              United States Court of Appeals
                        For the Eighth Circuit
                    ___________________________

                            No. 18-2507
                    ___________________________

                             Delaine Petersen

                   lllllllllllllllllllllPlaintiff - Appellant

                                      v.

            State Farm Mutual Automobile Insurance Company

                   lllllllllllllllllllllDefendant - Appellee
                                  ____________

                 Appeal from United States District Court
              for the Southern District of Iowa - Des Moines
                              ____________

                       Submitted: January 17, 2019
                         Filed: February 7, 2019
                             [Unpublished]
                             ____________

Before GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.
                       ____________

PER CURIAM.
       Delaine Petersen appeals the district court’s1 dismissal of his action against
State Farm Mutual Automobile Insurance Company (State Farm) for money allegedly
due under an insurance policy issued by State Farm and covering his motorcycle.

       In April 2014, Petersen, a resident of Carroll County, Iowa, sought insurance
for a custom-built motorcycle. Because he had devoted significant time and personal
expense to constructing the vehicle, he valued the motorcycle at $35,000 and
requested insurance that would pay that amount in the event of total loss. Kirk
Huehn, a State Farm insurance agent, assured Petersen that he could provide an
appropriate policy. State Farm subsequently issued Petersen an insurance policy for
the period of April 24, 2014 to April 24, 2015 covering Petersen’s motorcycle for loss
or damage up to $35,000. The policy expressly provided that “legal action relating
to [physical damage] coverages” against State Farm must be brought “within one year
immediately following the date of the accident or loss.” Dist. Ct. Dkt. 3-2 at 35.

       In April 2015, an incident caused a total loss of the motorcycle. Petersen
sought the $35,000 policy limit from State Farm, but State Farm denied the claim.
In September 2016, Petersen sued State Farm in the Iowa District Court for Polk
County, alleging the company had fraudulently or deceitfully failed to pay him under
his policy. In February 2018, Petersen voluntarily dismissed the case without
prejudice. The next month, he refiled his claim in the Polk County district court,
alleging State Farm had denied coverage in bad faith. He did not name Huehn as a
party. State Farm, an Illinois corporation, removed the case to the United States
District Court for the Southern District of Iowa based on diversity jurisdiction. It
then filed a motion to dismiss the complaint for failure to state a claim under Fed. R.
Civ. P. 12(b)(6), asserting that the action on the policy is barred by the policy’s one-
year limitation provision. The district court granted the motion. The district court

      1
       The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.

                                          -2-
held that Petersen’s action is one for breach of the insurance policy contract by failing
to pay the amount owing under the policy and thus is barred by the policy’s one-year
time limit for bringing legal action.

      Having jurisdiction pursuant to 28 U.S.C. § 1291 and carefully considering the
record before us, we find no reversible error in the district court’s order. We
therefore affirm the judgment of the district court. See 8th Cir. R. 47B.
                       ______________________________

                                          -3-


             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                        NO. WR-82,939-01

                          EX PARTE ABEL MEDRANO, Applicant

               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                  CAUSE NO. 8602-A IN THE 27TH DISTRICT COURT
                          FROM LAMPASAS COUNTY

        Per curiam.

                                             ORDER

        Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of sexual assault

and sentenced to thirty-five years’ imprisonment. The Third Court of Appeals affirmed his

conviction. Medrano v. State, No. 03-11-00684-CR (Tex.App.—Austin Aug. 28, 2013)(not

designated for publication).

        On March 25, 2015, this Court remanded this application to the trial court for a response

from counsel regarding one ground contained in this application. On April 25, 2015, counsel
submitted an affidavit to the trial court. The trial court has denied to sign supplemental findings of

fact and conclusions of law after this Court’s remand order.

       Based on the trial court’s original findings of fact as well as this Court’s independent review

of the entire record, we deny relief.

Filed: September 16, 2015
Do not publish


264 B.R. 565 (2001)
In re Darryl S. CHAPMAN, Debtor.
United States of America, Appellant,
v.
Michael P. Klein, Chapter 7 Trustee, Appellee.
BAP No. WW-00-1124RYRH. Bankruptcy No. 99-08206.
United States Bankruptcy Appellate Panel of the Ninth Circuit.
Argued and Submitted on May 25, 2001.
Filed July 12, 2001.
*566 Diane E. Tebelius, Richard Cohen, United States Attorney's Office, Seattle, WA, for United States of America.
Michael P. Klein, Ch. 7 Trustee, Seattle, WA, Pro se Appellee.
Before RYAN, RUSSELL, and HAINES,[1] Bankruptcy Judges.

*567 OPINION
RYAN, Bankruptcy Judge.
Darryl S. Chapman ("Debtor") owned a home in Silverdale, Washington (the "Property") that was the subject of a civil forfeiture action (the "Action") brought by the United States in the United States District Court, Western District of Washington, at Tacoma (the "District Court"). The Property was arrested and seized because the government alleged that it was used for the manufacture and distribution of marijuana. Before a ruling on the Action, Debtor filed a chapter 7[2] bankruptcy case. The government and the chapter 7 trustee ("Trustee") stipulated to have the reference withdrawn in order for the District Court to rule on Trustee's motion to sell the Property. The District Court granted Trustee's request to sell free and clear of interests to the extent that the government's interest in the Property did not vest by forfeiture and remanded the issue of the applicability of the automatic stay to the bankruptcy court. On remand, the bankruptcy court held that (1) the Action was automatically stayed, (2) § 362(b)(4) did not except the Action from the automatic stay, and (3) to the extent that the government had a forfeiture claim, it should be submitted by a proof of claim under § 726(a)(4).
The government timely appealed the bankruptcy court order, arguing that the Action was excepted from the automatic stay as an exercise of its police or regulatory power. We agree with the government's position and REVERSE and REMAND.

I. FACTS
On September 14, 1998, the government commenced the Action against the Property. The government alleged that the Property was used to facilitate the illegal growing of marijuana and was therefore subject to forfeiture to the United States. Before the Action was heard by the District Court, Debtor filed his chapter 7 case on July 14, 1999. Later, Debtor abandoned any interest he had in the Property, and Trustee moved to sell it and stay the Action. The government and Trustee stipulated to the withdrawal of reference of the matter to the District Court.
The government argued to the District Court that the Property was not property of the estate because under the forfeiture law the government's right to the Property related back and vested when the wrongful act was committed, which was prior to the filing of the bankruptcy case. Trustee responded that the Property was property of the estate because the relation-back doctrine did not apply unless the government first obtained a judgment of forfeiture. The District Court agreed with Trustee's position on the relation-back issue.
Regarding Trustee's stay request, Trustee argued that when Debtor filed his bankruptcy, he lost his interest and the Property became property of the estate. Trustee also asserted that he was given the status of a bona fide purchaser at the time of the filing with the right to sell the Property free and clear of avoidable interests. Finally, Trustee argued that the government is limited to a § 726(a)(4) claim in the bankruptcy case. The government responded that the automatic stay did not apply because the Action was punitive in nature and therefore § 362(b)(4) applied to except the Action from the automatic stay as an exercise of the government's police or regulatory power.
*568 Rather than decide the automatic stay issue, on December 15, 1999, the District Court remanded it to the bankruptcy court. It also approved the sale motion to the extent the government's interest in the Property did not vest through a forfeiture judgment.
On February 11, 2000, the bankruptcy court conducted a hearing on the automatic stay issues. The bankruptcy court determined that § 362(b)(4) did not except the Action from the automatic stay. It approved the sale of the Property free and clear of liens and ordered any interests in the Property to attach to the proceeds of the sale (the "Proceeds"), including any interest that the government might have based on the Action. The order provided that the Proceeds would be substituted as the res in the Action and that the sale was not meant to affect the jurisdiction of the District Court over the Action. The bankruptcy court also held that the government was entitled to submit a proof of claim on any forfeiture claim in accordance with § 726(a)(4).
The government timely appealed the bankruptcy court's determination that the automatic stay applied to the Action.

II. ISSUE
Whether the bankruptcy court erred in holding that the Action was not excepted from the automatic stay under § 362(b)(4).

III. STANDARD OF REVIEW
The determination that a particular action is exempt from the automatic stay is a question of law reviewed de novo. See Berg v. Good Samaritan Hosp. (In re Berg), 198 B.R. 557, 560 (9th Cir. BAP 1996) (citation omitted), aff'd, 230 F.3d 1165 (9th Cir.2000).

IV. DISCUSSION
Under § 362(a), once a bankruptcy case is filed, an automatic stay arises to prevent creditors of the debtor from taking any actions in connection with their prepetition claims against the debtor, property of the debtor, or property of the estate. However, § 362(b)(4) provides that a bankruptcy filing does not stay the actions of a governmental unit enforcing its police or regulatory power.
Trustee seeks to retain the Property for the benefit of all creditors of the estate, including the government. Under the distribution scheme in chapter 7, the government would take in fourth priority after all timely and tardily filed unsecured claims are paid. See 11 U.S.C. § 726(a)(4). Obviously, the government is not pleased with this arrangement because it asserts a claim to the Proceeds under the forfeiture laws since the Property was used in connection with the illegal growing of marijuana. See 21 U.S.C. § 881(a)(7).[3] Therefore, the government contends that it has the right to prosecute the Action and obtain a forfeiture judgment against the Property because § 362(b)(4) exempts it from the automatic stay.
The bankruptcy court recognized a tension here between §§ 362(b)(4) and 726(a)(4). It acknowledged that the outcome might be different if the government had obtained a forfeiture judgment before the filing of the bankruptcy case. However, because it had not, the Property was property of the estate. It therefore concluded that the automatic stay applied and that any forfeiture claim asserted by the government was subject to § 726(a)(4).
*569 Although the Property has been sold, the bankruptcy court specified in its order that the Proceeds would constitute the res in the Action. So, the question is whether the government should be stayed from proceeding in the Action to obtain a forfeiture judgment against the Proceeds. The District Court agreed with Trustee that until there was a forfeiture judgment, the Property would not relate back and vest in the government. In United States v. A Parcel of Land, Bldgs., Appurtenances & Improvements, Known as 92 Buena Vista Ave., Rumson, NJ, 507 U.S. 111, 113 S.Ct. 1126, 122 L.Ed.2d 469 (1993), the Supreme Court in a forfeiture action against a home purchased from the proceeds of illegal sales of controlled substances stated that "[t]he Government cannot profit from the common-law doctrine of relation back until it has obtained a judgment of forfeiture." Id. at 129, 113 S.Ct. 1126. Here, because the government did not have a forfeiture judgment, the Property was property of the estate when Debtor filed his bankruptcy case. Generally, property of the estate is protected against actions of pre-petition claimants by the automatic stay.
Trustee argues that (1) the government is not exercising its "police and regulatory power" because the Action is acquisitive in nature, (2) the government should not be able to use § 362(b)(4) to seize estate property, and (3) the specific references to "forfeiture" in §§ 726(a)(4) and 523(a)(7) trump the more general reference to "police and regulatory power" in § 362(b)(4).
1. The Government Is Exercising Its Police Or Regulatory Power.
Addressing Trustee's first argument, the Ninth Circuit applies the "pecuniary purpose" and the "public policy" tests in determining whether § 362(b)(4) applies. See Universal Life Church, Inc. v. United States (In re Universal Life Church, Inc.), 128 F.3d 1294, 1297 (9th Cir.1997) (Internal Revenue Service's revocation of debtor's charitable tax status was within § 362(b)(4)); Berg v. Good Samaritan Hosp. (In re Berg), 230 F.3d 1165 (9th Cir.2000) (sanctions award for debtor's frivolous conduct in litigation was covered by § 362(b)(4)). See also Massachusetts v. First Alliance Mortgage Co., 263 B.R. 99, 105-07 (9th Cir. BAP 2001) (applying same "pecuniary purpose" and "public policy" tests applied in Universal). The pecuniary purpose test reviews whether the government acted primarily to protect its pecuniary interest in the debtor's property or the public safety and welfare. See Universal, 128 F.3d at 1297. If it is the former, the stay applies. The public policy test examines whether the government's actions are motivated to effectuate public policy or private rights. Satisfaction of either test will suffice. For example, in Universal, the court determined that the revocation promoted the public welfare by making sure that contributions by donors were used for legitimate charitable purposes. Id.
Applying these tests to the Action, Congress "may constitutionally regulate intrastate criminal cultivation of marijuana plants found rooted in the soil." United States v. Visman, 919 F.2d 1390, 1393 (9th Cir.1990). The court deferred to "Congress' findings that controlled substances have a detrimental effect on the health and general welfare of the American people and that intrastate drug activity affects interstate commerce." Visman, 919 F.2d at 1393 (citing United States v. Rodriquez-Camacho, 468 F.2d 1220 (9th Cir. 1972)).
Forfeitures in connection with drug offenses are set forth in 21 U.S.C. § 881. Thus, real property that is used in the commission of a drug-related crime is forfeitable. *570 See 21 U.S.C. § 881(a)(7); Austin v. United States, 509 U.S. 602, 620, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). By approving the forfeiture provisions of 21 U.S.C. § 881, Congress acknowledged the inadequacy of fines and imprisonment in deterring and punishing those involved in the lucrative drug trade. Id.
Given this history, the forfeiture of real property is a necessary law enforcement tool in combating the trafficking of illegal drugs. The drug policies implemented by Congress have been designed to protect the health, safety, and general welfare of the American people. Here, the Property is alleged to have been used to facilitate the illegal manufacture and distribution of marijuana. The Action seeks the forfeiture of the Property in accordance with 21 U.S.C. § 881(a)(7). The pecuniary purpose test is satisfied because the government's primary motive is to punish Debtor and enforce a policy that is meant to deter not only Debtor but others who might be tempted to traffic in illegal drugs. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 686-87, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974); Austin, 509 U.S. at 622, 113 S.Ct. 2801. Even though the government ultimately might obtain a pecuniary benefit if successful in the Action, this does not change the primary purpose behind 21 U.S.C. § 881(a)(7), which is to punish and deter offenders rather than to compensate and reward the government for pursuing the Property.
As for the public policy test, the government is not seeking through the Action to litigate private rights. Instead, as previously discussed, the government's primary motive here is to protect the public welfare from the ravages of illegal drugs. This is a laudable public policy. Therefore, the government has satisfied the public policy test.
Accordingly, the Action is a proceeding by the government to enforce its police or regulatory power.
2. The Government Can Use § 362(b)(4) to Proceed Against the Property.
Trustee next argues that the government should not be able to use § 362(b)(4) to obtain a forfeiture judgment against the Property. This argument requires an analysis of § 362(b)(4), especially in light of the 1998 amendment. Section 362(b)(4) provides that the filing of a bankruptcy petition does not operate as a stay
under paragraph (1), (2), (3), or (6) of subsection (a) of this section, of the commencement or continuation of an action or proceeding by a governmental unit . . . to enforce such governmental unit's . . . police and regulatory power, including the enforcement of a judgment other than a money judgment, obtained in an action or proceeding by the governmental unit to enforce such governmental unit's . . . police or regulatory power.
11 U.S.C. § 362(b)(4).
In 1998, § 362(b)(4) was amended by combining §§ 362(b)(4) and (5) and expanding the scope of the exception to cover proceedings "to obtain possession of property of the estate . . . or to exercise control over property of the estate." Sec. & Exch. Comm. v. Brennan, 230 F.3d 65, 74 (2d Cir.2000). Before the amendment, § 362(b)(4) excepted actions covered by § 362(a)(1), and § 362(b)(5) authorized a governmental unit to enforce a non-money judgment free of the § 362(a)(2). See Hillis Motors, Inc. v. Hawaii Auto. Dealers' Assoc., 997 F.2d 581, 591 (9th Cir.1993).
In Hillis, the Hawaii Department of Commerce and Consumer Affairs (the "HDCCA") sought to dissolve the corporate debtor. The Ninth Circuit held that this violated § 362(a)(3) which stays "any *571 act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate." Id. at 586; 11 U.S.C. § 362(a)(3). The court stated that (b)(4) and (b)(5) were not applicable to actions covered by § 362(a)(3). See Hillis, 997 F.2d at 591. Therefore, the HDCCA violated the automatic stay by exercising control over property of the estate. Interestingly, the court also stated that "the terms `police or regulatory power' as used in those exceptions refer to the enforcement of state laws affecting health, morals, and safety but not regulatory laws that directly conflict with the control of the res or property by the bankruptcy court." Hillis, 997 F.2d at 591 (citing In re Missouri v. U.S. Bankr. Court for the E.D. of Ark., 647 F.2d 768, 776 (8th Cir.1981)).
However, the change to § 362(b)(4) in 1998 added § 362(a)(3) to those sections of § 362(a) that were excepted from the automatic stay. According to a leading treatise, the addition of (a)(3) should be read to mean that "acts to obtain possession or exercise control over property of the estate . . . would not be stayed. This expansion of the exception to stay should be read . . . so that the expansion covers only the enforcement of nonmoney judgments." 3 LAWRENCE P. KING, COLLIER ON BANKRUPTCY, ¶ 362.05[5][b], at 362-60 (15th ed.2001). This makes sense because the historical limitation imposed by the previous § 362(b)(5), which did not except from the stay the enforcement of money judgments, is preserved. This interpretation also is consistent with the language of the new § 362(b)(4), which allows "enforcement of a judgment other than a money judgment, obtained in an action or proceeding by the governmental unit to enforce such governmental unit's . . . police or regulatory power." 11 U.S.C. § 362(b)(4). Therefore, a governmental unit can obtain a money judgment or a judgment for possession, but it cannot enforce a money judgment without obtaining relief from the automatic stay in the bankruptcy court.
Applying this interpretation of § 362(b)(4) to the Action, the government is not subject to the stay in proceeding against the Property to obtain a forfeiture judgment. Trustee cites Georgia v. Bell (In re Bell), 215 B.R. 266 (Bankr.N.D.Ga. 1997), for its holding that because the forfeiture action is an in rem action against the property rather than the debtor, § 362(b)(4) did not except the action from the stay. However, Bell was prior to the 1998 amendment to § 362(b)(4). With the addition of (a)(3) to § 362(b)(4) as explained above, an in rem action is excepted from the stay. In other words, if Bell were decided today, the result would likely be different.
Trustee also argues that before the granting of a forfeiture judgment, all the government has is an inchoate interest in the Property. See Buena Vista, 507 U.S. at 129, 113 S.Ct. 1126. Trustee likens the government's position to that of an unsecured creditor before the creditor has a judgment. However, the difference here is that the government is given a right under § 362(b)(4) that is not available to a non-governmental entity.
Accordingly, because the government is a governmental unit exercising its police or regulatory power against the Property in accordance with the requirements of § 362(b)(4), it can proceed against the Property.
3. Sections 726(a)(4) and 523(a)(7) Do Not Trump § 362(b)(4).
Lastly, Trustee argues that the specific references to "forfeiture" in §§ 726(a)(4) and 523(a)(7) should trump the general provision of § 362(b)(4). According *572 to § 726(a)(4), forfeiture claims are paid after all timely and late-filed unsecured claims. As for § 523(a)(7), it provides that a forfeiture claim payable to a governmental unit is nondischargeable as long as it is not compensation for an actual pecuniary loss or a specified tax penalty. Trustee asserts that the government is limited to these specific rights. Certainly, if the government were seeking to be paid on a forfeiture claim from property of the estate, it would get paid in accordance with § 726(a)(4). Moreover, if it were not paid in full, the government might be able to assert that its claim was nondischargeable under § 523(a)(7). However, these provisions do not conflict with the government's right to proceed outside of the bankruptcy court to liquidate its forfeiture claim.[4]
Now, Trustee's problem is that once the government obtains a forfeiture judgment, it can assert that the Proceeds are not property of the estate based on the relation-back doctrine: This is what troubled the bankruptcy court. The bankruptcy court saw the Action as circumventing the distribution priorities in § 726 and preferring the government over unsecured creditors. However, the bankruptcy court was directed by the District Court to determine if the stay applied to the Action. In deciding that it did, the bankruptcy court reasoned that if the government was able to proceed with the Action and liquidate its forfeiture claim, the Property would relate back to the government and would not be property of the estate. To prevent this result, the bankruptcy court held that "this property is subject to the automatic stay, and that the police power of the government is limited by the fact that [§] 726(a)(4) in these situations would recognize that the priority of . . . forfeiture is subordinate to the creditors." Tr. of Proceeding (Feb. 11, 2000), at 5.
The problem with this holding is that it is inconsistent with § 362(b)(4) and the remand of the District Court. The District Court remanded the proceeding to the bankruptcy court for the sole purpose of determining whether the automatic stay applied to the government's forfeiture action. The impact of a finding whether or not the stay applied was to be decided by the District Court, not the bankruptcy court.
As previously discussed, there is no conflict between § 726(a) (4) and § 362(b)(4). Indeed, the conflict here arises because of the relation-back doctrine and the possibility that the Property, when all is said and done, may not be property of the estate. However, if that happens, it is because that is the appropriate result under the law. Under § 362(b)(4), the government is not stayed from pursuing the Action to judgment even if the end result is that the Proceeds are not property of the estate.
Accordingly, by reason of § 362(b)(4), the automatic stay does not apply to the Action. Therefore, the bankruptcy court erred by holding that § 362 stayed the government from proceeding with the Action.

V. CONCLUSION
In sum, the government can proceed with the Action because § 362(b)(4) grants the government that right and there is nothing in that exercise that conflicts with §§ 726(a)(4) or 523(a)(7).
We REVERSE and REMAND for the bankruptcy court to vacate the portion of *573 its order imposing the automatic stay on the Action.
NOTES
[1]  Hon. Randolph J. Haines, Bankruptcy Judge for the District of Arizona, sitting by designation.
[2]  Unless otherwise indicated, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1330.
[3]  In effect, the government is arguing that due to the forfeiture, it is the owner of the property, not merely a creditor with a claim.
[4]  In any case, because the government has never attempted to obtain a money claim against either the debtor or the bankruptcy estate, § 726(a)(4) and § 523(a)(7) are irrelevant to whether § 362(b)(4) applies.


59 So.3d 1177 (2011)
Christopher L. EDWARDS, Appellant,
v.
STATE of Florida, Appellee.
No. 5D10-3420.
District Court of Appeal of Florida, Fifth District.
April 1, 2011.
Christopher Edwards, Carrabelle, pro se.
Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
Christopher Edwards appeals from the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief, which raised two claims. We affirm, without discussion, as to both claims, but remand with directions that the trial court address a sentencing illegality apparent in the record. See Govea v. State, 785 So.2d 638 (Fla. 5th DCA 2001) (on postconviction appeal, appellate court may order correction of patent sentencing errors not raised in postconviction motion or in order on appeal) (citing Rodriguez v. State, 766 So.2d 1147 (Fla. 3d DCA 2000) and Kinsey v. State, 728 So.2d 1199 (Fla. 2d DCA 1999)).
In the proceedings below, the trial court initially sentenced Edwards to eight years in prison followed by five years of probation on a charge of robbery, a second degree felony with a fifteen-year maximum penalty. Edwards has not performed well on probation, and has violated his probation several times. For Edwards' most recent violation of probation, the trial court imposed a new split sentence of fourteen years in prison (with appropriate credit for prior jail and prison time), to be followed by a new one-year probationary term. When a trial court imposes a new split sentence following a violation of probation, the law requires that the court "`give credit for any time previously served on probation if the new period of probation together with other sanctions (including jail and prison credit) and the time previously served on probation total more than the statutory maximum for the underlying offense.'" Waters v. State, 662 So.2d 332, 333 (Fla.1995) (quoting Bragg v. State, 644 So.2d 586, 587 (Fla. 1st DCA 1994)); see also, Smith v. State, 941 So.2d 565, 566 (Fla. 1st DCA 2006) ("When imposing a sentence for a violation of probation, a court must provide credit for time previously served on probation when necessary to ensure that the total time served does not exceed the statutory maximum for the offense at issue.") (citations omitted).
*1178 In this case, the new split sentence reaches the statutory maximum penalty with no credit for the time that Edwards previously served on probation. It appears from the record before us that Edwards has already served approximately seven months on probation and community control for this offense. If Edwards is not given credit for the time he has already served on probation and community control against the new one-year probationary term, then Edwards will be forced to serve approximately fifteen years and seven months on the charge, as a result of the new split sentence, in violation of Waters.
Accordingly, we affirm as to the issues raised in Edwards' postconviction motion, but remand with directions that Edwards be given the credit necessary for his new split sentence to comply with Waters.
AFFIRMED; REMANDED WITH DIRECTIONS.
PALMER, ORFINGER, and LAWSON, JJ., concur.


522 P.2d 612 (1973)
The STATE of Oklahoma ex rel. Gil BURK et al., Appellants,
v.
OKLAHOMA CITY, a municipal corporation, et al., Appellees.
No. 45102.
Supreme Court of Oklahoma.
October 30, 1973.
Rehearing Denied May 14, 1974.
Thomas J. Lee, John Connolly, Oklahoma City, for appellants.
V.P. Crowe, Monty L. Bratcher, Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, for appellees American Fidelity Assurance Co., Fidelity National Bank and Trust Co., The Two Thousand Classen Building Corp. and C.W. Cameron.
Roy H. Semtner, Giles K. Ratcliffe, Oklahoma City, for appellees The City of Oklahoma City, James H. Norick, Mrs. Patience Latting, Ben Franklin, Rowe Cook, John M. Smith, George Sturm, A.L. Dowell, O.D., Nelson E. Keller, Bill H. Bishop and Robert H. Oldland.
*615 HODGES, Justice.
The Two Thousand Classen Building was constructed by American Fidelity Assurance Company (American Fidelity) across and upon Northwest 20th Street between Classen Boulevard and Western Avenue in Oklahoma City, Oklahoma (N.W. 20th). This street was dedicated to the use of the public. It was, however, purportedly vacated on the grounds that it had been occupied adversely to the public for more than five years.
Appellants, under their first cause of action, seek damages resulting from the construction of a public and private nuisance on a public street. They request that the building be removed and the street restored to its original condition, or that title to the building be quieted in the city because they allege that the street is held in trust by the city for the use and benefit of its citizens. They also asserted that the decree of vacation entered by the district court was void by reason of fraud practiced upon the court. Under their second cause of action they seek to recover for the city the land and the building, which claimed to be owned by American Fidelity and to have a penalty assessed against the appellees to be paid to appellants and their attorneys pursuant to the taxpayers statute, 62 O.S. 1961, §§ 372, 373.
The idea of building the Two Thousand Classen Building across a part of Northwest 20th Street had been conceived by C.W. Cameron (Cameron), the President of the Two Thousand Classen Corporation and Chairman of the Board of American Fidelity and his associates, one or two years before construction began. Cameron testified that it was more convenient to join the buildings together. One of the reasons for this was that the same heating and cooling system could be utilized.
Cameron and his lawyer talked to "practically" every member of the City Council in an effort to carry out his plan. The discussions with the members of the City Council concerned the "simple question" of the possibility of closing N.W. 20th Street between Western Avenue and Classen Boulevard and joining all of the building complex together. He also queried the council as to whether there would be any serious objection to this, or should the new building be built North of N.W. 20th Street and the then existing buildings.
On June 25, 1968, Cameron's attorneys, filed notice of intention to vacate a portion of the plat of University Addition. This notice was published in the Daily Law Journal-Record on June 27, 1968, and an Affidavit of Posting was executed. On the 29th day of June, 1968, a purported application to vacate that portion of University *616 Addition lying between Classen Boulevard and Western Avenue was filed with the District Court Clerk of Oklahoma County. The application stated that the applicants were the sole abutting property owners of the street and that the street had been occupied adversely to the public for more than five years. On the same day, an Answer was filed by the defendant, City of Oklahoma City.
There was no attempt by the city council to exercise its power to vacate N.W. 20th Street under the provisions of 11 O.S. 1961, § 659. This statute permits vacation of streets by the city council when it is deemed necessary or expedient. However, it does not permit vacation of a public street for private use. See Hedrick v. Padon, 333 P.2d 552 (Okl. 1958). Instead, a resolution directing the municipal counselor to approve as to the form of the purposed decree vacating Northwest 20th Street between Western Avenue and Classen Blvd. was adopted by the City Council and approved by the Mayor of the City of Oklahoma, July 23, 1968.
Cameron et al. attempted to have the street vacated under the provisions of 11 O.S. 1961, § 524. It provides in pertinent part:
"* * * If the application shall be by the owner of owners of a portion of such platted tract for the vacation of such portion only, and it shall appear that the portion desired to be vacated has never been actually used for town or city purposes, or that the platted streets and alleys on or across such portion have never been used by the public, or that the public has for more than five years abandoned such by non-user, or that the same has been enclosed and occupied adversely to the public for more than five years, then the court may vacate such portion of said plat. * * *"
The allegation and finding that the street had been enclosed and occupied adversely to the public for 5 years was material to the jurisdiction of the court to vacate the street.
The decree of vacation was entered by the district court on August 8, 1968. Wherein the court "having examined the pleading and file and having heard the evidence and being fully advised in the premises" made the finding that the street had been occupied adversely to the public for more than five years.
On or about the 1st day of September, 1968, construction of the Two Thousand Classen Building was commenced. In July of 1969, this action was commenced with additional parties plaintiff and defendant joined in December 1, 1969.
The cause proceeded to trial on the 18th day of May, 1971, and continued to the 19th day of May, 1971. Defendants' Demurrer to plaintiffs' evidence was sustained by the trial judge and the case dismissed as to the defendants, Norick, Latting, Sturm, Keller & Oldland, with the concurrence of plaintiff's counsel. Also, the trial court sustained demurrers of the defendants, City of Oklahoma City and individual defendants, Franklin, Cook, Smith, Dowell and Bishop.
A further trial was held on the 4th day of June, 1971 and thereafter on June 7, 1972, the Court entered his Findings of Fact, and conclusions of law. He found that the allegation of the application and the finding of the court to the effect that N.W. 20th had been occupied adversely to the public for more than five years was false and the inclusion of the allegation in the application and decree was known to be false by Cameron at the time they were made. He stated in his conclusions of law that:
"The known false allegation in the application and finding in the Decree vacating the subject portion of Northwest Twentieth Street urged upon the court by the applicants who are defendants in this case constituted a falsification of a jurisdictional fact and a fraud upon the court sufficient to justify the vacating of that decree in a proper case."
However, the court concluded as a matter of law that appellants were guilty of *617 laches and thereby estopped from obtaining the equitable relief they sought. We do not agree.
The court found the defendants, the Two Thousand Classen Building, the American Fidelity Assurance Company and C.W. Cameron responsible for resulting damages for the diminution of the value of the property of Hali Jean Wells and William Byron and Rhoda P. Hayes, in the amount of $7,000.00 each. The court held that Myrta Rorem sustained no compensible damage. The judgment of the trial court in this regard is affirmed.
Appellees complain that appellants, Burk and Ray, are no longer parties to the first cause of action. They assert that the trial court sustained a demurrer to the amended petition as to them, and that they did not assign this as error in their motion for new trial, nor in their petition in error. Appellees, therefore conclude, that Burk and Ray have abandoned their first cause of action. We have examined the record and find no merit in this proposition as it concerns the appellees, the Two Thousand Classen Building Corporation, American Fidelity Assurance Company, or C.W. Cameron. If indeed, there was any abandonment present, it was as to the City of Oklahoma City and the named defendant councilmen, and inasmuch as we find the trial court's order sustaining their demurrer as to both causes of action to be proper, as hereinafter explained, the consequence of any abandonment is immaterial.
The general rule is that title to streets and alleys is held by the municipality in trust for the public, and not in a proprietary capacity. The municipality is without power to alienate them. A city cannot give away its rights in public streets, nor may it sell or barter away any streets it holds in trust for the benefit of the public. Town of Choteau v. Blankenship, 194 Okl. 401, 152 P.2d 379, 383 (1944), Lindauer v. Hill, 262 P.2d 697, 699 (Okl. 1953); City of Shawnee v. Thompson, 275 P.2d 323, 324 (Okl. 1954).
The Oklahoma statute, O.S. 1961, § 515 is in accord with this rule. It provides:
"When the plat or map shall have been made out and certified, acknowledge and recorded as required by this Article, * * * the land intended to be used for the streets, alleys, ways, commons or other public uses in any town or city or addition thereto shall be held in the corporate name thereof in trust to and for the use and purposes set forth and expressed or intended."
The plat dedication on which appellants rely states:
"* * * the annexed plat which is hereby adopted as the plat of the above described land, under the name of `University Place', in addition to Oklahoma City, and do hereby dedicate all of the streets and avenues shown upon said plat to the public use of said city."
The mere fact that the vacation of the street which may be a valuable property is granted on the petition of a private individual or corporation who owns abutting property who will thus be enabled to use the vacated street in his business, and that the city received no compensation for it, does not of itself invalidate the vacation nor constitute such a fraud or abuse of discretion as in the absence of further showing will authorize intervention by the court to declare the vacation void. Feldman v. City of Omaha, 184 Neb. 226, 166 N.W.2d 421, 423 (1969); Thomas v. Jultak, 68 Wyo. 198, 231 P.2d 974, 981 (1951).
However, it is held that it is unlawful in this jurisdiction to vacate a public street or highway which has not been abandoned or occupied adversely to the public for more than five years, merely to serve the convenience of a private individual or corporation. City of Stillwater v. Lovell, 159 Okl. 214, 15 P.2d 12, 16 (Okl. 1932).
In this case, as in the case of Hedrick v. Padon, 333 P.2d 552 (Okl. 1958), there is no pretense that the public interest required the vacation of any part of the *618 street or that any public interest would be subserved by the vacation. The vacation attempted to destroy the public right and use of the public for the sole purpose of enabling a private person who owned the property abutting the street to occupy a portion of the street with a permanent structure. Hedrick v. Padon p. 555 supra, holds that vacation by the municipal authorities in such a case is ultra vires and void.
The evidence stands uncontroverted that the allegation in the application to vacate Northwest 20th Street between Western and Classen which stated that this portion of the street had been adversely occupied for more than five years was false and all parties knew it to be false. During the five years prior to the attempted vacation of the street, it was used, not only by the public in general, but also by Cameron and members of the City council. The Department of Traffic Control at the direction of the municipal counselor, conducted a survey which showed that approximately 386 automobiles used the street daily. The director of the department stated in his letter to the city counselor that "from a traffic standpoint, all streets carrying a reasonable amount of traffic are useful." He then declined to comment further concerning the closing of N.W. 20th Street.
The procedure to be followed in the vacation of a street is prescribed by an exclusive statutory method which requires substantial compliance. Town of Choteau v. Blankenship, 194 Okl. 401, 152 P.2d 379, 383 (1944).
The district court is without jurisdiction to vacate and close public streets which have been dedicated to public use and which are being used by the public for the purpose for which they were dedicated. City of Frederick v. Mounts, 159 Okl. 85, 14 P.2d 236, 237 (1932).
At the initial hearing in which the street was purportedly vacated, the court was deceived by the fraudulent material jurisdictional allegation that the street had been adversely occupied for more than five years, and by a concealment of the truth as to such facts. The court was therefore without jurisdiction of the subject matter. The decree of vacation was void ab initio. See Starke v. Starke, 155 Kan. 331, 125 P.2d 738, 740 (1942). See also 46 Am.Jur. Judgments § 24 p. 329.
Where the court has been deceived by fraud or misconduct, and the court is thereby made an instrument of injustice, equity will intervene to prevent the perpetrator from reaping the benefit of the advantage which was unfairly gained. In such case, the manner in which the fraud is effected is of little significance. The court will look to the effect of the act and inquire if the result is the consequence of the fraud. Jones v. Snyder, 121 Okl. 254, 249 P. 313, 316 (1926).
It is contended by appellees that if fraud was indeed perpetrated upon the court, it was not extrinsic fraud; and that the court will not grant relief against a judgment obtained through fraud except in cases where such fraud is extraneous and foreign to the record. Equity has inherent power to grant relief from a judgment when it has been obtained by fraud practiced upon the court which wrongfully induced it to assume jurisdiction. Especially is this so where the rights of the public are involved as in the present case.
The case of Johnson v. Petty, 118 Okl. 178, 246 P. 848, 849, 850 (1925) holds:
"Where by means of fraud or perjury as to the jurisdictional facts, a court is imposed upon and induced to assume jurisdiction, where in reality none exists and which never could have been exercised if the truth had been known, such fraud is extrinsic, and the judgment or order so obtained may be annulled and vacated in a proper proceeding in a court of equity." (Emphasis ours).
The court went on to say at p. 850 that false representations given to establish jurisdiction by which the court is imposed upon and induced to exercise jurisdiction where none exists requires that "In such cases courts of equity grant relief, not only *619 to prevent a wrong to the injured party, but `to frustrate an attempt to make the court an instrument of oppression in aid of a surreptitious sham founded on wrongful artifice.'"
In Cone v. Harris, 104 Okl. 114, 230 P. 721, 723 (1924) the court cited the rule that:
"Fraud is the arch enemy of equity, and a court of equity will relieve against a judgment obtained by imposition of fraud. * * * It matters little as to the mode or manner in which fraud is effected. A court looks to the effect, and asks if the result is a consequence of the fraud. For any description of mala fides practiced in obtaining a judgment equity will grant relief. If by fraud and misconduct one has gained an unfair advantage in proceedings at law, whereby the court has been made an instrument of injustice, equity will interfere to prevent him from reaping the benefit of the advantage thus unfairly gained."
The cases relied upon by appellees, Metzger v. Turner, 195 Okl. 406, 158 P.2d 701 (1945) and Sadberry v. Hope, 444 P.2d 175 (Okl. 1968) did not involve fraud upon the court, but between the parties. However, the Metzger case, 158 P.2d at page 704, supra states the general rule that the authority to set aside judgments for fraud is limited to cases where the fraud complained of was practiced in the very act of obtaining the judgment. This is precisely what occurred in this case.
The principle that streets for their full length and width are for public use and that any permanent structure encroaching thereon is a nuisance per se is of ancient origin and of almost universal application. City of Emporia v. Hemphrey, 132 Kan. 682, 297 P. 712, 715 (1931); J.M. Radford Grocery Co. v. City of Abilene, 20 S.W.2d 255, 257 (Tex.Civ. App. 1929); Smith v. McDowell, 148 Ill. 51, 35 N.E. 141, 145 (1893). See also 50 O.S. 1961, §§ 1, 2.
It is provided by 50 O.S. 1961, § 7 that:
"No lapse of time can legalize a public nuisance amounting to an actual obstruction of public right."
See also Updegraff v. City of Norman, 287 P.2d 909, 912 (Okl. 1955); Town of Chouteau v. Blankenship, 152 P.2d p. 380 supra.
The trial court found that fraud had been perpetrated upon the court which vacated the street, but he refused to declare the vacation void. He instead applied the doctrine of laches. The doctrine of laches has no application to this case. The material jurisdictional allegation that the street had been adversely occupied for more than five years on which the decree of vacation was based was false, and was known to be false by all parties. This fraudulent allegation deprived the court of jurisdiction and resulted in the vacation of the street being void ad initio. The private use of the public street was a trespass from its inception. The construction of a permanent structure thereon constituted a public nuisance per se and was unlawful each day it continued. Equity abhors fraud and diligently seeks to prevent it or redress it where found. Buford v. Mochy, 224 N.C. 235, 29 S.E.2d 729, 731 (1944). A court of equity will not assist one in extricating himself from circumstances which he has created. Sautbine v. Keller, 423 P.2d 447, 451 (Okl. 1966). The general rule is that where a party has participated in fraud, equity will grant such party no relief. Becker v. State, 312 P.2d 935, 942 (Okl. 1957). Only the most distorted interpretation of equitable principles would permit one, who has deliberately deceived and misled the court, and who bases his claim on an original and continued wrong, to successfully utilize the equitable defense of laches to sanction and enforce his fraudulent claim.
Appellants also seek to enforce the provisions of the "taxpayers statutes", 62 O.S. 1961, §§ 372, 373, under their second cause of action. They are endeavoring to recover the land and building for the use and *620 benefit of the City of Oklahoma City and to assess a penalty against the defendants.
It is provided by 62 O.S. 1961, § 372, that every officer of the city who orders or directs or who knows of the payment of money or transfer of any property belonging to the city in pursuance of any unauthorized, unlawful or fraudulent agreement shall be penalized double the value of any money paid or property transferred to be recovered at the suit of proper officers of the city or any resident taxpayer.
Title 62 O.S. 1961, § 373, states that upon the refusal of proper officers to institute a suit to recover the property or money after written demand on them to do so by ten resident taxpayers of the city, any resident taxpayer of the city affected by the payment or transfer may bring suit in the name of the State of Oklahoma for the recovery of the property. In such event, the municipality is made defendant, and one-half the money and one-half the value of the property recovered at the expense of the resident taxpayer shall be paid to him as a reward.
The statutes require the payment of money or transfer of property belonging to the city before they are applicable. There is no allegation that any money was exchanged. The City Council held the property in trust and was unable to sell, barter or transfer it for a private use. The vacation proceedings before the court were void because of lack of jurisdiction. Therefore, the property was never actually transferred nor the street legally vacated. The provisions of 62 O.S. 1971, §§ 372, 373 are inapplicable. We find the trial court's order sustaining the demurrer of the City of Oklahoma City and the named councilmen and sustaining the demurrer as to all defendants on the second cause of action was proper and correct. We also find no evidence that the defendants, City of Oklahoma City, and named councilmen created a public nuisance, or that they were guilty of any fraud or collusion. The City of Oklahoma City and the City Council did not attempt to vacate N.W. Twentieth Street under the authority of 11 O.S. 1961, § 659. Nor does the evidence support the conclusion that any property was transferred, or money paid pursuant to any unlawful contract. Although the council consented to the vacation of the street by Cameron, et al. by passing the resolution approving the decree of vacation, it did not actively participate in the vacation of the street.
The problem then remains: since the vacation of the street was void ab initio; and the City Council holds the street in trust and cannot barter, transfer, or trade it away for the benefit of a private individual of corporation; and the doctrine of laches and the taxpayers statute are inapplicable; what is the solution to the quagmire?
There is precedent for requiring removal of the structure. In Dozier v. City of Austin, 253 S.W. 554, 556 (Tex.Civ.App. 1923) the court stated:
"* * * [I]f it is a permanent structure it should be abated. Public rights cannot be destroyed or impaired by the selfish desires of the individual who may seek to advance his own ends, regardless of the dictates of justice and equity. The costliness of improvement forming encroachments on a street can offer no defense to an action to remove the obstruction, because such improvement was knowingly and willfully made with no basis but the desire to extend the possessory right of the citizen to public property. * * * In abating nuisances in streets, equity does not measure its action by the amount of damage that would be inflicted by the abatement on the author of the nuisance."
Appellants suggest that since the property on which the building was constructed is held in trust that the building is a business fixture affixed to the land and that title to it should be quieted in the City of Oklahoma. Although, this could as a legal and technical consideration be done, we believe the best solution is an attempt to restore status quo. An absolute *621 and literal restoration of the parties to their former position is not feasible, nor is it required. Such restoration as is reasonably possible and demanded by the equities of the case is sufficient. Equity will not insist on an absolute and literal restoration of the parties to status quo where it would be purposeless, useless and foolish. The rule is founded on the principle that he who seeks equity must do equity. Where complete restoration of the parties to their former condition is not essential to the complete administration of justice between the parties, it will not be required. The rule in regard to the matter is equitable not technical. Where the actions of one of the parties renders the restoration of status quo impossible, restoration need only be made as nearly as the circumstances permit. Shields v. Meyer, 183 Kan. 111, 325 P.2d 29, 34, 35 (1958); O'Keefe v. Rouledge, 110 Mont. 138, 103 P.2d 307, 310 (1940); Proper v. Proper, 183 Minn. 481, 237 N.W. 178, 179 (1931); Maupin v. Missouri State Life Ins. Co., 214 S.W. 398, 401 (Mo. App. 1919). This means that although the parties themselves cannot be restored to the situation existing before, their rights in respect to the property which forms the subject matter in controversy shall be placed in status quo. Carpenter v. Mason, 181 Wis. 114, 193 N.W. 973, 974 (1923). The United States Supreme Court stated the rationale for the rule in Neblett v. MacFarland, 92 U.S. 101, 103, 23 L.Ed. 471, 472 (1876):
"* * * The court proceeds on the principle that, as the transaction ought never to have taken place the parties are to be placed as far as possible in the situation in which they would have stood if there had never been any such transaction."
The cause is therefore reversed and remanded with directions for the trial court to assess the value of the land in question and the annual rental value thereof. This street is and has always been held by the City Council in trust for the public. Appellees are directed to pay an annual lease payment to the City Council of Oklahoma City as trustees. This payment shall be made annually as long as the building remains on the city property. The annual lease payments from date of taking, August 8, 1968, until the value of the annual payment is determined by the trial court shall bear interest at the rate of 10% per annum.
We wish to make it clear that the portion of the street which appellees fraudulently sought to vacate is held in trust. This trust is imposed by law. The owners of the building have the option of removing the building and restoring 20th street as a public street, or paying annual lease payments to the city for as long as the building encroaches on N.W. 20th Street. The amount of annual payment set by the court shall remain effective for 5 years from the date the district court determines the amount of the lease. At that time, and every five years thereafter, the trustees may reassess the circumstances and conditions, and as any landlord, may adjust the rent. In the days of rampant inflation what is adequate today may be grossly insufficient in the future.
We are cognizant of Green v. City of Norman, 455 P.2d 58 (Okl. 1969) where this Court held the City of Norman had no authority to lease a dedicated street to a corporation for private use. The circumstances of this case and the position in which we find the parties have compelled us to reach this equitable result notwithstanding Green v. City of Norman, supra.
The attorneys for appellants have succeeded in restoring the trust property to the citizens of Oklahoma City and are entitled to compensation for their success.
It is well settled that ordinarily a court in the exercise of equitable jurisdiction may award attorney fees when the services performed result in a successful suit for the preservation, or increase of a common fund or a common property for the benefit of a class of persons entitled to the fund or property. See State v. Oklahoma Tax Commission, 194 Okl. 359, 151 P.2d 797, 798 (1944); Pensioners Protective *622 Ass'n v. Davis, 112 Colo. 535, 150 P.2d 974, 975 (1944); City of Wewoka, Okl. v. Banker, 117 F.2d 839, 840 (C.A. 10th Cir.1941); 38 A.L.R.3d 1386; 7 C.J.S. Attorney and Client § 193 p. 1098.
The rule springs directly from the authority of the Court to do equity in a particular situation and had been applied under variant circumstances wherever it is required by right and justice. United States v. Anglin & Stevenson, 145 F.2d 622, 624 (C.A. 10th Cir.1944).
Ordinarily attorney fees are assessed from the property or fund which is recovered. Under the plenary powers of equity, however, relief granted may be adopted to the exigencies of the case. Sinclair Oil & Gas Company v. Bishop, 441 P.2d 436, 447 (Okl. 1968). It is the peculiar genius of equity that judgment be fashioned in which full justice is done. "Equity delights to do justice, and that not by halves." Meredith v. Ramsdell, 384 P.2d 941, 945 (Colo. 1963). Because of the flagrant actions of Cameron et al. and the unjust enrichment which would inure to appellees thereby if the trust were to be imposed with payment of attorney fees, equity and justice demand that appellees be ordered to pay attorney fees to appellant's lawyers in an amount which is to be determined by the trial court.
Affirmed in part, reversed in part and remanded with directions.
LAVENDER, BARNES, SIMMS and DOOLIN, JJ., concur.
DAVISON, C.J., and IRWIN and BERRY, JJ., concur in part and dissent in part.

ON REHEARING
SIMMS, Justice.
Rehearing is hereby Granted for the limited purpose of striking all of the language in the original opinion, beginning at line 35 from bottom of page 622, and all of page 622, and the following is substituted therefor:
"There is ample authority for allowing attorneys fees to be paid from the fund which is recovered. State, ex rel. Board of County Commissioners of Harmon County v. Oklahoma Tax Commission, 194 Okl. 359, 151 P.2d 797 (1944).
That portion of this Court's judgment requiring Appellee to pay Appellant's attorneys fees is reversed and remanded with directions to pay Appellant's attorneys fees out of the lease payment or payments.
Affirmed in part, reversed in part and remanded with directions.
The Petition for Re-Hearing is in all other respects denied."
HODGES, LAVENDER, BARNES and DOOLIN, JJ., concur.
DAVISON, C.J., and IRWIN and BERRY, JJ., dissent.


                                MEMORANDUM OPINION
                                       No. 04-11-00634-CV

                                 OASIS AT FIVE PALMS, LLC,
                                          Appellant

                                                 v.

 William C. LANGE, Stacey J. Lange, Kristofer J. Lange, Joseph G. Pascua, Frank E. Perkins,
    Judy L. Schulmire, Brad A. Russell, Michael D. Garber, P.C., and Michael D. Garber,
                                         Appellees

                   From the 25th Judicial District Court, Guadalupe County, Texas
                                    Trial Court No. 10-522-CV
                            Honorable W.C. Kirkendall, Judge Presiding

Opinion by:      Sandee Bryan Marion, Justice

Sitting:         Sandee Bryan Marion, Justice
                 Rebecca Simmons, Justice
                 Steven C. Hilbig, Justice

Delivered and Filed: February 8, 2012

AFFIRMED

           This is an accelerated appeal from the trial court’s order sustaining the special

appearances filed by appellees Stacy Lange and Brad Russell. On appeal, appellant asserts the

trial court erred because Lange and Russell violated Texas Rule of Civil Procedure 120a by

filing and obtaining rulings on pleas in abatement and a motion for continuance before their
                                                                               04-11-00634-CV

special appearances were “heard and determined.” Because we conclude that neither Lange nor

Russell waived their special appearance, we affirm the trial court’s order. 1

                                       SPECIAL APPEARANCE

        Rule 120a requires that “[a]ny motion to challenge the jurisdiction provided for herein

shall be heard and determined before a motion to transfer venue or any other plea or pleading

may be heard.” TEX. R. CIV. P. 120a.2. Failure to comply with Rule 120a results in waiver of

the special appearance. A party enters a general appearance and waives a special appearance

“when it (1) invokes the judgment of the court on any question other than the court’s jurisdiction,

(2) recognizes by its acts that an action is properly pending, or (3) seeks affirmative action from

the court.” Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004) (citing Dawson–Austin v.

Austin, 968 S.W.2d 319, 322 (Tex. 1998). The test for a general appearance is whether a party

requests affirmative relief inconsistent with an assertion that the trial court lacks jurisdiction.

Dawson–Austin, 968 S.W.2d at 323. Although Rule 120a allows a defendant to file other

motions subsequent to the special appearance, the rule contains no exception allowing a

defendant to set and argue other motions before the special appearance is determined. See TEX.

R. CIV. P. 120a.2 (expressly stating that special appearance “shall be heard and determined”

before any other pleading or motion).

                             LANGE’S DTPA PLEA IN ABATEMENT

        On March 1, 2010, appellant filed suit against a variety of defendants, including Lange

and Russell, alleging negligence, negligent misrepresentation, breach of contract, common law

fraud, fraud by non-disclosure, and violations of the Texas Deceptive Trade Practices Act (“the

DTPA”). None of the defendants are Texas residents. On April 26, 2010, Lange and two other

1
  On appeal, appellant does not argue the merits of the trial court’s decision to grant the special appearances.
Instead, appellant argues only that the special appearances were waived.

                                                     -2-
                                                                               04-11-00634-CV

defendants (Harbor Funding Group, Inc. and William Lange) filed a “Plea in Abatement Subject

to Special Appearance” in which they asserted as follows:

               this cause must be abated for a period of sixty (60) days because
       [appellant] failed to provide written notice to Defendants prior to filing suit
       advising each Defendant in reasonable details of [appellant’s] specific complaint
       and the amount of economic damages, and expenses, including attorney’s fees, if
       any, reasonably incurred by [appellant] in asserting the claim against Defendants,
       as required by § 17.505, Texas Business & Commerce Code.

              Defendants were and are entitled to proper statutory notice in order to
       pursue settlement negotiations and to tender a settlement offer, as appropriate, in
       accordance with § 17.505(c), Texas Business & Commerce Code.

In early May 2010, appellant filed a “Motion for Docket Control Order” and a “Notice of

Hearing” setting the motion for May 20, 2010. Lange’s plea in abatement was not set for a

hearing.

       At the commencement of the May 20 hearing, appellant’s attorney stated he had filed a

motion for docket control order on his client’s behalf, but he noted to the court that Lange, and

two other defendants, had filed a plea in abatement regarding the notice provision in the DTPA.

When appellant’s attorney began to argue the merits of the plea, Lange’s attorney informed the

court that his clients had filed special appearances and were “in the state of Washington, subject

to special appearance.” The trial court heard further arguments and then granted the abatement

as to Lange only.

       On appeal, appellant asserts the hearing and ruling on Lange’s DTPA plea in abatement

invoked the trial court’s jurisdiction on a question other than personal jurisdiction and sought

affirmative relief from the court. Appellant contends that because the hearing and ruling violated

the “due order of hearing” rule, Lange waived her special appearance. Lange counters that the

trial court granted the abatement during the May 20 hearing held on appellant’s motion for a

docket control order, and it was at this hearing that appellant’s attorney—not Lange—raised the

                                               -3-
                                                                               04-11-00634-CV

issue of the abatement and asked the court to rule. Therefore, Lange concludes that because she

neither sought affirmative relief from the court nor invoked the court’s ruling at the May 20

hearing, she did not waive her special appearance. We agree with Lange.

       It was appellant that first raised the issue of Lange’s request for an abatement at the

hearing on appellant’s request for a scheduling order. Lange did not set her plea in abatement for

a hearing, she did not raise the issue of the plea at the hearing requested by appellant, and she did

not ask the court to rule on the plea at the May 20 hearing. Therefore, we conclude Lange did

not seek affirmative relief inconsistent with her assertion that the trial court lacked jurisdiction

over her. Accordingly, the trial court’s ruling on Lange’s DTPA plea in abatement did not

constitute a general appearance such that she waived her special appearance.

           INDEFINITE ABATEMENT AND MOTION FOR CONTINUANCE

       About one year after the lawsuit was filed, Lange and Russell asked for an indefinite

abatement of the trial because two other defendants had been arrested and could not travel to

Texas for trial. Lange and Russell then filed a motion for continuance of the April 18, 2011 trial

setting, arguing defense counsel had a conflict of interest and because the other two defendants

were now under indictment in New York on criminal charges. Following an April 8, 2011

hearing, the trial court passed the April 18 trial setting, ordered counsel to set the special

appearances for hearing forty-five days out, and ordered counsel to obtain a trial setting ninety

days out. On appeal, appellant asserts that, similar to Lange’s request for an abatement under the

DTPA, the hearing and ruling on the request for an indefinite abatement and a continuance of the

trial setting were unrelated to the special appearance and, instead, addressed Lange’s and

Russell’s alleged inability to prepare for trial on the merits, which was scheduled for ten days

later. As a result, appellant argues Lange and Russell waived their special appearance.

                                                -4-
                                                                               04-11-00634-CV

       At the hearing, Lange’s and Russell’s attorney explained he represented several of the

defendants in the lawsuit and an indefinite abatement was necessary because two of the

defendants were under criminal indictment and not available for trial. Counsel said he filed the

motion for continuance of the trial date in the event the abatement was denied. Counsel also

stated that he had, that very morning, filed a motion to withdraw because of a conflict that had

arisen. Apparently counsel represented both Lange and her husband William, but a conflict now

existed because Lange recently filed a petition for divorce. His motion to withdraw was also

based on the fact that the two defendants under federal indictment were not allowed to

communicate with each other except through their federal attorneys. Counsel stated he needed

either an abatement or a continuance to allow him time to withdraw from the case. After hearing

arguments, the trial court stated it would grant the abatement and pass the trial date, but the

parties were required to obtain a hearing date on the special appearance and a trial setting.

According to the court, this would “allow [counsel’s clients] an opportunity to get new counsel

and resolve the indictments.”

       At the hearing, appellant argued the requests for additional time were merely delaying

tactics on counsel’s part. However, there is no dispute that counsel was faced with a conflict

because he could no longer represent both Langes and he could no longer effectively represent

the other two defendants. We cannot conclude a party waives a special appearance when placed

in a position such as the one presented here. Lange and Russell had no choice but to request a

continuance of all matters pending their attorney’s resolution of the conflicts. Also, the trial

court clearly understood that the special appearance had to be considered before trial when it

ordered counsel to obtain a hearing date on the special appearance within forty-five days.

                                              -5-
                                                                               04-11-00634-CV

Therefore, we conclude the filing of the plea in abatement and motion for a continuance did not

constitute a general appearance such that Lange or Russell waived their special appearance.

                                        CONCLUSION

       For the reasons stated above, we affirm the trial court’s Order on Defendants’ Special

Appearance Challenging Personal Jurisdiction.

                                                      Sandee Bryan Marion, Justice

                                                -6-


622 S.E.2d 890 (2005)
276 Ga. App. 180
WILSON
v.
PRUDENTIAL INDUSTRIAL PROPERTIES, LLC.
No. A05A1455.
Court of Appeals of Georgia.
November 2, 2005.
Weizenecker, Mottern & Fisher, Robert J. Mottern, Atlanta, for appellant.
Troutman Sanders, Thomas E. Reilly, Andrea D. Blohm, Atlanta, for appellee.
RUFFIN, Chief Judge.
Earl Wilson appeals the confirmation of a foreclosure sale of property (the "property") that he formerly owned, alleging that the property was sold for less than its true market value. The property was sold to Prudential Industrial Properties, LLC ("Prudential"), *891 the lienholder, for $14,800,000, and Prudential applied for confirmation of the foreclosure sale under OCGA § 44-14-161(a). After a hearing on Prudential's application, Wilson asked the trial court to either consider newly obtained evidence of the property's true market value or reopen the hearing. The trial court denied Wilson's motion and approved the sale to Prudential. For reasons that follow, we affirm.
1. Wilson first contends that the trial court erred in confirming the sale because Prudential did not present sufficient evidence to establish the true market value of the property. In confirming a nonjudicial foreclosure sale, the trial court
shall require evidence to show the true market value of the property sold ... and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value.[1]
The trial court sits as the trier of fact, and its findings of fact and conclusions of law have the effect of a jury verdict.[2] Thus, we will not overturn a trial court's decision regarding confirmation of a foreclosure sale if there is any evidence to support the decision.[3] Additionally, "we do not determine witness credibility or weigh the evidence and we view the evidence in the light most favorable to the trial court's judgment."[4]
In this case, Prudential was the only bidder at the foreclosure sale and purchased the property for $14,800,000. At the confirmation hearing, Prudential had the burden of proving that the true market value of the property was less than or equal to this sum.[5] Prudential's expert witness in the field of real estate appraisal, Sherry Watkins, testified that, in her opinion, the property's value as of the date of the foreclosure sale was $13,290,000. Nevertheless, Wilson argues that Prudential failed to carry its burden because Watkins' testimony was speculative, unsupported by the facts, and should have been disregarded by the trial court.
Both Watkins and Wilson's expert, Carl Tschappat, prepared lengthy written reports appraising the property using three different approaches: the cost approach, the income approach, and the sales comparison approach.[6] Both were questioned extensively at the hearing about the data they considered and the methodology they used. On appeal, Wilson challenges the accuracy of a number of the assumptions made by Watkins in her appraisal. However, in reviewing the trial court's decision,
the test is not whether this court would have accepted appellant's expert appraisals as the most reliable and accurate, but whether the record contains any evidence to support the findings of the trial court that the property brought its true market value at the foreclosure sale.[7]
Although Wilson questions the means by which Watkins arrived at her opinion as to value, Watkins provided the trial court with the basis for her opinions. Because those opinions were not based on sheer speculation, we will not second guess her methodology.[8] Moreover, both Watkins and Tschappat testified that, under various approaches, the true market value of the property was no more than $14,800,000. Accordingly, sufficient evidence *892 supported the trial court's confirmation of the foreclosure sale.[9]
2. Wilson also contends that, after the hearing on the foreclosure sale, the trial court should have granted his motion to consider newly obtained evidence or reopen the hearing, because the new evidence was vital to determining the property's true market value. The evidence Wilson seeks to have the trial court consider is a letter from a third party expressing an interest in purchasing the property for $17,100,000, which was written after the hearing took place. We review a trial court's decisions whether to admit evidence or to reopen a hearing under an abuse of discretion standard.[10]
"The issue in a confirmation proceeding is whether the property sold brought, at the time of the sale sought to be confirmed, its true market value."[11] Thus, true market value is determined as of the date of the foreclosure sale.[12] The foreclosure sale here was held on April 6, 2004, and the letter which Wilson seeks to have considered was not written until August 23, 2004. The trial court did not abuse its discretion by declining to consider this evidence, since it is, at best, evidence of the value of the property more than four months after the foreclosure sale.[13]
3. Prudential's request that we assess frivolous appeal penalties against Wilson under Court of Appeals Rule 15(b) is denied.[14]
Judgment affirmed.
JOHNSON, P.J., and BARNES, J., concur.
NOTES
[1]  OCGA § 44-14-161(b). "True market value" is used interchangeably with the term "fair market value." It "is the price that the property will bring when it is offered for sale by one who is not obligated, but has the desire to sell it, and is bought by one who wishes to buy it, but is not under a necessity to do so." Kong v. Shearson Lehman Hutton Mtg. Corp., 211 Ga.App. 93, 95, n. 6, 438 S.E.2d 132(1993).
[2]  See McCain v. Galloway, 267 Ga.App. 505, 600 S.E.2d 449 (2004).
[3]  See id.; Foster v. Tycor, Inc., 267 Ga.App. 767, 769, 601 S.E.2d 172 (2004).
[4]  McCain, supra.
[5]  See Resolution Trust Corp. v. Morrow Auto Center, 216 Ga.App. 226, 227(2), 454 S.E.2d 138 (1995); Thompson v. Maslia, 127 Ga.App. 758, 762(2), 195 S.E.2d 238 (1972).
[6]  Two of Tschappat's appraisals were introduced at the hearing. One found the true market value of the property to be $14,800,000; the other, based on the assumption that a portion of the building would be leased to Eckerd Drugs (which did not occur), found the value to be $21,500,000.
[7]  Tarleton v. Griffin Fed. Sav. Bank, 202 Ga.App. 454(1), 415 S.E.2d 4 (1992).
[8]  See Fayette Promenade v. Branch Banking etc. Co., 258 Ga.App. 323, 327, 574 S.E.2d 319 (2002).
[9]  See Marett Properties v. Centerbank Mtg. Co., 204 Ga.App. 265, 267, 419 S.E.2d 113 (1992).
[10]  See Quay v. Heritage Financial, 274 Ga.App. 358, 363(5), 617 S.E.2d 618 (2005); Parrott v. Fairmont Dev., 256 Ga.App. 253, 256(2), 568 S.E.2d 148 (2002).
[11]  (Emphasis in original.) Kong, supra at 95, 438 S.E.2d 132.
[12]  See id.
[13]  See Thompson, supra at 764(4), 195 S.E.2d 238 ("We should not disturb [the trial court's] findings merely because there is in the record evidence that at a time three months after the sale it may have acquired a different value. If that were true a confirmation could always be attacked because of a subsequent change in value."). The trial court also indicated that it considered the offer contained in the letter "very contingent," as the potential buyer was not bound by the offer.
[14]  See Griffiths v. Rowe Properties, 271 Ga.App. 344, 345(2), 609 S.E.2d 690 (2005) (request for frivolous appeal penalty denied where appellant's arguments do not appear to have been made unreasonably or in bad faith).


                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
          IN THE UNITED STATES COURT OF APPEALS
                                             August 8, 2007
                   FOR THE FIFTH CIRCUIT
                                                                  Charles R. Fulbruge III
                                                                          Clerk
                                No. 07-50045
                             Conference Calendar

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

EFREN SERRANO-ROSALES, also known as Juan Zepeda

                                           Defendant-Appellant

                 Appeal from the United States District Court
                      for the Western District of Texas
                          USDC No. 3:06-CR-1492-1

Before DENNIS, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
      Appealing the Judgment in a Criminal Case, Efren Serrano-Rosales raises
arguments that are foreclosed by Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998), which held that 8 U.S.C. § 1326(b)(2) is a penalty provision and
not a separate criminal offense.     The Government's motion for summary
affirmance 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.


110 Ga. App. 515 (1964)
139 S.E.2d 124
BRASELTON BROTHERS, INC.
v.
BETTER MAID DAIRY PRODUCTS, INC.
40861.
Court of Appeals of Georgia.
Decided October 21, 1964.
Floyd Hoard, Telford, Wayne & Greer, Jeff C. Wayne, Dent Bostick, for plaintiff in error.
Fortson, Bentley & Griffin, Edwin Fortson, Wheeler, Robinson & Thompson, Emory F. Robinson, contra.
FELTON, Chief Judge.
Braselton Brothers, Inc., a retailer, sued Better Maid Dairy Products, Inc., a wholesaler, and its employee, James Saxton, to recover damages for alleged overcharges paid by the plaintiff for milk sold to it by the defendant wholesaler and delivered by the defendant employee of the wholesaler. The case is in default as to defendant Saxton. The court referred the case to an auditor to investigate and pass upon all questions of law and fact. Subsequently to the auditor's finding in favor of the plaintiff, defendant Better Maid filed its exceptions to the findings of law and fact and filed a motion for summary judgment. The court granted the motion for summary judgment and it is to this judgment that the plaintiff excepts.
1. There is but one issue to be decided in this case and that is whether the superior court had jurisdiction to entertain and grant a summary judgment under the circumstances above enumerated. Our conclusion is that the court had no such jurisdiction. The purpose of the Summary Judgment Act (Code Ann. §§ 110-1201, 110-1209; Ga. L. 1959, pp. 234, 236) was to provide a procedure which would eliminate the necessity of the trial of contested law suits. In the light of this exclusive purpose, the intention of the General Assembly could have been only that the time for such a procedure would be prior to a trial which was *516 designed to end in a final judgment in the case. The purpose of the law was not to change or amend or do away with any of the existing procedures afforded parties to a law suit. Of course, if a case had resulted in a mistrial, resort to summary judgment might still be had for the reason that the procedure would still be a pretrial matter in the true sense. As to Federal Rule No. 56, in Parmelee v. Chicago Eye Shield Co., 157 F2d 582, 168 ALR 1130, it was stated: "The rule contemplates an inquiry in advance of trial as to whether there is a genuine issue and may be invoked for the purpose of striking sham claims and defenses which obstruct a prompt determination of the truth. It can not be so applied as to deprive a litigant of his right to try any genuine issue by jury or otherwise." The trial of this case had proceeded to the point where the court was under duty under existing rules of law to pass upon the findings of law and fact filed in the auditor's report. The defendant, under existing procedures, had the right to file exceptions of law and fact to the auditor's report and was entitled to have his exceptions of fact submitted to a jury in the superior court, this being a law case. It was not the intent of the summary judgment law to change the existing procedure in such a case. It is argued by the defendant in error that the granting of the summary judgment is analogous to the direction of the verdict. If a procedure such as this is permitted to be followed it could circumvent the well-established rule that in a law case, exceptions of fact must be submitted to a jury and that a verdict in such a case can only be directed where a jury has been impaneled and the exceptions of fact presented to it. Henry v. Century Finance Co. Inc., 110 Ga. App., 498. It is argued by the defendant in error that the Summary Judgment Act provides that a defendant may move for a summary judgment "at any time." "At any time" obviously means at any time before a trial begins in which a final judgment is to be rendered, and does not mean that a motion for summary judgment may be filed without any time limit whatsoever. The period "at any time" is simply used in the law to distinguish between the time a plaintiff or a defendant has in which to file a motion for a summary judgment. We think that the question is jurisdictional, and the jurisdiction of the court *517 to grant the summary judgment under the circumstances of this case could not be waived by the failure of the plaintiff in the case to except to the procedure on the ground of lack of jurisdiction, as jurisdiction of subject matter can not be waived.
The court was without jurisdiction to entertain and grant the defendant's motion for a summary judgment, and the court erred in granting it.
Judgment reversed. Frankum and Pannell, JJ., concur.