405 F.2d 691
UNITED STATES of America, Appellee,v.Philip ARCURI and Alfred John Cimei, Defendants-Appellants.
No. 182.
No. 198.
Docket 32593.
Docket 32597.
United States Court of Appeals Second Circuit.
Argued November 15, 1968.
Decided December 9, 1968.

Archibald Palmer, New York City, for defendant-appellant Philip Arcuri.
David T. Berman, Brooklyn, N. Y., Berman & Labert, Brooklyn, N. Y., for defendant-appellant Alfred John Cimei.
Donald F. McCaffrey, Asst. U. S. Atty., Joseph P. Hoey, U. S. Atty., Eastern District of New York, for appellee.
Before MEDINA, FRIENDLY and SMITH, Circuit Judges.
FRIENDLY, Circuit Judge:
Appellants Arcuri and Cimei were tried in the District Court for the Eastern District of New York for dealing in counterfeit money. The first count of the indictment charged Harriet Schwartz with knowingly possessing and concealing, on or about August 11, 1966, a hundred counterfeit $10 Federal Reserve Notes, knowing them to be such, in violation of 18 U.S.C. § 472. Count Two charged that on or about August 17, 1966, Arcuri and Cimei knowingly possessed and concealed approximately 998 such notes. The third count alleged that between July 25 and August 17, 1966, Schwartz, Arcuri and Cimei conspired to sell, possess, conceal, pass, utter and publish, and to transfer and deliver some 998 counterfeit $10 Federal Reserve Notes. When the case was called for trial before Judge Weinstein, counsel for Mrs. Schwartz moved for a severance on the ground that she was a patient at the Creedmoore State Hospital, a mental institution. The prosecutor joined in the motion in the interest of affording Arcuri and Cimei a speedy trial, which Arcuri had repeatedly requested; they opposed it on the basis that severance would deprive them of her testimony. The court granted the motion, indicating that it would do all within its power to procure the presence of Mrs. Schwartz as a witness if the defense desired her. The jury found Arcuri and Cimei guilty on both counts; they received concurrent sentences of five and two years, respectively.
We deal first with the claim that the court should have dismissed the indictment on the ground that this was based solely on hearsay evidence which was presented as if the witness had personal knowledge. Although the acts leading to the indictment had been observed by two Secret Service Agents still in the Government's employ — D'Amelio, who was acting under cover, and Lightfoot, who was surveilling — the single witness before the grand jury was another agent whose sole qualification was in allegedly being the only one available in the office on the day the case was to be presented. As the district judge said, "In his testimony before the grand jury, he synthesized the reports of those agents who had observed the relevant events. But he spoke as would one who had seen the events he described and a grand juror would not have known that this witness' knowledge was secondhand." 282 F. Supp. 347.
Some years ago the writer of this opinion expressed the view that such misleading of the grand jury called for dismissal of an indictment. United States v. Payton, 363 F.2d 996, 999-1001 (2 Cir.) (dissenting opinion), cert. denied, 385 U.S. 993, 87 S.Ct. 606, 17 L.Ed.2d 453 (1966). Later Judge Waterman, speaking for the court in United States v. Umans, 368 F.2d 725, 730 (2 Cir. 1966), stated in affirming a conviction "[E]xcessive use of hearsay in the presentation of government cases to grand juries tends to destroy the historical function of grand juries in assessing the likelihood of prosecutorial success and tends to destroy the protection from unwarranted prosecution that grand juries are supposed to afford to the innocent. Hearsay evidence should only be used when direct testimony is unavailable or when it is demonstrably inconvenient to summon witnesses able to testify to facts from personal knowledge."1 The Supreme Court granted certiorari, 386 U.S. 940, 87 S.Ct. 975, 17 L.Ed.2d 872 (1967), but later dismissed the writ as improvidently granted, 389 U.S. 80, 88 S.Ct. 253, 19 L.Ed.2d 255 (1967).2 Still later another member of this panel dissented from a refusal to dismiss an indictment based almost solely on the hearsay testimony of a surveilling agent when there was no adequate justification for failure to produce the undercover agent having personal knowledge although in that case there was no deception of the grand jury, United States v. Beltram, 388 F.2d 449, 451-454 (2 Cir. 1968) (dissenting opinion of Medina, J.).3

1
The majority in the Beltram case, although upholding the indictment, noted that it "was returned before * * the decision in Umans," 388 F.2d 449, a reference which suggests they thought the court's dictum there might have announced a standard to govern the subsequent conduct of Federal prosecutors in this circuit. Similarly, in United States v. Catino, 403 F.2d 491, 496, 497 (2 Cir. 1968), the court, in declining to dismiss two indictments obtained on the basis of hearsay, noted that "[b]ecause these indictments were returned less than a week after the decision in Umans * *, it would be an unduly harsh exercise of supervisory powers to impose sanctions upon the Government for failing to achieve full compliance in this case." 403 F.2d 496. Here, in a penetrating opinion, 282 F.Supp. 347 (1968), Judge Weinstein analyzed the vices in the practice the prosecution had followed. He stated he had been "informed that the practice challenged in the present case no longer represents the policy of the United States Attorney in this district and that witnesses with personal knowledge are now relied upon wherever possible." 282 F.Supp. at 350.4 He found that the defendants had not been prejudiced by the Government's method of presentation since "based upon the available evidence, it is not conceivable that a grand jury would have refused to indict" and "the reports of the government witnesses — supplied to defendants — were so detailed as to afford the equivalent of grand jury testimony for impeachment purposes." Analyzing the precedents, he concluded that Umans and Beltram fell just short of prohibiting indictments based solely and unjustifiably upon hearsay, and declined to dismiss the instant indictment. Taking note of the fact that this had been obtained some two months after the Umans opinion, contrast United States v. Catino, supra, he announced, however, that motions to dismiss indictments subsequent to his opinion would "be granted without a showing of prejudice to the defendant if it is clear that hearsay alone was deliberately relied upon when better evidence was readily available for presentation to the grand jury," whereas earlier indictments would be individually considered to determine prejudice. 282 F. Supp. at 351. In light of the precedents we find no sufficient basis for disturbing the court's refusal to dismiss this indictment. We repeat, however, the warnings to prosecutors given in Umans and Catino.

2
Cimei but not Arcuri claims the evidence was insufficient. The Government's evidence was this: After preliminaries unnecessary to detail, the undercover agent D'Amelio had arranged with Mrs. Schwartz to pay $2500 in real money on August 17 in exchange for $10,000 in counterfeit $10 Federal Reserve Notes. He drove to the Airport City Diner on the Long Island Belt Parkway towards evening and called Mrs. Schwartz. Agent Lightfoot and another agent, Ballard,5 were on hand for surveillance. When Mrs. Schwartz arrived and met D'Amelio, she made four or five telephone calls from pay phones in the diner; at least one was to Arcuri. Around 9 P.M. Arcuri and Cimei arrived in a car driven by Cimei, with two women in the back seat. Arcuri waived to Mrs. Schwartz; Cimei drove the car to the back of the diner. A short while later D'Amelio heard Arcuri call "Harriet." Mrs. Schwartz walked to the diner. D'Amelio, whose view was partially obscured, could see her talking only with Arcuri but Lightfoot testified that Cimei was also a party to the conversation. Mrs. Schwartz returned to D'Amelio's car and said "something" to him. She then walked back to where Arcuri and Cimei were standing and talked to Arcuri. Cimei went to the rear of the diner and returned bearing a brown paper bag. Again Mrs. Schwartz went over to D'Amelio's car, said "something" to him, and returned to Arcuri and Cimei. This time Cimei handed her the bag, which she took to D'Amelio. He gave her a key to open the trunk of the car where the money to be used in payment was said to be reposing. As soon as the lid was raised, this being a pre-arranged signal, Lightfoot and other agents pounced on all four and arrested them. The bag contained ten white envelopes, each enclosing approximately ten counterfeit $10 notes; one of the envelopes bore a fingerprint of Arcuri's.

3
While the evidence was rather skeletonized due in considerable part to the defense's successful objection to the Government's first effort to elicit what Mrs. Schwartz told D'Amelio and the prosecutor's failure to renew the effort thereafter,6 we have no difficulty in holding it sufficient. Cf. United States v. Montalvo, 271 F.2d 922 (2 Cir. 1959); United States v. Lefkowitz, 284 F.2d 310, 315-316 (2 Cir. 1960). The Government's evidence could convince a reasonable juror beyond a reasonable doubt that Mrs. Schwartz was a saleslady for the sources of the counterfeit, that she phoned Arcuri to obtain a delivery of the desired amount, and that Arcuri and Cimei made the delivery, with Cimei being the partner having physical possession. In addition, the jury could well have regarded Arcuri's and Cimei's versions of what went on at the diner as so incredible as to furnish still further support. Cf. Dyer v. MacDougall, 201 F.2d 265, 269 (2 Cir. 1952).7

4
Arcuri not only denied participation in the crime charged but asserted that he had never handled counterfeit money or known anyone who had done so. The Government countered, as it had every right to do, with a rebuttal witness who testified to Arcuri's having talked to him about buying counterfeit in late July or early August 1966; on objection by Cimei's counsel, the judge instructed that the evidence was not to be considered against him. We see no reason why this was not sufficient.

5
A confused set of arguments has been presented with respect to the co-defendant Schwartz. The claim that the failure to have her examined with respect to competency to stand trial violated 18 U.S.C. § 4244 encounters the imposing obstacle that she was not tried. The argument that Arcuri and Cimei were prejudiced by the severance of Schwartz collides with Judge Learned Hand's statement, "No accused person has any recognizable legal interest in being tried with another, accused with him, though he often has an interest in not being so tried * * *." United States v. Bronson, 145 F.2d 939, 943 (2 Cir. 1944). Continuing, Judge Hand said, "but he may of course have a lively interest in securing the attendance at the trial as a witness of another accused." Fully recognizing this, the trial judge did everything possible to make Mrs. Schwartz available. She was brought under subpoena from the Creedmoore Hospital, accompanied by a psychiatrist and a nurse. A lawyer was present on her behalf. The psychiatrist gave his opinion that she was "sufficiently capable of understanding so that she can answer in an intelligent and effective way," and would "understand the nature of the witness' oath and the nature of these proceedings." When questioned by the defense, she claimed the privilege against self-incrimination, as was hardly unexpected under the circumstances, and the judge sustained the claim, as he was bound to do. We do not see why this does not end the matter. See United States v. Bronson, supra, 145 F.2d at 943. However, if we were to assume the psychiatrist was wrong as to Mrs. Schwartz' competency, although there is nothing to suggest this, the defense would be no better off since her testimony would have been equally unavailable in that event.

6
Other points urged by appellants have been considered but do not warrant discussion.

7
Affirmed.

Notes:

1
 We are sure the court meant also that if a witness was not speaking from personal knowledge, he should make that clear

2
 The testimony inUmans was such that the grand jury was fully aware of its hearsay character.

3
 In United States v. Malofsky, 388 F.2d 288 (2 Cir. 1968), and United States v. Andrews, 381 F.2d 377 (2 Cir. 1967), this court upheld hearsay indictments in briefper curiam opinions. However, both those indictments had been returned before Umans was decided.

4
 This court has been similarly informed with respect to the Southern District of New York

5
 Ballard was dismissed from the Secret Service after being arrested on a charge of unlawfully possessing counterfeit money. Accordingly he was not called by the Government as a witness in this case. Defendant Arcuri tried to subpoena him, but he could not be located

6
 This was doubtless because the judge said he did not think there was enough evidence of conspiracy to make Mrs. Schwartz' statements admissible as those of a co-conspirator, although there was enough to get the conspiracy count to the jury. We have no occasion to consider whether the former ruling was consistent with the test laid down by Judge Learned Hand in United States v. Dennis, 183 F.2d 201, 230-231 (2 Cir. 1950), aff'd, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951), and followed by us in many other cases. See United States v. Nuccio, 373 F.2d 168, 173-174 (2 Cir.), cert. denied, 387 U.S. 906, 87 S.Ct. 1688, 18 L.Ed.2d 623 (1967), and cases there cited. Since we do not know what D'Amelio would have testified, we also cannot tell whether the conversations would have been inadmissible hearsay at all. See United States v. Costello, 352 F.2d 848, 853-854 (2 Cir. 1965), cert. granted as to another point, 383 U.S. 942, 86 S.Ct. 1195, 16 L.Ed.2d 205 (1966), later dealt with in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); United States v. Nuccio, supra, 373 F.2d at 170, 173-174. It would be better practice for the court to ascertain this outside the presence of the jury before making an exclusionary ruling

7
 It is settled that a defendant who offers evidence after the denial of a motion for acquittal at the close of the Government's case in chief waives any claim as to the sufficiency of that case considered alone. United States v. Calderon, 348 U.S. 160, 164 n. 1, 75 S.Ct. 186, 99 L.Ed. 202 (1954)


611 P.2d 733 (1980)
Terry Lynne JONES, Plaintiff and Appellant,
v.
William K. HINKLE and Kathryn P. Hinkle, Defendants and Respondents.
No. 16525.
Supreme Court of Utah.
May 16, 1980.
*734 Stephen L. Henriod and Joseph L. Henriod of Nielsen, Henriod, Gotfredson & Peck, Salt Lake City, for plaintiff and appellant.
Dean L. Gray, Salt Lake City, for defendants and respondents.
STEWART, Justice:
Plaintiff brought this action for specific performance of a contract for the sale of realty and for damages allegedly resulting from defendants' failure to convey title to plaintiff. Both plaintiff and defendants moved for summary judgment. The issue on appeal is whether the trial court correctly held that plaintiff had not complied with the terms of the contract, granted summary judgment for the defendants, and denied summary judgment for plaintiff.
In May 1977 plaintiff and defendants entered into an installment contract for the sale of residential property in Utah County. The terms of the contract were set out in a standard form "Uniform Real Estate Contract." Plaintiff made monthly payments and one balloon payment according to the terms of the contract. In July 1978 plaintiff notified defendants that she had reduced the principal balance to the amount of the outstanding mortgage with Deseret Federal Savings and Loan and had made arrangements with that institution to assume defendants' loan. She requested that defendants convey title to her pursuant to Paragraph 8 of the contract which provided for conveyance of title subject to outstanding loans and mortgages. Defendants refused to transfer title.
In her suit for specific performance, plaintiff alleged compliance with the contract with respect to reduction of the principal balance and assumption of the outstanding loan. In their answer defendants denied any obligation to convey title and counterclaimed for attorney's fees. The parties stipulated that $500 would be a reasonable attorney's fee for services rendered to the time of judgment. The trial court granted summary judgment for defendants and awarded their attorney's fees.
On appeal plaintiff contends that on the undisputed facts the trial court erred in not requiring conveyance of title pursuant to Paragraph 8 of the contract. Plaintiff also contends that it was error for the court to award attorney's fees to defendants.
*735 The following provisions of the contract are pertinent to the present dispute:
6. It is understood that there presently exists an obligation against said property in favor of Deseret Federal Savings and Loan with an unpaid balance of $31,836.78, as of May 1, 1977.
* * * * * *
8. The Seller is given the option to secure, execute and maintain loans secured by said property of not to exceed the then unpaid contract balance hereunder, bearing interest at the rate of not to exceed nine percent (9%) per annum and payable in regular monthly installments; provided that the aggregate monthly installment payments required to be made by Seller on said loans shall not be greater than each installment payment required to be made by the Buyer under this contract. When the principal due hereunder has been reduced to the amount of any such loans and mortgages the Seller agrees to convey and the Buyer agrees to accept title to the above described property subject to said loans and mortgages. [Emphasis added.]
9. If the Buyer desires to exercise his right through accelerated payments under this agreement to pay off any obligations outstanding at date of this agreement against said property, it shall be the Buyer's obligation to assume and pay any penalty which may be required on prepayment of said prior obligations. Prepayment penalties in respect to obligations against said property incurred by seller, after date of this agreement, shall be paid by seller unless said obligations are assumed or approved by buyer.
Paragraph 3 of the contract provides for payments each month "until contract balance is paid in full." Defendants argue that the typewritten language of Paragraph 3 of the contract supersedes the printed language of Paragraph 8. It is defendants' position that the parties contemplated a continuing contract until the full purchase price was paid. If this position were correct, Paragraph 8, providing for conveyance of title before full payment of the purchase price, would have no meaning. It is axiomatic that a contract should be interpreted so as to harmonize all of its provisions. Vance v. Arnold, 114 Utah 463, 201 P.2d 475 (1949).
The language of the uniform real estate contract is dispositive of the issue of specific performance. Interpretation of a written contract is ordinarily a question of law, and this Court need not defer to the trial court's construction, Provo City Corp. v. Nielson Scott Co., Inc., Utah, 603 P.2d 803 (1979), but will make its own independent interpretation of the contract terms. Contract provisions are not rendered ambiguous merely by the fact that the parties urge diverse interpretations. Vance v. Arnold, supra; National Wrecking Co. v. City of Chicago, 128 Ill. App.2d 205, 262 N.E.2d 735 (1970). Like other contracts, a realty purchase contract should be construed as a whole, and all its terms should be given effect if it is reasonably practicable to do so. Cornwall v. Willow Creek Country Club, 13 Utah 2d 160, 369 P.2d 928 (1962); Gates v. Daines, 3 Utah 2d 95, 279 P.2d 458 (1955); Dixon v. Malloy, 70 Cal. App.2d 322, 160 P.2d 896 (1945).
Although Paragraph 3 of the real estate contract sets out the basic payment scheme, it does not mandate specified monthly payments as the only method of making payment. Paragraph 4 provides for the payment of amounts in excess of the regular monthly payments, and accelerated payments are allowed by Paragraph 9 of the contract. It is significant that Paragraph 9 expressly refers both to loan obligations outstanding at the date of the contract and to obligations incurred after the execution of the contract. Paragraph 8 applies to "any" loans secured by the property and does not expressly exclude the existing mortgage identified in Paragraph 6. In our view, Paragraph 3 does not preclude the right to conveyance of title pursuant to Paragraph 8 according to the clear terms of that provision and in light of the language of Paragraph 9.
*736 Conveyance of title pursuant to Paragraph 8 is conditioned solely on the reduction of the unpaid principal to the amount of the outstanding obligations. Plaintiff stated in her affidavit supporting her motion for summary judgment that the balance on the contract had been reduced to the amount of defendants' mortgage obligation and that she had a loan commitment from Deseret Federal for an amount sufficient to pay off the mortgage. Defendants did not controvert these facts.
Defendant Kathryn P. Hinkle submitted an affidavit in support of defendants' motion for summary judgment in which she stated "paragraph 8 provides that buyer may undertake the principal mortgage held by the seller under certain terms and conditions and that none of the terms and conditions required were fulfilled herein, and, therefore, buyers have no right, under paragraph 8, to assume seller's mortgage." The affidavit does not allege any specific unfulfilled conditions; it does not dispute that the contract price was paid down to the balance of the outstanding mortgage. Furthermore, the defendants' pleadings deny that any obligations were secured by the property other than the Deseret Federal loan.
Pursuant to Rule 56(e), Utah Rules of Civil Procedure, when a motion for summary judgment is made, the affidavit of an adverse party must contain specific evidentiary facts showing that there is a genuine issue for trial. Walker v. Rocky Mountain Recreation Corp., 29 Utah 2d 274, 508 P.2d 538 (1973); Preston v. Lamb, 20 Utah 2d 260, 436 P.2d 1021 (1968). Defendants have failed to identify with specificity any material issue of fact, and plaintiff, as a matter of law, is entitled to conveyance of the title. The judgment of the trial court is in error; indeed, the record shows that plaintiff is entitled to summary judgment in her favor.
As to the award of attorney's fees to defendants, we reverse the trial court and direct it to award such fees to plaintiff. The contract provides that the defaulting party shall pay costs and expenses, including a reasonable attorney's fee incurred in enforcing the agreement. Defendants were in default for their failure to convey title pursuant to Paragraph 8, and they are therefore liable to plaintiff for the expenses of this action.
Reversed and remanded for further proceedings.
CROCKETT, C.J., and WILKINS, MAUGHAN and HALL, JJ., concur.


72 Wn. App. 62 (1993)
863 P.2d 137
THE STATE OF WASHINGTON, Respondent,
v.
ANTONIO NEGRETE, Appellant.
No. 11366-3-III.
The Court of Appeals of Washington, Division Three.
December 14, 1993.
Antonio Negrete, pro se, and Hugh M. Spall, for appellant.
Jeffrey C. Sullivan, Prosecuting Attorney, and Steven R. Keller, Deputy, for respondent.
COOPER, J.[*]
Antonio Negrete was convicted by jury of delivery of a controlled substance, cocaine. The court imposed *64 an exceptional sentence based upon the amount of cocaine delivered, the amount of cocaine promised, and evidence of Mr. Negrete's high position in the drug distribution hierarchy. Mr. Negrete challenges the conviction, contending prosecutorial misconduct and an evidentiary error deprived him of a fair trial. He also challenges the exceptional sentence, contending the court's reasons are not supported by the record and the length is clearly excessive. We affirm.
On June 19, 1990, Sunnyside Police Detective Darrell Merry and undercover officer Anthony Valdez conducted a sting operation targeting Mr. Negrete. Gloria Lopez, a confidential informant working with Officer Valdez, had arranged for him to buy an ounce of cocaine from Mr. Negrete outside the Skunk Tavern after 9 p.m. at an agreed price of $750. Before they took up their positions, Detective Merry gave Officer Valdez $760 "buy" money, which he recorded. Detective Merry photocopied the money then placed checkmarks on the photocopy corresponding to the bills he gave Officer Valdez, so that he could keep track of the buy money without marking the bills. The checkmarked photocopy was admitted into evidence over defense objection.
Officer Valdez and Ms. Lopez waited for Mr. Negrete in the Skunk Tavern parking lot. Just before 9:30 p.m., Mr. Negrete arrived in his black Camaro, met them, and asked Officer Valdez if he had the money. Officer Valdez replied that he did and asked Mr. Negrete if he had the cocaine. An exchange was made: Officer Valdez handed over $760 and Mr. Negrete handed over the cocaine.[1] Officer Valdez then asked for and received $10 in change, since the agreed purchase price was $750. Officer Valdez gave the bust signal, yelled "Cops, cops", put the cocaine in his pocket, and ran from the area. Ms. Lopez also ran away. The arrest team proceeded into the parking lot and Detective Merry arrested Mr. Negrete. Detective Merry testified he recovered the $760 buy money from Mr. Negrete's pocket in a search incident to *65 the arrest. Ms. Lopez acknowledged she was paid $150 for the bust and also admitted she had one prior drug conviction.
Mr. Negrete denied selling cocaine to Officer Valdez. He testified Ms. Lopez came to his restaurant on the day he was arrested and asked for a pound of "barbacoa" (barbecue meat), but that there was no conversation about either cocaine or meeting at the Skunk Tavern. He testified he went to the tavern to play pool and talk with friends after closing his restaurant. When he arrived he saw Ms. Lopez in the parking lot talking with a man. He testified she asked him if he could at least lend her $10 since he had not given her the "barbacoa". Mr. Negrete testified he gave her the money; her male companion then yelled "the police" and they ran; and the police arrived and arrested him. He testified he never spoke with Ms. Lopez' male companion. He also testified the $760 the police took out of his pocket was his own money.
Maria Gonzales, Mr. Negrete's cook at the restaurant, testified she heard Ms. Lopez ask him for a pound of "barbacoa" in the kitchen the day he was arrested, but she did not hear any conversation about drugs or a meeting at the Skunk Tavern.
Before trial, a CrR 3.5 hearing was held to determine whether a statement Mr. Negrete allegedly made to Officer Valdez was admissible. The officer testified that immediately after the transaction, but before his arrest, Mr. Negrete indicated he could supply up to 3 kilos of cocaine, with delivery of the first kilo as early as the following Monday. Mr. Negrete disputed making any statement, but he did not testify at the hearing and presented no contradictory evidence. The court found the facts were undisputed, the content of the statement was as Officer Valdez testified and Mr. Negrete made the statement voluntarily. The court ruled, however, that the statement could not be used in the State's case in chief although it could be used in rebuttal under appropriate circumstances. The statement was not mentioned or admitted into evidence at trial.
*66 The jury convicted Mr. Negrete as charged. The court imposed a 60-month exceptional sentence based, in part, upon the testimony elicited at the CrR 3.5 hearing.[2] Because of the size of the 1-ounce sale and the agreement to sell kilo quantities in the future, the court concluded that under RCW 9.94A.390(2)(d) the offense was a major violation of the Uniform Controlled Substances Act (VUCSA).[3] Mr. Negrete appeals the conviction and the exceptional sentence.
Mr. Negrete first contends prosecutorial misconduct requires reversal because it deprived him of effective assistance of counsel and created a substantial likelihood that the verdict was affected. During closing argument, in response to defense counsel's characterization of undercover Officer Valdez as a "trained liar" and confidential informant Ms. Lopez as an individual paid $150 per bust to "frame people", the prosecutor stated in rebuttal:
I have listened with great interest to the comments of [defense counsel]. Two things come to mind: I have never heard so much speculation in my entire life in going into facts that weren't even presented into evidence. And the second is, he is being paid to twist the words of the witnesses by Mr. Negrete.

(Italics ours.) Defense counsel objected on the basis the prosecutor was arguing facts not in evidence. The trial court sustained the objection. Neither a curative instruction nor a mistrial was requested.
*67 [1] To determine whether the prosecutor's comment violated Mr. Negrete's right to a fair trial, this court must decide whether the comment was in fact improper and, if so, whether the remark was so flagrant and ill intentioned that it was prejudicial beyond cure. State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991); State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988). The burden of proving reversible prejudice rests with the defendant. State v. Hughes, 106 Wn.2d 176, 195, 721 P.2d 902 (1986). Reversal is not required unless there is a substantial likelihood that the argument affected the jury's verdict. State v. Mak, 105 Wn.2d 692, 726, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986), sentence vacated on writ of habeas corpus sub nom. Mak v. Blodgett, 754 F. Supp. 1490 (W.D. Wash. 1991), aff'd, 970 F.2d 614 (9th Cir.1992), cert. denied, 113 S.Ct. 1363 (1993).
[2] We agree the remark was improper. See United States v. Friedman, 909 F.2d 705, 709 (2d Cir.1990); Bruno v. Rushen, 721 F.2d 1193, 1195 (9th Cir.1983), cert. denied, 469 U.S. 920 (1984). However, it was not irreparably prejudicial. Defense counsel's failure to move for a curative instruction or a mistrial at the time strongly suggests the argument did not appear so in the context of the trial. State v. Swan, supra at 661. Moreover, any prejudice was minimized by the trial court's instructions to the jury.[4]See State v. Rice, 120 Wn.2d 549, 572, 844 P.2d 416 (1993). Considering the strength of the State's case against him, and the isolated nature of the prosecutor's remark, Mr. Negrete has not established a substantial likelihood that the remark affected the jury's verdict. *68 The prosecutor's argument, although improper, therefore did not deprive Mr. Negrete of a fair trial.
[3] Mr. Negrete next contends the court deprived him of a fair trial by improperly admitting into evidence a photocopy of the money used by the undercover officer to buy the cocaine. Citing ER 1003, he argues it was unfair to admit the duplicate instead of the original buy money because there was no testimony that anyone compared the cash taken from him with the exhibit.[5] His point is not well taken. Because the bills themselves were not marked, the checkmarked photocopy is the original record of the bills that were issued to Officer Valdez by Detective Merry. Therefore, it was the best evidence and the court did not err in admitting it.[6]
In his pro se brief, Mr. Negrete contends the trial judge improperly conveyed his opinion of Mr. Negrete's guilt while instructing the jury. The contention is without merit. The passage he quotes consists of comments made by his counsel during closing argument, not comments of the trial judge.
Finally, Mr. Negrete contends the court erred by imposing the exceptional sentence. He argues the court's conclusion this was a major drug offense is not supported by substantial evidence because (1) delivery of 1 ounce of cocaine is not an atypical drug transaction in the Sunnyside area, nor does it prove he occupies a high position in the drug distribution hierarchy, and (2) the court could not consider the testimony from the CrR 3.5 hearing that Mr. Negrete agreed to deliver up to 3 additional kilos. RCW 9.94A.370(2).[7] Mr. Negrete *69 also argues the 60-month term of confinement is clearly excessive.
The court made three factual findings in support of its conclusion the offense was a major drug violation justifying an exceptional sentence: (1) the 1 ounce of cocaine delivered by Mr. Negrete is a quantity substantially larger than for personal use, which is typically 1 gram or less, (2) the current offense also involved an attempt and/or agreement to deliver an additional 1 to 3 kilos of cocaine, and those quantities are substantially larger than for personal use, and (3) the circumstances of the current offense establish Mr. Negrete occupies a high position in the drug distribution hierarchy. All three reasons are statutory aggravating factors, the first two encompassed by RCW 9.94A.390(2)(d)(ii) and the third by RCW 9.94A.390(2)(d)(iv).
[4] To reverse a sentence outside the standard range, the reviewing court must find: (a) the reasons supplied by the sentencing judge are not supported by the record, as they are clearly erroneous, or those reasons given do not justify an exceptional sentence, as a matter of law; or (b) the sentence was so clearly excessive or lenient as to constitute an abuse of discretion. State v. Pryor, 115 Wn.2d 445, 450, 799 P.2d 244 (1990); State v. Nordby, 106 Wn.2d 514, 517-18, 723 P.2d 1117 (1986); State v. Oxborrow, 106 Wn.2d 525, 530-31, 723 P.2d 1123 (1986).
[5] Here, the court's first reason is supported by trial testimony establishing Mr. Negrete delivered 26.6 grams of cocaine, almost 1 ounce, and sentence hearing testimony establishing 1 gram or less as the typical amount for personal use. The size of the transaction by itself justifies an exceptional sentence. RCW 9.94A.390(2)(d)(ii).
The court's second and third reasons supporting the exceptional sentence are based primarily on the CrR 3.5 testimony of Officer Valdez. At sentencing, the State offered the CrR 3.5 hearing testimony and the court's findings of fact and *70 conclusions of law from that hearing as proof that Mr. Negrete agreed to sell Officer Valdez additional large amounts of cocaine. Mr. Negrete denied making the statement. The court then held an evidentiary hearing at sentencing and Mr. Negrete testified that he never spoke to Officer Valdez. Officer Valdez did not testify. Based upon the combination of the CrR 3.5 findings and the sentencing hearing testimony, the court found the State had proved Mr. Negrete made the statement to Officer Valdez. Mr. Negrete argues the State did not meet its burden of proof. We agree. Consideration of the CrR 3.5 testimony was improper.
[6] The purpose of a CrR 3.5 hearing is to determine the admissibility of a statement of the accused. The focus is on the voluntariness of the statement, not on its contents or the culpability of the accused. See State v. Wolfer, 39 Wn. App. 287, 291-92, 693 P.2d 154 (1984), review denied, 103 Wn.2d 1028 (1985). By relying on the testimony, findings and conclusions of the CrR 3.5 hearing, which focused on the circumstances surrounding the statement and not its content, the sentencing court did not give Mr. Negrete an adequate opportunity to contest the subject matter of the statement which he disputes he made.
The court's second and third reasons do not support the exceptional sentence. The finding that the offense involved an attempt and/or agreement to deliver additional large quantities of cocaine is based entirely on the improperly considered CrR 3.5 testimony; therefore, it is clearly erroneous.[8] The finding that the defendant occupied a high position in the drug distribution hierarchy is similarly defective. While there is evidence that Mr. Negrete sold almost an ounce of exceptionally pure and uncut cocaine, indicating that he was not far removed from the source, the basis of the court's determination that he was a high level dealer was the CrR 3.5 testimony.
*71 [7] Although two of the court's three reasons for imposing an exceptional sentence are invalid, remand for resentencing is not necessary because the court explicitly indicated it would impose the same sentence for any one of the reasons standing alone. State v. Barnes, 117 Wn.2d 701, 712, 818 P.2d 1088 (1991); State v. Dunaway, 109 Wn.2d 207, 219-20, 743 P.2d 1237, 749 P.2d 160 (1987).
Nor is the sentence clearly excessive. Taking Mr. Negrete's criminal history into account, the standard range for the offense is 26 to 34 months and the maximum term is 10 years. The court imposed a sentence of 60 months, a term exactly double the midrange and one-half of the maximum. There are many cases upholding exceptional sentences of double the presumptive range, or more;[9] the court did not abuse its discretion.
The judgment and exceptional sentence are affirmed.
THOMPSON, C.J., and SWEENEY, J., concur.
Review denied at 123 Wn.2d 1030 (1994).
NOTES
[*]  Judge Michael E. Cooper is serving as a judge pro tempore of the Court of Appeals pursuant to RCW 2.06.150.
[1]  The cocaine weighed 26.6 grams whereas an ounce contains approximately 28.4 grams.
[2]  The court's first finding in support of the exceptional sentence states:

"On June 19, 1990, the defendant Antonio Negrete sold one ounce of cocaine to Officer Valdez for Seven Hundred Fifty Dollars ($750.00). After the ounce delivery, Officer Valdez asked if he could buy another ounce. The defendant, Antonio Negrete, told Officer Valdez he could deliver up to three kilos of cocaine and agreed to deliver one kilo of cocaine to [the] Officer on the following Monday."
[3]  RCW 9.94A.390(2)(d) specifies the following circumstances may identify an offense as a major VUCSA:

"(ii) The current offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use; or
"....
"(iv) The circumstances of the current offense reveal the offender to have occupied a high position in the drug distribution hierarchy;"
[4]  The court instructed the jury:

"The only evidence you are to consider consists of the testimony of witnesses and the exhibits admitted into evidence....
"....
"The attorneys' remarks, statements and arguments are intended to help you understand the evidence and apply the law. They are not evidence. Disregard any remark, statement or argument that is not supported by the evidence or the law as stated by the court."
[5]  Detective Merry testified without contradiction that he recovered all of the $760 buy money from Mr. Negrete's pocket. Defense counsel made no attempt to ascertain whether the detective merely assumed the cash was the same or actually compared it to the list.
[6]  To the extent Mr. Negrete is challenging the credibility of Detective Merry, not the admissibility of the photocopy, we decline to address the issue. It is not properly before us.
[7]  RCW 9.94A.370(2) limits the sentencing court to information "admitted, acknowledged, or proved in a trial or at the time of sentencing." The court cannot consider any material facts disputed by the defendant without granting an evidentiary hearing on the point and requiring proof of the disputed facts at the hearing by a preponderance of the evidence.
[8]  Even if Mr. Negrete's statement was properly considered, it was not evidence of an agreement and/or an attempt to deliver up to 3 additional kilos of cocaine. Rather, the statement was more like an offer. There was no discussion of price and no arrangements were made for delivery. Moreover, there was definitely no "attempt" as that term is used in criminal law.
[9]  See, for example, State v. Mejia, 111 Wn.2d 892, 766 P.2d 454 (1989); Oxborrow, at 531; State v. Caldera, 66 Wn. App. 548, 552, 832 P.2d 139 (1992).


688 F.2d 826
U. S.v.Knuckles
82-5035
UNITED STATES COURT OF APPEALS Third Circuit
6/15/82

1
W.D.Pa.

AFFIRMED


473 F.2d 10
4 ERC 2069, 3 Envtl. L. Rep. 20,122
STATE of ALABAMA ex rel.William J. BAXLEY, Attorney General, Plaintiff-Appellant,v.Arthur D. WOODY, etc., et al., Defendants-Appellees.
No. 72-2257.
United States Court of Appeals,Fifth Circuit.
Jan. 29, 1973.

William J. Baxley, Atty. Gen., Gordon Madison, Asst. Atty. Gen., Montgomery, Ala., Alan W. Heldman, Special Asst. Atty. Gen., Birmingham, Ala., George Beck, Deputy Atty. Gen., Montgomery, Ala., for plaintiff-appellant.
Ira DeMent, U. S. Atty., Montgomery, Ala., Kent Frizzell, Asst. Atty. Gen., Jacques B. Gelin, Dennis M. O'Connell, Raymond N. Zagone, Attys., Dept. of Justice, Washington, D. C., for defendants-appellees.
Before GOLDBERG, AINSWORTH and INGRAHAM, Circuit Judges.
GOLDBERG, Circuit Judge:

1
This is an appeal from an order of the District Court for the Middle District of Alabama, Northern Division, dismissing appellant's complaint, which sought to permanently enjoin any mineral prospecting or mining in Bankhead National Forest in Alabama.  During the pendency of the action below, all prospecting in Bankhead National Forest terminated.  Appellant has not shown that there is any possibility of future prospecting or mining.  Finding that appellant's complaint is therefore not justiciable, we affirm the District Court insofar as it dismissed appellant's complaint without prejudice.

2
On April 23, 1971, the United States Forest Service issued a prospecting permit to the Peabody Coal Co. "for the purpose of making excavations, drilling shot holes, or doing other work" to determine whether exploitable mineral resources existed in certain areas of the Bankhead National Forest in Alabama.  On July 28, 1971, appellant, the State of Alabama ex rel. the State's Attorney General commenced this action against appellees, the Secretaries of the Departments of Agriculture and the Interior and various subordinate officials of these departments, seeking injunctive relief.1

3
Appellant's complaint outlined the ecological and environmental significance of Bankhead National Forest and alleged that appellees' actions would do irreparable harm to the Forest.  The complaint was based both on the Alabama common-law theory of public nuisance and upon the language in the deeds that conveyed mineral rights to the lands in question.  It challenged appellees' authority to permit prospecting and mining under federal law and appellees' failure to comply with the National Environmental Protection Act of 1969.  Appellant specifically sought: (1) the termination and voiding of all outstanding authorizations and permits issued by the defendants for mineral prospecting or mining in any portion of the Bankhead Forest; (2) an injunction against the defendants from issuing or granting any permit or authorization for mineral prospecting or mining in any portion of the Bankhead Forest; and (3) an injunction to require the defendants to take all action necessary to prevent mineral prospecting in any portion of the Bankhead Forest whether or not the same is conducted pursuant to a purported permit or authorization.  Appellant did not seek declaratory relief.

4
On September 10, 1971, with the consent of both parties, the District Court issued an order which enjoined appellees from issuing any further permits for prospecting for coal in Bankhead National Forest and from issuing any permits for strip mining for coal in the Forest until a final hearing on the merits of the case.

5
On March 17, 1972, during pretrial discovery, appellees filed an amended motion to dismiss, repeating the allegations of an earlier motion,2 and alleging further that appellant's complaint was moot because all prospecting in Bankhead National Forest had been terminated (1) by Peabody Coal Company's completion of the prospecting commenced under the April 23, 1971 permit, and (2) by Peabody's withdrawal of an application for an additional prospecting permit.  Appellee supported these contentions with affidavits.  On April 4, 1972, the District Court dismissed appellant's complaint without prejudice and quashed the preliminary injunction granted on September 10, 1971.  The Court did not state any reasons for its ruling.

6
We perceive appellant's appeal as urging two grounds for reversal.  (1) Appellant argues that the District Court should not have considered appellees' affidavits showing mootness submitted in support of appellees' amended motion to dismiss without first converting the motion into a motion for summary judgment pursuant to Rule 12(b) of the Federal Rules of Civil Procedure.  (2) Appellant also contends that the District Court should not have dismissed this proceeding pursuant to a motion to dismiss because the complaint stated a claim upon which relief could be granted.  Westinghouse Electric Co. v. Wesley Construction Co., 5 Cir. 1969, 414 F.2d 1280.

7
Appellant's argument concerning Rule 12(b) misses the point.  The District Court was clearly correct in considering appellees' affidavits concerning mootness.  As appellant recognizes, a District Court may consider outside matter attached to a motion to dismiss without first converting it into a motion for summary judgment if the material is pertinent to the question of the District Court's jurisdiction since it is always the obligation of a federal court to determine if it has jurisdiction.  See, Kentucky-Tennessee Light and Power Company v. Nashville Coal Co., D.Ky.1941, 37 F.Supp. 728, aff'd 6 Cir. 1943, 136 F.2d 12; Fireman's Fund Ins. Co. v. Railway Express Agency, 6 Cir. 1958, 253 F.2d 780; Williams v. Minnesota Min. & Mfg. Co., S.D.Cal.1958, 14 F.R.D. 1.

8
Although it is unclear whether the District Court dismissed appellant's complaint on jurisdictional grounds, it is always the obligation of this Court to determine, even on its own initiative, whether it has jurisdiction of an appeal and to dismiss the appeal if it appears that the Court is without jurisdiction. 21 Turtle Creek Square, Ltd. v. New York St. Retire.  Sys., 5 Cir. 1968, 404 F.2d 31; see, Troy State University v. Dickey, 5 Cir. 1968, 402 F.2d 515.  Since "[a]nything which bears upon the actual mootness of a controversy is a proper subject for a Court's consideration," Hunt Oil Co. v. Federal Power Comm., 5 Cir. 1962, 306 F.2d 359, 361; Troy State University v. Dickey, 5 Cir. 1968, 402 F.2d 515, 516, at oral argument we asked appellant to provide us with an affidavit that would establish that owners of mineral rights had either asked permission to prospect in Bankhead National Forest or were contemplating such action.  Although appellant had previously stated both in the District Court complaint and by affidavit that it expected that prospecting would recur in the future,3 appellant is now unable to provide this Court with an affidavit showing that the behavior of which it complains can reasonably be expected to recur.4

9
Under Article III of the Constitution Federal Courts are empowered to rule only upon an actual "case or controversy."  As the Supreme Court stated in Aetna Life Ins. Co. v. Haworth, 1937, 300 U.S 227, 240-241, 57 S.Ct. 461, 464, 81 L.Ed. 617, 621 (citations omitted):

10
"A 'controversy' in this sense must be one that is appropriate for judicial determination. . . . A justiciable controversy is thus distingushed from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot. . . . The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. . . . It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts."

11
Although "[m]ere voluntary cessation of allegedly illegal conduct does not moot a case . . ." United States v. Concentrated Export Ass'n, Inc., 1968, 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344, 349, there must be at least a ". . . mere possibility [of recurrence] which serves to keep the case alive."  United States v. W.T.Grant Co., 1953, 345 U.S. 629, 633, 73 S.Ct. 894, 898, 97 L.Ed. 1303, 1309.

12
This Court has been unable to perceive that there is a ". . . reasonable expectation that the wrong will be repeated . . ." United States v. W.T.Grant Co., 1953, 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303, 1309, or that there exists a justiciable case or controversy.  The only operative fact that supported appellant's complaint was that Peabody Coal Company was prospecting in Bankhead National Forest.  Since Peabody Coal Company ceased to prospect and withdrew all applications to prospect, and since there does not now appear to be any prospecting or any cognizable danger of future prospecting, it is therefore only appropriate that this Court declare that this case, insofar as it attempts to enjoin prospecting in Bankhead National Forest, is moot.

13
Appellant further contends that the future issuance of prospecting and mining permits in the Bankhead will be environmentally damaging because the mining companies might utilize "strip mining" techniques in Bankhead National Forest.  As stated earlier, there are no prospecting permits, let alone mining permits now outstanding in Bankhead National Forest.  The question of what techniques mining companies would utilize in the Forest is entirely speculative.  A hypothetical threat, based on speculative facts, is not enough to support the jurisdiction of a Federal Court.  Hodgson v. H. Morgan Daniel Seafoods, Inc., 5 Cir. 1970, 433 F.2d 918.  The issue ". . . must be presented in the context of a specific live grievance."  Golden v. Zwickler, 1969, 394 U.S. 103, 110, 89 S.Ct. 956, 960, 22 L.Ed.2d 113, 118.  It is clear that this claim is not ripe for adjudication and that it should be dismissed without prejudice.  We in no way make any decision on the merits of appellant's complaint or on any question other than its current justiciability.  Naturally if this matter ripens into a case or controversy appellant will be free to refile in the Federal Courts.  See, Costello v. United States, 1961, 365 U.S. 265, 285-287, 81 S.Ct. 534, 5 L.Ed.2d 551, 564-566.

14
This Court is cognizant of the great need to protect the ecological wonders of areas such as Bankhead National Forest.  We are also aware of the commendable service that the Sovereign State of Alabama performs for its citizens and for all mankind when it attempts to protect the environment and natural wonders such as Bankhead National Forest.  However, this Court is not empowered to act as an ombudsman or a legislature.  We can act only upon concrete cases or controversies.  Appellants have failed to confront us with such a case or controversy and therefore the Constitution precludes us from exercising jurisdiction.  Mootness is not statical and once it makes a positive entrance into litigation, our jurisdictional exit is mandated.  It is not fixed by time or compass, and the actual fact of the nonexistentiality of a case or controversy is all that is necessary to sound the knell of a parting case.  A suit must have an elan vital, and if this is nonexistent the case must be buried subject to reincarnation which would start its life again with a new birth and another day in Court.

15
Time, which is one of the judiciary's most precious commodities, would be wasted by a remand to the District Court to redetermine mootness.  This Court provided appellant with an opportunity to infuse life into this litigation but appellant was unable to do so.  It is therefore ordered that insofar as the District Court dismissed appellant's complaint without prejudice, we affirm.

16
Affirmed.

1
 Appellant's complaint was brought pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. Sec. 4321 et seq., the laws of the United States relating to the establishment, management and regulation of the National Forests, 16 U.S.C. Sec. 471 et seq., the Wilderness Act of 1964, 16 U.S.C. Sec. 431 et seq., and Tit. 7, Sec. 1084, Code of Alabama, 1940

2
 On August 5, 1971, appellee filed a motion to dismiss which attacked both the jurisdiction of the District Court and appellant's standing to sue.  Appellee's motion also alleged that appellant's complaint was deficient in that it failed to state a claim upon which relief could be granted and failed to join indispensable parties

3
 Appellant stated in its District Court complaint that:
The State of Alabama is informed that the defendants anticipate that further applications will be made for permits to prospect for strip mining coal in the Bankhead Forest, and that applications will be made for permits or authorizations to strip and remove portions of the surface and underlying soil of the Forest and to strip mine for coal at substantial depths beneath the natural surface of the Forest.  The State is informed that applications for prospecting and for mining will be made not only with respect to portions of the Forest in which there are outstanding mineral interests but also with respect to lands in the Forest which are owned by the United States in fee simple.
and in an affidavit in support of a motion for a preliminary injunction that:
Affiant is informed and believes that the defendants anticipate that applications will be made to defendants for permits to survey or prospect for strip mining coal in the Bankhead Forest, and that applications will be made for permits or authorizations to strip and remove portions of the surface and underlying soil of the Bankhead Forest and to strip mine for coal at substantial depths beneath the natural surface of the Forest.

4
 On December 11, 1972 appellant sent the following letter to the Clerk of the Court:
Dear Mr. Wadsworth:
As you know, this case was argued orally before Judges Ainsworth, Goldberg and Ingraham on Tuesday, December 5, 1972.  At that time the Judges indicated that plaintiff's claim was moot since there was no one who was presently prospecting for minerals or strip mining in the Bankhead Forest.  Judge Ainsworth suggested that if the State could provide an affidavit to the effect that other owners of outstanding mineral rights had either asked permission to prospect in the forest, or were contemplating such action, then he would consider remanding the case for a hearing.  I advised the Court that I could not furnish such an affidavit but that I thought the Special Assistant Attorney General who tried the case probably could.
Special Assistant Attorney General Alan Heldman who tried the case below, stated to me that he could not make such an affidavit in good faith without the benefit of discovery.  Therefore, I will not be able to supply the requested affidavit.  I trust that you will so inform the Judges.
Yours very truly, /s/ George Beck Deputy Attorney General


                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT

                                No. 11-1183

THOMAS RITTER; SALLY RITTER,

                 Plaintiffs – Appellants,

          v.

WASHINGTON     MUTUAL   BANK,   N.A.;   MORGAN     CHASE    BANK    HOME
LENDING,

                 Defendants – Appellees,

          and

SECURITY FINANCIAL       CORPORATION;    MICHAEL     G.     KENNY   AND
ASSOCIATES,

                 Defendants.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:10-cv-00438-GBL-TCB)

Submitted:   July 21, 2011                       Decided:   August 1, 2011

Before NIEMEYER, KING, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Thomas Ritter; Sally Ritter, Appellants Pro Se.             Diana Margeaux
Witherspoon,  MILES   &  STOCKBRIDGE,   McLean,             Virginia,  for
Appellees.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Thomas and Sally Ritter seek to appeal the district

court’s   order      dismissing,         with   prejudice,      their    amended

complaint against some but not all defendants.                  This court may

exercise jurisdiction only over final orders, 28 U.S.C. § 1291

(2006),   and    certain    interlocutory       and   collateral      orders,    28

U.S.C. § 1292 (2006); Fed. R. Civ. P. 54(b); Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, 545-46 (1949).                  The order that

the Ritters seek to appeal is neither a final order nor an

appealable interlocutory or collateral order.                   Accordingly, we

dismiss the appeal for lack of jurisdiction.                   We dispense with

oral   argument     because      the    facts   and   legal    contentions      are

adequately      presented   in    the    materials    before    the   court     and

argument would not aid the decisional process.

                                                                        DISMISSED

                                          2


786 So.2d 1064 (2000)
Kenneth BROCK, Appellant,
v.
HANKINS LUMBER COMPANY and Liberty Mutual Insurance Company, Appellee.
No. 1999-WC-01594-COA.
Court of Appeals of Mississippi.
December 12, 2000.
Certiorari Denied June 14, 2001.
*1065 Ellis Turnage, Cleveland, Attorney for Appellant.
R. Brittain Virden, Greenville, Attorney for Appellee.
Before SOUTHWICK, P.J., BRIDGES, AND THOMAS, JJ.
SOUTHWICK, P.J., for the Court:
¶ 1. The employer and insurer appealed an order of the Workers' Compensation Commission that awarded medical benefits to the claimant. The circuit court reversed the decision after finding that the claim was barred by the two year statute of limitations. The claimant appealed here, arguing that the circuit court applied the incorrect legal standard to the issue of whether or not the employer should be estopped from claiming the two year statute of limitations. We agree, reverse, and reinstate the Commission's award of benefits.

STATEMENT OF FACTS
¶ 2. On May 4, 1993, Kenneth Brock was involved in an accident while employed at Hankins Lumber Company in Elliot, Mississippi. The report of the emergency medical technician dispatched to the scene stated that Brock was unconscious and unresponsive. The parties dispute the details of the accident. Brock claims that the injury resulted from his tripping over an unidentified object on the floor while carrying a saw blade. He alleges that he fell into the saw blade, then hit the floor *1066 and became unconscious. Conversely, Hankins alleges that Brock passed out in the lumber yard before reporting to work.
¶ 3. Brock was hospitalized at Grenada Lake Medical Center for three days following the accident. During his stay he was given a CAT scan, a chest x-ray, an EKG and drug and alcohol screening. The results of all tests were considered normal except for the EKG. Brock was diagnosed by the treating physician as having pleuroderma, which is pain in the chest cavity.
¶ 4. Brock testified that upon his return to work on May 10, 1993, Doug Boykin, who handled workers' compensation claims for Hankins, told him that the company would take care of the bill from Grenada Lake Medical Center. That is vigorously disputed. Brock ended his employment at Hankins on August 12, 1993. He subsequently moved to Dallas, Texas and remained there until his return to Grenada on February 13, 1994. The bill remained unpaid.
¶ 5. According to Brock, the first that he learned that the bill from the emergency room had not been paid was on February 12, 1994, when he received a call from his mother telling him that she had received the bill at her house. Brock alleges that he then telephoned the hospital that same day and spoke with Dot Hall, an employee in charge of collections at Grenada Lake Medical Center. Brock claims that after speaking with Mrs. Hall he then telephoned Doug Boykin and was assured by Boykin that the bill would be paid. Brock further alleges that he telephoned Boykin again about a week later and was reassured about the bill.
¶ 6. Hankins disputes Brock's allegations. Dot Hall in her deposition stated that claimant had been mailed at least three letters stating that the bill was due and not covered by Hankins's workers' compensation carrier. Mrs. Hall's statements are supported by the collection notes of Grenada Lake Medical Center which show that Brock's mother was contacted about the bill on May 24, 1993, and that Brock himself was informed around August 20, 1993.
¶ 7. Brock alleges that he did not realize the bill remained unpaid until April 1997 when he received a letter from Lake City Collections stating that the account was delinquent and that it had been turned over to Collections. The records show that Brock hired an attorney on February 13, 1997 and subsequently filed his petition to controvert on February 28, 1997, alleging a work related injury arising out of the accident at Hankins. Hankins pled the affirmative defense that the claim was barred under the two year statute of limitations. Miss.Code. Ann § 71-3-35 (Rev. 2000).
¶ 8. At an initial motion hearing, the administrative judge held that Hankins was estopped from asserting the statute of limitations because the employer had made repeated misrepresentations regarding the company's assuming responsibility for the bill. At a later hearing on the merits the administrative judge held that Brock suffered a work related injury on May 4, 1993. The estoppel issue was not reconsidered even though a different judge conducted the second hearing.
¶ 9. After the Commission affirmed, Hankins appealed and convinced the circuit court to reverse based on the two year statute of limitations. Brock now appeals here.

DISCUSSION

I. Statute of Limitations
¶ 10. The relevant statute of limitations is this:

*1067 Regardless of whether notice was received, if no payment of compensation (other than medical treatment or burial expense) is made and no application for benefits filed with the commission within two years from the date of the injury or death, the right to compensation shall be barred.
Miss.Code Ann. § 71-3-35 (Rev.1995). The Supreme Court has identified two exceptions. These are the "latent injury" exception and estoppel. There is no doubt that much more than two years had passed from the date of injury prior to a claim being filed. Estoppel is the argued exception.
¶ 11. Equitable estoppel requires that one party by its conduct, words, or even silence, make a representation or concealment of material facts. That representation must be with actual or imputed knowledge of the facts and with the intent that the other party rely on the representation because of the party's ignorance of the truth. Finally, damage must proximately result. It is the claimant's burden to prove these elements by a preponderance of the evidence. McCrary v. City of Biloxi, 757 So.2d 978, 981 (Miss. 2000).
¶ 12. The administrative law judge at the hearing on the motion to dismiss held that Hankins was estopped from asserting the two year statute of limitations. This was based on a factual determination that Hankins did make the alleged affirmative misrepresentations to Brock that reasonably caused Brock not to file a claim. The evidence was in conflict. Brock alleged that Boykin had assured him that the claim would be made, while the employer denied that had occurred. Boykin, who is no longer a Hankins employee, could not in his deposition specifically recall the events. A supplemental affidavit was offered at the hearing on the merits of the case before the second administrative judge, but she ruled that she would not reconsider the previous judge's decision. That affidavit stated that Boykin did not recall talking to Brock, but that his normal practice would not have been to make the assurances that Brock said were made in this case. There was also circumstantial evidence that despite Brock's protestations of complete ignorance, that he had been contacted by the medical center about the bill.
¶ 13. Not only did the administrative judge find that the misrepresentations were made, but she also found that the employer intended for Brock to rely on these misrepresentations and that he reasonably did so to his detriment. These findings were later affirmed by the Commission. Strictly as a matter of factual findings, we find no reversible error unless the incorrect legal standard was applied. There was evidence upon which the Commission could have relied to reach either urged conclusion, namely, either that Boykin did or did not make the statements. The circuit judge reversed because he found that it was necessary for any misrepresentations made to amount to actionable fraud, and that fraud must be proven by clear and convincing evidence. We examine the precedents to determine the proper rule.
¶ 14. In one recent workers' compensation appeal the Supreme Court quoted as authority a non-workers' compensation precedent that inequitable or fraudulent conduct is required before a party will be estopped from asserting a statute of limitations defense. McCrary v. City of Biloxi, 757 So.2d at 981, quoting Carr v. Town of Shubuta, 733 So.2d 261, 265 (Miss.1999). We note the reference to fraud, but also not to be overlooked is that the court said that "inequitable conduct" would suffice. Another *1068 precedent also refers to "actionable fraud or misrepresentation" which are necessary to estop the employer from asserting the statute of limitations in a workers' compensation case. Casey v. Deeson Cash Grocery, 246 So.2d 534, 535 (Miss. 1971).
¶ 15. The administrative judge on contested evidence found an affirmative misrepresentation intended to mislead Brock into not filing for benefits. Under the case law, that is inequitable conduct and misrepresentation, regardless of whether it was actionable fraud. McCrary is the most recent estoppel case in the workers' compensation area to find estoppel, and it did not require either actionable fraud nor clear and convincing evidence.
¶ 16. For whatever reason, the Commission accepted the administrative judge's determination as to which witness to believe. Believed was the witness with a specific recollection. The additional affidavit evidence that the second administrative judge would not consider added little to the deposition already offered. We find no error in the fact-finding as to estoppel.

II. Work Related Injury
¶ 17. Even if the claim is not time-barred, Hankins argues that the alleged accident did not occur within the course and scope of employment. Brock argues that the issue is not properly before the court because Hankins failed to file a cross appeal from the circuit court's affirmance of the Commission decision that Brock suffered a work related injury.
¶ 18. In order for the appellee to gain reversal of any part of the decision of a lower tribunal about which the appellant brings no complaint, the appellee is required to file a cross appeal. Mississippi Rule of Appellate Procedure 4(c) provides:
If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this rule, whichever period last expires.
¶ 19. The Commission found that Brock had suffered a work related injury. That conclusion was explicitly affirmed by the circuit court. Brock in his appeal to the court did not address that finding, as of course there was no reason for Brock to challenge a favorable decision. A cross-appeal is a request given to an appellate court to consider a separate basis for error by the trial court than those raised by the appellant. Were we to agree with Brock's assignment of error, and we have, in order to avoid the effect of that agreement Hankins would have needed to raise as a cross-appeal the other alleged error by the trial court. Hankins did not do so and the issue is not properly raised.
¶ 20. In quite summary fashion, though, we note that the evidence of the manner in which the injury occurred was as contested as were the facts of the estoppel. Nonetheless, Brock testified as to the work-relatedness of the injury. There was certainly evidence on which the Commission could rely to resolve this factual issue as it did.

III. Hearsay Evidence
¶ 21. In its brief Hankins also makes the cross-appeal argument that we should reverse the ruling originally made by the administrative judge and since affirmed that certain statements of co-workers contained in the emergency medical technician reports were hearsay. The medical report states that "co-workers said he grabbed his chest and his head, and passed out." First we do not find that the administrative judge excluded the statements but only quite accurately noted that *1069 they were hearsay. A variety of evidence not properly admissible in a court of law may be considered at an administrative hearing on a compensation claim. The employer refers us to the Commission's General Rule 9 that makes it clear that much of the medical proof at the hearings is to come from the medical records without the need for witnesses.
¶ 22. Despite the admissibility of hearsay evidence, we also note that substantial evidence necessary to support the Commission's decision cannot be solely from hearsay.
Application of the substantial evidence rule to the case on appeal would require reversal because uncorroborated hearsay is not substantial evidence, even though hearsay is admissible in an administrative proceeding.
Williams v. Mississippi Employment Sec. Commission, 395 So.2d 964, 966 (Miss. 1981).
¶ 23. We find no error in the administrative judge's decision not to give controlling weight to the emergency room medical technician's report that unnamed co-workers made statements about how the injury occurred. Considering the centrality of the issue of causation, the administrative judge may well have believed that witnesses with actual knowledge of what occurred should have been called or affidavits or other evidence obtained from them. Reference in a medical report to what unknown people with an unknown level of knowledge may have said did not have to be given appreciable weight by the administrative judge nor by the Commission in its review.
¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF GRENADA COUNTY IS REVERSED AND THE AWARD OF BENEFITS BY THE WORKERS' COMPENSATION COMMISSION IS REINSTATED. ALL COSTS ARE ASSESSED TO THE APPELLEES.
McMILLIN, C.J., KING, P.J., BRIDGES, IRVING, LEE, MOORE, MYERS, PAYNE, AND THOMAS, JJ., CONCUR.


740 F.2d 976
U.S.v.Calderon-Calderon
83-5278
United States Court of Appeals,Ninth Circuit.
7/13/84

1
C.D.Cal.

AFFIRMED


                                               COURT OF APPEALS
                                                 SECOND
DISTRICT OF TEXAS
                                                                FORT
WORTH

                                        NO.
2-06-259-CR

RAYMOND DOMONIC COZZI, JR.                                           APPELLANT

                                                   V.

THE STATE OF TEXAS                                                                STATE

                                              ------------

        FROM
COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY

                                              ------------

                                MEMORANDUM
OPINION[1]

                                              ------------

On November 20, 2003, the
trial court sentenced Appellant Raymond Domonic Cozzi, Jr., to ninety days= confinement in the Tarrant County Jail and fined him $550.00.  His notice of appeal was due within thirty
days after the day the sentence was imposed, or within ninety days from that
day if he timely filed a motion for new trial.[2]
Appellant
did not file his notice of appeal until July 6, 2006; thus it is untimely.[3]
Because the notice of appeal is untimely and it appeared we
lacked jurisdiction, we sent a letter to Appellant on August 9, 2006,
requesting a response showing grounds for continuing the appeal.  Appellant responded, but his response did not
present grounds on which we may continue the appeal.          A notice of appeal that complies with the requirements of
rule 26 is essential to vest this court with jurisdiction.[4]  The Texas Court of Criminal Appeals has
expressly held that, without a timely filed notice of appeal or a timely filed
motion for extension of time, we cannot exercise jurisdiction over an appeal.[5]

Because Appellant=s notice of appeal
was untimely filed, we dismiss this case for want of jurisdiction.[6]
PER CURIAM
PANEL D:   DAUPHINOT, HOLMAN, and GARDNER, JJ.

DO
NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED:
August 31, 2006

[1]See Tex.
R. App. P. 47.4.

[2]See Tex.
R. App. P. 26.2(a)(2).

[3]See id.

[4]Id.

[5]See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim.
App. 1996).

[6]See Tex. R.
App. P. 26.2(a)(2),
43.2(f).


                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                            No. 02-6786

ALARIC WAYNE HUNT,

                                             Petitioner - Appellant,

          versus

COLIE RUSHTON, Warden; CHARLES M. CONDON,
Attorney General of the State of South
Carolina,

                                            Respondents - Appellees.

Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Patrick Michael Duffy, District
Judge. (CA-00-2848-7-23BG)

Submitted:   October 10, 2002             Decided:   October 17, 2002

Before WILLIAMS, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Alaric Wayne Hunt, Appellant Pro Se. Donald John Zelenka, Chief
Deputy Attorney General, Samuel Creighton Waters, OFFICE OF THE
ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for
Appellees.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

      Alaric Wayne Hunt seeks to appeal the district court’s order

adopting the report and recommendation of the magistrate judge and

denying relief on Hunt’s 28 U.S.C. § 2254 (2000) petition.                   We have

reviewed   the     record,       the   district    court’s      opinion,    and    the

magistrate      judge’s    report,     and    we   find   no    reversible       error.

Accordingly, we affirm substantially for the reasons stated by the

district court. See Hunt v. Rushton, No. CA-00-2848-7-23BG (D.S.C.

Mar. 28, 2002).     In addition, we note that certain issues raised in

Hunt’s informal brief on appeal were waived by his failure to raise

them in his objections to the magistrate judge’s report. See Wright

v. Collins, 766 F.2d 841, 844-46 (4th Cir. 1985); see also Orpiano

v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982) (failure to file

specific objections to particular conclusions in magistrate judge’s

report, after being warned of consequences, waives further review).

We   dispense    with     oral    argument,    because    the    facts     and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                            AFFIRMED

                                          2


594 F.Supp. 304 (1984)
KROLL CONSTRUCTION COMPANY, Plaintiff,
v.
GREAT AMERICAN INSURANCE COMPANY, Defendant.
Civ. A. No. C83-1439A.
United States District Court, N.D. Georgia, Atlanta Division.
August 27, 1984.
David G. Russell and Gregory R. Crocket, Kutak, Rock & Huie, Atlanta, Ga., for plaintiff.
Kenneth A. Hindman and Clayton H. Farnham, Drew, Eckl & Farnham, Atlanta, Ga., for defendant.

ORDER
ROBERT H. HALL, District Judge.
Presently pending in this breach of contract action are defendant's motion for summary judgment and plaintiff's motion *305 for partial summary judgment. Jurisdiction exists pursuant to 28 U.S.C. § 1332.

FACTS
The material facts in this action are undisputed:
Plaintiff Kroll Construction Company ("Kroll") was the general contractor for the construction of an office condominium project ("the project"), insured under a builder's risk policy (policy no. UAP XXX-XX-XX) issued by defendant Great American Insurance Company ("Great American"). The insurance policy insured against property damage up to $20,941 and against "all risk of direct physical loss or damage to the [project] from any external cause except as otherwise provided" up to $2,820,000.00. (Exhibit A to defendant's motion, p. 3, ¶ D).
One exception to the builder's risk coverage was for "[t]he cost of making good any faulty or defective workmanship or material. ..." (Exhibit A to defendant's motion, p. 4, ¶ F.5). Distinct from this excepted loss, and thus covered by the policy, was "physical damage directly resulting from such faulty or defective workmanship or material." (Id.)
One exception to the property damage coverage was for property damage to "property in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control. ..." (Exhibit A to defendant's motion, p. 6, ¶ (f)(3)).
After the project was essentially completed, Kroll discovered that the waterproofing materials and/or work furnished by a subcontractor were deficient in several respects and ultimately expended in excess of $490,000.00 in correcting the subcontractor's work and materials and in replacing or repairing much of the landscaping, concrete work, irrigation system and electrical system which were damaged by the corrective work itself. (Exhibit M to defendant's motion). Kroll filed a timely claim with Great American for these losses. Great American denied builder's risk coverage of Kroll's losses, one reason being that the losses constituted "the cost of making good any faulty or defective workmanship or material" and thus were excepted from coverage.[1] Great American denied property damage coverage of the losses on the ground that they were also exempted because the property was in Kroll's control at the time of the damage.
Kroll brings this action for breach of contract seeking to recover these losses.
Additional facts will be disclosed as necessary below.

DISCUSSION

A. "All Risks" Coverage

Great American moves for summary judgment on the ground that there is no genuine dispute that the "all risks" policy in question excludes coverage of the expenses claimed by plaintiff. Kroll opposes Great American's motion and brings its own motion for partial summary judgment seeking a ruling that the "all risks" policy issued by Great American covers the losses caused by the subcontractor.
The cross-motions present three questions of interpretation for the court:
(1) Does the "all risks" policy in question exclude coverage of the cost of making good faulty or defective workmanship or material of a third-party subcontractor (or just that of the insured general contractor)?
(2) Are the losses incurred by Kroll the result of "faulty or defective workmanship or material"?
(3) Does the cost of repairing the damages caused by the corrective work fall within "the cost of making good" the faulty or defective workmanship or material?

1. Faulty or defective workmanship or material of subcontractor

The court is confronted with the initial question of whether the policy exclusion at *306 issue excludes from coverage the cost of making good a subcontractor's faulty or defective workmanship or material. Plaintiff argues strenuously that to interpret the "cost of making good" provision to exclude fortuitous losses caused by subcontractor fault would amount to construing the "all risks" policy as a "no risk" policy. Plaintiff maintains that it reasonably expected to be protected for subcontractor-fault losses because of the "all risk" nature of the policy, and suggests that Great American, as the drafter of the insurance policy, had the duty to specifically exclude from coverage losses resulting from the faulty or defective work of subcontractors.
Plaintiff relies primarily on the former Fifth Circuit's decision in Dow Chemical Co. v. Royal Indemnity Co., 635 F.2d 379 (5th Cir.1981). In Dow Chemical, the court interpreted a provision in an "all risks" builder's policy which excluded "faulty workmanship ... when attributable to or performed by the insured or any person ... in the employment or service of the insured." The court held that a subcontractor was not in the "service of the insured" within the meaning of the policy language such that the faulty workmanship of the subcontractor was not an excluded peril from coverage. Id. at 387. The court found the exclusion language ambiguous in light of other policy-exclusion language and thus looked to the general purpose of the "all risks" policy for guidance in interpreting the exclusion:
[T]he general purpose of the "all risks" builder's policy ... is ... to insure against all fortuitous losses not caused by the insured's own misconduct or fraud. In purchasing such a policy, a general contractor would contemplate that most, if not all, of the work on the construction project would be accomplished by subcontractors.... As was recently stated by this court with regard to interpretation of an "all risks" policy: "[A]s a reviewing Court we must view each contract in the light of the setting of the parties and their reasonable expectations as to risks and protection against them, and an insurance policy in such a way as to effectuate its purpose." Morrison Grain Co., Inc. v. Utica Mutual Ins. Co., 632 F.2d [424, 429 (5th Cir. 1980)]. It is reasonable to assume that a primary purpose of purchase of an "all risks" policy by an insured would be to protect against fortuitous loss through fault of the subcontractors through whom the work was done; if subcontractor-fault were entirely excluded as a covered peril, the "all risks" peril expressly insured would become perilously close to a policy insuring no risk.
Id.
Plaintiff suggests that the former Fifth Circuit strained to find "service of the insured" ambiguous (because a subcontractor "serves" under a general contractor) and urges the court to similarly find "any faulty or defective workmanship" ambiguous and strictly construe the exclusion against Great American in light of the purpose of the "all risks" policy. (Plaintiff's brief in support of motion for partial summary judgment, p. 7).
The court declines to find the phrase at issue ambiguous. The "all risks" policy excluded the cost of making good "any" faulty or defective workmanship; the breadth of the word "any" prevents the court from finding that a subcontractor's workmanship does not fall within the exclusion. To state the obvious, "any" means "all." The court rejects plaintiff's contention that this meaning was "hidden and secret" as well as its suggestion that "any" is an imprecise term. The "all risks" policy clearly and unambiguously excluded subcontractor-fault losses.
The court finds support in this conclusion by Dow Chemical, the case cited by plaintiff. In that case the court noted that if the parties had intended to exclude the faulty workmanship of subcontractors from coverage under the "all risks" policy, they could have simply excluded "faulty workmanship..." without qualification. 635 F.2d at 387. The parties in this case did just that; they did not limit the faulty workmanship exclusion to only the workmanship *307 attributable to the insured's employees.
It is true that the policy would have been clearer as to subcontractors had it specified that the exclusion applied "regardless of to whom attributable" or that it applied to the workmanship of subcontractors as well as to the workmanship of the general contractor. However, an insurer has no duty to include such specific language where it has included general language to the same effect.
The court finds that plaintiff's expectations, to the extent they were as plaintiff described,[2] were not reasonable in the face of the clear language of the insurance policy. It is irrelevant that plaintiff and another insurer may have construed and applied a similar exclusion to not include subcontractor work;[3] there is nothing to indicate that they were legally required to give the exclusion such a narrow reading.

2. Meaning of "faulty or defective workmenship or material"

Having determined that the "cost of making good" exception excludes coverage for the faulty or defective workmanship or materials of a subcontractor, the next question for the court is whether plaintiff's losses are attributable to "faulty or defective workmanship or material" within the meaning of the exclusion.
Plaintiff argues that its losses were caused, not by "faulty or defective workmanship," but by the "negligent failure of [the] subcontractor ... to exercise proper judgment in performing subcontractual work." (Plaintiff's brief in support of motion for pretrial summary judgment, p. 12). Plaintiff cites Texas Eastern Transmission Corp. v. Marine Office-Appleton & Cox Corp., 579 F.2d 561, 565 (10th Cir. 1978), and Equitable Fire & Marine Insurance Co. v. Allied Steel Construction Co., 421 F.2d 512, 513 (10th Cir.1970), for the proposition that negligence or misjudgment in construction does not constitute deficiency in workmanship.
The evidence introduced to the court shows that the waterproofing job performed by the subcontractor was inadequate in the following ways: (1) only the top four or five feet of the subsurface walls had been waterproofed, leaving about twelve feet with no waterproofing at all; (2) in some places, there were bubbles in the waterproofing material; (3) in some places, the waterproofing material had wrinkled and slid down the walls. (Watson Deposition, pp. 18, 25-26, 31; Exhibits D-1 and D-2 to Watson Deposition). Although it is unclear from the record, the court assumes that none of the deficiencies were the result of poor judgment on the part of the designers for the subcontractor as both parties appear to implicitly adopt this premise in their arguments.
With that assumption made, the court concludes that the deficiencies in question reflect "faulty or defective workmanship or materials" provided by the waterproofing subcontractor. The term "workmanship" is not ambiguous; it simply means "the execution or manner of making or doing something." Webster's Third New International Dictionary, 2635 (4th ed. 1976). "Faulty or defective workmanship," then, means the faulty or defective execution of making or doing something. There is no question that the subcontractor in this case defectively executed its craft of waterproofing, at least with respect to the failure to waterproof the entire subsurface walls. The remaining deficiencies (the bubbles and the wrinkling) resulted either from defective materials supplied by the subcontractor or from defective use of those materials by the workmen.
The court rejects plaintiff's argument that the failure of workmen to exercise proper judgment in executing their skill or craft, or the negligent execution by workmen of their skill, does not constitute *308 faulty or defective workmanship. See U.S. Industries, Inc. v. Aetna Casualty & Surety Co., 690 F.2d 459, 462 (5th Cir.1982) (defective workmanship can be the result of negligence, inadvertence, or misjudgment). To execute a job using poor judgment or negligently is to defectively execute that job. The court declines to follow the cases cited by plaintiff to the extent that they mandate a different conclusion. This court chooses to adopt the plain, ordinary meaning of "faulty or defective workmanship" rather than strain to find that term ambiguous so as to justify a liberal construction in favor of plaintiff, the insured. National Hills Shopping Center, Inc. v. Liberty Mutual Insurance Co., 551 F.2d 655, 658 (5th Cir.1977) (an insurance policy which unambiguously and lawfully limits the insurer's liability cannot be expanded beyond what is fairly its plain terms).

3. Meaning of "cost of making good"

The final question for the court is whether all of the losses suffered by plaintiff constitute the "cost of making good" the subcontractor's defective workmanship or material. Plaintiff argues that most of its losses were incurred after the waterproofing job was reinstated and thus are not a part of the "cost of making good" the waterproofing defects.[4] Defendant relies on a "but for" analysis, arguing that plaintiff would not have sustained these losses but for the defective waterproofing work of the subcontractor so they should be considered a part of the "cost of making good" the defective work.
The court agrees with plaintiff that the costs incurred following the correction of the waterproofing work do not fall within the narrow meaning of the phrase, "cost of making good any faulty or defective workmanship or materials." The policy-exclusion language did not provide an exception for all losses or damages stemming from faulty workmanship, see U.S. Industries, Inc. v. Aetna Casualty & Surety Co., supra, nor did it except the cost of returning a project to its state at the time the defective workmanship was discovered; rather, it simply excepted the cost of making good faulty workmanship or materials, leaving covered the cost incurred after the faulty work was "made good." When an "all risks" builder's policy does not expressly exclude a certain peril, the policy is deemed to cover that peril. Dow Chemical Co., supra, 635 F.2d at 386.

B. Property Damage Coverage

As plaintiff does not oppose defendant's motion for summary judgment to the extent it concerns plaintiff's claim under the property damage portion of the insurance policy, the court finds no genuine dispute that defendant is not liable to plaintiff under the property damage coverage.

CONCLUSION
In sum, the court PARTIALLY GRANTS and PARTIALLY DENIES defendant's motion for summary judgment and PARTIALLY GRANTS and PARTIALLY DENIES plaintiff's motion for partial summary judgment. The effect of this Order is that plaintiff will be allowed to recover under the "all risks" coverage only those costs incurred following the "making good" of the defective waterproofing job done by its subcontractor. The remainder of plaintiff's damages are not recoverable under the insurance contract at issue.
NOTES
[1]  Great American also contended that Kroll's losses were excepted from builder's risk coverage under other policy exceptions. Summary judgment is not sought as to these exceptions, however, so they are not discussed.
[2]  See Estapa Affidavit, ¶ 6; Plaintiff's brief in support of motion for partial summary judgment, p. 3.
[3]  See Kroll Affidavit, ¶¶ 4-5.
[4]  In plaintiff's brief in opposition to defendant's motion for summary judgment (p. 8), plaintiff approximates the total damages at $497,787.31 and the cost of correcting the defective waterproofing at $147,425.68; this leaves approximately $350,361.63 expended after the waterproofing was reinstated.


117 F.3d 1417
U.S.v.Soriano*
NO. 96-30399
United States Court of Appeals,Fifth Circuit.
June 03, 1997

1
Appeal From:  E.D.La. ,No.94CR288'L'

2
Dismissed.

*
 Fed.R.App.P. 34(a); 5th Cir.R. 34-2