, or by others trying to achieve the same result." Chapman v. Lavy, 20 S.W.3d 610, 614 (Mo.App. 2000). Thus, we conclude that the trial court also erroneously applied the law in awarding attorney fees to the Ridgways because the very unusual circumstances necessary to justify a departure from the American Rule do not exist in this case.[9]

IV. Disposition
We affirm that part of the trial court's judgment awarding the Ridgways $50,000 in actual damages. We reverse those parts of the trial court's judgment awarding the Ridgways an additional $100,000 as treble damages pursuant to § 537.340 and attorney fees in the amount of $103,393.98. The cause is remanded with directions that the trial court enter a judgment in favor of the Ridgways and against the Developers in the amount of $50,000, plus court costs.
PARRISH, J. and SHRUM, J., concur.
NOTES
[1]  All references to statutes in this opinion are to RSMo 1986, unless otherwise indicated.
[2]  The trial court's decision was supported by evidence that Developers committed trespass to the Ridgways' realty in two different ways. First, Developers directly committed trespass upon the Ridgways' realty by destroying trees, bulldozing the soil, building portions of the roadway, etc., on land outside the boundaries of the roadway easement. Second, Developers indirectly committed trespass upon the Ridgways' realty by making an unreasonable use of the roadway easement. Before the new roadway was constructed, plaintiff Robert Ridgway testified that he could access both sides of his property from the existing gravel road, which was approximately 2600 feet long, at all points along the roadway except one location. When Developers elevated the new roadway several feet above the existing grade to create better access to their condominium project, they substantially limited the Ridgways' access to their own property. As we noted in Ridgway I, "[i]f the user of an easement exceeds his right, either in manner or extent of use, he is guilty of trespass and if proven, would allow for a legal remedy of damages." Ridgway, 26 S.W.3d at 435; see also Smith v. Woodard, 15 S.W.3d 768, 773 (Mo.App.2000).
[3]  This request was supported by an affidavit filed with the trial court by one of the Ridgways' attorneys. The affidavit authenticated billing records, which were attached to the affidavit, describing the nature and extent of the services provided to the Ridgways from July 1996 through May 2002.
[4]  All references to rules in this opinion are to the Missouri Rules of Civil Procedure (2003).
[5]  Although the Ridgways pled both common law and statutory trespass in their petition, they could not recover the same damages under both theories. See Harris v. L.P. & H. Constr. Co., 441 S.W.2d 377, 382 (Mo.App. 1969).
[6]  The Ridgways were limited to the change in fair market value measure of damages because the testimony of their expert, Tom Saunders, proved that the cost of restoring the property far exceeded its market value.
[7]  The Ridgways' evidence concerning the $50,000 in additional development costs was presented through the testimony of Tom Saunders. Saunders was a landscape architect who was called as an expert witness by the Ridgways. Saunders testified that it would cost approximately $50,000 to provide the Ridgways with five access points (four downhill entrances and one uphill entrance) from the new roadway to their property. Without these entrances, the embankment was so high as to make the roadway nearly inaccessible from the Ridgways' property. Appraiser Nunn relied upon Saunders' figures in assessing the change in fair market value of the Ridgways' property.
[8]  Although some soil on the Ridgways' property outside of the easement was disturbed by bulldozing the trees and moved from one location to another as a part of the cut-and-fill method of constructing the road, there is no evidence that any soil was removed from the Ridgways' realty. The only direct evidence on this point came from Layne Helton, the contractor who built the road. He testified that no dirt was removed from the site during construction. A cause of action for statutory trespass pursuant to § 537.340 does not lie against a trespasser who merely digs up or otherwise injures the soil itself in the process of constructing a road. See Ritchie v. State Board of Agriculture, 219 Mo.App. 90, 266 S.W. 492, 495-96 (1924).
[9]  In so holding, we do not ignore the Ridgways' argument that an award of attorney fees was authorized because Developers intentionally committed trespass. As authority for that proposition, they rely upon Temple Stephens Co. v. Westenhaver, 776 S.W.2d 438 (Mo.App.1989). We find the Temple Stephens case distinguishable for the same reasons we articulated in Morrison: "[Temple Stephens] however, involved a declaratory judgment action and the court specifically noted that Rule 87.09, Missouri Rules of Civil Procedure, provided that in such actions the court can award costs as may be `equitable and just.' There is no contention, however, that Rule 87.09 applies to the instant case." Morrison, 987 S.W.2d at 478.


727 F.2d 1106
Bugherv.Consolidated X-Ray Service*
NO. 83-1677
United States Court of Appeals,fifth Circuit.
FEB 23, 1984

1
Appeal From:  N.D.Tex.

2
AFFIRMED.

*
 Fed.R.App.P. 34(a);  5th Cir.R. 34.2


77 So.3d 199 (2011)
NEALY
v.
STATE.
No. 5D10-3438.
District Court of Appeal of Florida, Fifth District.
December 27, 2011.

DECISION WITHOUT PUBLISHED OPINION
Affirmed.


31 N.J. Super. 277 (1954)
106 A.2d 321
WHITEMAN FOOD PRODUCTS COMPANY, A CORPORATION, PLAINTIFF-APPELLANT,
v.
PRODOTTI ALIMENTARI, G. ARRIGONI & C., SOCIETA PER AZIONI, A CORPORATION, DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued June 21, 1954.
Decided June 25, 1954.
*278 Before Judges CLAPP, SMALLEY and SCHETTINO.
Mr. Saul J. Zucker argued the cause for plaintiff-appellant (Messrs. Kristeller & Zucker, attorneys).
Mr. Samuel H. Nelson argued the cause for defendant-respondent.
The opinion of the court was delivered by CLAPP, S.J.A.D.
This matter comes before us on a reargument of the case reported in 27 N.J. Super. 359 (App. Div. 1953). Leave to reargue was granted in Original R. & R. Empire Pickle Works v. G. Arrigoni & C. Societa Per Azioni, 28 N.J. Super. 405, 408 (App. Div. 1953), certification denied Original R. & R. Pickle Works v. Prodotti Alimentari, G. Arrigoni & C., Societa Per Azioni, 14 N.J. 352 (1954). There are two attachment actions involving these parties, as stated in 28 N.J. Super., at page 407 and 408. Defendant has entered a general appearance in the later action, and so, for practical purposes, the questions raised here in the earlier action are of no consequence, unless *279 plaintiff is liable for costs and damages on an attachment bond it posted in that action.
We need deal with but one issue, namely, whether the writ of attachment issued in the earlier action was properly quashed. See 27 N.J. Super. 359, supra. That in turn raises the question whether the affidavit supporting the writ of attachment was sufficient. Defendant's argument, in the main, rests on two points. First, it says that this affidavit failed to show a meeting of minds on the contract on which plaintiff's claim rests. The argument here is that plaintiff made an offer to buy some merchandise from defendant in Italy, attaching a condition to the offer; but defendant, when it accepted the offer, rejected the condition. From the affidavit, however, it appears that after defendant had refused to accept this condition, plaintiff gave instructions from time to time to defendant to make shipments pursuant to the contract. This sufficiently shows that plaintiff had acceded to defendant's terms. Restatement of Contracts § 21; 1 Williston on Contracts (rev. ed.), § 90. As stated in the affidavit, defendant complied with those instructions of plaintiff, shipping to plaintiff a large quantity of merchandise, nearly a third of that ordered.
The second point urged is that defendant accepted the plaintiff's offer upon a condition, namely, "provided crop." This condition was met; the crop was sufficient to meet plaintiff's order. As appears in the affidavit (in two places), defendant's general manager orally assured plaintiff that "it had on hand" the merchandise "required to fill the contract." Besides, defendant's letter of August 14 is quoted in the affidavit: "We are of course keeping the quantities you ordered reserved for you." We dealt with this in 28 N.J. Super., at page 410.
Buttressing our conclusions upon both these points is the subsequent statement of defendant's general manager (also set forth in the affidavit) admitting "that defendant was obligated under its contract with plaintiff" to deliver the remaining two-thirds of the merchandise "contracted *280 for." The affidavit makes out a prima facie case. Plenary proof is not required.
We do not, therefore, reach the question whether the trial court erred in refusing to permit additional affidavits to be filed. We may say, however, that the provisions of R.R. 4:77-3 with respect to the filing of additional affidavits were designed to get away from a highly technical practice which once obtained. See Corbit v. Corbit, 50 N.J.L. 363 (Sup. Ct. 1888); McGrew v. Steiner, 77 N.J.L. 377 (Sup. Ct. 1909); Garrison v. Seckendorff, 79 N.J.L. 203 (Sup. Ct. 1909), affirmed 80 N.J.L. 463 (E. & A. 1910).
Reversed.


286 F.2d 681
James P. EDWARDS, Jr., Appellant,v.UNITED STATES of America, Appellee.
No. 18291.
United States Court of Appeals Fifth Circuit.
December 23, 1960.
Rehearing Denied January 31, 1961.

Howard Dailey, Dallas, Tex., Forrester Hancock, Waxahachie, Tex., for appellant.
Minor Morgan, Asst. U. S. Atty., Dallas, Tex., W. B. West, III, U. S. Atty., Fort Worth, Tex., for appellee.
Before RIVES, BROWN and WISDOM, Circuit Judges.
RIVES, Circuit Judge.

1
Edwards was charged in the same indictment with Mac T. Hall whose conviction is affirmed today.1 While Hall was tried to the court without a jury, the judgment of conviction of Edwards was based on a jury's verdict. Edwards was found guilty on Counts 1, 7, 8 and 9 of the indictment, and was sentenced to imprisonment for five years.

2
Count 1 has been described in our opinion in the Hall case. Counts 7, 8 and 9 were in all respects similar to Counts 10, 11 and 12 described in the Hall case, except that the drafts described were different and were drawn by Edwards.

3
Five hundred and fifty-three drafts were introduced in evidence, signed by Edwards and drawn variously against Edwards, First National Bank of Dallas, and Cardinal Oil of Dallas, dated variously from April 20, 1957, through October 3, 1959. The bank had paid all of these drafts without collecting on them and had received no reimbursement. These drafts represented $46,130.06 of an overall shortage of $290,320.03 on the part of the Vice President of the Bank, James Cook Evans. There was additional evidence strongly tending to prove Edwards' guilt under Counts 7, 8 and 9 of the indictment. As to those three counts, we have no doubt that the district court properly denied Edwards' motion for judgment of acquittal.

4
Of the various other objections to instructions to the jury, either given or refused, it is necessary to rule on only one. In its oral charge, the court instructed the jury as follows:

5
"The defendant Edwards is charged with aiding and abetting and inducing the commission of a wrongful act. He cannot be guilty unless there was another man guilty that he was aiding and abetting and while the defendant Evans, a vice-president of the bank, has taken the stand and admitted his guilt and entered a plea of guilty in the case it still does not necessarily follow that the defendant Edwards is guilty of aiding and abetting, because we cannot do a crime of this kind ignorantly. The criminal knowledge must be there and the intent to aid Evans in a wrongful and illegal act must have entered into the conduct of the defendant for him to be guilty. * * *"

6
The court thereafter complied with Rule 30, Federal Rules of Criminal Procedure, 18 U.S.C.A., and afforded opportunity to make objections to its charge out of the hearing of the jury. Edwards' counsel then objected to the court's statement that Evans had entered a plea of guilty and the court responded: "That is a matter of common knowledge. It occurred in open court, and has been in all of the papers."

7
As the court recognized, under this indictment charging Edwards with aiding and abetting Evans to commit the offenses, it was necessary to establish the guilt of Evans as well as that of the defendant Edwards.

8
"The basic principle of law is recognized that an aider and abettor may not be guilty in aiding or abetting a principal unless a principal did as a matter of fact commit a crime." United States v. Howitt, D.C.S.D.Fla., 1944, 55 F.Supp. 372, 374, affirmed 5 Cir., 1945, 150 F.2d 82, affirmed, 1946, 328 U.S. 189, 66 S.Ct. 923, 90 L.Ed. 1162.

9
"The law requires a guilty principal before the aider and abettor can be punished." Karrell v. United States, 9 Cir., 1950, 181 F.2d 981, 985.

10
No evidence was introduced in this case to prove that Evans had entered a plea of guilty, or even that he had been convicted. Further, the district court was in error when it stated to the jury that, "Evans, a vice-president of the bank, has taken the stand and admitted his guilt." While Evans freely admitted that he had brought about the large shortage, he never did admit his criminal intent.2 To the contrary, Evans testified in response to the court's questioning, as follows:

11
"The Court: Mr. Evans, inasmuch as the Defendant Edwards was not a customer of your bank what was the advantage or reason for making these indirect advances instead of a straight loan?

12
"The Witness: Well, in my capacity I didn't have authority to make loans, and I was hopeful of securing some new business for the bank."

13
Despite the strong evidence of guilt, we cannot hold that this erroneous charge was harmless.3 No matter how conclusive the evidence, a court may not direct a verdict of guilt.4 While this charge did not direct the jury to find the defendant guilty, it did take from the jury the question of Evans' guilt. Worse, that was done on the basis of an admission which Evans had not made and of a plea of guilty as to which there was no proof. The judgment must therefore be reversed and the cause remanded for another trial.

14
Reversed and remanded.

Notes:

1
 Hall v. United States of America, 5 Cir., 286 F.2d 676

2
 We have just stated in the Hall case:
"The willful misapplication referred to in 18 U.S.C.A. § 656 must have been, in this case, a willful misapplication for the use or benefit either of Evans or of Hall with intent to injure and defraud the bank.17
"17 See United States v. Meyer, 5 Cir., 1959, 266 F.2d 747, 754." Hall v. United States, 286 F.2d 676, 680.

3
 See Rule 52(a), Federal Rules of Criminal Procedure

4
 United Brotherhood of Carpenters, etc. v. United States, 1947, 330 U.S. 395, 408, 67 S.Ct. 775, 91 L.Ed. 273; 23 C.J.S. Criminal Law § 1146


676 F.2d 836
219 U.S.App.D.C. 238
AIRPORT SHUTTLE SERVICE, INC., Petitioner,v.INTERSTATE COMMERCE COMMISSION and United States of America,Respondents,Henry R. Kesterson d/b/a Galaxy Limousine Service, Intervenor.
No. 80-2503.
United States Court of Appeals,District of Columbia Circuit.
Argued Nov. 2, 1981.Decided April 27, 1982.

Petition for Review of an Order of the Interstate Commerce commission.
James F. Flint, for petitioner.
Linda Joachim, Atty., I. C. C., for respondents.  Richard A. Allen, Gen. Counsel, Kathleen M. Dollar, Associate Gen. Counsel, I. C. C., Robert B. Nicholson and Susan J. Atkinson, Attys., Dept. of Justice, Washington, D. C., were on the brief, for respondents.
Lawrence H. Schecker, Atty., I. C. C., Washington, D. C., also entered an appearance for respondents, I. C. C.
Chester A. Zyblut and R. Emery Clark, Washington, D. C., were on the brief, for intervenor.
Before LUMBARD*, Senior Circuit Judge of the United States Court of Appeals for the Second Circuit, and ROBB and MIKVA, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROBB.
ROBB, Circuit Judge:

1
The petitioner, Airport Shuttle Service, Inc., asks us to review a decision by the Interstate Commerce Commission, granting to intervenor Galaxy Limousine Service, Inc., authority to expand its service as a motor common carrier of passengers.1  See Henry R. Kesterson, No. MC-129768 (I.C.C. Div. No. 1, Oct. 3, 1980).  Finding that the Commission's decision is not supported by substantial evidence, we reverse.

2
Before it sought the additional authority granted by the Commission in this proceeding, Galaxy had been authorized to operate a passenger service between designated points in the northeastern United States.2  On March 20, 1979 Galaxy requested an increase in its authority, so as to include service between all points in Kent and Sussex Counties, Del., on the one hand, and, on the other, Atlantic City, N.J., Baltimore, Md., Newark, N.J., New York, N.Y., Philadelphia, Pa., Washington, D. C., Dulles International Airport, Va., and McGuire Air Force Base, N.J.  In support of its application Galaxy submitted twenty-four questionnaires completed by persons residing or working in Kent and Sussex Counties.  Each questionnaire contained twenty-two questions.3  Seven of the questions solicited background information concerning the person completing the questionnaire (Questions Nos. 1-7).  Three questions concerned the quality of the existing service provided by Galaxy (Questions Nos. 14-16).  The twelve remaining questions solicited data concerning the public demand or need for the authority requested.  Of those twelve questions, six called for "yes" or "no" responses (Questions Nos. 8 & 9, 13, 18 & 19, 22).  The final six questions were answerable in brief phrases (Questions Nos. 10-12, 17, 20 & 21); only in answering one of these questions would detail have been appropriate (Question No. 20).  As might have been expected, all the answers were laconic and lacking in detail.  Except for an affidavit given by Henry R. Kesterson, the sole owner of Galaxy, no additional evidence was offered in support of the application.  Mr. Kesterson's affidavit added nothing substantial to the material contained in the questionnaire.

3
Three common carriers intervened in the proceedings to oppose Galaxy's application.  They were Airport Shuttle, J. G. Exec., Inc., and Lewes Tours, Inc.  Each of these carriers had previously been authorized by the Commission to provide passenger services that overlapped in part the extended authority sought by Galaxy.  The intervenors submitted evidence in support of their argument that a grant of additional authority to Galaxy would impact adversely on their existing operations in a way that would harm the public interest.

4
On June 20, 1980 the Commission's Review Board No. 1 issued a decision granting Galaxy's application for extended authority.  The Review Board explained:

5
(Galaxy) presents statements from 24 present or potential future supporting users of its service ....  In identical format, the statements provide a bare minimum of information as to the requirements of the parties involved....

6
The evidence establishes a need for the proposed service.  Applicant has provided supporting statements which, although somewhat lacking in detail, attest to a need for the proposed expansion of applicant's operations.  Although they are not as precise as we might desire, the supporting statements provide adequate support for the proposed service.

7
Henry R. Kesterson, No. MC-129768, slip op. at 1-3 (I.C.C.Rev.Bd. No. 1, June 20, 1980), aff'd (I.C.C. Div. No. 1, Oct. 3, 1980).  See also Joint Appendix at 62-64.

8
Administrative appeals were filed by the three intervening carriers.  On October 3, 1980 the Commission's Division No. 1, sitting as an appellate body, summarily affirmed the Review Board's decision, concluding that "the findings of Review Board Number 1 are in accordance with the evidence and the applicable law."  Henry R. Kesterson, No. MC-129768 (I.C.C. Div. No. 1, Oct. 3, 1980).  See also Joint Appendix at 103.  Airport Shuttle filed its petition for review by this court.4

9
Under the Interstate Commerce Act as revised by the Act of October 17, 1978, Pub.L.No. 95-473, § 10921, 92 Stat. 1409 (current version at 49 U.S.C. § 10921 (Supp. III 1979)), an interstate motor common carrier of passengers cannot operate without a certificate issued by the Commission authorizing the specific service to be provided.  The standard to be applied by the Commission in determining whether a certificate should issue is found in section 10922(a) of the Act of October 17, 1978.  That section provides:

10
Except as provided in this section and section 10930(a) of this title, the Interstate Commerce Commission shall issue a certificate to a person authorizing that person to provide transportation subject to the jurisdiction of the Commission ... as a motor common carrier of passengers ... if the Commission finds that-

11
(1) the person is fit, willing, and able-

12
(A) to provide the transportation to be authorized by the certificate; and

13
(B) to comply with this subtitle and regulations of the Commission; and

14
(2) the transportation to be provided under the certificate is or will be required by the present or future public convenience and necessity.

15
Act of Oct. 17, 1978, Pub.L.No. 95-473, § 10922(a), 92 Stat. 1409, as amended by Act of July 1, 1980, Pub.L.No. 96-296, § 5(a)(1), 94 Stat. 794 (current version at 49 U.S.C.A. § 10922(a) (Supp.1981)).

16
The Commission traditionally has applied a three-part test in evaluating the evidence presented to satisfy the "present or future public convenience and necessity" standard of section 10922(a)(2) and its predecessors.  Under this test the Commission must find (1) that the authority applied for will serve a useful public purpose in response to a public demand or need, (2) that the purpose cannot be served as well by existing carriers, and (3) that the purpose can be served by the applicant without impairing the operations of existing carriers in a way that would harm the public interest.  See Pan-American Bus Lines Operations, 1 M.C.C. 190, 203 (1936).5  The federal courts of appeals are in accord in deferring to this interpretation of the "present or future public convenience and necessity" standard.  See, e.g., Watkins Motor Lines, Inc. v. ICC, 641 F.2d 1183, 1188-89 (5th Cir. 1981); Midwestern Transportation, Inc. v. ICC, 635 F.2d 771, 776 (10th Cir. 1980); P.A.K. Transport, Inc. v. United States, 613 F.2d 351, 354 (1st Cir. 1980); Argo-Collier Truck Lines Corp. v. United States, 611 F.2d 149, 152 (6th Cir. 1979); Greyhound Lines, Inc. v. United States, 195 U.S.App.D.C. 185, 187, 600 F.2d 999, 1001 (1979) (per curiam); Packer Transportation Co. v. United States, 596 F.2d 891, 895 & n.6 (9th Cir. 1979); Niedert Motor Service, Inc. v. United States, 583 F.2d 954, 959 (7th Cir. 1978); Tri-State Motor Transit Co. v. United States, 570 F.2d 773, 777 (8th Cir. 1978); Senn Trucking Co. v. ICC, 560 F.2d 1179, 1183 (4th Cir. 1977).  Judicial review of the Commission's decisions is limited to a determination of whether findings under the three-part test are supported by substantial evidence and are not arbitrary, capricious, or an abuse of discretion.  5 U.S.C. § 706(2)(A), (E) (1976).  See also Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 284, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974).  Because we determine that in the present case the Commission's findings under the first two parts of this test are not supported by substantial evidence, we reverse the agency's decision.

17
Substantial evidence can be "something less than the weight of the evidence."  Consolo v. FMC, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966).  At a minimum however a decision is not supported by substantial evidence unless there is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."  Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938).  See also May Trucking Co. v. United States, 193 U.S.App.D.C. 195, 198, 593 F.2d 1349, 1352 (1979).

18
We have described the evidence relied on by the Commission.  It simply cannot be said that the routine, laconic, and untested responses to the twelve standardized questions relating to public demand or need provide "such relevant evidence as a reasonable mind might accept as adequate to support" a finding that the authority applied for will serve a useful public purpose in response to a public demand or need.  Furthermore, assuming a public need were shown, this evidence provides no support for finding that the need cannot be served as well by existing carriers.6  We need not decide what type of evidence is necessary to support a finding of "present or future public convenience and necessity".  We do conclude however that answers to questionnaires which are of limited circulation and which produce skeletal responses, as was the case here, do not provide substantial evidence for such a finding.  Accordingly, the Commission's decision is reversed.

19
So ordered.

*
 Sitting by designation pursuant to 28 U.S.C. § 294(d) (1976)

1
 The federal courts of appeals have exclusive jurisdiction to review decisions of the ICC.  See 28 U.S.C. § 2342(5) (1976 & Supp. III 1979)

2
 Galaxy held permanent authority to provide its service between Dover Air Force Base, Del., on the one hand, and, on the other, Baltimore, Md., Newark, N.J., New York, N.Y., Philadelphia, Pa., Washington, D. C., Baltimore-Washington International Airport, Md., Dulles International Airport, Va., McGuire Air Force Base, N.J., and National Airport, Va.  Galaxy held temporary authority to provide its service between Seaford, Del., and Baltimore, Md.  In operating its service, Galaxy utilized two eleven-passenger vans, one seven-passenger van, one six-passenger van, and three smaller vans.  See generally Henry R. Kesterson, No. MC-129768, slip op. at 1 (I.C.C. Rev. Bd. No. 1, June 20, 1980), aff'd (I.C.C. Div. No. 1, Oct. 3, 1980)

3
 Listed below are the twenty-two questions:

1
 Please state your name and address

2
 If you are giving a statement on behalf of your family and on your own behalf, state the names and relationships of the members of your family for whom you make this statement.-a.  If you are making this statement on behalf of a company or association, name the company or association.-b.  Are you authorized to make this statement on their behalf.-c.  By whom

3
 Are you familiar with Bob Kesterson-Galaxy Limousine Service

4
 Do you know the type of service he now provides

5
 Are you familiar with the proposal of Galaxy Limousine Service to transport passengers and their baggage, transporting not more than eleven (11) passengers in any one vehicle, in special operations, between Kent and Sussex Counties, Del., and Wrightstown, N.J., Newark, N.J., Washington, D. C., Dulles International Airport, Loudoun County, Va., Atlantic City, N.J., Philadelphia, Pa., and New York, N.Y

6
 Have you been advised by Bob Kesterson of the service proposed to be offered between Kent and Sussex Counties, Del. and the points noted above

7
 What type of business do you maintain

8
 Do you or your employees have a need for door-to-door passenger service

9
 Do you arrange for surface transportation from or to Kent/Sussex County

10
 To and from where would you propose to travel and use Galaxy's service

11
 How often would you take these trips to be offered by Galaxy

12
 How do you presently get to the points mentioned.-a.  Is this satisfactory

13
 Would it be an advantage to have the Galaxy Service

14
 Have you used it in the past

15
 How do you find the service

16
 Are you familiar with the equipment and facilities of Galaxy, and, do you find them suitable

17
 What, if any, other comparable bus service is available to you, your family, or business in Kent/Sussex County

18
 Are you familiar with J. G. Exec., Airport Shuttle Service, or Lewes Tours, Inc.-a.  Ever use them

19
 Have you found their services satisfactory to meet your needs

20
 If not, why not.  Please be specific if you have any complaints with service from other carriers.  If there is no such service, please so state

21
 Describe what you must presently do to travel between Kent/Sussex County, Del. and points in the application area

22
 Will you use the service if it is authorized
See, e.g., Brief for Petitioner at appendix B.

4
 J. G. Exec., Inc., filed a motion to intervene in this court.  We granted the motion on January 14, 1981.  Subsequently, however, J. G. Exec., Inc., moved for leave to withdraw.  Leave was granted on April 9, 1981

5
 The evidentiary burden on the first two parts of the test is with the applicant.  May Trucking Co. v. United States, 193 U.S.App.D.C. 195, 198, 593 F.2d 1349, 1352 (1979).  Opponents of the application carry the burden on the final part of the test in that they must show that existing operations will be impaired in a way that would harm the public interest.  Id. at 202, 593 F.2d at 1356
The three-part Pan-American test recently has been revised by the Commission.  See 44 Fed.Reg. 60296 (Oct. 19, 1979).  In a published policy statement, the Commission announced that the second part of the test, (i.e., that the purpose cannot be served as well by existing carriers), was to be eliminated.  Furthermore, the Commission more explicitly defined the evidentiary burdens under the remaining two parts, saying:
In determining applications for motor common carrier authority, we will apply these tests:
(1) The applicant must demonstrate that the operation proposed will serve a useful public purpose responsive to a public demand or need.
(2) The Commission will grant authority commensurate with the demonstrated purpose unless it is established by parties opposing the application that the entry of a new carrier into the field would endanger or impair the operations of existing common carriers to an extent contrary to the public interest.

44
 Fed.Reg. 60296, 60299 (Oct. 19, 1979).  This policy change was upheld as "a matter within the Commission's expertise" in Assure Competitive Transportation, Inc. v. United States, 635 F.2d 1301, 1307 (7th Cir. 1980)
The new standard is not to be applied, however, in the case at bar.  When originally announced, the Commission established an effective date of November 19, 1979 for applying the new policy.  44 Fed.Reg. 60296 (Oct. 19, 1979).  Subsequently the Commission determined that it would apply the new policy only to applications published in the Federal Register after November 30, 1979.  See Watkins Motor Lines, Inc. v. ICC, 641 F.2d 1183, 1189 n.10 (5th Cir. 1981); Assure Competitive Transportation, Inc. v. United States, 635 F.2d 1301, 1304 (7th Cir. 1980).  The application in this case preceded the effective date, having been published on July 3, 1979.  See 44 Fed.Reg. 39064.

6
 Because we find that Galaxy did not fulfill its burden on the first two parts of the test, we need not pass on whether opponents of the application presented sufficient evidence to support a finding that a grant of the requested authority would impair existing operations in a way that would harm the public interest


760 N.W.2d 183 (2008)
2008 WI App 172
STATE
v.
BARBER[1].
No. 2007AP1601-CR.
Court of Appeals of Wisconsin.
October 21, 2008.
Affirmed.
NOTES
[1]  Petition for Review Filed.