932 F.2d 1317
Knowlton MERRITT, Plaintiff-Appellee,v.John E. MACKEY, Defendant-Appellant,andJerry Howard, et al., Defendant.Knowlton MERRITT, Plaintiff-Appellant,v.John E. MACKEY;  Steve Vincent, et al., Defendants-Appellees.
Nos. 89-35233, 89-35270.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Sept. 12, 1990.Decided May 8, 1991.

Stephen L. Brischetto, Brischetto & Baldwin, Portland, Or., for plaintiff-appellee-appellant.
Richard A. Olderman, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendants-appellants-appellees.
Appeal from the United States District Court for the District of Oregon.
Before CANBY, and TROTT, Circuit Judges, and LEGGE,* District Judge.
CANBY, Circuit Judge:

1
John Mackey appeals the district court's judgment, following a bench trial on remand from this court, in favor of Knowlton Merritt in Merritt's action against Mackey, et al.  Merritt's action charges that Mackey, a federal official, violated his due process rights in improperly coercing Merritt's private employer to fire him.  Merritt cross-appeals.  We affirm all of the rulings of the district court except for the award of a multiplier in the award of attorney's fees.

BACKGROUND

2
Merritt is a former counselor supervisor with Klamath Alcohol and Drug Abuse, Inc.  ("KADA"), a private nonprofit corporation.  He was fired from that position, partly as a consequence of actions taken by Mackey and Steven Vincent.  Mackey was the Area Alcoholism Coordinator for Indian Health Services ("IHS"), a federal agency.  Vincent was a Regional Alcohol Specialist with the State of Oregon's Mental Health Division.  Mackey and Vincent had jointly evaluated the management of KADA, and had concluded that Merritt had failed to perform adequately.  Their report recommended that further funding of KADA be conditioned on Merritt's dismissal.  The KADA Board of Director's dismissed Merritt without a pre-termination hearing.  The circumstances of this dispute are related in this court's earlier decision in this case, Merritt v. Mackey, 827 F.2d 1368 (9th Cir.1987) ("Merritt I" ).

3
Merritt brought this action against several defendants alleging various claims.  Among those claims was one against Vincent under 42 U.S.C. Sec. 1983, and one against Mackey pursuant to Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).  Both of those claims alleged deprivation of liberty and property without due process.  The district court granted summary judgment in favor of Vincent and Mackey on the ground that Merritt had not stated a claim for deprivation of liberty upon which relief could be granted.  The court also decided, after this first trial, that Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), precluded Merritt's claim that his property interest in continued employment could not be extinguished without a pretermination hearing.  Finally, the district court ruled that Vincent and Mackey were protected from liability by the doctrine of qualified immunity.

4
On appeal, a divided panel of this court affirmed the grant of summary judgment as to the liberty deprivation claims, but reversed and remanded as to the property deprivation claims.  Merritt I, 827 F.2d 1368 (9th Cir.1987).  Merritt I first held that Merritt had a protected property interest in his continued employment with KADA.  It then concluded that under the circumstances of this case, Merritt's right to due process was not satisfied by a posttermination remedy, and that he was entitled to "a meaningful hearing at a meaningful time" to challenge his dismissal.  Id. at 1371.    This court also held that Vincent and Mackey were not entitled to qualified immunity because they knowingly acted outside the scope of their employment and violated a clearly established due process right.  Id. at 1372-73.

5
On remand, the district court ruled that Merritt was entitled to a pretermination hearing and that his due process rights were violated because he had not received such a hearing.  The court also found, however, that Merritt would have been terminated even if he had been provided with an adequate predeprivation hearing.  Further, the district court concluded that Vincent and Mackey were not entitled to qualified immunity, under this court's mandate in Merritt I.

6
After a bench trial, the district court awarded Merritt $35,000 in damages as compensation for emotional distress arising from the due process deprivation.  It concluded that he was not entitled to either lost wages or punitive damages because he would have been terminated even if he had been afforded a pretermination hearing.  In addition, the court awarded Merritt approximately $100,000 in attorney's fees pursuant to 42 U.S.C. Sec. 1988.  The court reasoned that Mackey, although a federal official, was liable under Section 1988 because he acted jointly with Vincent, a state official, to violate Merritt's rights.  The court awarded Merritt fees for 90% of the hours he requested at $125 per hour.  It also enhanced the fee by one-third.

7
Mackey appeals the district court's rulings that he is not entitled to qualified immunity, and that he is liable for attorney's fees under 42 U.S.C. Sec. 1988.  He also challenges as excessive the amount of damages and attorney's fees awarded.  Merritt cross-appeals,1 contending that the district court failed to recognize that his rights to due process were violated not only by the deprivation of a timely hearing, but also by unreasonable governmental interference with his property rights in his chosen occupation.  Consequently, Merritt claims, the court improperly denied him damages for lost wages and punitive damages.  We affirm the district court as to all issues raised by these appeals.

ANALYSIS
I. Qualified Immunity

8
In Merritt I, this court held that neither Vincent nor Mackey was entitled to qualified immunity because "their conduct exceeded the scope of their authority and because they violated Merritt's clearly established constitutional rights."    827 F.2d at 1373.    On remand, the district court held that this court's prior holding was "the law of the case."    Mackey now asks this court to reconsider the issue, and hold that Vincent and Mackey were entitled to qualified immunity.  We agree with the district court that the ruling in Merritt I is the law of the case and decline to address the merits of qualified immunity, except as necessary to determine whether we ought to leave the matter as settled by Merritt I.

9
"[U]nder the 'law of the case' doctrine, one panel of an appellate court will not as a general rule reconsider questions which another panel has decided on a prior appeal in the same case."    Kimball v. Callahan, 590 F.2d 768, 771 (9th Cir.), cert. denied, 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1979).  The doctrine is discretionary, not mandatory.  United States v. Houser, 804 F.2d 565, 567 (9th Cir.1986).  It merely expresses the practice of courts generally to refuse to reopen that which has been decided, and is not a limitation of the courts' power.  Id. (citing Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912));  United States v. Maybusher, 735 F.2d 366, 370 (9th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985).  "[T]he prior decision of legal issues should be followed on a later appeal 'unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice.' "    Kimball, 590 F.2d at 771-72 (citing White v. Murtha, 377 F.2d 428, 431 (5th Cir.1967)).2

10
Mackey contends that two of these exceptions apply here.  First, he contends that Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), effected a change in the appropriate standard for determining qualified immunity, which the panel in Merritt I failed to consider.  Second, he contends that the decision in Merritt I court was clearly erroneous and would work a manifest injustice.  We disagree with both arguments.

A. A change in the law

11
Anderson v. Creighton did not change controlling authority on this issue so as to require us to reconsider the merits of Mackey's qualified immunity defense.  First, Anderson was decided three months prior to Merritt, so there was no intervening change of law.  More important, Anderson did not change the controlling standard as Mackey suggests.  Anderson clarified and refined the law articulated in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).  In Merritt I, this court relied on Harlow.    Examination of its analysis indicates that it complies with the Anderson "clarification."

12
The Supreme Court in Anderson said, "our holding today does not extend official qualified immunity beyond the bounds articulated in Harlow and our subsequent cases...."  483 U.S. at 641-42 n. 3, 107 S.Ct. at 3039-40 n. 3.    It was Harlow that first established that qualified immunity is based on the "objective legal reasonableness" of the defendant's conduct.  457 U.S. at 818-19, 102 S.Ct. at 2738-39.

13
The Merritt I opinion recognized that immunity attaches to official action unless that action " 'violate[s] clearly established statutory or constitutional rights of which a reasonable person would have known.' "    827 F.2d at 1373 (quoting Harlow, 457 U.S. at 818, 102 S.Ct. at 2738).    Anderson emphasized the level of specificity at which that inquiry must be made, requiring that "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right....  [I]n the light of pre-existing law the unlawfulness must be apparent."    Anderson, 483 U.S. at 640, 107 S.Ct. at 3039.    Anderson goes on to require that the unlawfulness of the official's activity must be apparent in light of "the circumstances with which [the official] was confronted."    Id.

14
The Merritt I court had the Anderson decision before it, and the language of its opinion indicates that it exercised the specificity of scrutiny required by Anderson:

15
Vincent and Mackey testified that they knew they had no authority to require KADA to fire Merritt.  Because they knowingly acted outside the scope of their authority, they are not entitled to qualified immunity....  Vincent and Mackey should have known that they could not cause Merritt's summary dismissal without violating his due process rights.

16
Merritt I, 827 F.2d at 1373.

B. Clearly erroneous and manifest injustice

17
We also reject Mackey's other argument that the Merritt I qualified immunity holding should not be considered the law of the case.  Mackey contends that it is "manifestly unjust" to hold that he violated a clearly established right, when the dissent in Merritt I strongly disputed the very existence of that right.  See Merritt I, 827 F.2d at 1374.    In essence, Mackey asks how a right can be "clearly established" for government officials when appellate judges cannot agree to its existence.3

18
Mackey poses a question with seductive implications for qualified immunity doctrine, but it is not the question upon which this appeal should turn.  We are not presented as a matter of first impression with the question of which view in Merritt I--that of the majority or that of the dissent--was correct.  That issue was thrashed out in Merritt I itself, and we owe a certain deference to the view that prevailed.  The question before us on this appeal is whether the majority decision in Merritt I is so clearly incorrect that we are justified in refusing to regard it as the law of the case.  See United States v. Houser, 804 F.2d at 568.

19
Although there was substantial precedential support for the Merritt I majority opinion,4 and it has been cited approvingly since,5 Mackey contends that the very fact of a dissent establishes manifest error in the majority's conclusion that the right in issue was clearly established.  We cannot accord a dissent that much probative power.

20
Dissent or no, two judges ruled that the right in question was clearly established and that reasonable officials would have known that their actions infringed that right.  Those two judges may well have been correct.  To hold that they could not have been correct simply because a dissent was filed would be to hold the majority hostage to the dissent.  One judge would have a veto that would prevent any majority of two from denying a claim of qualified immunity.

21
The dissent alone does not compel us, therefore, to conclude that the decision in Merritt I was incorrect.  Nor do we approach the qualified immunity question as if it were being presented for the first time.  At this stage of the litigation, it is incumbent upon Mackey to convince us not only that the majority decision in Merritt I was wrong, but that it was clearly wrong.  This he has failed to do.  Mackey has not demonstrated clear error by the Merritt I majority in applying this principle to the specific facts of his case.  We accordingly find no justification for departing from our usual policy of adhering to the law of the case.6

II. Damages
A. Merritt's appeal

22
The district court awarded Merritt damages for emotional suffering, but did not award him lost wages or punitive damages.  Merritt cross-appeals, arguing that the district court erroneously identified the due process violation which he suffered.

23
The district court confined its finding of a due process violation to KADA's failure to provide Merritt with a pretermination hearing.  That finding was based on this court's holding in Merritt I that Merritt "was deprived of his property interest in continued employment when the state and federal agents intentionally coerced KADA to fire him."    Merritt I, 827 F.2d at 1372.    Merritt contends that such a holding requires that his compensable injury includes, not only the deprivation of his right to a pretermination hearing, but also the deprivation of his property interest in continuing employment itself.

24
The district court found, however, that Merritt would have been fired regardless of Mackey's involvement.  Unless that finding is clearly erroneous, it limits Merritt's damages to those arising from the denial of procedural due process only, and precludes an award of damages for deprivation of the employment itself, a loss not caused by Mackey.  Carey v. Piphus, 435 U.S. 247, 260-66, 98 S.Ct. 1042, 1050-54, 55 L.Ed.2d 252 (1977);  See Alexander v. City of Menlo Park, 787 F.2d 1371, 1375 (9th Cir.1986), cert. denied, 479 U.S. 1032, 107 S.Ct. 879, 93 L.Ed.2d 833 (1987).

25
We cannot say that the district court's finding that Merritt would have been fired anyway was clearly erroneous.  Although the evidence conflicted, there was ample support for the district court's finding.  We therefore conclude that the district court did not err in refusing to award Merritt damages for his loss of employment.7

B. Mackey's appeal

26
Mackey also appeals the district court's damage award.  He contends that Merritt is entitled to no damages, in spite of his loss of a pretermination hearing, because any injury sustained was caused by his loss of employment.  Mackey contends that because the district court found that Merritt's discharge was justified and would have occurred regardless of Mackey's intervention, he is liable for no damages.

27
Merritt can recover for mental and emotional distress caused by the denial of procedural due process if he proves actual injury.  Carey v. Piphus, 435 U.S. 247, 264, 98 S.Ct. 1042, 1052, 55 L.Ed.2d 252 (1977);  Chalmers v. City of Los Angeles, 762 F.2d 753, 761 (9th Cir.1985).  Here, the district court reviewed extensive evidence of actual damages arising from Merritt's "being terminated without adequate opportunity to be heard or to protest his termination."    It found Merritt's evidence credible, and awarded $35,000 damages.  The district court thus awarded damages, not for Merritt's loss of employment, but for his denial of a hearing before he was discharged.

28
We review the district court's computation of damages for clear error.  See Galindo v. Stoody Co., 793 F.2d 1502, 1516 (9th Cir.1986).  In light of the evidence offered by Merritt, we are not prepared to say that the district court's award was clearly erroneous.

III. Attorney's Fees

29
The district court ordered Mackey, as well as Vincent, to pay Merritt's attorney's fees, in the amount of $99,856.39, pursuant to 42 U.S.C. Sec. 1988.  Mackey contends that, as a federal official, he is not liable for attorney's fees under 42 U.S.C. Sec. 1988, and, alternatively, that the fees awarded here were excessive.

30
A. Mackey's liability for fees under Sec. 1988

31
Section 1988 allows the court to award attorney's fees to the prevailing party in an action brought under 42 U.S.C. Sec. 1983.  Actions filed under Sec. 1983 require state action.  Mackey, as an individual or as a federal official, is, thus, exempt from Section 1988 liability unless he "conspire[d] with or participate[d] in concert with state officials who, under color of state law, act[ed] to deprive a person of protected rights."    Scott v. Rosenberg, 702 F.2d 1263, 1269 (9th Cir.1983), cert. denied, 465 U.S. 1078, 104 S.Ct. 1439, 79 L.Ed.2d 760 (1984).  Such liability will not attach unless "the state or its agents significantly participated in the challenged activity."    Gibson v. United States, 781 F.2d 1334, 1343 (9th Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987).

32
The district court found that Mackey was acting under color of state law because he was involved in a joint action with Vincent, a state official.  "Historical" factual findings underlying that holding are reviewed for clear error.  The district court found that "Mackey and Vincent jointly evaluated KADA (and plaintiff), and jointly agreed to require plaintiff's termination."    Opinion, Mar. 6, 1989.  The final report resulting in Merritt's termination (and this litigation) was issued under state letterhead, signed by both Mackey and Vincent.  The district court's finding was not clearly erroneous;  the form of that report accurately reflected what the investigation was--a joint collaboration between a state and federal official.

33
We review de novo the district court's application of these facts to statutory and precedential authority leading to the district courts finding that "state action" was present here.  United States v. McConney, 728 F.2d 1195, 1199-1204 (9th Cir.)  (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).  We agree with the district court that Mackey is liable for attorney's fees under Section 1988, because he acted in concert with Vincent, a state official.  Vincent "significantly participated in the challenged activity."    Gibson v. United States, 781 F.2d 1334, 1343 (9th Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987).8

B. Amount of attorneys' fees awarded

34
Mackey alternatively argues that the fee award of nearly $100,000 was excessive.  We review this award for an abuse of discretion.  See Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983);  Blum v. Stenson, 465 U.S. 886, 898-901, 104 S.Ct. 1541, 1548-50, 79 L.Ed.2d 891 (1984).  The district court provided a thorough and thoughtful explanation of the lodestar fee at which it arrived.  It discounted for hours that it deemed to be unreasonable.  We reject Mackey's claim that the district court abused its discretion in failing to find that more hours were excessive.

35
We conclude, however, that the district court granted a multiplier of 1.33 on improper grounds.  Even though the district court properly recognized that some of the factors derived from Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976), were properly subsumed in the lodestar figure, see Cabrales v. County of Los Angeles, 864 F.2d 1454, 1464 (9th Cir.1988), it nevertheless relied on impermissible grounds for enhancement.  The time involved is clearly subsumed in the lodestar figure, and the difficulty of the case is similarly inappropriate as a ground of enhancement.  See Fadhl v. City and County of San Francisco, 859 F.2d 649, 651 n. 2 (1988).  Finally, the district court relied upon the risk inherent in Merritt's case.  A majority of the Supreme Court has held, however, that risk in the individual case is not a proper ground for a multiplier.  Pennsylvania v. Delaware Valley Citizens' Council, 483 U.S. 711, 734, 107 S.Ct. 3078, 3091, 97 L.Ed.2d 585 (1987) (concurring opinion of Justice O'Connor);  see Fadhl, 859 F.2d at 650 n. 1 (Justice O'Connor's concurring opinion constitutes Court's holding in Delaware Valley ).    Enhancements for risk are only appropriate when supported by a showing that such enhancement is "necessary to attract competent counsel in the relevant community" for the class of cases in question.  Delaware Valley, 483 U.S. at 734, 107 S.Ct. at 3091 (concurring opinion of Justice O'Connor).  There is neither a finding nor evidence here to establish that necessity.  We therefore reverse that portion of the district court's fee awards that includes multipliers of 1.33, and we remand the fee awards to the district court for recalculation and reentry of the awards without the multiplier.

CONCLUSION

36
The fee awards entered by the district court are reversed insofar as they include a multiplier of 1.33, and the fee awards are remanded to the district court for recalculation and reentry of the awards without the multiplier.

37
In all other respects, the judgment of the district court is affirmed.  Each party will bear its own share of the regular costs on appeal.

38
As prevailing party in this litigation, Merritt is entitled to an award of fees on appeal pursuant to 42 U.S.C. Sec. 1988, subject to reduction in light of Merritt's unsuccessful cross-appeal.  Application is to be made as provided in 9th Cir. Rule 39-1.

39
AFFIRMED IN PART;  REVERSED IN PART;  REMANDED.

*
 The Honorable Charles A. Legge, United States District Judge for the Northern District of California, sitting by designation

1
 Vincent also appealed, but later voluntarily dismissed his appeal

2
 This formulation has since been repeatedly quoted in this circuit.    See, e.g., League of Women Voters of California v. F.C.C., 798 F.2d 1255, 1256 (9th Cir.1986);  United States v. Houser, 804 F.2d 565, 568 (9th Cir.1986);  Handi Investment Co. v. Mobil Oil Corp., 653 F.2d 391, 392 (9th Cir.1981)

3
 In support of his argument, Mackey cites Harris v. Young, 718 F.2d 620, (4th Cir.1983), where the Fourth Circuit stated, "It would not be fair to hold a state official liable for not fulfilling 'clearly established' obligations when a federal Circuit Court of Appeals was unable to unanimously decide the same issue."    Id. at 624.    That case is inapposite because the Harris court was faced with the issue, in the first instance, of whether a government official had violated a clearly established right.  To that issue of whether a right was "clearly established," the Harris court considered relevant an earlier split decision in a separate case.  Harris is not relevant here, since it did not deal with the entirely separate concerns of whether an earlier appellate decision in the same case should be final

4
 The majority opinion relied primarily on the Supreme Court's opinion in Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), that an employee of a private employer "has the right to be free from unauthorized actions of government officials which substantially impair his property interests."    Id., at 493, n. 22, 79 S.Ct. at 1412, n. 22.    The majority went on to conclude that Merritt's employment contract, including a "for cause" termination clause, was not simply a "unilateral expectation" of continued employment but a "legitimate claim of entitlement" to due process procedural protections as established by Oregon law (citing Board of Regents v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972))

5
 See, e.g., Roth v. Veteran's Administration of United States, 856 F.2d 1401, 1407 (9th Cir.1988) (citing Merritt I for proposition that qualified immunity does not protect public officials who deprive employees of a property interest in their employment);  Love v. U.S., 871 F.2d 1488, 1495 (9th Cir.1989) (citing Merritt I for proposition that a deprivation of property in violation of the due process clause states a viable claim for damages under the constitution);  Bateson v. Geisse, 857 F.2d 1300 (9th Cir.1988) (citing Merritt I for the proposition that interference that causes a due process violation may be actionable under 42 U.S.C. Sec. 1983).  All of these opinions were unanimous and none of them questioned the logic or holding of Merritt I
Mackey contends that this court's Memorandum Disposition in Johnson v. Serv-Air, Inc., 833 F.2d 1016 (9th Cir.1987), is directly in conflict with the Merritt I majority holding, demonstrating that that holding is "clearly erroneous."    Because Johnson is not directly "relevant under the doctrines of law of the case, res judicata, or collateral estoppel," Ninth Circuit Rule 36-3 (1989), it cannot be considered as precedent.  See DiMartini v. Ferrin, 889 F.2d 922, 929 (9th Cir.1989) (court refused to consider Johnson as support for the proposition that due process violations not clearly established).

6
 Mackey also argues that adhering to Merritt I will cause "manifest injustice."    This argument is simply a reprise of his "clearly erroneous" argument.  He argues that because the majority holding is "clearly erroneous" (by virtue of a dissent), for that reason it works a "substantial injustice" on Mackey.    We reject that argument because we find no clear error in the majority decision in Merritt I.    Moreover, we would depart from the law of the case only if we found clear and manifest injustice.  See Houser, 804 F.2d at 568.    See Moore v. James H. Matthews & Co., 682 F.2d 830, 833-34 (9th Cir.1982)

7
 Merritt also contends that the district court erred in failing to award punitive damages for Mackey's violation of his right to continued employment.  Without any evidence that Mackey acted willfully or recklessly in disregard of Merritt's due process rights, we are unprepared to overturn the district court's denial of punitive damages

8
 Scott v. Rosenberg, 702 F.2d 1263 (9th Cir.1983), cert. denied, 465 U.S. 1075, 1078, 104 S.Ct. 1439, 79 L.Ed.2d 760 (1984), is inapposite.  In Scott, this court held that federal officials had not participated in "state action" when the FCC and the California Attorney General separately investigated the plaintiff.  In that case, any basis for a finding of joint activity was limited to the sharing of information:  "At most, the [federal] employees requested information from, offered to exchange, and did exchange information with the California attorney general's office....  This, without more, is not enough to establish that their conduct was under color of state law."    Id. at 1269.    See also Nat'l Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 196 n. 16, 109 S.Ct. 454, 464 n. 16, 102 L.Ed.2d 469 (1984) (NCAA not liable under Sec. 1988 as joint actor with state university;  the two "were antagonists, not joint participants")


793 F.Supp.2d 1189 (2011)
LEHMAN BROTHERS HOLDINGS, INC., Plaintiff,
v.
EVERGREEN MONEYSOURCE MORTGAGE COMPANY, Defendant.
Case No. C10-0172JLR.
United States District Court, W.D. Washington, at Seattle.
June 6, 2011.
*1191 Christopher A. Pesch, Locke Lord Bissell & Liddell LLP, Chicago, IL, Jason L. Sanders, Locke Lord Bissell & Liddell LLP, Dallas, TX, Sarah Weaver, Sarah Weaver PLLC, Seattle, WA, for Plaintiff.
Jordan M. Hecker, Joshua Brittingham, Hecker Wakefield Feilberg PS, Seattle, WA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
JAMES L. ROBART, District Judge.

I. INTRODUCTION
Before the court are Defendant Evergreen Moneysource Mortgage Company's ("Evergreen") motion for summary judgment (Dkt. #27), and Plaintiff Lehman Brothers Holdings, Inc.'s ("LBHI") motion for summary judgment (Dkt. # 28). Having reviewed the motions, the parties' submissions in support and opposition thereto, the balance of the record, and the governing law, and having heard oral argument on June 2, 2011, the court GRANTS Evergreen's motion for summary judgment on the basis of expiration of the statutory limitations period (Dkt. #27), and DENIES LBHI's motion for summary judgment as MOOT (Dkt. #28).

II. BACKGROUND
LBHI filed this action against Evergreen on January 28, 2010. (Compl. (Dkt. # 1).) LBHI alleges claims for breach of contract and breach of express warranty arising out of a Loan Purchase Agreement ("LPA") entered into between Evergreen and Aurora Loan Services, Inc. ("ALS") on June 16, 2000. (See Compl.; Baker Decl. (Dkt. # 29) Exs. 1-A & 1-C.) The LPA incorporates the terms and conditions of ALS's Seller's Guide. (See Compl.; Baker Decl. Exs. 1-A & 1-C.) Any loans purchased under the LPA were to be made "pursuant to the terms and conditions of the Seller [sic] Guide." (Baker Decl. Ex. 1-A.)
ALS is the wholly owned subsidiary of Lehman Brothers Bank, FSB n/k/a Aurora Bank, FSB ("LBB"), and LBHI is a parent corporation of both LBB and ALS. (Baker Decl. ¶ 4.) ALS is the authorized agent, servicer, and/or master servicer for LBB and LBHI for certain mortgage loans in which LBB and LBHI have an interest, including the mortgage loan that is the subject of this litigation. (Id.) LBHI contends that, through assignment, it is the successor-in-interest of LBB and ALS with respect to rights under the LPA with Evergreen. (Compl. at 3.) For ease of reference, both LBB and ALS will be referred to simply as "LBB" throughout the remainder of this order.
Evergreen is a mortgage banker. (Moley Decl. (Dkt. # 27-4) ¶ 2.) On November *1192 16, 2001, Evergreen began selling various loans to LBB pursuant to the LPA. (Baker Decl. ¶¶ 2, 5.) Under sections 703(1), 703(12) and 703(36) of the Seller's Guide, Evergreen made certain representations, warranties and covenants regarding the accuracy and truthfulness of the information contained in "any Mortgage Loan File," including "the Mortgager's application for the Mortgage Loan," and "the property appraisal or valuation." (Id. Ex. 1-C §§ 703(1), 703(12), 703(36).)
LBHI asserts that Evergreen breached the representations, warranties, and covenants within the Seller's Guide pertaining to a mortgage loan that Evergreen entered into with Mr. Wayne Stiffler ("the Stiffler loan") and subsequently sold to LBB. (See generally Compl.) LBHI asserts that certain documents that Evergreen submitted with the Stiffler loan contain untrue statements and misrepresentations. (LBHI Mot. (Dkt. # 28) at 7.) First, LBHI asserts Mr. Stiffler misrepresented his base employment income at the time he executed his application for a mortgage loan. (Id. at 8-11.) Second, LBHI asserts that the origination appraisal overstates the value of Mr. Stiffler's property. (Id. at 11-13.) LBHI asserts that pursuant to the Seller's Guide, Evergreen agreed to "indemnify" LBHI for losses pertaining to mortgage loans containing misrepresentations in the loan files. (Id. at 13-15.) LBHI has moved for summary judgment with regard to these claims. (Id. at 13-24.)
Evergreen has also moved for summary judgment relying primarily on a variety of affirmative defenses. (See generally Evergreen Mot. (Dkt. # 27).) One of the affirmative defenses raised by Evergreen in its motion for summary judgment is expiration of the statute of limitations for contract actions. (Id. at 22.) Mr. Stiffler executed his application for a mortgage loan with Evergreen on April 24, 2003. (Baker Decl. Ex. 1-K.) The origination appraisal with regard to Mr. Stiffler's property is dated March 14, 2003. (Id. Ex. 1-L.) LBB purchased the Stiffler loan from Evergreen on May 12, 2003. (Moley Decl. (Dkt. #27-4) Ex. 5; Baker Decl. ¶ 7.) The Stiffler application and the origination appraisal were documents furnished to LBB at the time that the Stiffler loan was sold to LBB. (LBHI Mot. at 8.) On June 3, 2003, LBB sold and assigned the Stiffler loan to LBHI. (Baker Decl. ¶¶ 5-6 & Exs. 1-D & 1-G.)
On September 18, 2008, LBHI filed for voluntary bankruptcy under Chapter 11 of of the United States Bankruptcy Code. See In re Lehman Brothers Holdings, Inc., et al., No. 08-1355(JMP) (Bankr.S.D.N.Y.). LBHI filed this action against Evergreen on January 28, 2010 in an effort to preserve the value of its assets for the benefit of its creditors in the bankruptcy proceedings. (LBHI Resp. (Dkt. #35) at 21.) However, LBB did not execute a written agreement to assign its rights under the LPA and the Seller's Guide to LBHI until February 24, 2011 (Baker Decl. Ex. 1-H), more than one year after LBHI filed suit on January 28, 2010, and more than two years after LBHI filed for bankruptcy on September 18, 2008.

III. ANALYSIS

A. Standards
Summary judgment is appropriate if the pleadings, the discovery and disclosure materials on file, and any affidavits, when viewed in the light most favorable to the nonmoving party, "show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir.2007). The moving party bears the initial burden of showing there is no genuine issue of material fact and that *1193 he or she is entitled to prevail as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. If the moving party meets his or her burden, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Cline v. Indus. Maint. Eng'g. & Contracting Co., 200 F.3d 1223, 1229 (9th Cir.2000). The non-moving party "must make a showing sufficient to establish a genuine dispute of material fact regarding the existence of the essential elements of his case that he must prove at trial." Galen, 477 F.3d at 658.

B. Statute of Limitations
Both parties agree that New York substantive law governs this contract action. (See LBHI Mot. at 15-16; Evergreen Mot. at 3; see also Baker Decl. Ex. 1-C § 713 ("The [LPA] shall be construed in accordance with the substantive law of the State of New York....").) In New York, the statute of limitations with regard to a contract action is six years. CPLR § 213(2) (McKinney). The statute of limitations for contract actions begins to run from the date of the first alleged breach, even in the event that damages do not accrue until a later date. Nat'l Urban Ventures, Inc. v. City of Niagara Falls, 78 A.D.3d 1525, 910 N.Y.S.2d 615, 616 (2010) (citing Ely-Cruikshank Co., Inc. v. Bank of Montreal, 81 N.Y.S.2d 399, 402, 599 N.Y.S.2d 501, 615 N.E.2d 985 (1993)).
As noted above, LBB purchased the Stiffler loan from Evergreen on May 12, 2003. (Moley Decl. Ex. 5; Baker Decl. ¶ 7 & Ex. 1-J.) According to LBHI, at the time that LBB purchased the loan, the Mortgage Loan File "contained untrue statements and misrepresentations" (LBHI Mot. at 7), including misrepresentations concerning Mr. Stiffler's income (id. at 8-11), and misrepresentations concerning the value of the property (id. at 11-13). Evergreen asserts, therefore, that the statute of limitations with regard to LBHI's breach of contract claims began to run on May 12, 2003, the date that LBB acquired the loan. See, e.g. Hernandez v. Bank of Nova Scotia, 76 A.D.3d 929, 908 N.Y.S.2d 45, 46 (2010) (holding that limitations period for breach of contractual undertakings against a bank began to run when the bank allegedly provided false information to an accounting firm in breach of those undertakings).[1] If the accrual date is May 12, 2003, then the applicable six-year limitations period expired on May 12, 2009. Because LBHI did not file suit until January 28, 2010, more than eight months after termination of the limitations period, Evergreen asserts that LBHI's breach of contract claims are barred. (Evergreen Mot. at 22.)
LBHI responds to Evergreen's statute of limitations argument in a number of ways. First, LBHI asserts that the statute of limitations accrual date is actually November 7, 2009, rather than May 12, 2003. On October 8, 2009, a representative of LBHI sent a letter to Evergreen demanding payment for the $135,662.66 loss LBHI suffered on the liquidated Stiffler loan. (Moley Decl. Ex. 12.) LBHI asserts that Evergreen breached sections 710 and 711 of the Seller's Guide by failing to "indemnify" LBHI for this loss within thirty (30) days of LBHI's demand. (LBHI Resp. (Dkt. # 35) at 22 n. 7.) As a result, according to LBHI, its breach of contract claims against Evergreen actually accrued on November 7, 2009 (30 days following LBHI's October 8, 2009 demand), rather than on May 12, 2003. (Id.)
LBHI's argument concerning the statute of limitations accrual date is *1194 flawed. First, Evergreen's duty under sections 710 and 711 to either repurchase mortgage loans or "indemnify"[2] for losses incurred as a result of a mortgage loan is only triggered by "a breach of any of the representations, warranties, or covenants contained in Section 700 through 710 herein...." (Baker Decl. Ex. 1-C at § 710.) As noted above, Evergreen is alleged to have provided the subject misrepresentations to LBB on May 12, 2003. Under New York law, the statute of limitations begins to run from the date of the first alleged breach of a contract. See Nat'l Urban Ventures, 910 N.Y.S.2d at 616. Thus, even assuming that Evergreen's failure to pay LBHI $135,662.66 by November 7, 2009 constituted a breach of the LPA and Seller's Guide, it would not have commenced the running of the statute of limitations. LBHI may not extend the accrual date of the statute of limitations simply by delaying its demand for payment. Hahn Automotive Warehouse, Inc. v. Am. Zurich Ins. Co., 81 A.D.3d 1331, 916 N.Y.S.2d 678, 680 (2011) (finding contention that contract claims did not accrue until demand for payment without merit). To find otherwise would allow LBHI to essentially circumvent the statute of limitations by indefinitely deferring its demand for payment. A cause of action for breach of contract accrues when the party making the claim possesses a legal right to demand payment. Id. "Where, as here, the claim is for payment of a sum of money allegedly owed pursuant to a contract, the cause of action accrues when the [party making the claim] possesses a legal right to demand payment." Id. (quoting Minskoff Grant Realty & Mgmt. Corp., 71 A.D.3d 843, 897 N.Y.S.2d 485, 487 (2010)). The date upon which LBHI (or its predecessor LBB) could have initially demanded payment for Evergreen's alleged misrepresentations was May 12, 2003the same day that LBB purchased the Stiffler loan from Evergreen.
LBHI also counters that its claims are saved from Evergreen's statute of limitations defense pursuant to provisions contained within Title 11 of the United States Code ("the Bankruptcy Code"). On September 15, 2008, LBHI commenced voluntary bankruptcy under Chapter 11 of the Bankruptcy Code.[3] Section 108(a) of the Bankruptcy Code states:

*1195 If applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period within which the debtor may commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence such action only before the later of(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or (2) two years after the order for relief.
11 U.S.C. § 108(a). The commencement of a voluntary Chapter 11 case constitutes an "order of relief" under section 108(a)(2). 11 U.S.C. § 301(b). Thus, pursuant to section 108(a)(2), LBHI asserts that it had two years from the date it filed for voluntary bankruptcy to commence this lawsuit because the six year limitations period had not yet expired when LBHI filed its bankruptcy petition. According to LBHI, therefore, the limitations period, adjusted by section 108(a)(2), would not expire until September 15, 2010, more than eight months following the date that LBHI filed suit. (LBHI Mot. at 21-22.)
LBHI's arguments with regard to application of the Bankruptcy Code, however, are also flawed. The only written assignment agreement before the court between LBHI and LBB with regard to rights under the LPA and Seller's Guide is dated February 24, 2011more than a year after LBHI commenced suit in this action on January 28, 2010. (Compare Baker Decl. Ex. 1-H with Compl.) Thus, by the time LBHI had acquired rights on February 24, 2011 to bring an action under the LPA and Seller's Guide against Evergreen, the statute of limitations on LBB's claim against Evergreen had already expiredirrespective of whether the statute of limitations expired on May 12, 2009, or on September 15, 2010 as adjusted by section 108(a)(2) of the Bankruptcy Code.
LBHI nevertheless asserts that the February 24, 2011 assignment is valid because it was executed prior to trial. (See LBHI Reply (Dkt. # 38) at 11-12.) Some courts have found that such assignments, executed after suit has been filed but before trial, are valid so long as the defendant suffers no prejudice. See, e.g., Dubuque Stone Prods. Co. v. Fred L. Gray Co., 356 F.2d 718, 723-24 (8th Cir.1966) ("We cannot accept [the defendant's] argument that the assignment was invalid because it was made after this suit had been filed ... [, where] [t]he assignment occurred after filing, but before trial, and [the defendant] suffered no prejudice therefrom ...."); Decorative Ctr. of Houston, L.P. v. Direct Response Pubs., Inc., 264 F.Supp.2d 535, 543-44 (S.D.Tex. 2003) (finding that plaintiff had standing to bring suit even though assignment providing basis for suit was made one year after the initiation of litigation, after the close of discovery, and after defendant moved for summary judgment, where there was no prejudice to defendant based on the timing of the assignment); Malikyar v. Sramek, No. C07-03533, 2008 WL 4891020 at *4 (N.D.Cal. Nov. 12, 2008) ("An assignment made after the suit has been filed is not invalid if the assignment was made before trial, and the defendant is not prejudiced... [and] ... does not ... lose the right to assert any defenses against the assignee which it could have asserted against the assignor.").
In this case, however, Evergreen would suffer prejudice if the court were to recognize the post-filing assignment. LBHI filed suit on January 28, 2010, and thus did not assert a claim based on the LPA and *1196 the Seller's Guide prior to the expiration of the May 12, 2009 statute of limitations on the original claim. Thus, the timeliness of LBHI's claim depends on the two-year extension to the statute of limitations provided by the Bankruptcy Code in section 108(a)(2), 11 U.S.C. § 108(a)(2), and the relation back of the February 24, 2011 assignment to the date that the complaint was filed on January 28, 2010. In remarkably similar circumstances, the Ninth Circuit refused to recognize an assignment that was granted after the filing of a complaint, where such recognition would serve to revive a claim previously extinguished by the limitations period. See United States ex rel. Wulff v. CMA, Inc., 890 F.2d 1070, 1075 (9th Cir.1989) (citing United States ex rel. Texas Portland Cement Co. v. McCord, 233 U.S. 157, 34 S.Ct. 550, 58 L.Ed. 893 (1914)). In Wulff, the Ninth Circuit held that a complaint that was amended to reflect acquisition of a cause of action by assignment did not relate back under Federal Rule of Civil Procedure 15(a) where the action had been commenced in circumstances in which a "party with no cause of action file[d] a lawsuit to toll the statute of limitations and [eight months] later obtain[ed] a cause of action through assignment." Id.
Further, courts have held that the extension of time to file suit provided by section 108(a)(2) applies only to claims that the debtor could have brought prior to or on the date of the bankruptcy filing. Sender v. Mann, 423 F.Supp.2d 1155, 1166 (D.Colo.2006) (citing In re Dry Wall Supply, Inc., 111 B.R. 933, 935 n. 2 (D.Colo. 1990)); In re Read, 442 B.R. 839, 844 (Bankr.M.D.Fla.2011) ("Section 108(a) is only available to extend the period for prepetition claims"). Section 108(a)(2) does not afford relief with regard to claims for which the limitations period has expired prior to filing of the debtor's bankruptcy petition. See In re Soporex, Inc., 446 B.R. 750, 772 (Bankr.N.D.Tex.2011). At the time that LBHI filed bankruptcy on September 15, 2008, LBHI had no right to sue Evergreen based on the LPA or the Seller's Guide because the assignment of LBB's rights under those documents did not occur under February 24, 2011. Because LBB's claims were assigned to LBHI after the date of LBHI's bankruptcy petition, the extended statute of limitations does not apply to these claims. Sender, 423 F.Supp.2d at 1166 ("Since [plaintiff's] claim on behalf of the ... trust were assigned to him after the date of the bankruptcy petition, the extended statute of limitations does not apply to these claims.") (citing In re Ward, 42 B.R. 946, 950 (Bankr.M.D.Tenn.1984)). Accordingly, the court finds that section 108(a) of the Bankruptcy Code does not apply to extend the statute of limitations with regard to LBHI's contract claims against Evergreen.
Nevertheless, LBHI asserts that despite the February 24, 2011 date on the assignment agreement between LBHI and LBB, the assignment of LBB's claims to LBHI actually occurred earlier than this date. (LBHI Reply at 12 n. 5.) The only evidence in the record that LBHI cites to support this notion is a statement in the recitals of the February 24, 2011 assignment. The portion of the recitals relied upon by LBHI states in full:
WHEREAS, in furtherance of Assignor's [LBB] sale of the Mortgage Loans to Assignee [LBHI] and of Assignee's investment purposes in acquiring the Mortgage Loans, Assignor and Assignee have previously agreed to have Assignor assign, transfer and convey to Assignee rights and remedies Assignor may have with respect to the Mortgage Loans under the Agreements between Assignor and those Sellers identified on Exhibit A, to the extent such rights and remedies are assignable under the terms of such Agreements, and Assignor and Assignee *1197 now wish to document that prior agreement.
(Id.) LBHI argues that the statute of limitations is an affirmative defense with respect to which Evergreen bears the burden of proof. (LBHI Reply at 12 n. 5.) LBHI further argues that because "Evergreen has not offered any summary judgment evidence as to when the previous agreement of the assignment of rights and remedies referenced in the Assignment Agreement occurred," Evergreen "has failed to meet its burden." (Id.)
LBHI's argument concerning the recital in the February 24, 2011 assignment agreement also fails. Evergreen carries the burden of establishing a failure to comply with the statute of limitations. Chachas v. City of Ely, 615 F.Supp.2d 1193, 1203 (D.Ariz.2009) (citing Houghton v. South, 965 F.2d 1532, 1536 (9th Cir.1992)). As the party moving for summary judgment, Evergreen also carries the initial burden of establishing the absence of a genuine issue of fact with regard to the affirmative defense. Id. The only assignment between LBB and LBHI that is actually before the court is the one dated February 24, 2011. (Baker Decl. Ex. 1-H.) Indeed, the February 24, 2011 assignment is the only assignment that LBHI has offered into evidence.[4] As demonstrated by Evergreen and discussed above, this assignment, which occurred after LBHI filed for bankruptcy on September 15, 2008 and after LBHI filed suit against Evergreen on January 28, 2010, is ineffective to save LBHI's contract claims from Evergreen's defense of expiration of the statute of limitations. Thus, Evergreen has carried its initial burden with regard to its motion for summary judgment on the statute of limitations.
Because Evergreen has met its initial burden, the burden then shifts to LBHI to set forth specific facts showing the existence of genuine issues of material fact with regard to Evergreen's statute of limitations affirmative defense. Chachas, 615 F.Supp.2d at 1203. In order to save its claim from Evergreen's statute of limitations defense, LBHI must raise a factual issue concerning an assignment of LBB's rights and remedies that occurred prior to the filing of LBHI's September 15, 2008 bankruptcy petition. If such an assignment exists, then it is incumbent upon LBHI to produce evidence of the previous assignment to withstand summary judgment. Other than vague statements concerning the possible existence of an earlier assignment contained within the recitals of the February 24, 2011 assignment, LBHI has offered no such evidence. Indeed, a careful reading of the recital language does not indicate that an earlier assignment was actually executed. The recital language merely states that the parties "previously agreed to have [LBB] assign" its rights. It does not state that any such assignment was ever actually executed.
"A non-movant's bald assertions or a mere scintilla of evidence are both insufficient to withstand summary judgment." FTC v. Stefanchik, 559 F.3d 924, 929 (9th Cir.2009) (citing Galen v. Cnty. of Los Angeles, 477 F.3d 652, 658 (9th Cir.2007)). *1198 At most, LBHI has offered a mere scintilla of evidence concerning an alleged assignment that occurred prior to the February 24, 2011 assignment. Further, there is not even a scintilla of evidence concerning the date of any purported earlier assignment, or more specifically that the date was prior to LBHI's bankruptcy petition. LBHI has failed to produce this evidence even though such evidence logically would be both within LBHI's control and critical to LBHI's ability to withstand summary judgment regarding the limitations period. Absent any evidence concerning the actual execution of a prior assignment or the date of any such execution, the court finds that the scintilla of evidence offered by LBHI in the recitals of the February 24, 2011 assignment is insufficient to withstand summary judgment.[5]
Finally, LBHI asserts that the court should not enter summary judgment with regard to the statute of limitations because Evergreen failed to raise it as an affirmative defense in its answer to the complaint. Although in a diversity action, the federal court must apply the applicable state statute of limitations, the Federal Rules of Civil Procedure determine the manner and time in which the defense may be raised and when waiver occurs. Han v. Mobil Oil Corp., 73 F.3d 872, 877 (9th Cir.1995); Perry v. O'Donnell, 749 F.2d 1346, 1353 (9th Cir.1985). Under federal law, absent a showing of prejudice by the plaintiff, a defendant may raise an affirmative defense for the first time in a motion for summary judgment, including the defense of the statute of limitations. Han, 73 F.3d at 877 (stating that "we have ruled that an affirmative defense based on the lapse of a statutory limitation period may be raised for the first time on a motion for summary judgment when there is no prejudice to the plaintiff."); Rivera v. Anaya, 726 F.2d 564, 566 (9th Cir.1984).
LBHI has asserted that it is prejudiced because "it has not been afforded any opportunity to respond until now or conduct any discovery related to this defense." (LBHI Resp. at 20.) First, the fact that LBHI's initial opportunity to respond to Evergreen's statute of limitations defense occurred during the course of summary judgment briefing does not demonstrate prejudice. The parties have had had ample opportunity to address the issue in their summary judgment briefs and accompanying filings. Under these circumstances, LBHI has not been prejudiced in its ability to respond. See Sedivy v. City of Boise, No. 1:05CV00083, 2006 WL 1793607, at *3 (D.Idaho June 28, 2006) (finding that although statute of limitations was not raised until motion for summary judgment, plaintiff had ample opportunity to respond in her opposition brief); see also Cedars-Sinai Med. Ctr. v. Shalala, 177 F.3d 1126, 1128-29 (9th Cir.1999) (finding no prejudice to plaintiff where affirmative defense of the statute of limitations was not raised until defendant's reply *1199 brief because plaintiff was able to file a sur-reply). Second, LBHI does not indicate what discovery it would need to undertake from Evergreen in order to avoid any alleged prejudice with regard to Evergreen's statute of limitations defense. Information concerning an earlier assignment by LBB to LBHI concerning rights under the LPA or the Seller's Guide would logically be within LBHI's, and not Evergreen's, control. Although LBHI had the opportunity to present any such evidence that may exist in response to Evergreen's motion for summary judgment, LBHI chose not to do so.
Counsel for LBHI also asserted during oral argument that LBHI was unable to obtain the information it needed from LBB to respond to the statute of limitations issue because by the time Evergreen raised the issue the discovery cutoff had already occurred, and therefore LBHI could not issue any formal discovery requests to LBB. The court is not persuaded with regard to LBHI's inability to obtain the information from LBB. First, because LBHI is a party to the alleged earlier assignment, any evidence concerning this assignment would logically be within LBHI's, as well as LBB's, control. Further, LBB is a wholly owned subsidiary of LBHI and so the court does not understand why LBHI would need to issue formal discovery requests in order to obtain information from LBB. Indeed, the Ninth Circuit has stated that "[a] corporation must produce documents possessed by a subsidiary that the parent company owns or wholly controls." United States v. Int'l Union of Petroleum and Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989); see also In re ATM Fee Antitrust Litigation, 233 F.R.D. 542, 544-45 (N.D.Cal.2005). Thus, the inability to issue formal discovery to LBB is no excuse for LBHI's failure to produce evidence in contravention to Evergreen's statute of limitations defense or to raise a material issue of fact warranting the denial of summary judgment in favor of Evergreen.
Finally, the court notes that LBHI failed to move pursuant to Federal Rule of Civil Procedure 56(d) (formerly denominated as Rule 56(f))[6] for a continuance to conduct additional discovery on the statute of limitations issue, and failed to demonstrate its need for such a continuance "by affidavit or declaration." See Fed.R.Civ.P. 56(d). "`References in memoranda and declarations to a need for discovery do not qualify as motions under Rule 56(f) [now 56(d)],'" and "`[f]ailure to comply with the requirements of Rule 56(f) [now 56(d)] is a proper ground for denying discovery and proceeding to summary judgment.'" California v. Campbell, 138 F.3d 772, 779 (9th Cir.1998) (quoting Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir.1986)).[7] Accordingly, the court finds that the entry of summary judgment in favor of Evergreen based on an expiration of the statute of limitations for contracts is appropriate.

*1200 IV. CONCLUSION
Based on the foregoing, the court GRANTS Evergreen's motion for summary judgment with regard to the statute of limitations affirmative defense. (Dkt. #27.) Because the court grants Evergreen's motion on this ground, the court finds it unnecessary to reach the various other grounds for summary judgment asserted in Evergreen's motion. In addition, the court DENIES LBHI's motion for summary judgment (Dkt. # 28) as MOOT.
NOTES
[1]  The fact that LBHI may not have discovered Evergreen's alleged misrepresentations until a later date does not alter the initiation of the limitations period. Hernandez, 908 N.Y.S.2d at 46.
[2]  The fact that LBHI refers to Evergreen's alleged obligation as one of "indemnity" does not alter the commencement date of the limitations period. Under New York law, a claim for contractual indemnity ordinarily accrues either when judgment is entered or liability is imposed upon the party seeking indemnification, see, e.g., Roldan v. Allstate Ins. Co., 149 A.D.2d 20, 544 N.Y.S.2d 359, 363 (1989), or when the party seeking indemnification has satisfied a judgment, see, e.g., McCabe v. Queensboro Farm Prods., Inc., 22 N.Y.S.2d 204, 292 N.Y.S.2d 400, 402-03, 239 N.E.2d 340 (1968). However, despite LBHI's characterization of its claim as one for "indemnity," and despite the imprecise use of this term in the Seller's Guide, LBHI has not alleged it suffered any liability to a third-party. Rather, LBHI's allegations comprise a straightforward claim for damages pertaining to its predecessor's purchase of the Stiffler loan. (See Compl.) New York courts have rejected similar attempts by plaintiffs to improperly circumvent statutes of limitations by simply recasting their claims as ones for indemnity. See, e.g., Germantown Central School Dist. v. Clark, Clark, Millis & Gilson, 294 A.D.2d 93, 743 N.Y.S.2d 599, 605 (2002) (citing Town of Brookhaven v. MIC Property and Cas. Ins. Corp., 245 A.D.2d 365, 668 N.Y.S.2d 37, 37 (1997)).
[3]  The court is permitted to take judicial notice of documents filed in a bankruptcy case. In re Soporex, Inc., 446 B.R. 750, 765 n. 12 (Bankr.N.D.Tex.2011). The court, therefore, takes judicial notice of LBHI's Chapter 11 bankruptcy filing. See In re Lehman Brothers Holdings, Inc., et al., No. 08-13555(JMP) (Bankr.S.D.N.Y.). Pursuant to sections 1107(a) and 1108 of the Bankruptcy Code, LBHI is authorized to operate its business and manage its properties as a debtor in possession for the benefit of its creditors, and it is on this basis that LBHI is prosecuting the present action. See 11 U.S.C. §§ 1107(a) & 1108.
[4]  In his declaration on LBHI's behalf, John Baker states that "LBB and LBHI entered into an Assignment Agreement (the `Assignment') whereby LBB assigned to LBHI all of its rights and remedies in and to its agreements with Evergreen relating to the Stiffler Loan, including all rights in and to any and all representations, warranties, and covenants Evergreen made to LBB in its agreements and the Seller's Guide and rights to repurchase and indemnify remedies, among other things." (Baker Decl. ¶ 6.) In making the foregoing statement, Mr. Baker cites only the February 24, 2011 assignment agreement. (Id. (citing Ex. H-1).) He makes no reference to any earlier assignment agreement between LBB and LBHI.
[5]  During oral argument, counsel for LBHI asserted that there was an earlier 2008 written assignment between LBB and LBHI that named numerous entities and included various LPAs. Counsel for LBHI admitted, however, that the LPA involving Evergreen was not included in the earlier 2008 written assignment. In any event, there is no evidence of this earlier written assignment before the court. Counsel for LBHI also indicated during oral argument that there may have been an earlier oral assignment between LBHI and LBB concerning the Evergreen LPA. Again, LBHI has not submitted any such evidence to the court even though, as a party to the alleged oral assignment, this evidence logically would be within LBHI's control. Further, under New York law, an oral agreement to assign a right to purchase a mortgage loan is governed by the Statute of Frauds, and therefore ordinarily unenforceable. See Ognenovski v. Wegman, 275 A.D.2d 1013, 713 N.Y.S.2d 594, 595-96 (2000).
[6]  The advisory committee's notes to Fed. R.Civ.P. 56 with regard to the 2010 amendments state that "[s]ubdivision (d) carries forward without substantial change the provisions of former subdivision (f)." Fed.R.Civ.P. 56 advisory committee's notes.
[7]  The court also notes that LBHI did not even execute the February 24, 2011 assignment until after the November 17, 2010 deadline for amending pleadings and the January 18, 2011 discovery cutoff had already passed. In light of this timing, LBHI is in a poor position to complain that Evergreen did not timely amend its answer to plead the statute of limitations affirmative defense in order to allow discovery on the assignment issue. If there were any prejudice to LBHI in the timing of Evergreen's assertion of the statute of limitations defense, which the court finds there is not, the prejudice would be at least in part of LBHI's own creation.


                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                    July 3, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                         No. 12-2211
 v.                                           (D.C. No. 2:12-CR-01054-BRB-1)
                                                      (D. New Mexico)
 ISRAEL ANGEL GUARDADO-
 CORDOVA,

              Defendant - Appellant.

                           ORDER AND JUDGMENT *

Before PORFILIO, ANDERSON, and BRORBY, Circuit Judges.

      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant, Israel Angel Guardado-Cordova, seeks to appeal

his sentence following his plea of guilty to one count of illegally reentering the

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
United States, after being previously deported following a conviction for an

aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). His appointed

counsel, Assistant Federal Public Defender Andre C. Poissant, has filed an Anders

brief and has moved to withdraw as counsel. See Anders v. California, 386 U.S.

738 (1967). Mr. Guardado-Cordova has not filed any response to that brief and

the government has declined to file a brief. We therefore base our conclusion on

counsel’s brief and our own careful review of the record. For the reasons set

forth below, we agree with Mr. Poissant that the record in this case provides no

nonfrivolous basis for an appeal, and we therefore grant his motion to withdraw

and we dismiss this appeal.

      The presentence report (“PSR”), prepared by the United States Probation

Office in anticipation of sentencing Mr. Guardado-Cordova, provides the

following basic facts relevant to this appeal: On March 13, 2012, United States

Border Patrol agents discovered thirteen sets of footprints on State Road 81, west

of the Antelope Wells, New Mexico, Port of Entry. After following the

footprints, the agents discovered thirteen individuals attempting to conceal

themselves in brush approximately forty miles north of the United States/Mexico

International border. One of the individuals discovered was Mr. Guardado-

Cordova. He admitted he was a citizen of El Salvador and he did not have the

proper documents to enter or remain in the United States. He was then arrested

and transported to the Border Patrol station for further processing.

                                        -2-
      Immigration records revealed that Mr. Guardado-Cordova had been

convicted on July 1, 2005, of sexual assault, a second degree felony, in Arkansas.

He was sentenced to twenty-four months probation for that conviction and was

subsequently deported from the United States on November 4, 2005. Mr.

Guardado-Cordova indicated to authorities that he has a two-year-old daughter in

El Salvador who needs eye surgery. Because of financial difficulties, he cannot

afford the surgery and he came to the United States in search of work.

      As indicated, Mr. Guardado-Cordova pled guilty to one count of violating 8

U.S.C. § 1326(a) and (b)(2). The PSR calculated an advisory sentencing range

under the United States Sentencing Commission, Guidelines Manual (“USSG”),

of forty-six to fifty-seven months, based on an offense level of twenty-one and a

criminal history category of III. The total offense level of twenty-one included a

sixteen-level increase pursuant to USSG §2L1.2(b)(1)(A)(ii) because Mr.

Guardado-Cordova had been deported previously following a conviction for a

felony crime of violence (in this case, the second degree felony sexual assault).

      Mr. Guardado-Cordova filed a sentencing memorandum requesting a

“downward departure” from the advisory sentencing range, arguing that a

sentence of “twelve months and one day is sufficient, but not greater than

necessary to comply with the purposes of sentencing set forth in 18 U.S.C.

§ 3553(a), and takes into account the nature and circumstances of the offense and

the history and characteristics of the defendant.” Def.’s Sentencing Mem. at 1, R.

                                         -3-
Vol. 1 at 12. He argued that the sixteen-level enhancement was unreasonably

severe because it placed reentry offenses at the same level as far more serious

offenses, and he claimed that his current circumstances, including his family

situation and his daughter’s poor health, warranted a variance. The district court

rejected his arguments and sentenced him to the bottom of the advisory

sentencing range—i.e., forty-six months. Mr. Guardado-Cordova’s counsel filed

this appeal. As indicated, that counsel has now moved to withdraw as counsel

pursuant to Anders.

      The Supreme Court decision in Anders authorizes a defendant’s lawyer to

seek permission to withdraw from an appeal if, “after conscientious examination,”

the lawyer finds the appeal “wholly frivolous.” Anders, 386 U.S. at 744.

Invoking Anders requires the lawyer to “submit a brief to the client and the

appellate court indicating any potential appealable issues based on the record,”

and the client has an opportunity to respond to his attorney’s arguments. United

States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (citing Anders, 386 U.S. at

744). In evaluating the attorney’s request to withdraw, we are required to

“conduct a full examination to determine whether the defendant’s claims are

wholly frivolous.” Id. If they are, we may grant counsel’s motion to withdraw

and dismiss the appeal. Id.

                                         -4-
      Mr. Guardado-Cordova’s counsel identifies as the only “potential”

appealable issue the question of “whether Mr. Guardado-Cordova’s 46-month

sentence was substantively unreasonable.” Appellant’s Br. at 8.

      We review sentences for substantive and procedural reasonableness under

an abuse of discretion standard. United States v. Lopez-Macias, 661 F.3d 485,

488-89 (10th Cir. 2011). Procedural reasonableness involves an assessment of

“the method by which a sentence is calculated.” Id. There is no basis in the

record in this case for challenging the procedural reasonableness of this sentence.

      “[S]ubstantive reasonableness addresses whether the length of the sentence

is reasonable given all the circumstances of the case in light of the factors set

forth in 18 U.S.C. § 3553(a).” United States v. Damato, 672 F.3d 832, 838 (10th

Cir. 2012) (internal quotation marks omitted). “We review substantive

reasonableness claims for abuse of discretion, id. , “afford[ing] substantial

deference to [the] district court[].” United States v. Smart, 518 F.3d 800, 806

(10th Cir. 2008). A sentence within the properly-calculated Guidelines range is

presumed on appeal to be reasonable. United States v. Alvarez-Bernabe, 626 F.3d

1161, 1167 (10th Cir. 2010).

      At sentencing, Mr. Guardado-Cordova argued for a sentence below the

advisory Guideline range on the ground that the sixteen-level enhancement as

applied to his offense was unreasonably harsh. He argued that a sentence of one

year and a day was appropriate, given all the circumstances of his offense. Mr.

                                          -5-
Guardado-Cordova pointed out that illegal reentry is non-violent, and that the

sixteen-level enhancement yields sentences far longer than sentences for more

violent and more serious offenses. To the extent Mr. Guardado-Cordova is

attempting to raise a policy objection to the sixteen-level increase contained in

the Guidelines, we have explicitly rejected that argument. See United States v.

Alvarez-Bernabe, 626 F.3d 1161 (10th Cir. 2010).

       He also argued that his “personal and family circumstances supported a

variance.” Appellant’s Br. at 10. In particular, his two-year-old daughter needs

medical care, and his sole reason for returning to the United States was to obtain

employment so that he could provide for her care. Our court has acknowledged

that the “extensiveness of ‘family and cultural ties,’ however the factor is

characterized, will still be part of tailoring an appropriate sentence[,] . . . [but] it

is also clear in assessing the reasonableness of a sentence that a particular

defendant’s cultural ties must be weighed against other [§ 3553] factors.” United

States v. Galarza-Payan, 441 F.3d 885, 889 (10th Cir. 2006). The district court

clearly weighed Mr. Guardado-Cordova’s personal situation against the other

relevant sentence factors in arriving at the within-Guidelines sentence imposed.

This argument therefore provides no nonfrivolous basis for an appeal.

                                            -6-
     In short, we perceive no meritorious grounds for an appeal. We therefore

GRANT counsel’s request to withdraw, and we DISMISS this appeal.

                                            ENTERED FOR THE COURT

                                            Stephen H. Anderson
                                            Circuit Judge

                                      -7-


978 S.W.2d 521 (1998)
Curtis LUSH and Leone Lush, Appellants,
v.
Bruce WOODS, et al., Respondents.
No. WD 54953.
Missouri Court of Appeals, Western District.
November 3, 1998.
*522 Steven A. Fritz, Sedalia, for Appellants.
James T. Buckley, Sedalia, for Respondent Woods.
Theresa Shean Hall, Kansas City, for Respondent Yoder.
Before SMART, P.J., and ELLIS and HOWARD, JJ.
HOWARD, Judge.
Appellants Curtis and Leone Lush appeal from a judgment in favor of Respondents Bruce Woods and Dean L. Yoder on Appellants' claims of statutory trespass, § 537.340 RSMo 1994.[1] Appellants raise two points on appeal. First, they claim that the trial court erred in submitting to the jury the verdict director used in the case because the instruction did not allow the jury to consider whether Respondents had exceeded the scope of any consent the jury might find Appellants gave to Respondents to cut or destroy trees located on Appellants' property. Second, they claim that the trial court erred in refusing to admit the testimony of Appellants' expert giving his opinion of the fair market value of Appellants' trees prior to their destruction by Respondents and while still placed and growing, which they contend is an allowable measure of damages in a statutory trespass action under § 537.340.
We affirm.

Facts
Curtis and Leone Lush purchased forty acres of rural property in Benton County on November 26, 1994. Their property consisted of two houses and a seven-acre lake, with the majority of the land undeveloped in its natural setting. Prior to the Lushes' purchase, the parcel of land was owned by Curtis Lush's sister. Prior to purchasing the property, the Lushes would occasionally stay on the property in exchange for doing certain upkeep duties.
To the north and east of the property was property owned by Bruce Woods. Woods has owned his property since June 1994.
In June or July 1994, before Appellants purchased the property from Curtis Lush's sister, Woods approached Curtis Lush about building a new fence on the north and east boundary of the properties. Curtis Lush testified that when Woods inquired about erecting the fence, his response was that his sister was not interested in putting more money into a fence and that she did not need a fence. Lush further testified that he did not give anybody permission to tear down a fence line from the time he purchased the property to the time the trees were destroyed. Woods testified that in response to his inquiry about erecting a fence, Lush indicated that Woods could put up a fence so long as it did not cost Lush anything. Woods further testified that he mentioned to Lush during this conversation that there would be a need to use a bulldozer in erecting the fence. Both parties agree that the conversation occurred before Appellants *523 owned the property. No conversation between Appellants and Respondents took place between June or July 1994 and the time the fence was erected.
Woods hired Dean Yoder to clear the fence line. The fence line between the parties' property was cleared between December 12-14, 1994. In the process of erecting the new fence with the use of a bulldozer, a heavily wooded area along the fence line on the Lushes' property was destroyed. Five hundred seventy-eight trees measuring from two inches in diameter to twenty-four inches in diameter were destroyed or damaged. The majority of the trees were oak and hickory measuring two to six inches in diameter.
On July 14, 1995, Appellants filed their action for trespass and requested damages under § 537.340. On March 4 and 5, 1997, the matter was tried to a jury. Appellants dismissed Krysti Woods as a defendant without prejudice at the start of trial.
At trial, both Appellants testified as to the fair market value of the trees that were destroyed by Yoder and the fair market value of their land before and after the trees were destroyed. Leone Lush also testified as to the cost to clean up the destroyed trees. Appellants offered expert testimony of Keith Kissee, the owner of an area full-service tree and lawn care business. Kissee gave his opinion as to the value of the destroyed trees using a formula approved by the International Society of Arboriculture. However, Kissee's testimony was rejected by the court because the court ruled the measure of damages for which Appellants could recover was the value of the trees in their severed state after cut and on the ground.
At the close of the evidence, instructions were presented and the court rejected Appellants' offered Instruction A, a verdict director, which would have allowed the jury to find for Appellants if it found that Respondents entered onto their land without consent or entered onto their land with consent but exceeded that consent. The court accepted, after objection by Appellants, Respondents' Instruction Number 7, which allowed the jury to find for Respondents if the jury found that Respondents had consent to bulldoze the fence line. The court also rejected Appellants' damage instruction on the value of the trees as "placed and growing" and accepted the damage instruction of the fair market value of the land before and after the destruction of the trees.
The jury found in favor of Respondents and the issue of damages was never reached. This appeal followed.

Point I
The first point on appeal is that the trial court erred in submitting to the jury the verdict director used in the case. Appellants contend that the instruction did not correctly characterize the substantive law of statutory trespass because it did not allow the jury to consider whether Respondents had exceeded the scope of any consent the jury might find Appellants gave to Respondents to cut or destroy trees located on Appellants' property.
In determining the propriety of an instruction, we view the evidence in the light most favorable to the submission of the instruction, and a party is entitled to an instruction upon any theory supported by the evidence. Vandergriff v. Missouri Pac. R.R., 769 S.W.2d 99, 104 (Mo. banc 1989). Substantial evidence must be presented entitling a litigant to an instruction. Fitch v. J.A. Tobin Constr. Co., Inc., 829 S.W.2d 497, 505 (Mo.App. W.D.1992). Speculative deductions and conclusions are insufficient to support submission of an instruction. Id.
Appellants make three arguments under this point, and we will address each argument separately.

1. Instruction Number 6
Appellants contend that the trial court erred in submitting Instruction Number 6 to the jury. Instruction Number 6 reads as follows:
Your verdict must be for Plaintiffs and against Defendant Woods and Defendant Yoder if you believe: First, Defendant Yoder entered onto the land of plaintiffs and without plaintiffs' permission injured, broke or destroyed trees, and Second, Plaintiffs thereby sustained damages, unless *524 you believe Plaintiff is not entitled to recover by reason of Insturction [sic] Number 7.
There is disagreement as to whether Instruction Number 6 was offered by Appellants or Respondents. If it was submitted by Appellants, they may not complain on appeal about an instruction which they offered. Anglim v. Missouri Pac. R.R. Co., 832 S.W.2d 298, 308 (Mo. banc 1992).
If the instruction was submitted by Respondents, Appellants had a duty to object to the instruction before it was submitted to the jury. No party may assign as error the giving or failure to give instructions or verdict forms unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection. Rule 70.03; Norris v. Barnes, 957 S.W.2d 524, 527 (Mo. App. W.D.1997). Because Appellants did not object to this instruction before it was submitted to the jury, they may not object to it on appeal.
However, even giving Appellants the benefit of the doubt in light of the confusion surrounding Instruction Number 6, we disagree with Appellants' claim that Instruction Number 6, by itself, would not allow the jury to find for Appellants if it found that Appellants gave consent to Respondents to enter onto the land, but Respondents exceeded that consent. The plain language of the instruction states that the jury must find that Yoder injured, broke or destroyed trees without Appellants' permission. This clearly encompasses the situation where Appellants gave consent for Yoder to enter onto their land and he then cut down trees without their consent.

2. Instruction Number 7
Appellants' second argument is that the trial court erred in submitting Instruction Number 7 to the jury. This instruction, rather than Instruction Number 6, is the actual basis of Appellants' claim of error. Instruction Number 7 reads as follows:
Your verdict must be for defendants if you believe that plaintiff by words or conduct permitted or authorized any defendant to bulldoze an old fence-line between plaintiffs' and defendant Wood's property.
As Appellants argue, this instruction requires the jury to find for Respondents even if Appellants gave consent to enter onto their property, but Yoder exceeded that consent.
Appellants correctly assert that a trespass can occur by either entering onto land wrongfully and destroying trees or entering onto land with the landowner's consent and then exceeding the scope of that consent by destroying trees without permission. Anderson v. Howald, 897 S.W.2d 176, 180 (Mo.App. S.D.1995); Segraves v. Consolidated Elec. Coop., 891 S.W.2d 168, 170 (Mo.App. E.D.1995); McNamee v. Garner, 624 S.W.2d 867, 868 (Mo.App. E.D.1981). However, Appellants presented no evidence at trial by which the jury could find that Respondents had consent to enter onto the land, but then exceeded the scope of that consent. The only theory Appellants presented at trial was that they had not given Respondents consent to enter onto their land and bulldoze the fence line. Therefore, Respondents were entitled to an instruction excluding the possibility of exceeded consent as a basis for the jury finding for Appellants.

3. Instruction A
Appellants' final argument is that the trial court erred in failing to submit Instruction A to the jury. Instruction A reads as follows:
Your verdict must be for Plaintiffs and against Defendant Woods and Defendant Yoder if you believe: First, either: Defendant Yoder wrongfully entered onto the land of plaintiffs and injured, broke or destroyed trees; or Defendant Yoder entered onto the land of plaintiffs with the consent of plaintiffs and then exceeded that consent by injuring, breaking, or destroying trees without permission; and Second, Plaintiffs thereby sustained damages, unless you believe Plaintiff is not entitled to recover by reason of Insturction [sic] Number.
Appellants discuss Instruction A in their argument, but they did not include it in their *525 point relied on.[2] Issues not encompassed by the point relied on and raised only in the argument portion of the brief are not preserved for review. Kerr Const. Paving Co. v. Khazin, 961 S.W.2d 75, 82 n. 6 (Mo.App. W.D.1997) (quoting Smith v. Tang, 926 S.W.2d 716, 719 (Mo.App. E.D.1996)); accord State v. Tooley, 875 S.W.2d 110, 115 (Mo. banc.1994). However, because Appellants' contention can be easily understood from the argument portion of their brief, this court, in its discretion, will review Appellants' argument for plain error. Great Southern Sav. & Loan Ass'n v. Wilburn, 887 S.W.2d 581, 583 (Mo. banc 1994); see also Hoover v. Hoover, 892 S.W.2d 818, 819 (Mo.App. W.D.1995).
As we stated under our discussion of Instruction Number 7, Appellants did not present any evidence that consent was given but exceeded. Therefore, if the trial court had given the jury Instruction A, the jury would have been left to speculate, with no evidence in the record, whether or to what extent the consent was exceeded. In addition, to provide an instruction that would allow the jury to find that consent had been given but exceeded in this case would be unfair to Respondents, who did not have the opportunity to respond to this theory at trial. We find no plain error in the trial court's refusal to submit Instruction A. Point denied.

Point II
The second point on appeal is that the trial court erred in refusing to admit the testimony of Appellants' expert giving his opinion of the fair market value of Appellants' trees prior to their destruction by Respondents and while still placed and growing. Appellants claim that the trial court incorrectly interpreted and applied the law as to the measure of damages in a statutory trespass action. They contend that the fair market value of their trees prior to their destruction and while they were placed and growing on their land is an allowable measure of damages in a statutory trespass action under § 537.340, and they were not restricted to offering evidence valuing the trees after they had been severed from the real estate by Respondents' actions.
When a jury finds against the plaintiff on the issue of the defendant's liability, rulings on matters relating only to the amount of damages to which the plaintiff might be entitled to receive, if the defendant was liable, cannot be considered so prejudicial as to constitute reversible error. Miller v. Riss & Co., 259 S.W.2d 366, 372 (Mo.1953); see also Turner v. Norfolk & Western Ry. Co., 785 S.W.2d 569, 573 (Mo.App. W.D.1990).
In this case, the jury found that Respondents were not liable to Appellants. Therefore, the jury never reached the issue of damages, and any error the trial court may have made that related solely to damages did not constitute reversible error. Point denied.
The judgment of the trial court is affirmed.
All concur.
NOTES
[1]  Section 537.340 provides as follows:

If any person shall cut down, injure or destroy or carry away any tree placed or growing for use, shade or ornament, or any timber, rails or wood standing, being or growing on the land of any other person, or shall dig up, quarry or carry away any stones, ore or mineral, gravel, clay or mold, or any ice or other substance or material being a part of the realty, or any roots, fruits or plants, or cut down or carry away grass, grain, corn, flax or hemp in which he has no interest or right, standing, lying or being on land not his own, or shall knowingly break the glass or any part of it in any building not his own, the person so offending shall pay to the party injured treble the value of the things so injured, broken, destroyed or carried away, with costs.
[2]  In their reply brief, Appellants amended their point relied on to include their claim regarding Instruction A. Appellants also submitted a motion to amend their brief to modify Point Relied On I to include as error the trial court's refusal to submit Instruction A to the jury. This motion was denied. Both Respondents submitted motions to strike Appellants' reply brief because their point relied on was modified to include Appellants' claim of error concerning Instruction A. Respondents' motions are taken with the case. Respondents' motions are hereby sustained, and Appellants' reply brief is stricken.


25 F.3d 1300w
Benton MUSSLEWHITE, and all others similarly situated,Plaintiff-Appellant,v.The STATE BAR OF TEXAS, et al., Defendants-Appellees.
No. 92-2762.
United States Court of Appeals,Fifth Circuit.
July 19, 1994.

1
NOTE: THE COURT HAS WITHDRAWN THIS OPINION. SEE 32 F.3d 942