                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              ____________________

                               NO. 09-14-00395-CR
                               NO. 09-14-00396-CR
                               NO. 09-14-00397-CR
                              ____________________

                    JAMES MICHAEL KEYSER, Appellant

                                         V.

                  THE STATE OF TEXAS, Appellee
___________________________________________________________________

                On Appeal from the 410th District Court
                      Montgomery County, Texas
             Trial Cause No. 13-12-12964 CR (Counts 1, 2, 3)
___________________________________________________________________

                          MEMORANDUM OPINION

      James Michael Keyser pleaded guilty to two counts of possession of a

controlled substance with intent to deliver and one count of unlawful possession of

a firearm by a felon. After a trial on punishment, the trial court sentenced Keyser to

fifty years in prison on the possession counts and twenty years in prison for

unlawful possession of a firearm, to run concurrently. In a single appellate issue,

                                          1
Keyser challenges the denial of his motion for new trial on punishment. We affirm

the trial court’s judgment.

      In his motion for new trial, Keyser argued that favorable new evidence had

been discovered since his trial, specifically, that “he may be accepted for in-patient

residential treatment at the Cenikor Residential Treatment Center in Houston,

Texas.” He argued that he suffers from chronic drug use and needs treatment, but

that the trial court’s sentence was excessive and violated the Eighth Amendment of

the United States Constitution. The trial court denied the motion.

      We review the trial court’s denial of a motion for new trial for abuse of

discretion. Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013). To be

entitled to a new trial based on newly discovered evidence, a defendant must show

that: (1) the evidence was unknown or unavailable to him at the time of trial; (2)

his failure to discover or obtain the evidence was not due to a lack of due

diligence; (3) the evidence is admissible, not cumulative, corroborative, collateral,

or impeaching; and (4) the evidence is probably true and will probably produce a

different result in a new trial. Carsner v. State, 444 S.W.3d 1, 2-3 (Tex. Crim. App.

2014). “If the appellant fails to establish any one of these elements, the trial court

does not abuse its discretion by denying the motion for new trial.” Jones v. State,

234 S.W.3d 151, 157 (Tex. App.—San Antonio 2007, no pet.).

                                          2
      At trial, Augustin Gutierrez, a licensed professional counselor, recommended

Keyser for the SAP program, an intensive outpatient treatment program with

extended aftercare. He explained that Keyser had not previously participated in

such a treatment program, he had created additional stipulations for Keyser, and he

believed that Keyser had made progress in drug therapy classes. Gutierrez testified

that inpatient treatment was an available alternative to SAP. He opined that Keyser

needs treatment and is an appropriate candidate for treatment. Gutierrez admitted

that Keyser had previously participated in SAFPF and treatment at The Harbor

Ministries. When imposing Keyser’s sentence, the trial court stated:

      The last thing that I would ever do would be to place you in a program
      with other people that are working to fight and to get control of their
      addiction. That would be a temptation to you that you’ve proven you
      can’t succeed around. . . .

On appeal, Keyser maintains that it was unknown at the time of trial that he

qualified for inpatient treatment. Accordingly, Keyser argues that the trial court’s

sentence would be different upon hearing testimony from an inpatient provider in

addition to Gutierrez’s testimony.

      At trial, the trial court heard Keyser admit that, when he was arrested in

2013, he had been dealing drugs and was found in possession of weapons, live

rounds, methamphetamine, marihuana, LSD, Dilaudid, a methamphetamine pipe,

scales, and baggies. Keyser testified that he previously participated in SAFPF and
                                         3
spent six months with The Harbor Ministries, but relapsed and failed to complete

the program. The trial court also heard Gutierrez testify that Keyser had previously

participated in other treatment programs and that inpatient treatment was an option.

Nevertheless, when sentencing Keyser, the trial court emphasized that Keyser had

proven an inability to succeed in treatment programs.

      Under these circumstances, the record does not demonstrate that additional

evidence suggesting that Keyser could participate in inpatient treatment would

probably produce a different result. See Carsner, 444 S.W.3d at 3. The trial court

did not abuse its discretion by denying Keyser’s motion for new trial. See

Okonkwo, 398 S.W.3d at 694; see also Jones, 234 S.W.3d at 157. We overrule

Keyser’s sole issue and affirm the trial court’s judgment.

      AFFIRMED.

                                              ______________________________
                                                     STEVE McKEITHEN
                                                         Chief Justice

Submitted on July 17, 2015
Opinion Delivered August 12, 2015
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.

                                          4


11-2755-cr
United States v. Oluigbo

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 31st day
of May, two thousand twelve.

Present:
            BARRINGTON D. PARKER,
            PETER W. HALL,
            SUSAN L. CARNEY,
                        Circuit Judges.
____________________________________________________

United States of America,
                              Appellee,

               v.                                                   No.    11-2755-cr

Joseph Oluigbo,
                              Defendant-Appellant,

Emmanuel Oruche, Fnu Lnu, Ambo Rebecca Fomum-Tibah,
Cosme Frederick Tibur Jemy, Fnu Lnu, Linus Iheukwu, Paul Osuji,

                        Defendants.
____________________________________________________

FOR APPELLANT:                Robert J. Boyle, Law Office of Robert J. Boyle, New York, New
                              York
FOR APPELLEE:           Michael M. Rosensaft, (Jesse M. Furman, on brief) Assistant
                        United States Attorneys, of counsel, for, Preet Bharara, United
                        States Attorney for the Southern District of New York, New York,
                        New York
____________________________________________________

       Appeal from the United States District Court for the Southern District of New York

(Pauley, J.). ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED,

and DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Defendant-Appellant Joseph Oluigbo appeals from a judgment of the district court

sentencing him to 126 months’ imprisonment following his conviction, after a jury trial, of

conspiracy to possess with intent to distribute heroin, 21 U.S.C. § 846, and conspiracy to import

heroin, 21 U.S.C. § 963. After trial, Oluigbo and one of his co-defendants, Emmanuel Oruche,

appealed, challenging the sufficiency of the evidence and their sentences. As discussed in

greater depth below, we rejected their sufficiency challenges, but vacated their sentences and

remanded for resentencing. On remand, Oluigbo was re-sentenced to 126 months’

imprisonment. In this second appeal, Oluigbo contends that his sentence is substantially

unreasonable. We assume the parties’ familiarity with the underlying facts, and the issues on

appeal, and we discuss these only as necessary to explain our decision.

       Oluigbo was tried jointly with Emmanuel Oruche, who was convicted of additional

counts of conspiracy. In light of the jury’s findings as to the amount of drugs involved in the

Oluigbo’s charged conspiracies and well as the government’s decision to file a prior felony

information, Oluigbo was subject to a statutory mandatory minimum of 120 months. See 21

U.S.C. §§ 841(b)(1)(B), 960(b)(2)(A), 851(a). The Probation Office calculated his offense level

at 32 and his criminal history at category III, yielding an advisory Guidelines range of 151 to 188

                                                -2-
months’ imprisonment. After determining that Oruche was a career offender, the district court

sentenced him to a term of 270 months’ imprisonment. Oluigbo was initially sentenced to a term

of 126 months’ imprisonment. Both men appealed, challenging the sufficiency of the evidence

and their sentences. We rejected the sufficiency challenges, but we vacated their sentences,

concluding that the district court erroneously found Oruche to be a career offender. United

States v. Oluigbo, 375 F. App’x 61, 63-67 (2d Cir. 2010). While we rejected Oluigbo’s

contention that he was entitled to a “minor participant” adjustment under the Guidelines, we

found it prudent to allow the district court to re-sentence Oluigbo because the district court

indicated that his sentence had been “placed in context” with Oruche’s flawed sentence. Id. at

66-67. We expressed no view on the proper sentence for Oluigbo following remand. Id.

       On June 23, 2011, Oruche and Oluigbo appeared before the district court for

re-sentencing. Without the career offender designation, Oruche’s Guidelines were re-calculated

to reflect a range of 292 to 365 months’ imprisonment instead of 360 months to life

imprisonment. Oruche addressed the court and apologized for his “great mistake.” The court

then re-sentenced Oruche to a term of 240 months’ imprisonment.

       At his re-sentencing, Oluigbo chose to address the court, but did not specifically accept

responsibility for his crimes. Instead he said: “I’m sorry to find myself here,” and indicated that

he “was willing to accept whatever you want me to accept.” The court first reiterated the

findings it made at the original sentencing, noting that the Oluigbo played a “crucial” role in the

conspiracy and was “more than just an average participant.” He noted that Oluigbo remained

unwilling to accept responsibility for his role in the conspiracy. The court then imposed a

126-month term of imprisonment, stating that the sentence is “entirely appropriate and just and

                                                -3-
certainly not more than necessary as a matter of deterrence.” Oligbo now challenges this

sentence on appeal.

       “We are constrained to review sentences for reasonableness, and we do so under a

deferential abuse-of-discretion standard.” United States v. Conca, 635 F.3d 55, 62 (2d Cir.

2011) (internal citation and quotation marks omitted). Our appellate review “encompasses two

components: procedural review and substantive review.” United States v. Cavera, 550 F.3d 180,

189 (2d Cir. 2008) (en banc). Oluigbo challenges only the substantive reasonableness of his

sentence, which we review principally with respect to the “length of the sentence imposed.”

United States v. Bonilla, 618 F.3d 102, 108-09 (2d Cir. 2010). “We will . . . set aside a district

court’s substantive determination only in exceptional cases where the trial court’s decision

cannot be located within the range of permissible decisions.” Cavera, 550 F.3d at 189 (internal

quotation marks omitted). This standard provides “a backstop for those few cases that, although

procedurally correct, would nonetheless damage the administration of justice because the

sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter

of law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).

       Oluigbo essentially reprises the argument we have already rejected—as a “relatively

minor player” in the conspiracies, “the 126 month prison sentence was unreasonable.” See

Oluigbo, 375 Fed. Appx at 66 (“[W]e find no error in the District Court’s determination that

Oluigbo was not entitled to a minor-role adjustment.”). Under the applicable standard and our

earlier ruling, this appeal has no merit. Departing from the Guidelines range of 135 to 168

months’ imprisonment, the district court sentenced Oluigbo to six months longer than the

statutory minimum of 120 months. Given Oluigbo’s conviction and the district court’s finding

                                                -4-
that he had a significant (as opposed to minor) role in this international heroin trafficking ring,

the sentence was well within “the range of permissible decisions.” Cavera, 550 F.3d at 191.

       Arguing that the Guidelines range is itself the product of an over-reliance on drug

quantity, Oluigbo contends that the benchmark set by the Guidelines “should have been accorded

far less weight.” Nothing, however, requires district courts to lower sentences based on

disagreement with the applicable guidelines—whether to do so rests within the sound discretion

of the district court. See Rita v. United States, 551 U.S. 338, 350-51 (2007). As we have

repeatedly stated, we “will not second guess the weight (or lack thereof) that the judge accorded

to a given factor or to a specific argument made pursuant to that factor.” United States v. Pope,

554 F.3d 240, 247 (2d Cir. 2009) (internal quotation marks omitted).

       Oluigbo also argues that because the district court reduced Oruche’s sentence from 270

months to the applicable statutory minimum of 240 months, Oluigbo’s sentence should similarly

be lowered to the applicable statutory minimum of 120 months. As noted by the district court,

however, the lowering of Oruche’s sentence was based on the significant change in his

Guidelines benchmark as well as his apparent cooperation with the government and his remorse

for his criminal activity. In contrast, nothing about Oluigbo’s benchmark changed, and he

continued to maintain his innocence despite the jury’s findings. This is not an exceptional case

that involves a “shockingly high” sentence which damages our administration of justice. Rigas,

583 F.3d at 123. The district court did not exceed the bounds of its discretion in imposing it.

       We have considered Oluigbo’s remaining arguments and find them without merit. For

the foregoing reasons, the judgment of the district court is AFFIRMED.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk

                                                 -5-


667 F.2d 1033
Weisenburgv.Bank of California, N.A.
80-4173
UNITED STATES COURT OF APPEALS Ninth Circuit
11/20/81

1
E.D.Cal.

AFFIRMED


445 F.2d 656
Joseph C. GRANT, Plaintiff-Appellee,v.Elliot L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant-Appellant.
No. 28902 Summary Calendar.*
United States Court of Appeals, Fifth Circuit.
June 29, 1971.

Seagal V. Wheatley, U. S. Atty., San Antonio, Tex., Kathryn H. Baldwin, Leonard Schaitman, Attys., U. S. Dept. of Justice, William D. Ruckelshaus, Asst. Atty. Gen., Washington, D. C., for defendant-appellant.
Fritz K. Knust, San Antonio, Tex., for plaintiff-appellee.
Before JOHN R. BROWN, Chief Judge, and MORGAN and INGRAHAM, Circuit Judges.
PER CURIAM:

1
Under the recent opinion of the Supreme Court of the United States in the case of Richardson, Secretary of Health, Education, and Welfare v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L. Ed.2d 842, decided May 3, 1971, the conclusion of the District Court that the testimony of Dr. C. W. Williams, the orthopedic surgeon, and Dr. R. C. Hardy, the neurosurgeon, did not constitute substantial evidence was error. Therefore, the Secretary's determination, being supported by substantial evidence, must be affirmed, even if there was also substantial evidence which may have supported a finding in favor of the claimant Grant. Moreover, the resolution of any conflict in the evidence, including conflicting medical opinions, as in the case at hand, and the determination of questions of credibility of the witnesses are not for the court; such functions are solely within the province of the Secretary. Martin v. Finch, 5 Cir., 1969, 415 F.2d 793; Stillwell v. Cohen, 5 Cir., 1969, 411 F.2d 574, 575-576.

2
The motion of the defendant, Secretary of Health, Education and Welfare, should be granted; and the motion of the plaintiff (claimant) for summary judgment should be denied.

3
Reversed with directions.

Notes:

*
 Rule 18, 5th Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al., 5 Cir., 1970, 431 F.2d 409, Part I


724 A.2d 639 (1999)
353 Md. 30
In re EMILEIGH F.
No. 53, Sept. Term, 1998.
Court of Appeals of Maryland.
February 18, 1999.
*640 Nancy S. Forster, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.
C.J. Messerschmidt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen.; Judith L. Fitzgerald, Asst. Atty. Gen., on brief), Baltimore, for respondent.
Argued before BELL, C.J., and RODOWSKY, CHASANOW, RAKER, WILNER, CATHELL, and THEODORE G. BLOOM (Retired, Specially Assigned), JJ.
RAKER, Judge.
We granted certiorari to consider whether litigants in a Child in Need of Assistance proceeding pursuant to MD.CODE ANN., CTS. & JUD. PROC. § 3-801 et seq.[1] have a right to present closing argument. We shall hold that they do.

I.
This case arises out of an order of the District Court of Maryland for Montgomery County, sitting as a juvenile court, awarding custody of Emileigh F., a child adjudged to be a Child in Need of Assistance (hereinafter CINA), to her Father, John F. Emileigh was born to Danielle W. and John F. on April 5, 1995.
On April 23, 1996, the Department of Health and Human Services filed a petition in the District Court of Maryland for Montgomery County, sitting as a juvenile court, alleging that Emileigh F., the daughter of Petitioner Danielle W., was a CINA.[2]See § 3-801.[3] The court appointed counsel to represent Emileigh.
On April 25, 1996, the court adjudicated Emileigh a CINA and committed her to the care of the Department of Health and Human Services (hereinafter DHHS), placing her in the custody of her maternal grandmother, Karen O. On July 10, 1996, in a disposition hearing, the juvenile court ordered that Emileigh be continued in her grandmother's care and that her Mother, Danielle W. participate in regular mental health treatment and therapy.[4] The court held two subsequent review hearings and continued custody of Emileigh with her grandmother and the visitations with Danielle W.[5]
On April 14, 1997, the court held a review hearing and ordered visitation between Emileigh and John F. and Danielle W., as well as another family evaluation. On May 27, 1997, John F. filed in the juvenile court a motion seeking custody of Emileigh. Danielle W. responded, requesting that John F.'s motion be denied.
On June 20, 1997, through the social worker, James Flaherty, and the Permanency Planning Supervisor, Sandra Grijalva, DHHS made the following recommendation:
The Department believes that both the W. family and the F. family are ready and able to meet Emileigh's needs for safety, stability, and nurturing and that there are no further child welfare issues regarding her care. Mrs. W. has demonstrated increased stability and maturity for handling the stresses in her life and being more available to her children, by using available therapeutic and community resources and by relying on the assistance of her husband. Mr. F. has demonstrated a new sense of responsibility and dedication as Emileigh's parent, and he and his wife have taken all the necessary steps in preparing a home for Emileigh.

* * * * * *
Emileigh has two sets of capable parents wanting to provide her a stable, loving home. The Department suggests a period of increasing visitation to help Emileigh adjust to living in a new home and leaving the home of her grandparents, where she has lived most of her life....
On the same day, the Child and Adolescent Forensic Evaluation Services provided a family assessment and recommended that Emileigh be returned to the care and custody of her mother, Danielle W. by September, 1997 so as to provide her with a stable and permanent living situation.
On June 27, 1997, the juvenile court held a further review hearing. The focus of the hearing was the custody of Emileigh. All parties were represented by counsel. The court heard from several witnesses, including James Flaherty, the DHHS social worker, the maternal grandmother who had custody of Emileigh, John F., and Danielle W.
At the conclusion of all the testimony, the court inquired if the attorneys had any further evidence to present. Counsel responded that there was no further evidence. Counsel for John F. stated that he had no further evidence to present, "[j]ust argument." The court stated as follows:
COURT: Okay. Well, I'm not going to let you all argue. I've heard enough. And I told you that I was going to quit five minutes ago.[6]
Obviously I'm presented with a decision that is difficult to make. But I don't have any trouble making that decision. I find that Mr. F. is a very appropriate person, and I'm going to grant him custody of Emileigh. I'm going to ask the Department to remain involved in the case, to make sure that the transition is smooth. I want Emileigh to continue to have visits with her mother.
The Department said that they had no Protective Service concerns. I have many Protective Service concerns about Emileigh being in the custody of her mother. I'm very concerned about the mother's instability, about her failure to follow through with therapy and parenting classes, the fact that there's no home study that's been done. Uh ... the fact that she doesn't recognize any of the issues that were stipulated to, that were the basis of the CINA finding over a year ago.

*642 Clearly she has improved. Her emotional stability has improved, but I have never believed in the Prince Charming School of Social Work. And I don't believe that marrying someone solves the problems that you have.
I'm very happy that she's made progress in her life, and hopefully she's taking good care of her child, McKenzie, but at this time, I'm going to grant the father custody of the child.
The court awarded custody of Emileigh to her Father, John F.
Danielle W. filed a timely appeal to the Court of Special Appeals. The intermediate appellate court affirmed, holding, inter alia, that because Danielle W. did not object to the failure of the court to receive closing argument, the objection was waived and was not properly before the appellate court. We granted Danielle W.'s petition for writ of certiorari to answer the following questions:
I. Did the Court of Special Appeals err in holding that since parents of children adjudged in need of assistance do not have a constitutional right to counsel in CINA proceedings, they have no right to present closing argument in such proceedings and, therefore, there was no error in denying Petitioner's counsel the right to present closing argument?
II. Should custody of two year old Emileigh F. have been awarded to her father rather than to Petitioner?

II.
We shall first address Respondent's threshold argument that the issue was not preserved for appellate review because Petitioner never raised it below. Respondent asserts that Mr. F., as the only party who asked for the opportunity to make closing argument, was the only one denied the opportunity to do so. Because Petitioner did not object when the court denied Mr. F. the opportunity to argue, or complain that she was denied the opportunity to argue, her claim is not properly preserved for appeal.
Petitioner counters that the preservation issue is not contained within the certiorari petition, and moreover, if the question were properly before this Court, that the issue was preserved. Petitioner points out that the judge said: "I'm not going to let you all argue. I've heard enough." The judge then proceeded immediately to give her ruling. Petitioner argues that the court's ruling clearly applied to Petitioner as well as Respondent and that any objection would have been futile.
We agree with Petitioner and find that the issue is preserved for our review. As we said in Johnson v. State, 325 Md. 511, 515, 601 A.2d 1093, 1094 (1992), "[i]t was apparent that his ruling on further objection would be unfavorable to the defense.... In the circumstances, the absence of a further objection did not constitute a waiver. See Md. Rule 4-323(c)."
The instant case is remarkably similar to Bundy v. State, 334 Md. 131, 638 A.2d 84 (1994). In that case, the defendant Bundy had not objected to the State's use of peremptory challenges, although his codefendant had objected. Id. at 135-36, 638 A.2d at 86-87. The State argued that because Bundy failed to make known to the court the action he desired the court to take, or to object to the action of the trial court, he had not preserved the issue for appeal. Id. at 138, 638 A.2d at 88. We concluded that the ruling of the trial judge suggested that Bundy would receive the benefit of his codefendant's objection. Id. at 146-147, 638 A.2d at 92-93. Writing for the Court, Judge Chasanow stated:
[T]he trial judge was `kind enough' to acknowledge that the codefendant's objection also benefitted Bundy. When the codefendant exclaimed, `Your Honor, I'm sorry. I thought the State had exhausted her strikes,' the judge explicitly addressed both of the parties in overruling the objection. He immediately stated, `You each get four. The State gets eight.' (Emphasis added). Thus, the manner in which the trial judge summarily overruled the objection in this case adequately reflects that he assumed the objection was made on behalf of both defendants. As such, Bundy sufficiently preserved the peremptory challenge issue for appellate review.
*643 Id. at 146, 638 A.2d at 92. We noted that immediately after the codefendant's objection the trial court ruled on the objection. Id. at 147, 638 A.2d at 92. We held that the issue was sufficiently preserved, reasoning that "[t]he manner of that ruling obviated Bundy's need to join in the objection because the judge acknowledged that the objection inured to Bundy's benefit by expressly directing his ruling (`You each get four. The State gets eight.') to both defendants." Id. at 147, 638 A.2d at 92-93.
Likewise, in the instant case, the judge ruled immediately after the other party requested closing argument. It was apparent that the ruling applied to all parties. In light of the judge's statement that she would not let anyone argue"I'm not going to let you all argue"it would have been futile for Petitioner to have objected. The court could hardly have permitted Petitioner closing argument and have denied the other parties the same opportunity. Under these circumstances, Petitioner did not waive her right to closing argument by her failure to interpose an objection.

III.
Courts around the country are split as to whether there is an absolute right to closing argument in civil cases. It is clear that in criminal cases, in both jury and non-jury cases, it is a violation of the constitutional right to counsel to deny a party the opportunity to make final argument. Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975); Spence v. State, 296 Md. 416, 463 A.2d 808 (1983) (stating that opportunity for closing argument in non-jury criminal case is a basic constitutional right guaranteed by the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights). This right exists "even in cases where the evidence appears to be overwhelming." Holmes v. State, 333 Md. 652, 658, 637 A.2d 113, 116 (1994).
In civil cases, there are at least three general approaches. Some courts have held that the right is a constitutional right that is absolute, and the denial of that right is reversible error. See e.g. Pettry v. Pettry, 706 So.2d 107, 108 (Fla.Dist.Ct.App.1998) (holding that "due process requires that a party be given the opportunity to present closing argument"); Nestor v. George, 354 Pa. 19, 46 A.2d 469, 473 (1946) (holding that "a litigant's right to be fully represented by counsel is an integral part of ... `due process of law'"). Other courts have held that the right exists but argument may be precluded by the court when no factual issues exist or when the parties waive or acquiesce in the denial of the opportunity. See e.g., Aladdin Oil Burner Corp. v. Morton, 117 N.J.L. 260, 187 A. 350, 350 (N.J.Sup.1936) (holding that in a case exhibiting issues of fact, the right to present analysis and inferences from the evidence is absolute); Douglass v. Hill, 29 Kan. 527 (1883) (without indicating the basis of the right, the court held that a party to a law suit has an absolute right to be heard, "not merely in the testimony of his witnesses, but also in the arguments of his counsel"). Finally, some courts have held that in civil, non-jury cases, the matter is entirely discretionary with the court. See e.g., Fritts v. Fritts, 11 Md.App. 195, 199, 273 A.2d 648, 650 (1971) (holding that "argument by counsel upon submission of a civil case tried without a jury is a matter within the discretion of the trial court"); Korbelik v. Staschke, 232 Ill.App.3d 114, 173 Ill.Dec. 181, 596 N.E.2d 805, 808 (1992) (holding that in a civil proceeding, non-jury, closing argument is a privilege, not a right, and is within the discretion of the court); Peckham v. Family Loan Co., 262 F.2d 422, 425 (5th Cir.1959) (same). See cases collected Annot., Argument of CounselDenialPrejudice 38 A.L.R.2d 1396-1439 (1989 & 1998 Supp.).
Although the question of whether a party has a right to have an opportunity to make closing argument in a CINA proceeding has not been decided by this Court, the Court of Special Appeals considered whether there is a right to closing argument in a civil proceeding directing the defendant to show cause why he should not be held in contempt for failure to pay child support. In Lee v. State, 56 Md.App. 613, 624, 468 A.2d 656, 661 (1983), overruled in part on other grounds, Cherry v. State, 62 Md.App. 425, 433 n. 2, 489 A.2d 1138, 1142 n. 2 (1985), the court held *644 that a defendant in a civil contempt proceeding cannot be sentenced to a period of incarceration unless his counsel is afforded the right to make closing argument. The intermediate court based this right on the due process clause of the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights. Id. at 624, 468 A.2d at 661.
In State v. Brown, 324 Md. 532, 597 A.2d 978 (1991), we considered the question of whether, in a criminal case, a defendant has a right to present argument at the conclusion of an evidentiary motion to suppress his confession. We initially noted that the rule set out in Herring v. New York, 422 U.S. 853, 858-59, 95 S.Ct. 2550, 2553-54, 45 L.Ed.2d 593 (1975), that the defendant has an absolute right to make closing argument, is limited to the presentation of argument at the conclusion of a criminal trial. Brown, 324 Md. at 541, 597 A.2d at 982. We observed that the Supreme Court has not as yet recognized an absolute constitutional right to present closing argument at the conclusion of a suppression hearing. Id. at 541-43, 597 A.2d at 983. We held, however, that as a matter of Maryland nonconstitutional common law, "when a suppression hearing is held each party ordinarily should be afforded a reasonable opportunity to present argument." Id. at 546, 597 A.2d at 985. Judge McAuliffe, writing for the Court, discussed the limits that a trial court appropriately may be set on closing argument:
The extent of the argument may depend on the complexity of the legal issues, whether evidence has been received, whether there is a conflict in the evidence, and other factors. The trial judge, of necessity, must have great latitude in controlling the duration and limiting the scope of these arguments. The trial judge may limit counsel to a reasonable time, ensure that the argument does not stray unduly from the mark, and terminate argument when continuation would be repetitive or redundant.
Id. at 546, 597 A.2d at 985.
As we have indicated, several states have held that there is a right to closing argument in civil cases as well as criminal ones. For example, the Supreme Court of North Dakota held in Fuhrman v. Fuhrman, 254 N.W.2d 97, 101 (1977), that "litigants in civil nonjury cases (and, of course, in all criminal and jury cases as well) have a right to have their attorneys make a final argument." The court qualified this absolute right, as we did in Brown, noting that this right "may be limited as to content so as to preclude improper argument ..." Id. In Aladdin Oil Burner Corp., 187 A. at 350, the Supreme Court of New Jersey held that in a contract matter, the trial court's denial of the right to closing argument arbitrarily denied the litigant an absolute right to present to the trier of fact an analysis of the evidence and the inferences to be deduced therefrom.
We now hold that litigants in a CINA proceeding ordinarily have a right, based on nonconstitutional Maryland common law, to have an opportunity to make closing argument. Although our holding is grounded in nonconstitutional law, the Supreme Court's rationale in Herring, 422 U.S. at 863, 95 S.Ct. at 2556, is equally applicable:
Some cases may appear to the trial judge to be simpleopen and shutat the close of the evidence. And surely in many such cases a closing argument will, in the words of Mr. Justice Jackson, be `likely to leave [a] judge just where it found him.' But just as surely, there will be cases where closing argument may correct a premature misjudgment and avoid an otherwise erroneous verdict. And there is no certain way for a trial judge to identify accurately which cases these will be, until the judge has heard the closing summation of counsel.
(Alteration in original) (footnotes omitted). Among other benefits of argument, counsel's remarks may highlight portions of the testimony considered most favorable or significant, point out inferences to be drawn from the evidence, or explain seemingly irrelevant testimony. The court may limit this right as to content so as to prevent improper argument, and to impose reasonable time limits, but may not deny the right altogether. We have noted that the right to be heard by counsel exists "however simple, clear, unimpeached, and conclusive the evidence may *645 seem, unless [counsel] has waived his right to such argument...." Yopps v. State, 228 Md. 204, 207, 178 A.2d 879, 881 (1962).
In a CINA dispositional proceeding, the juvenile court has the power to commit a child to the custody or under the guardianship of the Department of Juvenile Justice, a local department of social services, the Department of Health and Mental Hygiene, or a public or licensed private agency where the child is to be accommodated until custody or guardianship is terminated with approval of the court. § 3-820(c)(1)(ii). An indigent, custodial parent or guardian of the child alleged to be in need of assistance is entitled to the assistance of counsel if the proceeding is under § 3-820. See § 3-821. The right to a hearing under these circumstances means more than simply listening to the examination of witnesses. It includes the arguments of counsel, or, if the party is unrepresented, of the party.
In CINA cases involving a dispositional review hearing, the issues are very often fact-intensive. This is true in the instant case. Although the right to present argument may be limited, it should not have been totally denied. Counsel should have been permitted to present argument to the court. Accordingly, the trial court abused its discretion in totally denying Petitioner the opportunity for closing argument.

IV.
Petitioner's final argument is that the juvenile court's findings were clearly erroneous and that the court should have awarded custody of Emileigh F. to Danielle W. She argues that "it is impossible to conclude that anyone other than Danielle W. should have been awarded custody of Emileigh F." This argument has no merit.
The evidence before the court was that "Emileigh has two sets of capable parents wanting to provide her a stable, loving home." DHHS Status Report dated June 20, 1997. See also, DHHS Child and Adolescent Forensic Evaluation Service Report and Recommendation. Accordingly, pursuant to Maryland Rule 8-604(d)[7], we shall remand the case to the District Court of Maryland for further proceedings. The District Court, sitting as the juvenile court, shall conduct a review hearing and determine anew as of the time of the hearing the placement for the care and custody of Emileigh F.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND CASE TO THE DISTRICT COURT OF MARYLAND FOR MONTGOMERY COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY MONTGOMERY COUNTY.
NOTES
[1]  Unless otherwise indicated, all statutory references herein shall be to MD.CODE ANN., CTS. & JUD. PROC. (1998 Repl. Vol.).
[2]  The petition alleged that Emileigh F. was a child in need of assistance because Danielle W., the child's Mother, and Mr. F., the child's Father, were not able to provide ordinary and proper care and attention to their daughter, Emileigh F.

"Child in need of assistance" is defined in § 3-801(e) as a child who requires the assistance of the court because:
(1) The child is mentally handicapped or is not receiving ordinary and proper care and attention, and
(2) The child's parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child's problems provided, however, a child shall not be deemed to be in need of assistance for the sole reason that the child is being furnished nonmedical remedial care and treatment recognized by State law.
[3]  Section 3-820 provides that after the court holds an adjudicatory hearing, and unless the petition is dismissed or the hearing is waived, the court shall hold a separate disposition hearing. The priorities in making a disposition are the public safety and a program of treatment, training, and rehabilitation best suited to the physical, mental, and moral welfare of the child consistent with the public interest. In making a disposition on the petition, the court, inter alia, may place the child on probation or under supervision in his own home or in the custody or under the guardianship of a relative or other fit person. The court may commit the child to the custody or under the guardianship of the Department of Juvenile Justice, a local department of social services, the Department of Health and Mental Hygiene, or a public or licensed private agency on terms that the court considers appropriate. The court may order the child, parents, guardian or custodian to participate in rehabilitative services that are in the best interest of the child and the family.
[4]  The petition noted that John F. was in the Coast Guard, stationed in New Jersey, and that he was providing child support through a military allotment. Since he had not sought custody or visitation, the court orders did not pertain to him. In April, 1997, John F. began regular visitation with Emileigh.
[5]  Danielle W. moved from Montgomery County to Norfolk, Virginia. She married Nathan W., a member of the United States Navy, in Norfolk. John F. was discharged from the Coast Guard, married Becky, and began working full-time for an ambulance service in New Jersey.
[6]  The court had previously stated:

COURT: ... I'm just going to tell all of you that I'm not going past 4:30. It is Friday, I'm not going to require staff to stay later than that. That's the normal time we stop....
[7]  Maryland Rule 8-604 provides in pertinent part:

(d) Remand. (1) Generally. If the Court concludes that the substantial merits of a case will not be determined by affirming, reversing or modifying the judgment, or that justice will be served by permitting further proceedings, the Court may remand the case to a lower court. In the order remanding a case, the appellate court shall state the purpose for the remand. The order of remand and the opinion upon which the order is based are conclusive as to the points decided. Upon remand, the lower court shall conduct any further proceedings necessary to determine the action in accordance with the opinion and order of the appellate court.


837 A.2d 518 (2003)
Lee Robin RASKIN and Neil Grossman
v.
FORD MOTOR COMPANY, Lee B. Horne, Susan Miller, James Whittingham, City of Philadelphia and Rasul Memon
Appeal of: Lee Robin Raskin
Lee Robin Raskin and Neil Grossman
v.
Lee B. Home, Susan Miller, James Whittingham, City of Philadelphia, Rasul Memon and Ford Motor Company
Appeal of: Ford Motor Company
Superior Court of Pennsylvania.
Argued March 11, 2003.
Filed November 19, 2003.
*520 Harris R. Rosen, Philadelphia, for appellant.
Thomas M. Hinchey, Wayne, for appellee.
Before: DEL SOLE, P.J., GRACI and BECK, JJ.
DEL SOLE, P.J.:
¶ 1 This is an appeal from the judgment entered, following a jury trial, in favor of Appellee Ford Motor Company ("Ford"). Appellant Lee Robin Raskin ("Appellant") filed this product liability action to recover for injuries she sustained in a motor vehicle accident. Appellant was the driver of a Ford vehicle struck in the rear, as part of a chain collision, while stopped at a red light. Appellant's suit against Ford is based upon her assertion that the Ford's seat and/or restraint system was defective, and that its failure at the time of the accident resulted in enhanced injuries to her.
¶ 2 Appellant raises five issues for our review: (1) whether the trial court improperly prohibited evidence and jury instructions concerning Ford's failure to produce the allegedly defective driver's seat; (2) whether the trial court improperly dismissed the other defendants from the case; (3) whether the trial court improperly prohibited evidence concerning Ford's dismissal of its cross-claims against the other defendants and Ford's failure to join additional defendants; (4) whether the trial court's jury instruction on burden of proof was improper; and (5) whether the trial court's jury instructions on the crashworthiness doctrine was improper. We affirm.[1]
¶ 3 Appellant first argues the trial court improperly prohibited her from introducing an adverse inference argument stemming from the fact that Ford failed to produce the original driver's seat. Ford bought the vehicle from a third party prior to trial. At this trial, Ford informed the court the seat had gone missing from the courtroom following an earlier trial in this action. The trial court accepted Ford's explanation, and refused to attach an adverse inference to Ford's failure to produce the seat. The trial court's ruling on this issue lies within the sound discretion of the trial court and will not be reversed absent abuse of that discretion. Clark v. Philadelphia College of Osteopathic Med., 693 A.2d 202, 204 (Pa.Super.1997).
¶ 4 Appellant argues she should benefit from the following general rule: "...where evidence which would properly *521 be part of a case is within the control of the party in whose interest it would naturally be to produce it, and, without satisfactory explanation he fails to do so, the jury may draw an inference that it would be unfavorable to him." Id. (citations omitted) (emphasis added). While Appellant accurately describes the law, the application of this law fails to afford her any relief. As highlighted above, a principal prerequisite for obtaining an adverse inference is that the party controlling the evidence is without a satisfactory explanation for its failure to produce the evidence. In this case, the trial court found Ford's explanation, that the evidence was mislaid at the courthouse during the first trial, satisfactory. We find no abuse of discretion in the trial court's evaluation of Ford's explanation or in its corresponding ruling.[2]
¶ 5 Appellant's next two arguments concern the inclusion and exclusion of third parties. First, Appellant argues the trial court should not have permitted the dismissal of the other drivers involved in the accident from the case. Next, Appellant argues she should have been permitted to refer to Ford's dismissal of its cross-claims against the other drivers and Ford's failure to join as defendants Appellant's treating physicians. Appellant claims she was prejudiced by her inability to reference third parties because the jury may have returned the verdict for Ford based on the jurors' reluctance to place sole blame for Appellant's injuries on Ford.
¶ 6 We find the jury's verdict on the first interrogatory question dispositive of these issues. In response to the first interrogatory, the jury found no defect in the seat and/or restraint system. The existence of a defect in the Ford product is inherently and wholly independent of any actions by other drivers or treating physicians. Appellant's argument that the jury may have based its verdict on this question on irrelevant considerations is based on pure speculation, which, if accepted, would necessitate the conclusion that the jury disregarded its specific instructions. Where there is no evidence to support such an argument, we can not grant relief.
¶ 7 Appellant's next issue concerns the trial court's instruction to the jury on Appellant's burden of proof. We review challenges to jury instructions as follows:
In examining these instructions, our scope of review is to determine whether the trial court committed clear abuse of discretion or error of law controlling the outcome of the case. Error in a charge is sufficient ground for a new trial, if the charge as a whole is inadequate or not clear or has a tendency to mislead or confuse rather than clarify a material issue. A charge will be found adequate unless "the issues are not made clear to the jury or the jury was palpably misled by what the trial judge said or unless there is an omission in the charge which amounts to fundamental error." A reviewing court will not grant a new trial on the ground of inadequacy of the charge unless there is a prejudicial omission of something basic or fundamental. In reviewing a trial court's charge to the jury, we must not take the challenged words or passage out of context of the whole of the charge, but must look to the charge in its entirety.
Stewart v. Motts, 539 Pa. 596, 654 A.2d 535, 540 (1995) (citations omitted).
¶ 8 The instruction was given as follows:

*522 When an explanation consistent with the existence of a defect is as probable as an explanation inconsistent with the defect, then the plaintiff has not met her burden of proof. In that case, your verdict must be for Ford Motor Company.
N.T., 9/25/00, at 77.
¶ 9 Appellant argues this instruction was improper because it was not supported by the evidence where Ford did not provide an explanation for the accident which was inconsistent with the existence of a defect. Appellant's argument is based on her interpretation of caselaw enunciated in Lonon v. Pep Boys, 371 Pa.Super. 291, 538 A.2d 22 (1988). In Lonon, plaintiff sustained injuries when his car battery exploded during his attempt to jump-start it. Plaintiff filed suit against the manufacturer and retailer of the battery attempting to prove a defect pursuant to a malfunction doctrine. A panel of this Court, upon reviewing the jury instructions on malfunction, found the following law instructive:
We do not hold a plaintiff must refute all possible explanations offered by a defendant. But where an explanation consistent with the existence of a defect is as probable as an explanation inconsistent with the existence of a defect, the plaintiff cannot be held to have met his burden.
Id. at 26 (quoting Lenkiewicz v. Lange, 242 Pa.Super. 87, 363 A.2d 1172 (1976)).
¶ 10 Applying the above-stated law to the case before it, the Lonon court held:
Here, there was expert testimony offered by General Battery that the explosion could likely have been caused by an external spark created by Lonon's attempt to improperly jump-start the battery. That explanation is inconsistent with the existence of a defect, and is just as probable as the existence of a defect. Thus, appellee-Lonon did not meet his burden of demonstrating a malfunction occurred and the jury should not have been instructed on the doctrine.
Lonon, 538 A.2d at 26.
¶ 11 Appellant argues Lonon stands for the proposition that a plaintiff does not sustain its burden of proof in a malfunction theory case when the defendant furnishes an alternative explanation for the accident, which the jury accepts. We agree. Appellant further argues Ford did not provide any alternative explanations for the accident in the instant case, and thus was not entitled to the benefit of an instruction like that in Lonon. We disagree.
¶ 12 Unlike in Lonon, the injuries to Appellant were alleged to have occurred in two distinct stages. Appellant uses the term "accident" to refer to the initial impact to the car. Ford does not attempt to provide an alternative explanation for that accident, because Ford is not defending itself from causing that accident. The case against Ford stems from Appellant's allegation that she sustained additional, enhanced injuries following the initial accident as a result of a defect in Ford's product. For this "accident," Appellant's sustenance of "post-collision" injuries, Ford did provide alternative explanations. For example, Ford's expert, Dr. Vern Roberts, an engineer with a background in biomechanics, testified that "post-collision" injuries can be sustained even with a properly functioning seat and seat belt system. N.T., 9/22/00, at 103. Dr. Roberts further testified that, given the speed and angle of the initial impact, "it doesn't make any difference if you wear a seat belt or not." Id. at 107.
¶ 13 Finally, Appellant argues the trial court improperly instructed the jury on the doctrine of crashworthiness instead of limiting its instructions to the doctrine of malfunction. Appellant has misapprehended the applicable law. The *523 above-listed doctrines are not mutually exclusive, nor are they alternative theories of recovery in a products liability case. The doctrine of malfunction is an evidentiary tool whereby a plaintiff may prove the existence of a defect. It has been explained as follows:
In most instances the plaintiff will produce direct evidence of the product's defective condition. In some instances, however, the plaintiff may not be able to prove the precise nature of the defect in which case reliance may be had on the "malfunction" theory of product liability. This theory encompasses nothing more than circumstantial evidence of product malfunction. It permits a plaintiff to prove a defect in a product with evidence of the occurrence of a malfunction and with evidence eliminating abnormal use or reasonable, secondary causes for the malfunction. It thereby relieves the plaintiff from demonstrating precisely the defect yet it permits the trier-of-fact to infer one existed from evidence of themalfunction, of the absence of abnormal use and of the absence of reasonable, secondary causes.
Rogers v. Johnson & Johnson Products, Inc., 523 Pa. 176, 565 A.2d 751, 754 (1989) (citations omitted).
¶ 14 A defect is merely one element of the crashworthiness doctrine. This doctrine has been explained as follows:
The crashworthiness or second collision doctrine is merely a subset of a Section 402(a) products liability action and routinely arises in the context of a vehicular accident. Historically, a Section 402(a) strict products liability action only created liability for injuries proximately caused by a defect where the defect also caused the accident. However, the crashworthiness doctrine extends the liability of manufacturers and sellers to "situations in which the defect did not cause the accident or initial impact, but rather increased the severity of the injury over that which would have occurred absent the design defect. Therefore, in order for a manufacturer to avoid liability, it must design and manufacture a product that is "reasonably crashworthy", or alternatively stated, the manufacturer must contemplate accidents among the intended uses of its product.
Colville v. Crown Equip. Corp., 809 A.2d 916, 922 (Pa.Super.2002) (citations omitted).
¶ 15 The trial court instructed the jury according to the malfunction doctrine:
Now, I would like to talk to you about is [sic] proving a defect by proving a malfunction. A plaintiff in a strict products liability case, which is another way of saying a products liability case, may prove her case merely by showing the occurrence of a malfunction of a product during normal use. The plaintiff does no [sic] have to prove the existence of a specific defect in the product.
The plaintiff has to prove three facts. She must prove that the product malfunctioned; that it was given only normal or anticipated usage before the injuries occurred, and that there is no reasonable secondary cause that was responsible for causing the enhanced injuries.
N.T., 9/25/00, at 77.
¶ 16 Accordingly, Appellant received the maximum benefit of the malfunction doctrine. Again, we note the jury found no defect existed. If Appellant had been able to pursue the malfunction doctrine as a theory of liability, her case would have failed, given this verdict.
¶ 17 Appellant, however, argues the jury "may have been confused by the crashworthiness standards and might have held *524 [Appellant] accountable to these standards." Appellant's Brief at 22. The crashworthiness standards and relevant related portions of the charge, as explained to the jury by the trial court, were as follows:
Now, I want to talk to you about crashworthiness. The crashworthiness doctrine, and you remember I told you that this is a products liability case, or what we call a strict liability case, and under that, there is a subset which is called crashworthiness which only applies to cars. The crashworthiness doctrine provides that a manufacturer is liable in the accident or the initial impact, but rather increased the severity of the injuries other that [sic] which would have occurred absent the defect.
The term crashworthiness means the protection that a motor vehicle affords it [sic] passenger against personal injury or death as a result of a motor vehicle accident.
The term second collision, as used in the definition of crashworthiness of a motor vehicle in products liability cases generally refers to the collision of a passenger within the interior part of the vehicle after the initial impact for a collision. The principle behind the second collision concept is that because of the way the vehicle has been manufactured, the person's injuries have been aggravated unnecessarily.
The effect of the crashworthiness doctrine is that a manufacturer has a legal duty to design and manufacture its product to be reasonable crashworthy. In terms of strict products liability, this means that a manufacturer has to include accidents among the intended uses of its product. A manufacturer who fails to fulfill this legal duty will be liable to the passenger of a carwhich, of course, includes the driverwhose injuries are increased due to the design defect in the automobile.
Liability will attach even though the defect in manufacture or design did not cause the initial accident or impact.
In order to prevail in this case on a crashworthiness theory, the plaintiff must demonstrate the following:
1. That there was a defect;
2. What injuries; if any, would have resulted and [sic] there had been no defect;
3. Some method of establishing the extent of the plaintiff's enhanced injuries that are attributable to the defects.
If you find that [sic] product was defective, the defendant is liable for all harm caused by such defective condition.
Let me repeat that and used the word enhanced, because that's very important.
If you find that the product was defective, the defendant is liable for all of the enhanced injuries caused by the defective condition.
A detective [sic] condition is the legal cause of the injuries if it was a substantial factor in bringing about the enhanced injuries.
The plaintiff is not required to prove that the defect cause the accident or the initial impact.
If the defect increased the severity of the injuries over what would have occurred without the defect, the manufacturer is liable for the increased injuries suffered by the plaintiff.
Id. at 77-80.
¶ 18 Appellant argues the jury may have been confused by these instructions, but fails to point to any specific instruction that was inaccurate or which failed to reflect the case she was attempting to prove. A review of Appellant's case, from opening to closing statement, reveals that she presented a crashworthiness case using the *525 malfunction doctrine to prove the defect element of the case. We fail to see how the jury instructions, which reflected a clear and accurate recital of the relevant law, prejudiced Appellant.
¶ 19 Appeal at 1845 EDA 2001: judgment affirmed. Appeal at 2393 EDA 2001 quashed.
NOTES
[1]  We note Ford has filed a cross-appeal in this action. Ford was not aggrieved by the judgment appealed from, and thus has no standing to appeal. Pa.R.A.P. 501; Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695, 700 (Pa.Super.2000). Further, the issues raised in Ford's cross-appeal are rendered moot by our disposition of the case. Accordingly, Ford's cross-appeal is quashed.
[2]  We note, with interest, that Appellant's father retained ownership of the vehicle at the time of this action's 1992 commencement and for a significant period thereafter, before selling it to a third party from whom Ford purchased the car in 1997.


494 P.2d 868 (1972)
Lillian D. PEDRO, Executrix of the Estate of Joseph E. Pedro, Deceased, and Lillian D. Pedro, Individually, Respondent and Cross-Appellant,
v.
Mary M. JANUARY (Formerly Mary M. Pedro), a Single Woman, et al., Respondents,
Delbert L. Pedro, Appellant.
Supreme Court of Oregon.
Argued and Submitted July 9, 1971.
Decided March 9, 1972.
*871 Douglas S. Hess, Portland, argued the cause for appellant. With him on the briefs were Leland F. Hess, Henry L. Hess, and Hess & Hess, Portland.
Ernest J. Burrows, Portland, argued the cause and submitted a brief for respondent and cross-appellant.
Donald R. Duncan, Athena, argued the cause and filed a brief for respondents Quality Lumber Mills, Inc., and Oregon-Washington Plywood Co.
Thomas A. Davis, Portland, argued the cause for respondents Mary M. January and Mary Ann Robinson. On the brief was William L. Hallmark, Portland.
Before O'CONNELL, C.J., and McALLISTER, HOLMAN, TONGUE and HOWELL, JJ.
HOLMAN, Justice.
This is a declaratory judgment proceeding brought to determine the status of the parties in relation to the sale and removal of standing timber from real property.
Joseph and Rita Silva Vey were husband and wife and for many years they operated a large sheep ranch in Union, Morrow, and Umatilla counties in the eastern part of the state. The manner in which they held their real property, as between themselves, is not clear. However, this is immaterial in view of the fact that in 1934 they executed parallel wills. Joseph died in 1936; Rita, in 1939. The wills provided that the three daughters of the testators should each have a life estate in an undivided one-third interest in the testators' real property. The wills then provided:
"Subject to the provisions hereinabove contained in this will, I give and devise to such of the children of my daughter, Mary M. Pedro, as shall survive her, an undivided one-third interest in and to the real property mentioned in paragraph V of this will; to such of the children of my daughter, Rose Monese, as shall survive her, an undivided one-third interest in and to the real property mentioned in paragraph V of this will; and to such of the children of my daughter, Elizabeth Underhill, as shall survive her, an undivided one-third interest in and to the real property mentioned in paragraph V of this will, the descendants of any deceased daughter to take by right of representation, but if any of my said three daughters shall die without issue surviving them, then the property herein devised to such issue shall descend to my other grandchildren by right of representation."
In 1941, the Circuit Court of Umatilla County issued a decree of partition, setting aside to Mary M. January, formerly Mary M. Pedro, a daughter of the testators, and to her children, one-third of the property subject to the devise, on which parcel stood the timber in question.[1] The decree *872 of partition divested Rose and Elizabeth, the two other children of the testators, and their children of any interest in the property partitioned to Mary and to her children "save and except such future contingent rights or interests as the children [grandchildren of the testators] * * * may have under the terms, provisions and conditions of the last will and testaments of Joseph Vey, deceased, and Rita Silva Vey, deceased."
In 1964, Mary and her three children, Joseph Pedro, William Pedro, and Mary Ann Robinson, entered into an agreement to sell the timber standing on the property partitioned to them to defendant Quality Lumber Mills, Inc., of which defendant Oregon-Washington Plywood Company is the successor. The proceeds were to be divided one-fourth each to Mary and to her three children. Thereafter, the purchasers logged timber from the property of the reasonable net value of $123,286.92. Before the completion of the contract, Joseph Pedro, the son of Mary and grandson of the testators, died. By the time he died, Joseph had received $21,204.54 from the timber contract, which left a balance of $9,616.77 attributable to the share he would have received, had he lived, for timber logged subsequent to his death. The purchasers placed the remainder of Joseph's share in trust pending a determination of the party entitled to the money. Lillian D. Pedro, Joseph's widow, initiated this proceeding as executrix of his estate and as beneficiary of his will to have herself declared the owner of the funds.
The defendant Delbert L. Pedro is the son of Joseph Pedro by a former wife, and he is a grandchild of Mary and a great-grandchild of the testators. Delbert requested the court to adjudicate his rights in and to the timber and the money in question. He claims to be entitled under the Vey wills to interests identical to those of his father. He asked the trial court to restrain the corporate defendants from further cutting, to order them to account for the timber taken, to adjudicate him the owner of the money held in trust, and to give him such other and further relief as would be equitable.
The trial court held that Mary January was possessed of a life estate in the real property, that her children had contingent remainders therein, and that none of them had a right to sell the timber. However, the court dismissed the proceeding. It ruled that the plaintiffs, the estate of Joseph Pedro, and Joseph's widow, Lillian, had no interest in either the proceeds or the timber because Joseph's contingent interest never vested on account of his failure to survive his mother, Mary. The court also held that Delbert, the son of Joseph Pedro, was not entitled under the terms of the will to a contingent interest similar to that of his father. Delbert, Joseph's estate, and Joseph's widow, Lillian, all appealed.
The rights of all of the parties are, in large part, dependent upon the nature of the interest, if any, that Delbert Pedro has by the provisions of his great-grandparents' wills in the property from which the timber was cut. If he has no interest, or if his interest is so remotely contingent that it does not justify the intervention of the court for his protection, his appeal is not meritorious, and we must turn to Lillian's appeal. But if Delbert has an interest sufficient to justify the protection of equity, Lillian's appeal must fail. A determination of Delbert's interest depends upon a construction of paragraph VIII of the wills which has heretofore been set forth.
We must first determine the interest that was given to the children of Mary January, formerly Pedro, by the words of the wills which provide, "I give and devise to such of the children of my daughter, Mary M. Pedro, as shall survive her, an undivided one-third interest in and to all real property * * *." Obviously, the children of Mary who survive her cannot be determined until her death. The devise, being in favor of unascertained persons, is contingent. It did not vest at the death of the testator but will vest on the death of Mary, when her children who survive her can be determined. 4A Thompson, *873 Real Property (1961 Replacement) § 1995, pp. 485-487. The contingency has failed as to Joseph, who did not survive his mother, Mary. Therefore, the contention made by some of the parties that the devise was a vested one subject to be divested is not well taken.
The parties other than Delbert contend that even if the remainders are contingent and not vested, only the living children of Mary or such of them as survive her will take the property; or, if none survive her, the property will descend to the children of the testators' other daughters. Delbert asserts, to the contrary, that, although he cannot inherit from or through his father in whom no interest vested, he is entitled under the provision of paragraph VIII which states that "* * * the descendants of any deceased daughter to take by right of representation, * * *" to a remainder identical to that which his father had prior to his death.
It is argued by the other parties that Delbert's taking of any future interest in the property as the result of the phrase, "the descendants of any deceased daughter to take by right of representation," is inconsistent with and cannot be reconciled with the devise "to such of the children of my daughter, Mary M. Pedro, as shall survive her." In other words, it is asked, how can Delbert secure an interest by representing his father when his father never had any vested interest? We believe the words were not used to indicate that any interest was to descend through Joseph to Delbert. They were used to indicate that the testators intended Delbert to take his father's place as a direct devisee under the will if his father should die before the interests vested by reason of the death of Mary. The words were not intended to be used as words of descent but, rather, as words describing the status of Delbert under the will if his father should die before the interest devised vested.
The parties opposing Delbert also argue that this provision avails Delbert nothing because "deceased daughter" means a daughter who is deceased at the time of the death of the testators and, therefore, Delbert would take under the provision only if Mary predeceased the testators. Such an event did not occur. A standard rule of construction is that the will speaks from the date of the death of the testator unless a contrary intent is manifest. Heilig v. Daniel, 203 Or. 123, 138, 275 P.2d 854, 278 P.2d 988 (1955), revised, Daniel v. Donohue, 215 Or. 373, 333 P.2d 1109 (1959). In viewing the wills as a whole, we believe it more natural for the testators to have intended to speak as of the time their devises would vest, not simply as of the time when they themselves would both be dead. Normally, their daughters would outlive them and, thus, their daughters' deaths, rather than their own, would be the time when the remaindermen would receive the actual benefit of the property. Therefore, we conclude that the testators did not intend to limit the provision for the descendants of a "deceased daughter" to those of a daughter deceased at testators' deaths. Our conclusion is strengthened when we note that no one has explained why it would be reasonable to assume that the testators wanted a great-grandchild to "inherit by right of representation" if his grandmother predeceased the testators, but not if she survived them.
It is further contended that because the provision uses the words, "descendants of any deceased daughter," instead of "descendants of any deceased grandchild," the testators contemplated that only their grandchildren would take by representation. It is argued that the clause was intended as an antilapse device to prevent the disinheritance of a grandchild whose parent predeceased the testators. The difficulty with this position is twofold. First, "descendants of any deceased daughter" include all descendants and not just the deceased daughter's children. Second, the surviving children of a daughter who predeceased the testators would have taken a fee simple title upon the death of the testators whether or not the quoted provision was present in the will.
*874 Following the above-discussed language, paragraph VIII provides, "* * * if any of my three daughters shall die without issue surviving them, then the property herein devised to such issue shall descend to my other grandchildren by right of representation" (emphasis supplied). It is argued that this latter clause, despite the use of the word "issue," also demonstrates that by the use of the prior provision, "descendants of any deceased daughter," the testators did not contemplate that those farther down the line of descent than their grandchildren should take. They argue that the use of the word "other" requires that the following word, "grandchildren," designate the remaining group of two or more like groups and, therefore, the prior use of the word "issue" contemplates only the testators' grandchildren.
"Issue" normally contemplates lineal descendants. Howell v. Deady, 48 F. Supp. 104, 110 (D.Or. 1939); Black's Law Dictionary 965 (revised 4th ed. 1968). Thus, in the present instance, its use would normally include both the testators' grandchildren and great-grandchildren. On the other hand, the term "grandchildren" usually denotes children of the testators' children. These definitions, however, are not invariable for the use of either term. When the two terms are coupled, as they are here, it is just as reasonable to conclude that the use of "grandchildren" contemplated all lineal descendants as it is to conclude that the use of the word "issue" contemplated only grandchildren. In such a situation, the court attempts to determine the intent of the testators from the entire will. In Rieck v. Richards, 40 Ohio App. 201, 178 N.E. 276 (1931), a somewhat analogous case, the court said as follows:
"Manifestly there can be no vesting of the corpus until the death of the last child of the testator. Again we revert to the whole will and conclude that it is manifest that the testator wished the shares of his children to descend to the `issue'  the lineal descendants  of his children, to his `grandchildren,' without regard to any number of prefixes, great or great-great.
"As a general rule the word `grandchildren' is a word of definite meaning, limited to children of children; but where the manifest intention of the testator, as gained from the whole will, requires an extension of the meaning past the strict limitations, a court of chancery is amply warranted, and is, in fact, required, to so extend the meaning." 178 N.E. at 278.
Taking the will as a whole, we believe the use of "descendants" and "issue" indicates that it was the intention of the testators that no living lineal descendant whose ancestors were dead at the time of vesting should be disinherited.
Such a construction is consistent with what appears to us to be the over-all plan of the testators for disposition of their property. The testators deliberately avoided vesting any interest in Mary's descendants until the expiration of her life estate. By so doing, they were attempting to protect the fee so that it would be available to the descendants of their other children should Mary die leaving no descendants. Otherwise, Mary's descendants could have made a valid and binding disposition out of the blood line even though they died before Mary's life estate expired. It is obvious the testators were attempting, in any event, to have the property available for descent in their blood line upon the death of the life tenants. The testators were clumsily attempting to keep the interests contingent until the death of Mary and, at the same time, permit the descendants of Mary's children to take at Mary's death in the event their parent predeceased Mary.
It is our conclusion that, although inartfully drawn, the will as a whole does not indicate an intention to disinherit a great-grandchild whose parent failed to outlive the life tenant. We believe it was the intention of the testators that Delbert should have a contingent remainder in the event his father, Joseph, predeceased Delbert's grandmother, Mary.
*875 Both the plaintiff Lillian Pedro and defendant Mary January contend that, as a life tenant, Mary January had the right to harvest the timber. Lillian Pedro also contends that Mary January gave Lillian's husband, Joseph, a one-quarter interest in the proceeds of the timber. This Mary January denies. They both rely upon exceptions to the rule that a life tenant commits waste when he severs timber. See generally Annotation, "Timber rights of life tenant," 51 A.L.R.2d 1374 (1957). These exceptions are: 1) a life tenant may, under certain circumstances, thin trees to promote growth; and 2) where it has been a custom of the estate to exploit commercially a timber tract and such is the prime use of the tract, a life tenant is privileged to so use it. The trial judge found the facts incompatible with the application of these exceptions, and so do we. The prime use of the land was for grazing, and we do not believe there was any necessity to thin the timber to promote growth.
It is clear that Mary January had no right to cut the timber and that Lillian Pedro, as the executrix and beneficiary of the will of Joseph Pedro, has no interest in the proceeds held in trust. Mary January, her children, and her children's spouses sold timber to which Mary would never have been entitled and in which her children had only a contingent interest.
The respondents contend that even if they had no right to remove the timber and Delbert is adjudicated to have a contingent remainder, the court should not award any damages or give him an interest in the trust fund because Delbert has not shown an absolute right to the proceeds. They argue that the occurrence of the contingency upon which his interest vests has not yet occurred. Injunctive relief to prevent damage or waste has been commonly granted to contingent remaindermen, but an assessment of damages for timber already taken has been infrequent. It is clear that if the chances are remote that the contingency vesting the interest will occur, courts will not give relief of any kind to the contingent remainderman. On the other hand, if the contingency is fairly certain, and, therefore, the likelihood of damage to the remainderman is high, courts are more inclined to aid him. However, an assessment of damages is made only if the court impounds the damages to await the outcome of the contingencies. For a general discussion of the problem, see Annotation, "Right of owner of contingent or defeasible future interest to maintain action for relief in respect of property," 144 A.L.R. 769, particularly at 807 to 809 (1943).
Section 189 of the Restatement of the Law of Property recognizes that those with contingent interests in real property may secure a determination of damages for an act of waste committed by a life tenant and have the proceeds impounded to await distribution in accordance with the interests of the parties after the contingency upon which their interests depend has been resolved.
The rule we believe to be properly applicable is stated in Watson v. Wolff-Goldman Realty Co., 95 Ark. 18, 128 S.W. 581, Ann.Cas. 1912A 540 (1910). In that case, the grantees of a life tenant cut and removed timber from the property. The court held that contingent remaindermen, at least some of whose remainders would probably vest, were entitled to a determination of the amount of damages and to an impounding of the proceeds for the benefit of those whose remainders should vest. The court said:
"* * * If a contingent remainderman has right to appeal to a court of equity for the preservation and security of the property to the end that it may be forthcoming at the termination of the life estate with like reason, he should have some remedy for waste already committed. Neither the life tenant nor his grantee have [sic] the right to commit waste, and it necessarily follows that they should not be entitled to, or enjoy, the fruits of their wrongdoing. As we have already seen, the contingent remainderman *876 has no remedy at law in such cases, and it is obvious that, if he cannot obtain relief in equity, he must suffer irreparable injury. Two of the cardinal principles of chancery jurisprudence are that equity will not suffer a wrong to be without a remedy, and equity looks to the substance, rather than the form.
"* * * * * *.
"For these reasons it seems to us that the plaintiffs are entitled to equitable relief. They should not be entitled to it now by way of indemnity, for it cannot be certainly known that they will suffer loss; but we are of the opinion that it is in accord with the principles of equity for the chancellor in cases like this to take an account of the amount of the damage suffered and impound the same and invest the proceeds for the benefit of the one to whom the estate tail would first pass according to the course of the common law by virtue of the deed in question, in which interest the plaintiffs have an expectancy." 128 S.W. at 583.
See also Dawson v. Tremaine, 93 Mich. 320, 53 N.W. 1044 (1892) (dictum); Williams v. Bolton, 1 Cox 72, 29 Eng.Rep. 1068 (Ch. 1784). Cf. Louisville Cooperage Co. v. Rudd, 276 Ky. 721, 124 S.W.2d 1063, 144 A.L.R. 763 (1939).
The cases indicate that the decree should direct that the funds be held for those who ultimately are entitled thereto. In the present situation, the funds cannot be held for the benefit of all of those having a contingent interest in the property from whence the timber was taken. The reason is that, as will be subsequently explained, not all persons who have such a contingent interest are parties to this case, and, thus, provision cannot be made for them. Delbert has not purported to bring a class action for those similarly situated. It is not known whether the other contingent remaindermen who are not parties have any desire presently to enforce their rights as does Delbert. It may be that they have consented to the actions of those who authorized the removal of the timber or, if they did not so consent, they may not wish to assert their rights against their relatives. In any event, the fact that the court is in no position to protect all remaindermen is not judged by us to be an adequate reason for not protecting one who has asked the aid of the court in the protection of his rights alone.
The respondents also contend that there is no evidence of the depreciation in value of the real property caused by the removal of the timber and, therefore, there is no basis for an award of damages. The only evidence in the record is the net value of the timber which was removed. The net value of the timber removed is sufficient evidence upon which to award damages. The depreciation in value of the property caused by the removal of the timber could be more than the net value of the timber but it could not be less. United States v. Firchau, 234 Or. 241, 248-49, 380 P.2d 800 (1963); O. & C.R.R. Co. v. Jackson, 21 Or. 360, 363-64, 28 P. 74 (1891).
The next question is the extent of Delbert's contingent interest in the timber. All interests devised by the testators were undivided interests. The 1941 partition decree, by its terms, did not affect the interests of the contingent remaindermen. Therefore, it is not just the descendants of Mary who have an interest in the timber that was cut from that portion of the property set aside to her by the decree. The descendants of Rose and Elizabeth have undivided contingent interests in the timber as well. Rose and Elizabeth each has one daughter. The contingent future interests in the timber removed and its proceeds are as follows: the daughter of Rose, one-third; the daughter of Elizabeth, one-third; William Pedro, one-ninth; Mary Ann Robinson, one-ninth; and Delbert Pedro, one-ninth. Neither the daughter of Rose nor the daughter of Elizabeth is a party to this proceeding. As previously indicated, it is not known whether they desire to have their rights protected. This proceeding cannot be binding upon them *877 and this court cannot take the interests of the other remaindermen for the protection of Delbert.
We next turn to the questions of the extent of the funds which should be set aside for Delbert's protection and from whence they should come. The total value of the timber taken was $123,296.92. Delbert has a contingent interest in one-ninth of that sum, or $13,698.55. He asserts that he is entitled to have those who received the proceeds of the timber sale pay a sufficient amount into the court to represent his interest in the total amount of timber cut from the property. He also claims in his brief that the corporations who actually took the timber from the property are responsible for double damages under the provisions of ORS 105.810 and 105.815.
In this connection, two problems result from the form of Delbert's answer and cross-complaint. In his pleadings, Delbert does not specifically ask for relief by way of money from his relatives by blood or marriage. However, he does allege the making of the contract by these persons with the corporate defendants, the payment thereunder of sums to such persons by the corporate defendants, and he asks for general equitable relief. We believe his pleadings are sufficient to sustain a judgment against his relatives. Furthermore, he does not plead ORS 105.810 or 105.815 nor ask for the multiple damages for which they provide. However, we have held that it is unnecessary to do so to avail one's self of the benefits of the statutes. Stott v. J. Al. Lumber Co., 95 Or. 604, 188 P. 414 (1920).
It is asserted by all the parties other than Delbert that the possessor of a contingent future interest is not entitled to the protection of the multiple damage statutes. ORS 105.810 reads as follows:
"Except as provided in ORS 477.090, whenever any person, without lawful authority, wilfully injures or severs from the land of another any produce thereof or cuts down, girdles or otherwise injures or carries off any tree, timber or shrub on the land of another person, or of the state, county, United States or any public corporation, or on the street or highway in front of any person's house, or in any village, town or city lot, or cultivated grounds, or on the common or public grounds of any village, town or city, or on the street or highway in front thereof, in an action by such person, village, town, city, the United States, state, county, or public corporation, against the person committing such trespasses if judgment is given for the plaintiff, it shall be given for treble the amount of damages claimed, or assessed for the trespass. In any such action, upon plaintiff's proof of his ownership of the premises and the commission by the defendant of any of the acts mentioned in this section, it is prima facie evidence that the acts were committed by the defendant wilfully, intentionally and without plaintiff's consent." (Emphasis added.)
The contention is made that, because the statute refers to the intrusion as a trespass, it requires a person who seeks relief thereunder to have a possessory interest because an action of trespass can be brought only by one who is entitled to possession. Delbert, of course, does not have a possessory interest. We do not believe that the use of the word "trespass" contemplates the necessity of a possessory interest in one who seeks to avail himself of the statute. It is true that in order to bring an action of trespass it is necessary for the plaintiff to have the right to possession. However, in a broader sense, the term "trespass" is used as descriptive of the acts of a person who unlawfully injures the property of another. 4 Thompson, Real Property (1961 Replacement), § 1853, p. 396. Black's Law Dictionary 1674 (revised 4th ed. 1968). When the corporations took the timber from the property without authority, they committed a trespass. In Burrill Nat. Bank v. Edminister, 119 Me. 367, 111 A. 423, 424 (1920), a mortgagee out of possession was held to be entitled to sue under a statute authorizing an action for damages of "trespass" because of the unauthorized cutting and removal of timber. It is our belief that *878 by the use of the term the legislature was not attempting to describe the form of the action which could be brought under the statute, but it was describing an act of unauthorized injury to the real property.
It is also contended that even if a possessory interest is not required, the person asserting rights under the statutes must have an existing interest of some sort and not merely a contingent future one. ORS 105.810 refers to "the land of another," and "ownership of the premises." When the term "owner" or "ownership" is used in a statute, the context and purpose of the statute governs what is meant by the use of the terms. This was made plain by the language of this court in the case of Schram v. Manary, 123 Or. 354, 260 P. 214, 262 P. 263 (1927):
"* * * The meaning of the term `owner,' as used in the Mechanic's Lien Law, is controlled by the context and purpose of the statute. The term, as applied to real property, has no fixed meaning which can be declared to be applicable under all circumstances and under any and every enactment * * *." 123 Or. at 363, 260 P. at 216.
It is true that it usually denotes the holder of the fee or the person who has the right to possession, but this is not necessarily so.
The purpose of the statute in question is to prevent timber from being taken from land by one who has no authority to do so. If a person could take timber unlawfully and then be compelled to pay only the value of what he cut, the law would afford no protection against any wrongdoer who schemes to force a sale. We believe the statute anticipates that a person who has a real property interest which the law recognizes as entitled to protection is an owner of land. We have already held that Delbert's interest, despite its contingent nature, is entitled to the protection of the court. We cannot conceive that the legislature intended that the measures it enacted in ORS 105.810 and 105.815 to guard against unlawful timber harvesting would apply only when the right to the land and timber thereon had vested but not when the right was contingent although likely to vest. The persons who are likely to own the land and timber thereon are just as much in need of the protection which the statute affords as are the owners of presently vested interests. To hold that the statutes afford no protection under the present situation would be incongruous.
Lane v. Wright, 121 Iowa 376, 96 N.W. 902, 903 (1903) held that in a statute providing for the redemption of property from a tax sale, the word "owner" included holders of contingent interests. In Guild v. Prentis, 83 Vt. 212, 74 A. 1115, 1116 (1910), it was held that a tenant for a term of years was an "owner" under a statute awarding treble damages for timber removed without the consent of the owner. For cases construing similar statutes to the contrary, see Gravlee v. Williams, 112 Ala. 539, 20 So. 952, 953 (1896) and Wright v. Bennett, 4 Ill. 258, 259, 3 Scam. 257, 258 (1841). For a discussion of the subject generally and a collection of the cases, see "Scope and import of term `owner' in statutes relating to real property," 2 A.L.R. 778 (1919), supplemented by Annotation, 95 A.L.R. 1085 (1935), which generally reflects a broad interpretation of the word "owner" consonant with the court's estimation of the statute under scrutiny.
Normally, another problem would exist in a case of this nature; that is, whether the statute was intended to be applied against other persons having an interest in the property, the extent of which interest is in dispute. We do not have to cross this bridge because Delbert does not assert any right under the statute against his relatives or their spouses. He asks only that they disgorge that portion of the funds which they received which represents his contingent interest in the timber cut from the premises. He does assert his rights under the statute as to the corporate defendants *879 and, as indicated, we believe he is entitled to do so.[2]
Delbert's relatives and their spouses should disgorge the proceeds of the timber which represent Delbert's contingent interest in the same proportion in which they received them. Arithmetically, this amounts to: Mary January, $3,424.71; Mary Ann Robinson, $3,424.62; William Pedro and his wife, Dorothy Pedro, $3,424.61; the estate of Joseph Pedro, and Lillian Pedro, Joseph's wife, $2,356.06; the trust set up by the corporate defendants, $1,068.55, all making a total sum of $13,698.55.
ORS 105.810 provides for treble damages if the invasion of the property was wilful and intentional; ORS 105.815[3] provides for double damages if the invasion was casual, involuntary or under the belief of right. We have held that the award of treble damages under the statute is punitive while that of double damages is not. Kinzua Lbr. Co. v. Daggett, 203 Or. 585, 281 P.2d 221 (1955). We do not have to decide whether a court of equity will enforce the penalty provided by ORS 105.810 because Delbert has conceded that he may recover only double damages in this proceeding.
Delbert will receive once the timber's value from his relatives and their spouses when they disgorge the funds representing his interest which were paid them by the corporate defendants. Therefore, only a like amount need be paid by the corporate defendants to make the double damages provided by the statute. All of the funds came from the corporations and they will have paid double the value of the timber.
The case is reversed and remanded to the trial court with directions to enter a decree directing the persons or entities enumerated below to pay the sums following their names into court. Such sums are to be invested by the court and paid to Delbert Pedro should he survive his grandmother, Mary January, or, if Delbert predeceases Mary, to such of his lineal descendants, if any, by right of representation as should survive her. If Delbert should predecease Mary, leaving no lineal descendants, or if he should predecease her, leaving lineal descendants, none of whom survive Mary, the sums shall be returned by the trial court at the death of Delbert or at the death of his last lineal descendant, as the case may be, to those who are herewith required to pay them: Mary January, $3,424.71; Mary Ann Robinson, $3,424.62; William Pedro and his wife, Dorothy Pedro, $3,424.61; the estate of Joseph Pedro, and Lillian Pedro, as executrix of said estate and as an individual, $2,356.06; the trust fund held by the corporate defendants, $1,068.55; the corporate defendants or either of them, $13,698.55.
NOTES
[1]  The remaining two-thirds of the property was similarly set aside, one-third each to the testators' two other children and to their children respectively.
[2]  There are two other statutes of interest: ORS 105.805, which permits an action for triple damages against a life tenant who commits waste; and ORS 105.825, which allows a person seized of an estate in remainder to maintain an action for any injury to the inheritance. Delbert has not indicated that he is proceeding under these statutes.
[3]  ORS 105.815: "If, upon the trial of an action included in ORS 105.810, it appears that the trespass was casual or involuntary, or that the defendant had probable cause to believe that the land on which the trespass was committed was his own or the land of the person in whose service or by whose direction the act was done, or that the tree or timber was taken from uninclosed woodland for the purpose of repairing any public highway or bridge upon the land or adjoining it, judgment shall be given for double damages."


     Case: 14-40055      Document: 00512751165         Page: 1    Date Filed: 08/29/2014

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                    No. 14-40055
                                 Conference Calendar
                                                                         United States Court of Appeals
                                                                                Fifth Circuit

                                                                                FILED
                                                                          August 29, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

ARSENIO RIOS-RIOS,

                                                 Defendant-Appellant

                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:13-CR-1447-1

Before CLEMENT, PRADO, and ELROD, Circuit Judges.
PER CURIAM: *
       Appealing the judgment in a criminal case, Arsenio Rios-Rios raises an
argument that he concedes is foreclosed by United States v. Rodriguez-
Escareno, 700 F.3d 751, 753-54 (5th Cir. 2012), cert. denied, 133 S. Ct. 2044
(2013), which held that the sentence enhancement provided for in U.S.S.G.
§ 2L1.2(b)(1)(A)(i) applies to a conviction for the federal crime of conspiracy to
commit a federal drug trafficking offense. The unopposed motion for summary
disposition is GRANTED, and the judgment of the district court is AFFIRMED.

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.