                                        PDR    CAUSE
                                              PD—1600-14
                                                           NUMBERS
                                                                                MAY 04 2N5
                                              PD-1601-14
                                              PD-1602-14

WILLIE       EUGENE       HARDEMAN,                               IN    THE    COURT      OF
                          Appellant                                                                             6
vs.                                                               CRIMINAL APPEALS,-^?                  V»>>'   >t

STATE       OF    TEXAS                                           OF TEXAS                         FILED IN
                                                                                COURT OF CRIMINAL APPEALS
                 APPELLANT'S     MOTION       FOR    EXTENSION         OF   TIME     IN   WHICH
                            TO   FILE   HIS    MOTION       FOR   REHEARING
                                                                                MAY 04 2015

TO    THE    HONORABLE       JUSTICES     OF    THE    COURT:                                   Abel Acosta, Clerk

        COMES NOW Willie Eugene Hardeman,                         Appellant,Pro.se,,in

the above styled and numbered referenced cause,                                    and files this

motion       for    extension     of    time    in    which    to      file    his    motion      for

rehearing,          pursuant to R. 10(b), Texas Rules of Appellate Proc-,

and would show unto this honorable court the following to wit:

                                                     I .

        The. above causes was appealed from the 252nd Judicial

District Court of Jefferson County,                          Texas,         in cause numbers:

10-10378,          10-10380,     10-10382,          respectively,           and docketed with,

the' Texas Court of Appeals for the 9th Supreme Judicial District

cause       numbers       09-13-00467-CR,           09-13-00468-CR,           and     09-13-00469.

Appellant's Petition for Discretionary Review as Refused by

this Court on April 22,                 2015.

                                                     II.

        Appellant seeks to file a Motion for Rehearing, and must

do     so within 15 days following the decision of the Court of

Criminal Appeals. The deadline in which to file his motion for

rehearing is due by May 7, 2015.
    Appellant received his his Official Notice from the Court

of Criminal Appeals,       on April 22,         2015,   via the U.S.   Postal

Service (White Card),          that his PDR had been refused.

                                         Ill .

    Appeallant seeks to file his motion for rehearing at the

present, but is impeded from doing so after the offender who

was assisting him with his legal issues,                 subcummed to a fatal

heart attack during the first week in April 2015, who was in

possession of all of the Appellant's legal documents.                    Appellant

has unsuccessfully tried recovering his legal materails from

the deceased offender's estate,            and to this date has not prevail.

As of now,   Appellant is compelled to repurchase all of his said

documents through the Offender Trust Fund,                 by way of an outside

purchase - as this process can take approximately three to four

weeks   before   the   funds    are   withdrawn    from an   offenders   account.

    Additionally, Appellant is recovering from a stroke with

severe paralysis and must rely .upon other offenders to assist

him in pursuing his legal matters.

                                          IV.

    Appellant has not filed for any other motions for extension

of time,   prior this filing.

                                        PRAYER

        WHEREFORE, PREMISES CONSIDERED, Appellant prays that this

 Court issue an order to extend time in which to file his Motion

 for Rehearing to.an additional 90 days from the date in which
 said motion is due. Appellant prays that this and all things

 be granted.
                                                      Respectfully Submitted:

                                                       Willie Eugene Hardeman
                                                       TDCJ#   01891985
                                                      Jester       III    Unit
                                                       3   Jester    Road
                                                       Richmond,         Texas    77406

                                 UNSWORN   DECLARATION

    My name is Willie Eugene Hardeman,                 my TDCJ# is 01891985,

who is currently incarcerated at the Jester III Unit,                            located

in Fort Bend County,        Texas,    do hereby declare that the foregoing

facts   contained   in    this    motion    for    extension   of    time    are    true

and correct to the best of my knowledge pursuant to the penalty

of perjury,   as outlined in the Texas Practice and Redemies Code

§132.001. So stated on this the 28th day of April 2015.

                                                       Wiirie Bug
                                                       Will'ie Ehiqene Hardeman
                                                       Declarant

                            CERTIFICATE       OF    SERVICE

    I Willie Eugene Hardeman,              certify that a copy of the same

has been served upon the Attorney for the State,                         via U.S.    Mail

on this the   28th day of. April           2015.    addressed to:

Attorney General of Texas
^Prosecuting Attorney
 P.O. Box 12548, Capitol Sta
Austin,   Texas   78711

                                                       W   lllre   Eugene    Hardemarr


IN THE SUPREIVIE COURT OF THE STATE OF DELAWARE

CALVIN VINCENT,1 §
§ No. 436, 2014
Respondent/Petitioner Below, §
Appellant, § Court Below—Family Court of
§ the State of Delaware, in and
V. § for New Castle County
§
DIVISION OF CPHLD SUPPORT § File No. CNO7—01807
ENFORCEMENT/EMILY §
CARTWRIGHT, § Pet. Nos. 13-21770
§ l4—03946

Petitioners/Respondents Below, §
Appellees. §

Submitted: December 24, 2014
Decided: March 2, 2015

Before STRINE, Chief Justice, HOLLAND and VALIHURA, Justices.
ORDER
This 2Ild day of March 2015, upon consideration of the appellant’s
opening brief and appendix and the appellees’ motion to afﬁrm,2 it appears
to the Court that:
(1) In March 2008, the parties, appellant-Calvin Vincent (“Father”)
and appellee—Emily Cartwright (“Mother”), entered into a year-long

protection from abuse (“PFA”) consent order that, among other things,

1 By Order dated August 14, 2014, this Court sua sponte assigned pseudonyms to the
parties. Del. Supr. Ct. R. 7(d).

2 The motion to afﬁrm ﬁled by appellee-DiVision of Child Support Enforcement on
December 23, 2014 was adopted by appellee-Emily Cartwright on December 24, 2014.

required Father to pay, through a “temporary wage attachment,” $185 per
week in “temporary child support” to appellee—Division of Child Support
Enforcement (“DCSE”) on behalf of Mother and for the beneﬁt of Mother
and Father’s two children. The wage attachment was to remain in effect
only for the duration of the PFA consent order, which ended in March 2009,
but instead it continued until April 2013, when it ﬁnally stopped due to
Father’s unemployment. The record does not reﬂect why the wage
attachment continued or why Father waited until 2013 to look into the
matter.

(2) In July 2013, DCSE, on behalf of Mother, ﬁled a petition for
child support (hereinafter “Child Support Petition”) against Father. In
January 2014, pending a hearing on the petition, a Commissioner issued an
' interim order directing that Father pay $0 in child support and that DCSE
audit Father’s account to determine if a credit was owed to him, and the
amount of that credit. Upon Father’s request for review of the
Commissioner’s order, the Family Court afﬁrmed.

(3) On February 24, 2014, Father ﬁled a “motion for refund”
(hereinafter “Refund Petition”). Father’s Refund Petition was scheduled to
be heard with the Child Support Petition on March 20, 2014. At the outset

of the March 20 hearing, however, the Commissioner determined that the

Refund Petition could not be heard because Father had not properly served it
on DCSE. The hearing went forward on the Child Support Petition and at
the conclusion of the hearing the Commissioner took the matter under
advisement, indicating that she would try to issue a written decision within a
week.

(4) On March 26, 2014, Father ﬁled a second “motion for refund,”
which was dismissed as “duplicative” on March 28, 2014, after a
Commissioner determined that it sought the same relief as the pending
ReﬁJnd Petition. On April 28, 2014, Father ﬁled a request for review of the
Commissioner’s order.

(5) On March 27, 2014, eleven days before the Commissioner
issued her written order on the matters taken under advisement, Father ﬁled
a “petition/motion for review . of commissioner’s order.” Father’s
“petition/motion for review” made anticipatory objections to, among other
things, the Commissioner’s “use of the Melson formula” when determining
Father’s child support obligation and to any order that he pay “cash medical
support.” Also, as with his second “motion for refund,” Father’s
“petition/motion for review” requested the same relief as the pending

Refund Petition, namely “a judgment ordering DCSE to reimburse [Father]

for all money, approximately $40,000, collected illegally by DCSE, beyond
the agreed time, and without a court order.”

(6) On April 7, 2014, the Commissioner issued the order on the
matters taken under advisement on March 20, 2014. The Commissioner
dismissed the Refund Petition without prejudice for Father’s failure to serve
DCSE and granted the Child Support Petition retroactively to July 2011.
When determining Father’s net retroactive child support obligation, the
Commissioner offset Father’s gross retroactive child support obligation,
which was based on the parties’ income information from July 2011 to April
2013, with the total amount of child support payments made by Father over
the same period.3 The Commissioner refused to credit Father for any child
support payments made between March 2009 and July 2011 on the basis that
Father was obligated to support his children during those years whether or
not there was a valid child support order in place, and that Father could have
ﬁled, but did not, a petition to modify the child support that continued to be
withheld from his wages after the expiration of the PFA consent order.

(7) Following the Commissioner’s April 7, 2014 order, Father ﬁled

a third “motion for reﬁlnd” (hereinafter “Amended Reﬁlnd Petition”) on

3 The Commissioner determined that Father was entitled to a credit of $3,719.00.

4

April 28, 2014. Also, on May 8, 2014, Father ﬁled a request for review of
the Commissioner’s April 7, 2014 order.

(8) By order dated July 15, 2014, the Family Court ruled on
Father’s three pending requests for review. Also, the court advised Father
that his Amended Refund Petition would not be scheduled for a hearing until
Father showed proof of service on DCSE. On the requests for review, the
court afﬁrmed the March 28, 2014 dismissal of Father’s “motion for refund”
ﬁled on March 26, 2014. The Court dismissed the “petition/motion for
review of commissioner’s order” for Father’s failure to provide a transcript.
The court dismissed the request for review of the April 7, 2014 order as
untimely ﬁled.

(9) When considering an appeal from a Family Court Order, this
Court’s standard and scope of review involves a review of the facts and the
law, as well as the inferences and deductions made by the court.4 To the
extent the issues on appeal implicate rulings of law, we conduct a de novo
review.5 If the Family Court has correctly applied the law, our review is

limited to abuse of discretion.6 To the extent the issues on appeal implicate

4 Mundy v. Devon, 906 A.2d 750, 752 (Del. 2006).
5 Id. (citing In re Heller, 669 A.2d 25, 29 (Del. 1995)).

6 Powell v. Dept. of Serv. for Children, Youth & their Families, 963 A.2d 724, 731 (Del.
2008).

rulings of fact, we conduct a limited review of the factual ﬁndings of the
Family Court to assure that they are sufﬁciently supported by the record and

7 We will not disturb inferences and deductions that

are not clearly wrong.
are supported by the record and are the product of an orderly and logical
deductive process.8

(10) In his ﬁrst two arguments on appeal, Father claims that the
Family Court erred when dismissing his requests for review. According to
Father, his request for review of the April 7, 2014 order was timely ﬁled and
if not, the delay should have been excused. Father contends that the
dismissal of his “petition/motion for review of commissioner’s order” was
“inequitable” under the circumstances. Father’s claims are without merit.

(11) Under 10 Del. C. §1915 and Family Court Civil Rule 53.1
(“Rule 53.1”), a request for review of a Commissioner’s ﬁnal order must be
ﬁled within thirty days from the date of the order.9 In this case, Father’s
request for review of the Commissioner’s order dated April 7, 2014 was due

on or before May 7, 2014. Father did not file the request for review until

May 8, 2014. The request was untimely ﬁled.

7 Id. (citing Solis v. Tea, 468 A.2d 1276, 1279 (Del. 1983)).

8 Mundy v. Devon, 906 A.2d 750, 752-53 (Del. 2006) (citing Solis v. Tea, 468 A.2d 1276,
1279 (Del. 1983)).

9 10 Del. C. § 915(d)(1); Del. Fam. Ct. Civ. R. 53.1(b).

6

(12) To the extent Father argues that any delay in ﬁling the request
for review should be excused because of “confusion” caused by the Family
Court, we disagree. Having carefully reviewed the record, it does not appear
that Father’s one-day delay in ﬁling the request for review was due to court-
related error.10

(13) Father argues that his request for review was timely ﬁled by
operation of Family Court Civil Rule 6(d) (“Rule 6(d)”), which adds three
days to a prescribed period after service by mail.11 His argument is without
merit. Rule 6(d) relates to service of papers upon one party by another
party, not to the statutory time limitation governing a request for review of a
Commissioner’ s order.12

(14) Father argues that the dismissal of his “petition/motion for
review of commissioner’s order” for his failure to provide a transcript of the
March 20, 2014 hearing was “inequitable,” because the court did not need
the transcript to decide the “petition/motion for review.” Father’s argument

is without merit. Under Rule 53.1(c), “unless all parties agree to a statement

10 See Bey v. State, 402 A.2d 362, 363 (Del. 1979) (permitting untimely appeal when
delay in ﬁling appeal was caused by court-related personnel).

11 See Del. Fam. Ct. Civ. R. 6(d) (providing for additional time after service by mail).

‘2 Carling v. Carling, 1998 WL 668033 (Del. Fam. Ct. June 25, 1998). Cf. Nieves v.
State, 2012 WL 112501 (Del. Jan. 12, 2012) (regarding Del. Supr. Ct. R. 11(0)); Martin
v. Widener University School of Law, 1993 WL 61685 (Del. Feb. 9, 1993) (regarding Del.
Chan. Ct. R. 6(e)); Wallace v. P & C Rooﬁng, 2011 WL 5835021 (Del. Super. Nov. 15,
2011) (regarding Del. Super. Ct. CiV. R. 6(e)).

' 7

of facts” or the court, upon request, agrees “to accept an electronic recording
of the proceedings in lieu of the transcript,” a party requesting review of a
Commissioner’s order is required to provide a transcript of the proceedings
before the Commissioner.13 Under Rule 53.1(i), “[a] party appealing an
order of a commissioner who fails to comply with the provisions of this rule
or with the direction of the Court as to the appeal shall be subject to
dismissal of said appeal.”14

(15) In this case, based on his belief that a transcript was not
necessary to decide his “petition/motion for review of commissioner’s
order,” Father did not provide a transcript of the proceedings on March 20,
2014, despite having received notice from the court that he was required to
do so. Under these circumstances, we conclude that the Family Court did
not abuse its discretion when dismissing the “petition/motion for review” for
Father’s failure to provide the transcript.

(16) Finally, in his third argument on appeal, Father advances the
merit of his claims that the Commissioner’s April 7, 2014 order erred when

determining his child support obligation and when refusing to credit him for

child support payments made between March 2009 and July 2011. Father’s

13 Del. Fam. Ct. Civ. R. 53.1(c).
1“ Del. Fam. Ct. Civ. R. 53.10).

claims are unavailing. This Court does not have jurisdiction to hear an
appeal directly from the Commissioner’s April 7, 2014 order.15 Father lost
his right to appellate review when he failed to ﬁle a timely request for

review of the order in the Family Coult.16

NOW, THEREFORE, IT IS ORDERED that the motion to afﬁrm is
GRANTED. The judgment of the Family Court is AFFIRMED.

BY THE COURT:

Justice 6

15 10 Del. C. § 915(d); Redden v. McGz‘ll, 549 A.2d 695, 698 (Del. 1988).

16Richmond v. Div. ofFamz'ly Serv., 1999 WL 734725 (Del. Supr.) (citing Div. of Child
Support Enforcement/Smith v. Neal, 687 A.2d 1324 (1997); Redden v. McGiZl, 549 A.2d
695, 698 (Del. 1988)).


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849 F.2d 186
1988 Copr.L.Dec. P 26,302, 7 U.S.P.Q.2d 1479
ESTATE OF Dean M. VANE, Richard J. Vane, Executorsubstituted in place and stead of Dean M. Vane,Deceased, Plaintiff-Appellant Cross-Appellee,v.THE FAIR, INC., Defendant-Appellee, Cross-Appellant,Vance-Mathews, Incorporated, Defendant-Appellee.
No. 87-2757.
United States Court of Appeals,Fifth Circuit.
July 14, 1988.Rehearing Denied Aug. 11, 1988.

Dana Andrew LeJune, Neal J. Mosely, Houston, Tex., Alto V. Watson, Beaumont, Tex., for Estate of Vane.
Denise Hubbard, Lipscomb Norvell, Jr., Benckenstein, Norvell, Bernsen & Nathan, Beaumont, Tex., for Vance-Mathews, Inc.
Tom Hanna, Roger Hepworth, Mehaffy, Weber, Keith & Gonsoulin, Beaumont, Tex., for The Fair, Inc.
Appeals from the United States District Court for the Eastern District of Texas.
Before WISDOM, RUBIN, and JONES, Circuit Judges.
ALVIN B. RUBIN, Circuit Judge:

1
The owner of an infringed copyright asks this court to increase the amount of damages awarded it by the district court and to find liability on the part of a co-defendant the district court held to have been an innocent infringer.  We find that the district court did not err in failing to base the damage award on those profits of the infringer allegedly attributable to the infringement because the infringer did not establish the amount of those profits, if any there were, and the court did not err in finding the co-defendant innocent.  Accordingly, we affirm.

I.

2
The Fair, a chain of retail stores, hired photographer Dean Vane to prepare slides showing its merchandise with the stated purpose of using the slides in printed advertising material to be mailed to its customers.  Later, however, The Fair hired Vance-Mathews, Inc., an advertising agency, to produce television commercials, which incorporated some of Vane's slides as well as a substantial amount of material from other sources.  Several television stations aired the commercials.  Vane brought an action based on copyright infringement against The Fair, asserting that his agreement with The Fair involved merely a license to use the slides to produce mailers and that he retained all other rights to the slides provided by copyright law.  Vane also contended that Vance-Mathews, the advertising agency that had produced the commercials, was liable as an infringer.  The dictrict court granted Vance-Mathews's motion for a directed verdict on the theory that Vance-Mathews was an innocent infringer and could therefore be liable only to the extent of profits it had gained through the infringement, of which there were none.  The court held that The Fair was liable, and it awarded damages in the amount of $60,000, an amount representing the value of the use of the slides in the commercials.  676 F.Supp. 133.  The court refused to make a damage award based on profits The Fair had accrued by virtue of the infringement;  it found that the evidence was too speculative to support such an award.  On appeal, Vane contends that the court erred in denying an award based on The Fair's profits and in granting Vance-Mathews's motion for a directed verdict.

II.

3
In a copyright infringement action, the infringer is liable for either statutory damages or the copyright owner's actual damages together with any additional profits of the infringer that are attributable to the infringement.1   Vane elected to seek actual damages and profits.  The statute that authorizes this recovery also provides that in establishing the infringer's profits, the copyright owner need prove only the infringer's gross revenues, while the infringer must prove his deductible expenses and must show which elements of profits are attributable to sources other than the copyrighted work.2

4
Vane attempted through discovery to obtain financial records of The Fair that would enable him to satisfy his burden of proving The Fair's gross revenues attributable to the infringement, but the records were not detailed enough to show the amount received from the sales of particular items shown in the slides.  Therefore Vane attempted to establish The Fair's gross revenues, and ultimately its profits, by introducing as an expert witness Dr. Herbert Lyon, Professor of Marketing at the University of Houston's College of Business Administration.  Dr. Lyon testified that he had conducted a multiple regression analysis designed to show how much each dollar The Fair spent on television advertising would yield in sales.  Dr. Lyon examined monthly data, including profit-and-loss statements and summaries of media costs over a five-year period.  He calculated that The Fair sold approximately $25.60 in merchandise for every dollar it spent on television advertising.  He multiplied $25.60 by the number of dollars The Fair spent on the infringing television commercials to yield a gross revenue figure, then deducted certain costs to The Fair, including the actual cost that The Fair had paid for the merchandise it sold, transportation charges for getting the merchandise to the stores, a 3% allowance for pilferage, and some other direct operating expenses.  After adjusting the resulting figure for inflation, Dr. Lyon concluded that The Fair's profits attributable to its infringement of Vane's slides exceeded $694,000.  The district court held that Vane had not brought forth sufficient proof of The Fair's profits and refused to award damages based on Dr. Lyon's calculations.

5
When financial records sufficiently detailed to show an infringer's sales are not available, expert testimony may be used to develop either such proof3 or, as Vane attempted, proof of its profits rather than its sales.  But it is the trial court's role to evaluate this testimony.4   The trial court in this case concluded, with ample basis, that the testimony introduced was inadequate to establish The Fair's profits attributable to the infringement.

6
In conducting his analysis, Dr. Lyon took into account a variety of factors designed to refine his calculations.  For instance, his model purported to consider seasonal sales trends, specifically the pre-Christmas boom in sales;  the downward economic trend in the Houston area in the early 1980's;  and the carryover effect by which an advertisement continues to contribute to some sales long after its initial airing.  By taking such factors into account, Dr. Lyon testified, he attempted to produce a model that would analyze with the greatest possible precision the relationship between advertising dollars spent and resulting profits.

7
Cross-examination, however, brought to light a number of potential shortcomings in this analysis.  Dr. Lyon's model yielded only a lump-sum figure for profits attributable to the television commercials that contained infringed material as a whole without accounting for the fact that the infringed material constituted only a fraction of any given commercial.  Some portion of the profits may have been attributable to the infringement, but much of the profits must be attributed to noninfringing aspects of the commercials.  Testimony at trial showed from three perspectives why the use of an undifferentiated figure does not convincingly establish what profits are attributable to the infringement.

8
First, the cost of slides used in a commercial is only one of many expenses involved.  The single figure for "dollars spent on television advertising" must be composed of lesser expenditures for a variety of goods and services:  photographs used in the commercial, fees paid to the producer of the commercial, and air time for showing the commercial, to name a few.  If, for instance, 50% of the cost to someone airing a commercial went to television stations to pay for air time, another 30% went to the producer, and 20% went to purchase ten slides used in the commercial, which also used five infringed slides, then it would be wholly illogical to treat the entire profits derived from airing the commercial as attributable to the five infringed slides.  Yet this is, in essence, what Vane asked the district court to do.  Dr. Lyon testified that he had adjusted the sales figures his model yielded to account for air time and production costs, but neither his testimony nor the computer printouts introduced as an exhibit make clear what this adjustment was.  Even if Dr. Lyon's analysis accurately showed the relationship between dollars spent on advertising and profits yielded, it did not show the relationship between the dollars that should have been spent on the rights to use Vane's slides and the total television advertising costs.  Evidence of this relationship might have provided a basis for showing what portion of the profits the commercials yielded were attributable to the infringement.

9
Second, the infringed slides appeared during only part of the time the commercials were on the air.  Vane testified that the general format of the commercials in question consisted of a "trailer" or introductory film segment setting forth a theme for the commercial, followed by a segment featuring various items of merchandise, concluding with another brief trailer.  To the extent that Vane's slides appeared in the commercials, they appeared only in the middle segments, never in the trailers.  Moreover, the middle segments that contained infringed slides also contained non-infringed slides.  If only eight seconds of a thirty-second commercial contained infringed slides, it would be irrational to believe that all the profits the commercial brought in were due to those slides.

10
Third, Dr. Lyon's model did not purport to show the relative importance of different elements of the commercials in generating profits for The Fair.  On cross-examination, counsel for The Fair asked Dr. Lyon:

11
If we take your figures that are given here of some $600,000 that you say are attributable to the TV advertising dollar, do you express any opinion as to what percentage of that should be attributable to Mr. Vane's slides as contrasted to the work product of Vance-Matthews in putting the commercials together?

Dr. Lyon responded:

12
No, sir....  I'm simply looking at the revenue or gross revenues generated by those ads.  I did not look at the ads specifically.  I don't think--I mean, I thought of that issue, but I don't think it can be answered.

13
Photographs of particular items featured in commercials doubtless play a role in producing sales, but, we assume, so do such aspects of the commercials as text of the voice-overs, general slogans or phrases promoting the store itself, and overall concept of the commercial's message.  Vane himself described the trailers that introduced the commercials as "a very nice attention-getting device, which is the first responsibility of an ad."    Dr. Lyon admitted on cross-examination that the carryover benefit of an advertisement promoting a particular sales event, such as a Father's Day sale or an Easter sale, would probably be achieved primarily because the advertisement promoted name recognition of the store that was holding the sale.  But Dr. Lyon's model did not show what part of the Fair's profits should be attributed to these factors rather than to the use of the infringed slides.

14
By pointing to these problems in Dr. Lyon's analysis, we do not suggest that a calculation based on a mathematical formula involving the ratio of fair cost of infringed material to entire cost of commercial, or length of air time of infringed material to length of entire commercial, would be the only means of showing profits.  The question will often be highly fact-specific.  We merely hold that it was not error for the district court to reject this attempt to show revenues attributable to the infringement as speculative.

III.

15
The district court orally granted Vance-Mathews's motion for a directed verdict and later rendered judgment in favor of Vance-Mathews "for the reasons announced by the Court at that time."    Although the district court did not specifically state the statutory authority for its grant of the motion, we affirm on the basis that Vance-Mathews was an innocent infringer as defined by 17 U.S.C. Sec. 405(b) (1982).  That section states, in relevant part:

16
Any person who innocently infringes a copyright, in reliance upon an authorized copy or phono record from which the copyright notice has been omitted, incurs no liability for actual or statutory damages under Section 504 [17 U.S.C. Sec. 504] for any infringing acts before receiving actual notice that registration for the work has been made under Section 408 [17 U.S.C. Sec. 408], if such person proves that he or she was misled by the omission of notice.

17
The Copyright Act defines "copies" as "material objects ... in which a work is fixed"5 and provides that "[t]he term 'copies' includes the material object ... in which the work is first fixed."6

18
Vance-Mathews raised the defense of innocent infringement in its First Amended Original Answer and relied on Sec. 405(b) in its argument in support of its motion for a directed verdict.  At trial, the president of Vance-Mathews testified that the agency had no knowledge that the slides were copyrighted, or that anyone claimed that they were copyrighted, or that the slides belonged to anyone other than The Fair.  He also stated that if the slides had borne a notice of copyright, the agency would have checked with The Fair to see whether use of the slides in a commercial posed any problems.  A senior vice-president of The Fair testified that none of the slides or photographs it received from Vane bore any copyright markings, nor did Vane attempt to have copyright markings affixed after he delivered the materials to The Fair.  He further testified that at the time The Fair turned the slides over to Vance-Mathews, none of them bore copyright markings.

19
Although Vane testified that it was his practice to stamp slides with an indication of his copyright before sending them to clients, he acknowledged that "some could have slipped through, I suppose, considering the volume of slides I tendered."    At trial, counsel for The Fair presented Vane with 58 boxes of slides of his work as well as a number of black-and-white photographs that Vane had previously delivered to The Fair.  Vane testified that if they were originals rather than copies of his slides and photographs, he would expect them to bear his copyright mark, but after inspecting them, he failed to identify a single slide or photograph that bore notice of copyright.

20
In this non-jury trial, it was the judge's role to resolve any conflicting inferences arising from witnesses' testimony.  Both Vance-Mathews executives testified unequivocally that the slides they received were not marked, and its president further testified that the agency would have inquired about ownership of rights to the slides if they had been so marked.  The district court obviously chose to credit the testimony of the Vance-Mathews witnesses, because it entered a finding of fact that Vane failed to affix any copyright mark or notice to the slides he delivered to The Fair.  The evidence was, therefore, sufficient to allow the court to grant Vance-Mathews's motion for a directed verdict on the theory that it was an innocent infringer misled by the omission of notice of copyright.

21
For these reasons, we AFFIRM.

1
 17 U.S.C. Sec. 504 (1982)

2
 Id. Sec. 504(b) (1982)

3
 Shapiro Bernstein & Co. v. Remington Records, Inc., 265 F.2d 263, 266-72 (2d Cir.1959)

4
 See, e.g., Equal Employment Opportunity Comm'n v. Datapoint Corp., 570 F.2d 1264, 1269-70 (5th Cir.1978)

5
 17 U.S.C. Sec. 101 (1982)

6
 Id


                                                                                ACCEPTED
                                                                                12-14-00126-CR
                                                                                TWELFTH COURT OF APPEALS
                                                                                TYLER, TEXAS
                                                                                1/5/2015 10:05:59 PM
                                                                                CATHY LUSK
                                                                                CLERK

                                   No. 12-14-00126-CR

 CHRISTOPHER WILEY                           §     IN THE COURT OF APPEALS
                                                                    FILED IN
     Appellant                               §                     12th COURT OF APPEALS
                                                                        TYLER, TEXAS
                                             §
 vs.                                         §     12TH   JUDICIAL 1/5/2015
                                                                   DISTRICT 10:05:59 PM
                                                                        CATHY S. LUSK
                                             §                              Clerk
 THE STATE OF TEXAS,                         §
     Appellee                                §     AT TYLER, TEXAS

   APPELLANT’S SECOND MOTION FOR EXTENSION OF TIME TO FILE
                  BRIEF THREE-DAY REQUEST

TO THE HONORABLE COURT:

       Now comes Austin Reeve Jackson, counsel for Appellant in the above entitled and

numbered cause, and makes this Motion, and for good cause shows the following:

                                             I.

       Appellant’s brief in this matter is due on 5 January 2015. One prior extension has

been requested.

                                             II.

       While working on this case counsel has also been working on approximately 55

open appellate cases in this and other courts to which he has been appointed by Smith

County. This has included investigating motions for new trials (looking for and talking

with potential witnesses, jail and office visits with new appellate appointments, trial court

appearances for the same), requests for and reviews of reporter’s and clerk’s records,

research, briefing, review of opinions, investigation of potential PDR issues, etc. While

not all of these seventy or so cases have required significant attention from counsel
during this time, many of them have which ahs resulted form counsel having been able to

devote the full attention necessary to this case prior to today’s date.

                                              II.

       One prior extensions have been requested and is respectfully prayed that the in the

interest of justice, the Court grant this motion.

       WHEREFORE, PREMISES CONSIDERED, undersigned counsel respectfully

prays that, in accordance with the applicable law, the Court grant this Motion and extend

the date by which to file a brief by three days.

                                            Respectfully submitted,

                                            /s/Austin Reeve Jackson
                                            Texas Bar No. 24046139
                                            112 East Line, Suite 310
                                            Tyler, TX 75702
                                            Telephone: (903) 595-6070
                                            Facsimile: (866) 387-0152

                              CERTIFICATE OF SERVICE

       This is to certify that a true and correct copy of the above and foregoing document

was served on counsel for the State by facsimile concurrently with its filing.

                                            /s/Austin Reeve Jackson


762 F.2d 1012
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.United States of America, Plaintiff-Appellee,v.Fred Farber, Defendant-Appellant.
No. 83-1792
United States Court of Appeals, Sixth Circuit.
4/10/85

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
BEFORE:  Contie, Circuit Judge; and Phillips and Celebrezze, Senior Circuit Judges.
Per Curiam.

1
Defendant-appellant Fred Farber was charged with forty-one counts of mail fraud, wire fraud, and interstate transportation of fraudulently obtained money.  Farber was found guilty by a jury of four counts; a mistrial was declared as to the remaining counts.  Farber appeals his convictions, asserting that the district court denied improperly his motion for acquittal, that the jury's verdict was not supported by substantial evidence, and that the district court made erroneous and prejudicial evidentiary rulings.  After considering each contention, we affirm.

2
In reviewing a motion for a judgment of acquital, the evidence and all reasonable inferences drawn from it must be viewed in the light most favorable to the government.  E.g., United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.), cert. denied, 414 U.S. 866 (1973).  If the evidence is such that a reasonable mind might fairly find guilt beyond a reasonable doubt, the denial of a motion for a judgment of acquittal must be sustained.  Id.  A jury verdict must be upheld if, taking the view most favorable to the government, substantial evidence supports it.  Glasser v. United States, 315 U.S. 60, 80 (1942).  Viewing the evidence in accordance with these standards, we conclude that the district court's denial of the motion for acquittal and the jury's verdict must be upheld.

3
Farber's convictions for transporting in interstate commerce money in excess of $5,000 by means of false and fraudulent pretenses in violation of 18 U.S.C. Sec. 2314 and committing wire fraud in contravention of 18 U.S.C. Sec. 1343 arose from the following events.  Farber and his nephew, Howard Farber, were both employed at the First National Monetary Investment Company where Farber was an account executive.  In the course of his employment, Farber sold precious metals contracts to customers.  He persuaded Harry Ryba to become a client of First Monetary; Ryba made a $373,000 purchase.

4
Subsequently, discussions arose between Farber and Ryba concerning the possibility that Ryba would finance Farber and his nephew, Howard, in setting up a new business.  Both Ryba and Farber testified that four or five discussions took place.  However, while Farber testified that Ryba agreed to invest money in a new business, Ryba testified that he never made a commitment to invest.  Farber asserted at trial that he transferred and wired $50,000 from Ryba's account at First Monetary into his own with Ryba's permission.  On the other hand, Ryba testified that, unknown to him at the time, his account with First National had an excess of funds and, moreover, that he did not give Farber permission to use this money to establish a new business.  Ryba's testimony was corroborated by Howard Farber, who testified that Ryba 'didn't have much interest' in financing the proposed business.

5
Farber asserts that his convictions for violations of 18 U.S.C. Secs. 1343 and 2314 were improper because the government failed to establish intent.  Intent to defraud is an element of both 18 U.S.C. Sec. 1343, United States v. Griffin, 699 F.2d 1102, 1105-06 (11th Cir. 1983), and 18 U.S.C. Sec. 2314, United States v. Walls, 577 F.2d 690, 696 n.7 (9th Cir.), cert. denied, 439 U.S. 893 (1978).  We note, however, that a jury may infer intent from circumstantial evidence.  In this case, sufficient evidence was presented from which a jury could infer intent.  In essence, Farber asks this court to make a determination that his testimony was more credible than that of Ryba.  This we decline to do.  See Glasser v. United States, 315 U.S. 60, 80 (1942).  Accordingly, we affirm the convictions based upon violations of 18 U.S.C. Secs. 1343 and 2314.

6
After Farber established his new business, Global Precious Metals Company, he obtained Yolanda Tecson as a client.  Farber told Tecson she could purchase precious metals by putting 25% down and paying the balance within ninety days.  Tecson sent Farber $3,250 as a down payment for certain metals and paid the balance, over $9,000, within ninety days.  Although Farber informed Tecson she would receive her order in a matter of weeks, she never received the metals ordered.  Moreover, Farber had initially told her that he had the metals in stock; he later indicated that he was attempting to fill her order.  Howard Farber testified that his uncle misrepresented the nature of the business to customers.  For example, although Farber told customers he could 'lock in' the price of metals, he never took the requisite steps to do so.1  Moreover, according to Howard, Global never purchased the metals for clients who put down 25%.  In fact, customers' money was placed in Farber's general operating account and was not maintained in a separate account.

7
Farber was convicted of causing Tecson to mail in interstate commerce the check in excess of $9,000 (Tecson resided in Ohio; Global was located in Michigan) in violation of 18 U.S.C. Sec. 2314 and with knowingly mailing to Tecson a letter containing a purchase order receipt showing the purchase of $4,500 in gold in violation of 18 U.S.C. Sec. 1341.  The plain language of both statutes requires Farber to have intended to defraud Tecson.  See United States v. Rabinowitz, 327 F.2d 62, 76-77 (6th Cir. 1964).  Farber asserts that no intent was shown and that he always intended to perform in good faith.  However, considering the testimony of both Tecson and Howard Farber, we conclude that, when viewed in the light most favorable to the government, the convictions must be sustained.

8
Finally, Farber asserts that the district court made improper evidentiary rulings.  Farber contends that the district court failed to allow him to impeach Ryba for interest and bias through the testimony of Farber's brother-in-law, Mayer Gordon, and Michael King, an officer at First Monetary.

9
At trial, Farber attempted to impeach Ryba through Mayer Gordon.  Defense counsel sought to question Gordon concerning a conversation which Gordon had with Ryba.  Allegedly, statements made by Ryba to Gordon would have shown that he initially authorized the transfer of money to Farber, but later withdrew the authorization due to threats of a lawsuit by First Monetary.  Extrinsic evidence is admissible to establish a prior inconsistent statement of a witness if the impeached party is given an opportunity to explain or deny the statement.  Fed. R. Evid. 613(b).  Although the party being impeached does not have to be given a prior opportunity to explain or deny the statement, e.g., United States v. Praetorius, 622 F.2d 1054, 1065 (2d Cir.), cert. denied sub nom., Label v. United States, 449 U.S. 860 (1980); United States v. Barrett, 539 F.2d 244, 254-56 (1st Cir. 1976); Fed.  R. Evid. 613(b) advisory committee note, some opportunity to explain or deny the statement is still required, Fed.  R. Evid. 613(b).  In this case, Ryba was never questioned concerning any statement he made to Gordon.  Consequently, the introduction of a prior inconsistent statement made by Ryba to Gordon would have been improper.  Accordingly, the district court refused properly to allow Gordon's testimony.2

10
Similarly, Farber contends that the district court limited improperly his questioning of Michael King.  Defendant's counsel sought to show that First Monetary Company had threatened Ryba with a lawsuit for giving Farber the $50,000.  Specifically, King was questioned as to whether First Monetary or anyone in an executive capacity at First Monetary was upset that Farber started his own business.  Farber argues that these questions were relevant to establish Ryba's possible bias and interest in that they show that it was likely that Ryba was threatened with a lawsuit due to his financing of Global.  Both of these questions, however, are plainly irrelevant.  Fed. R. Evid. 401.  Whether First Monetary was 'angry' at Ryba or whether any person in the executive capacity was 'upset' with Ryba has no bearing on whether Ryba ever was in fact threatened with a lawsuit.3  Accordingly, the trial court excluded properly these questions.

11
In conclusion, we hold that the trial court denied correctly defendant's motion for acquittal.  Further, in our view, substantial competent evidence supports the jury's verdict.  Finally, we find no error with the district court's evidentiary rulings.  Accordingly, the convictions are affirmed.

1
 According to Howard Farber, for the deferred payment program to work properly, either the precious metals ordered had to be in stock at the time the initial down payment was made or 100% of the total payment price had to be in a segregated account.  Further, Howard Farber testified that this deferred payment plan could only be profitable if the market decreased; if, however, the market increased, money from new clients would be essential to cover the difference between the 'locked in' price and the higher market price ninety days later

2
 Defendant also asserted that Gordon's testimony was part of the 'res gestae.'  This contention is clearly without merit

3
 On cross examination, Ryba was asked whether King had ever threatened him with a lawsuit for aiding Farber in establishing Global Precious Metals; Ryba responded negatively.  Consequently, this testimony could have been impeached properly if defendant's counsel asked King directly if he had ever threatened Ryba with a lawsuit.  Such questioning, however, was not attempted in this case


190 N.W.2d 405 (1971)
STATE of Iowa, Appellee,
v.
Kurtis E. TRUE, Appellant.
No. 54318.
Supreme Court of Iowa.
September 27, 1971.
*406 Walter C. Schroeder, Mason City, for appellant.
Richard C. Turner, Atty. Gen., James W. Hughes, Asst. Atty. Gen., and Clayton L. Wornson, County Atty., Mason City, for appellee.
REES, Justice.
Defendant was charged with arson in violation of section 707.2 Code, 1966, by county attorney's information, was tried, convicted, sentenced, and now appeals. The appeal is taken from the rulings adverse to the defendant upon his motions for directed verdict. We affirm.
During the early morning hours of March 19, 1970, the defendant, riding in an automobile then owned and operated by one Roger Herman and accompanied by David William Coburn and Terry Klein, went to the Nicholas Turkey Farm in Cerro Gordo County for the purpose of stealing gasoline for Herman's car. They found the nozzle on the gasoline pump had been secured by a chain and padlock, and while attempting to beat the padlock or chain off the nozzle with a tire iron, ruptured a service pipe on the gasoline pump permitting gasoline to escape in some considerable quantity and to run over the ground below the pump. As they started to leave it appears in the record from the testimony of one of the other parties, Coburn, that defendant True then said, "You don't have a hair if you don't go back and throw a match on it." Whereupon Coburn stepped from the automobile, went back, lighted a match, and threw it in the pool of gasoline, as a consequence of which some of the buildings on the farm were destroyed. Klein testified as a witness on behalf of the State that he heard defendant True make the above recited statement to Coburn. Herman, the owner and driver of the car, testifying as a witness for the defendant, stated that he had not heard the statement made by True or anyone else; in fact, he did not hear defendant True say anything to anyone. True did not participate in actually setting the fire, and is prosecuted as an aider and abettor of Coburn.
At the close of the State's testimony, defendant moved for a directed verdict on the grounds that there was no evidence sufficient for the jury to find the defendant willfully and maliciously set the fire, or aided, counseled or procured the burning of the buildings, and on the further ground that the comment or statement attributed to defendant True did not constitute an aiding, counseling or procuring of the burning of the buildings. The motion to direct was renewed at the conclusion of all of the evidence, at which time defendant asserted the further and additional ground that there was no evidence in the record to connect the defendant with the burning other than the uncorroborated testimony of persons who would be accomplices, contending the record established only the mere physical presence of the defendant at the scene of the alleged arson.
The defendant asserts error of the trial court in the rulings on the motions for directed verdict made first at the close of the State's testimony and renewed at the close of all of the testimony.
I. Evidence was introduced on the part of the defendant that the gasoline leaking from the ruptured service line on the pump flowed in a westerly, or southwesterly, direction and away from the buildings burned. This evidence was intended to negate a specific intent to burn a building as is required by section 707.2, the Code.
Intent is seldom capable of direct proof, but can be inferred from the facts and circumstances surrounding the act. State v. Brown (Iowa, 1969), 172 N.W.2d 152, 155; State v. Kittelson (Iowa, 1969), 164 N.W.2d 157, 163; State v. Myers (Iowa, 1968), 158 N.W.2d 717, 721; State v. Van, 232 Iowa 34, 37, 2 N.W.2d 748, 749.
The intentional igniting of the gasoline was an unlawful act in itself. Section *407 707.3, the Code. All persons are presumed to intend the natural consequences of their acts. State v. Sauerbry, 233 Iowa 1076, 1081-1082, 10 N.W.2d 544, 547; State v. Van, supra, 2 N.W.2d at 749. See also 22 C.J.S. Criminal Law § 35, pp. 121-123. As the result of the firing of the gasoline, several buildings were burned, and the defendant is charged for the burning of the same under the provisions of section 707.2 of the Code.
In the matter before us, the act which precipitated the burning of the buildings was unlawful and intentional. The proximity of the gasoline pumps and the highly volatile nature of gasoline would necessarily cause a reasonable person in like circumstances to recognize the burning of the buildings was a probable result of his action in setting fire to the gasoline.
"It is a general rule, applicable to all criminal cases, including those where a specific intent is an element of the crime, that accused, if sane, is presumed to intend the necessary or the natural and probable consequences of his unlawful voluntary acts, knowingly performed. Accordingly, the law assumes a person to intend all the consequences which one standing in like circumstances and possessing like knowledge should reasonably expect to result from any act which is knowingly done." 22 C.J.S. Criminal Law § 35, pp. 121-123, supra.
We take the view the intent to set fire to the gasoline may be transferred to the burning of the buildings. There is no doubt from the record the burning of the gasoline was willful and malicious and this intent will be transferred to the unintended but natural and probable consequences, i. e., the burning of the buildings. State v. Ruhl, 8 Iowa 447; People v. Hiltel, 131 Cal. 577, 63 P. 919; 6 C.J.S. Arson § 3, p. 721; 21 Am.Jur.2d, Criminal Law, § 84, p. 165.
II. Defendant contends there was no corroboration of the testimony of the admitted accomplice Coburn by anyone other than persons standing in like relationship to the defendant, and that the testimony of accomplices standing alone and uncorroborated cannot justify conviction.
We recognize testimony of an accomplice is not sufficient without other evidence tending to connect the defendant with the commission of the offense charged. Section 782.5, the Code.
The inculpatory testimony of the witness Coburn was corroborated by the witness Klein. There is no evidence in the record to connect the witness Klein to the crime of arson or to implicate him therein. Complicity in the act of burning is not established on the part of Klein, and his mere physical presence at the scene of the crime does not make him an accomplice. State v. Kittelson, supra, 164 N.W.2d at p. 162; State v. Daves, 259 Iowa 584, 585-586, 144 N.W.2d 879, 880. See also 30 Am.Jur.2d, Evidence, § 1149, pp. 325-326; 23 C.J.S. Criminal Law § 786(2), pp. 4-5.
The burden of showing that Klein was an accomplice and in some way participated in the crime was on the defendant and it must be shown by a preponderance of the evidence. State v. Trogden, 258 Iowa 574, 578, 139 N.W.2d 393, 395, and cases therein cited; State v. Tippett, 244 Iowa 1350, 1354, 60 N.W.2d 538, 539.
It is a question of law for the court to determine whether there is corroborating testimony in the record, but its sufficiency is for the jury. State v. Schlater (Iowa, 1969), 170 N.W.2d 601, 603, and cases there cited. Further, the corroborating evidence need not be strong so long as it legitimately connects the accused with the crime. State v. Schlater, supra, 170 N.W.2d at pp. 603-604; State v. Neely, 261 Iowa 1107, 1114, 156 N.W.2d 840, 844.
It is asserted all four men were at the scene for the purpose of stealing gasoline, and thus are all accomplices of one another. The jury apparently found there was no participation by anyone except Coburn and defendant True in the crime of arson.
*408 We therefore hold there was sufficient independent corroborating evidence tending to connect the defendant with the crime of arson, and directly hold the witness Klein was not an accomplice to the crime.
III. "Any person who willfully and maliciously * * * aids, counsels or procures the burning of any barn, stable or other building, the property of himself or another * * *" is guilty of arson and shall be punished accordingly. Section 707.2, the Code.
Defendant insists the words "You don't have a hair if you don't throw a match on it" constitute a dare or challenge, and do not come within the meaning of "counsel" as embraced in § 707.2, above. "Counsel" relates to advice given by one to another in relation to a proposed line of conduct. Black's Law Dictionary, Revised 4th Ed. p. 418; Words and Phrases, Vol. 10, Permanent Ed., p. 3. We do not feel the words uttered by defendant True could be characterized as "advice". The prohibition against a procuring of one to commit the crime of arson, which is proscribed by the statute, however, presents a different matter. Black's Law Dictionary at p. 1373, defines "procure" as "to initiate a proceeding; to cause a thing to be done; to instigate; to contrive, bring about, effect or cause (see citations). To persuade, induce, prevail upon, or cause (see citations)." See also Words and Phrases, Vol. 34, Perm. Ed. pp. 278 and 282. We conclude the comment of defendant True to his co-actor Coburn comes well within the meaning of the word "procure", and thus renders the defendant criminally liable under § 707.2, the Code.
Defendant cites United States v. Nearing, 252 F. 223 (S.D.,N.Y.) and insists it holds that an utterer of words is not criminally liable merely because he knows they will reach some persons who will find them a basis for criminal acts. At pp. 227-228, however, Nearing goes on to say the meaning of the words used is determined objectively and does not depend upon the intent of the speaker. It is our conclusion the record establishes the words used procured Coburn to fire the gasoline, and as a result of their utterance the crime was committed, and the complicity of the defendant therein is established.
We find no reversible error in the record and affirm.
Affirmed.
All Justices concur, except MASON, J., who takes no part.


PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Whiting, Senior Justice

JAMES E. HARDY, ET AL.
                                             OPINION BY
v.   RECORD NO. 980407            SENIOR JUSTICE HENRY H. WHITING
                                          January 8, 1999
BOARD OF ZONING APPEALS
OF POWHATAN COUNTY

              FROM THE CIRCUIT COURT OF POWHATAN COUNTY
                       Thomas V. Warren, Judge

      Here, we decide whether a board of zoning appeals decision

that construed a term in a zoning ordinance became moot upon a

general amendment of the ordinance eliminating the construed

term. 1

      Robert A. Shortridge, Sr. owns a 56.7 acre parcel in

Powhatan County located on Judes Ferry Road (the Judes Ferry

Property).   The Judes Ferry Property lies in a portion of the

county zoned as an Agricultural District (A-1).   In 1990, the

Powhatan County Board of Supervisors granted Shortridge a one-

year Conditional Use Permit to operate a portable sawmill on the

property.    The permit was renewed for a five-year period in 1991.

      Just after his permit expired in June 1996, Shortridge

requested that the zoning administrator construe the term

"lumbering" as used in the zoning ordinance to include his

1
  Even though a part of the amendment was shown to the court at
oral argument, it was not introduced or marked as an exhibit as
required by Rule 5:10, and therefore, it is not a part of the
record. See Old Dominion Iron and Steel Corp. v. Virginia
Electric and Power Co., 215 Va. 658, 660, 212 S.E.2d 715, 717-18
(1975) (applying the predecessor to Rule 5:10). Nevertheless, as
sawmill activities.   Such a construction would have rendered

Shortridge's use a permitted use in the A-1 district, obviating

the need for a conditional use permit. 2    The administrator denied

the request because she concluded that Shortridge's activities,

cutting and sawing logs from sites other than the Judes Ferry

Property, were not lumbering since lumbering was "the business of

cutting or getting timber or logs from the forest for lumber."

     Shortridge appealed the denial to the Board of Zoning

Appeals (the BZA).    In October, 1996, the BZA reversed the

decision of the zoning administrator.      It "rule[d] that what Mr.

Shortridge is doing on his property is within the meaning of the

term lumbering as it is used in the Powhatan County Zoning

Ordinance today."    On November 8, 1996, James E. Hardy and

Adrienne Hardy, owners of property adjoining the Judes Ferry

Property, petitioned the Circuit Court for a Writ of Certiorari

to review the BZA's decision.

     Ten days later, the Board of Supervisors amended the zoning

ordinance.   Lumbering was deleted as a permitted use.    Article

5.2(5) created a new permitted use in the A-1 district which it

described as "[t]imber harvesting which may include sawmill(s)

used only for cutting timber harvested on site."     In addition,

Article 5.3 listed "sawmill[s]" as a conditional use in the A-1

district.

authorized by Code § 8.01-386, we take judicial notice of the
contents of both zoning ordinances.

                                  2
       Upon the BZA's return of its records in response to the writ

of certiorari, Shortridge filed a petition to intervene in the

case and the BZA filed a response to the Hardys' petition.       A

short time later, the BZA filed a "Motion to Dismiss for

Mootness."    Noting the above amendments to the uses permitted in

the A-1 zone, the BZA's motion asserted that there was nothing

further for the court to adjudicate, that the case should be

dismissed as moot because the term "lumbering" had been

eliminated from the ordinance, and that "Shortridge's activities

now must contend with some form of non-conforming use status."

The Hardys opposed the motion on the ground that Shortridge's

continued operations as a nonconforming use depended upon the

correctness of the BZA's construction of the former ordinance, an

issue still to be determined in this case.

       Before considering either Shortridge's motion to intervene

in the case or the Hardys' motion to take additional evidence in

support of their claim, the court heard argument on and sustained

the BZA's motion to dismiss.    The Hardys appeal the consequent

dismissal of their case as moot.

       As the Hardys note, the correctness of the BZA's

construction of the former ordinance will determine the Hardys'

right to complain of Shortridge's continued operations on the

Judes Ferry Property.    If the BZA was in error, Shortridge's

activities would not have been a lawful use of the property under

2
    Two years earlier, Shortridge made the same request to the

                                   3
the former ordinance and thus could not have created a right to

continue those activities as a nonconforming use under the new

ordinance.   "A nonconforming use may not be established through a

use of land which was commenced or maintained in violation of a

zoning ordinance." 1 Robert Anderson, Anderson's Law of Zoning

§ 6.14, pp. 517-18 (Kenneth H. Young revisor, 4th ed. 1996)     We

have referred to a nonconforming use as "a lawful use existing on

the effective date of the zoning restriction and continuing since

that time in non-conformance to the ordinance."   Knowlton v.

Browning-Ferris Indus. of Va., Inc.,   220 Va. 571, 572 n. 1, 260

S.E.2d 232, 234 n. 1 (1979); C. & C. Inc. v. Semple, 207 Va. 438,

439 n. 1, 150 S.E.2d 536, 537 n. 1 (1966) (both quoting 2 Yokley,

Zoning Law and Practice § 16-2, at 212 (3rd ed. 1965) (emphasis

added).

     On the other hand, the BZA now recognizes that if it was

correct in its interpretation of "lumbering" under the old

ordinance, "the Hardys are stuck with Shortridge as a non-

conforming use."   Article 32.4 of the amended ordinance preserves

any right Shortridge had at the time of amendment to continue his

operation as a nonconforming use. 3

     Further, the BZA suggests: (1) that "[t]here is not much

likelihood that the trial court will overturn the BZA, given the

administrator. It is not material in this appeal.
3
  Article 32.4 provides, in pertinent part: "If lawful use
involving. . . [a] structure and premises in combination with a
replacement cost of $1,000 or more, exists at the effective date

                                 4
governing standard of review"; (2) that if the trial court

determines that the BZA was wrong in its interpretation,

Shortridge might ask the Board of Supervisors for a conditional

use permit and his "chances of prevailing there appear

excellent"; and (3) that even if the courts ultimately hold that

Shortridge cannot conduct his activities under the amended

zoning ordinance, the issue "will ultimately be resolved by a

board of supervisors adoption of ordinance revisions."

     Even if the BZA's predictions have any validity, these

predictions do not determine whether this case is moot. 4   That

determination depends upon whether the circuit court was asked to

decide "actual controversies injuriously affecting the rights of

some party to the litigation."   Hallmark Personnel Agency, Inc.

v. Jones, 207 Va. 968, 971, 154 S.E.2d 5, 7 (1967).   Here, as

noted, both the Hardys' success in causing the termination of

Shortridge's activities or Shortridge's right to continue those

activities, depend upon the correctness of the BZA's ruling.       For

these reasons, we conclude that the court erred in dismissing the

matter as moot before taking the further action required under

Code § 15.1-497 (now Code § 15.2-2314).

of adoption or amendment of the Ordinance, the lawful use may be
continued so long as it remains otherwise lawful."
4
  In the BZA's only supporting citation for the consideration of
its predictions, the mootness issue involved prospective uses of
land. Johansen v. City of Bartlesville, Okl., 862 F.2d 1423,
1425-27 (10th Cir. 1988). Note that these were not existing,
continuing, and, arguably, nonconforming uses, as in this case.

                                 5
     Accordingly, we will reverse the judgment of the court and

remand the case for further proceedings consistent with this

opinion.

                                           Reversed and remanded.

                                6


195 Va. 85 (1953)
RUSSELL L. EVANS
v.
C. F. JOYNER, JR., COMMISSIONER OF DIVISION OF MOTOR VEHICLES OF THE COMMONWEALTH OF VIRGINIA, ET AL.
Record No. 4067.
Supreme Court of Virginia.
September 10, 1953.
L. Grafton Tucker,    for the plaintiff in error.
Paul Whitehead, D. Gardiner Tyler, Jr., Assistant Attorney General    and D. H. Kizer, Jr.,    for the defendant in error.
Present, All the Justices.
On March 1, July 28 and August 26, 1950, W. S. Essex made successive assignments of funds deposited by him with the Commissioner of the Division of Motor Vehicles pursuant to Code 1950, section 46-436, which funds were later due to be refunded to him or his legal representative.  Notice of the first assignment was not given until October 2, whereas notice of the later assignments was given on July 31 and August 28 respectively.  Under these facts the assignee prior in time was held prior in point of right.
Error to a judgment of the Circuit Court of the city of Richmond.  Hon. Harold F. Snead, judge presiding. The opinion states the case.
HUDGINS
HUDGINS, C.J., delivered the opinion of the court.
This is a controversy between successive assignees of the sum of $875 deposited by Withers Scofield Essex with the Commissioner of the Division of Motor Vehicles under the *86 provisions of Code, sec. 46-436, as security for the payment of any claim filed, or judgment obtained, against Essex growing out of an automobile accident in which he was involved on November 5, 1949.  No claim was filed with the Commissioner, nor was any action instituted against Essex for damages, within a year from the date of the accident and, therefore, it became the duty of the Treasurer of Virginia, with whom the Commissioner had deposited the fund as required by Section 46-441 of the Code to refund the money to Essex, or his legal representative.  Code, secs. 46-477, 46-478.
On March 1, 1950, Essex assigned to the State Industrial Loan Corporation the $875 deposited with the Commissioner and held by the Treasurer, notice of which assignment was given to the Commissioner on October 2, 1950; on July 28, 1950, he assigned the same sum to Russell L. Evans, notice of which assignment was given to the Commissioner on July 31, 1950; on August 26, 1950, he assigned the same sum to Paul Whitehead, notice of which assignment was given to the Commissioner on August 28, 1950.
On consideration of the claims of the three assignees of Essex the trial court held that the State Industrial Loan Corporation, the holder of the first assignment, was entitled to priority and entered judgment for it.  This judgment is now final as to Paul Whitehead, the holder of the third assignment, since he did not join in this appeal which was awarded to Russell L. Evans.
No evidence was introduced tending to prove that the equity of one assignee was intrinsically superior to that of the other.  Therefore, the only question presented is which of the assignees of the identical chose in action is entitled to priority -- the one whose assignment is prior in time or the later assignee who first gave notice to the Commissioner of the assignment to him.
There are two conflicting views on the question.  One view is usually referred to as the English rule and the other as the American rule.  *87
The English rule is that mere priority of notice of the assignment to the obligor gives priority of right to a subsequent assignee over an earlier assignee of the same chose in action, -- that is, the assignee who first notifies the obligor of his assignment is entitled to priority.     Dearle Hall    and    Loveridge     Cooper,    3 Russ.Ch. 1, 38 Eng. Reprint 475, 10 Eng.Rul.Cas. 478, 27 Revised Rep. 1, are cited in support of this rule.  This holding was restated and approved in    Foster     Cockerell,    in the House of Lords, 3 Clark & F. 456, 6 Eng. Reprint 1508, and now seems to have become the settled law of England.
The reason advanced in support of the rule is that it is the duty of the assignee of a chose in action to do everything reasonably possible, of which the subject-matter admits, toward obtaining possession; and in the case of a debt, notice to the debtor, for many purposes, is tantamount to possession.  An assignee who fails to give such notice is guilty of the same degree and species of neglect as he who leaves a personal chattel to which he has acquired title in the actual possession and control of another.  This neglect to give such notice affords the assignor an opportunity to perpetrate a fraud by a subsequent assignment of the same chose in action.     Graham Paper Co.     Pembroke, 124 Cal. 117, 56 P. 627, 71 Am.St.Rep. 26, 44 L.R.A. 632;    Phillips' Estate,
205 Pa. 515, 521, 66 L.R.A. 760, 97 Am.St.Rep. 746, 55 Atl. 213; 4 Am. Jur., Assignments, sec. 107, pp. 313-14.
The American rule applies the maxim    qui prior est tempore, prior est jure,    -- he who is first in point of time is first in right, and hence mere priority of notice to the obligor of the assignment of the chose in action does not give priority of right to a later assignee over an earlier assignee of the same chose in action.
An extensive review of the two rules is found in    Salem Trust Co. Manufacturers' Finance Co.,    264 U.S. 182, 68 L.ed. 628, 31 A.L.R. 867. There, Mr. Justice Butler, after considering a number of English and American cases that had applied the English rule, rejected it and held that *88 the better reason favor the American rule.  At page 197 of 264 U.S., he said:  "By the first assignment, the rights of the assignor pass to the assignee.  The creditor has a right to dispose of his own property as he chooses, and to require the debt to be paid as he directs, without the assent of the debtor.  * * * Failure of the first assignee to give notice does not devest him of any title or right, or vest any claim in a subsequent purchaser.  It cannot injuriously affect an intending purchaser who makes no inquiry of the debtor concerning the assignor's title.  The debtor is not bound to answer inquiries concerning the assignor's title, and there can be no assurance that an intending purchaser can ascertain the encumbrance by inquiry of the debtor having notice of the earlier assignment.  * * * It is impossible to eliminate all risk from such a transaction.  If the second assignee elects to rely on the representations of the vendor as to his title, and is deceived, he cannot shift his loss to the first assignee, unless some act or omission of the latter was proximate to the deception."
Notice to the obligor neither adds to nor subtracts from the title or equities transferred.  It simply informs the obligor who his real creditor is. If the obligor has received no notice and does not know that his debt has been assigned, he may, with impunity, pay his original creditor and extinguish the obligation, which payment will be a complete defense against the claim of an assignee who has failed to notify the obligor of the fact that the original creditor by reason of the assignment was no longer entitled to collect.
The English rule is criticized and the American rule approved in 2 Glenn on Fraudulent Conveyances and Preferences, Rev. Ed., Pledge and Ownership of Intangibles, sec. 527, p. 911, and A.L.I. Restatement, Contracts, sec. 173, p. 221.
We think the reasons upon which the American rule is based are sound and are to be preferred over those upon which the English rule is based.  However, appellant contends that the English rule has been adopted by this court *89 and that we are bound by the doctrine of    stare decisis    to apply it in this case.     Coffman     Liggett,    107 Va. 418, 59 S.E. 392, is cited in support of this contention.  Appellant also directs attention to the fact that the Coffman Case    has been so construed in Glenn on Fraudulent Conveyances, supra;    6 C.J.S., Assignments, sec. 91, p. 1145; Annotations 31 A.L.R. 877, note 40.  We do not so interpret the decision in the    Coffman Case.     There is    dictum    in the opinion tending to support the English rule.  However, a careful reading of the opinion discloses that the decision did not turn on the question of mere notice of the subsequent assignment to the obligor.  The facts were that Maggie G. Coffman placed with Winfield Liggett certain sums to be invested by him for her.  At first he made investments of the money as contemplated.  Later he collected the funds and, without her knowledge or consent, appropriated them to his own use, thereby becoming her debtor, which relation he continued to occupy until his death.  On February 26, 1895, he executed under his hand and seal a written assignment of a life insurance policy as security for the payment to Mrs. Coffman of whatever sum he might owe her at his death.  This assignment was not delivered to Mrs. Coffman, but was placed in his safe with his private papers where it was found after his death.  On September 12, 1904, for value received, Liggett executed an assignment in duplicate to one Lurty of the same policy.  The assignment was acknowledged before a notary and sent to the company where a copy was retained and a copy attached to the policy.  The policy, with the assignment attached, was delivered to Lurty, who was recognized and accepted by the company as the rightful owner of the policy.  Lurty thus acquired the complete legal and equitable title to the policy itself, the subject of the assignment.  The court applied the well known rule that equities being equal, the law will prevail.
The trend of opinions in other Virginia cases is more favorable to the American than to the English rule.  *90
Where notes or other choses in action secured by a lien on land are assigned, the order of payment of the proceeds of sale of the land is determined by the order of time of the assignment and not by the order in which the notes fall due, unless otherwise expressly provided.     Schofield     Cox,    8 Gratt. 533;    Paxton     Rich,    85 Va. 378, 7 S.E. 531;    Waynesboro Nat. Bank     Smith,    151 Va. 481, 145 S.E. 302;    Williams     Gifford,    139 Va. 779, 124 S.E. 403.
The general rule applied in Virginia and West Virginia is that where creditors and the purchasers of an assignment have no superior equities among themselves and are not entitled to a preference over each other on that ground, he who is first in time is first in priority.     Schofield     Cox,    8 Gratt. 533;    Bank     Gettinger,    3 W.Va. 309;    Tingle     Fisher,    20 W.Va. 497;    Thomas     Linn,    40 W.Va. 122, 20 S.E. 878;    Hartman     Corpening,
116 W.Va. 31, 178 S.E. 430; 11 Va. Law Reg. p. 62.
It was held in    Sandidge's Ex'r     Graves' Ex'r,    1 Pat. & H., 101, that an assignment of a legacy takes effect from its date and the assignee is entitled to priority over attaching creditors of the assignor whose attachment was levied upon the legacy subsequent to the date of the assignment.  An attaching creditor, in the absence of the recording statutes, stands in the shoes of his debtor and can claim no higher or greater right.
It was held in    Garland     Richeson,    4 Ran. 266, that the purchaser of a chose in action acquires only an equitable title, or interest, which he may assert at law in his own name or in that of the original obligee for his benefit, and that the maxim    qui prior est tempore, potior est jure    was applicable.
It is stated in Williston on Contracts, Assignments, sec. 435, p. 1258: "Clearly, if before he (subsequent assignee) collects he has notice of the prior assignment, the prior assignee prevails, but under either of the prevalent rules, a subsequent assignee for value who collects the claim, if he has no notice, is not ordinarily deprived of what he has collected.  If an assignment is held to create merely an *91 equitable right, the same consequence will follow -- the prior assignment, being the prior equity, will prevail; and such is the rule in many of the United States without regard to notice given to the debtor; and this rule seems now definitely adopted by the Supreme Court of the United States."
The assignment of an entire fund    ex proprio vigore    transfers all rights of the assignor to the assignee.  A later assignee, therefore, in the absence of facts and circumstances which may create an equitable estoppel against the first assignee, takes nothing by his assignment, for the simple reason that the assignor has nothing he can rightfully give to the second assignee.     Wilson     Duncan    (Ala.), 61 F.(2d) 515;    Ottumwa Boiler Works Son,    206 Iowa 577, 218 N.W. 920; 2 Williston on Contracts, sec. 435, p. 1258;    Turk     Skiles,    45 W.Va. 82, 30 S.E. 234;    Tingle     Fisher, 20 W.Va. 497;    Fidelity Mutual Life Ins. Co.     City Nat. Bank of Fairmont,
95 F.Supp. 276; 2 Michie Jur., Assignments, sec. 25, p. 159.
In 6 C.J.S., Assignments, sec. 91, p. 1145, it is said that the English rule has been rejected in many states where it has been held that notice to the obligor is not necessary to the passage of title; that assignments take priority in the order in which they were completed or made effective by the mutual assent of the assignor and assignee; so that the assignee prior in point of time is prior in point of right irrespective of which assignee gives notice of his assignment to the debtor.  Numerous cases from different states are cited in the footnote to support the text.
The judgment of the trial court is affirmed.
Affirmed.


159 F.3d 1351
1998-2 Trade Cases  P 72,241
William J. Kerth, M.D., E. Lawrence Hanson, M.D.v.Hamot Health Foundation, Inc., Hamot Medical Center of Cityof Erie, Pennsylvania, George J. D'Angelo, M.D., George F.Kish, M.D., Dennis J. Michalak, M.D., Prabhaker G. Sardesai,M.D., Wilfredo S. Tan, M.D., Medicor Associates, Inc., HamotHealth Systems, Inc., Thoracic and CardiovascularAssociates, P.C., Thoracic and Cardiovascular Associates,In., d/b/a D'Angelo Clinic
NO. 97-3606
United States Court of Appeals,Third Circuit.
July 15, 1998

1
Appeal From:  W.D.Pa. ,No.95cv00212E ,

989 F.Supp. 691

2
Affirmed.


                                    UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT

                                      No. 17-1564

MICHAEL D. MICHAEL, as the Administrator of the Estate of Jack D. Michael;
JUDITH A. KUHN, as the Administratrix for the Estate of Paul F. Henderson et
al.,

                    Plaintiffs - Appellants,

             v.

CONSOLIDATION COAL COMPANY, a Delaware Company,

                    Defendant - Appellee,

             and

ESTATE OF ALEX KOVARBASICH, By and through Albert F. Marano, Sheriff
of Harrison County as administrator for the estates of Alex Kovarbasich,

                    Defendant.

Appeal from the United States District Court for the Northern District of West Virginia,
at Clarksburg. Irene M. Keeley, Senior District Judge. (1:14-cv-00212-IMK-JES)

Argued: May 9, 2018                                          Decided: August 15, 2018

Before GREGORY, Chief Judge, and MOTZ and KEENAN, Circuit Judges.

Questions certified to the Supreme Court of Appeals of West Virginia by unpublished
order. Judge Keenan directed entry of the order with the concurrences of Chief Judge
Gregory and Judge Motz.
ARGUED: Scott Sumner Segal, SEGAL LAW FIRM, Charleston, West Virginia, for
Appellants. William Henry Jernigan, DINSMORE & SHOHL LLP, Charleston, West
Virginia, for Appellee. ON BRIEF: Timothy C. Bailey, BAILEY, JAVINS &
CARTER, LC, Charleston, West Virginia; Mark A. Barney, BARNEY LAW PLLC,
Hurricane, West Virginia; Samuel A. Hrko, BAILEY & GLASSER, LLP, Charleston,
West Virginia; C. Paul Estep, Steven L. Shaffer, ESTEP & SHAFFER, LC, Kingwood,
West Virginia, for Appellants. William E. Robinson, Alex M. Greenberg, Christopher
M. Jones, DINSMORE & SHOHL LLP, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

                                            2
                                         ORDER

BARBARA MILANO KEENAN, Circuit Judge:

       The United States Court of Appeals for the Fourth Circuit, exercising the privilege

afforded by the State of West Virginia through the Uniform Certification of Questions of

Law Act, West Virginia Code §§ 51–1A–1 through 51–1A–13, requests that the Supreme

Court of Appeals of West Virginia exercise its discretion to answer the following

questions:

       (1)    Is a fraudulent concealment claim, as set forth in Kessel v. Leavitt,
              511 S.E.2d 720 (W. Va. 1998), cognizable when the alleged injury
              was the plaintiffs’ loss of a timely claim for wrongful death under
              West Virginia Code §§ 55-7-5, 55-7-6 (1967)?

       (2)    If the answer to Question (1) is yes: Under the West Virginia
              discovery rule, does the statute of limitations for a fraudulent
              concealment claim begin to run against a corporate entity when a
              plaintiff (A) learns that the entity concealed the intentional act of an
              unidentified individual, which resulted in the death of other
              employees at the entity’s workplace; or (B) discovers that the entity
              concealed both the intentional act and the identity of a particular
              employee, who allegedly acted at the direction of the entity,
              resulting in the death of other employees at the workplace?

This Court acknowledges that the Supreme Court of Appeals may restate these questions.

See W. Va. Code §§ 51–1A–4, 51–1A–6(a)(3). In our view, there is no controlling

appellate decision, constitutional provision, or statute of West Virginia that answers these

questions. Accordingly, we conclude that the questions are appropriate for certification.

See id. § 51–1A–3.

                                             3
                                           I.

      The plaintiffs in this class action are the survivors of 78 coal miners killed in an

explosion at the Consol No. 9 coal mine in Farmington, West Virginia on November 20,

1968. The explosion was caused by excessive accumulation of methane gas in the mine.

The plaintiffs alleged that an employee of Mountaineer Coal Company, a wholly owned

subsidiary of defendant Consolidation Coal Company that operated the mine under the

direction of and control of Consolidation Coal, deliberately rendered inoperable a mine

safety system resulting in the miners’ deaths. This safety system would have shut down

electric power in the mine when ventilation was inadequate, and would have alerted

miners to this dangerous condition.

      Federal and state officials investigated the cause of the explosion for over two

decades. In September 1970, Larry Layne, an inspector for the United States Department

of Labor, Mine Safety and Health Administration (MSHA), drafted a memorandum (the

Layne memorandum) stating that an unnamed electrician had reported to him that the

safety system “had been rendered inoperable before the explosion . . . [and] had been

bridged with jumper wires; therefore when the [ventilation] fan would stop or slow down,

there was no way of anyone knowing about it because the alarm signal was bypassed.”

Layne omitted the reporting electrician’s name from the memorandum at the electrician’s

request. The Layne memorandum was not discovered by the plaintiffs until 2008.

      While federal and state authorities continued to investigate the cause of the

explosion, the estates of several of the deceased miners filed three separate lawsuits

against Consolidation Coal. The claims of the estates in the first two lawsuits were

                                           4
dismissed. In the third case, the estates alleged, among other things, that Consolidation

Coal had concealed the cause of the explosion. A settlement ultimately was reached in

that case. At the time of all these lawsuits, the plaintiffs were not aware that anyone had

acted intentionally to disable the mine safety system.

       In March 1990, the MSHA issued a report detailing the results of its investigation.

The report concluded that an accumulation of methane gas in the mine due to “inadequate

ventilation and the lack of sufficient ventilation controls” had contributed to the

explosion. The MSHA also found that the safety system “was not operating properly at

the time the explosion occurred, as mining operations continued .             .   . after the

explosion.”

       As noted above, the plaintiffs became aware of the Layne memorandum in 2008.

And in 2009, the plaintiffs discovered a copy of a fan recording chart that allegedly had

been removed from the mine shortly after the explosion, and had been altered purportedly

in an attempt to conceal Consolidation Coal’s culpability in the explosion.

       On June 9, 2014, the plaintiffs first learned that the individual who had

intentionally disabled the safety system was Alex Kovarbasich, the chief electrician at the

mine and “a member of mine management.” The plaintiffs alleged that Kovarbasich was

“acting under the direction and control of” Consolidation Coal when he tampered with

the safety system.

                                             5
       The plaintiffs filed the present action in the Circuit Court of Marion County, West

Virginia on November 6, 2014, against the Estate of Alex Kovarbasich 1 and

Consolidation Coal. The defendants removed the case to the United States District Court

for the Northern District of West Virginia.

       The plaintiffs alleged a single claim for “fraud, concealment and nondisclosure,”

claiming that Consolidation Coal deliberately concealed the fact that Kovarbasich

disabled the safety system and, thus, concealed the true causes of the explosion. The

plaintiffs contended that this act of fraudulent concealment “deprived [them] of their right

to obtain relief against defendants under West Virginia’s wrongful death statute[,] W. Va.

Code § 55-[7]-6 (1967).”      Accordingly, the plaintiffs sought damages under West

Virginia Code § 55-7-6 (1967), in the amount of $110,000 “per class member for the

wrongful death of each deceased coal miner,” plus punitive damages.

       The district court dismissed the complaint in its entirety under Federal Rule of

Civil Procedure 12(b)(6). With regard to the plaintiffs’ claim for fraudulent concealment,

the district court held that West Virginia never has recognized a fraudulent concealment

claim involving a wrongful death. The court further concluded that even if such a claim

were cognizable, the fraudulent concealment claim was barred by the two-year statute of

limitations of West Virginia Code § 55-2-12, because the plaintiffs learned in 2008, six

years before filing suit, that the mine safety system intentionally had been disabled. The

plaintiffs appealed.

       1
        Kovarbasich died in 1992. The district court dismissed Kovarbasich’s estate
from the case, and that decision is not at issue in this appeal.

                                              6
                                           II.

                                           A.

      Acknowledging the lack of analogous precedent, the plaintiffs assert that they

have alleged all the elements of a fraudulent concealment claim under West Virginia law,

namely, that Consolidation Coal engaged in “the active concealment of information from

[the plaintiffs] with the intent to thwart [the plaintiffs’] efforts to conduct an

investigation, relating to such information.” Kessel v. Leavitt, 511 S.E.2d 720, 753 (W.

Va. 1998). And the plaintiffs emphasize that, under West Virginia law, “a lack of

precedent—standing alone—is an insufficient reason to deny a cause of action.” Id. at

755 (quoting Farley v. Sartin, 466 S.E.2d 522, 533 (1995)).

      In response, Consolidation Coal maintains that West Virginia does not recognize

an independent claim for fraudulent concealment when the damage resulting from the

alleged concealment was the plaintiffs’ loss of a timely wrongful death claim.        In

Consolidation Coal’s view, any claim related to a wrongful death may only be brought

under the wrongful death statute, W. Va. Code §§ 55-7-5, 55-7-6.

      We have not found any West Virginia authority that definitively answers the

question presented.    Thus, we conclude that the question whether a fraudulent

concealment claim is cognizable under West Virginia law when the alleged damage

sustained was the loss of a timely claim for wrongful death warrants certification to the

Supreme Court of Appeals of West Virginia.

                                           B.

                                           7
       The plaintiffs also argue that their claim did not accrue until 2014, when they first

learned that Kovarbasich was the individual who disabled the safety system. In the

plaintiffs’ view, they were required to allege that the person who allegedly caused the

miners’ deaths by disabling the safety system was a member of “mine management,” who

had undertaken the act at the direction of Consolidation Coal. Thus, the plaintiffs argue

that until they knew the identity and employment status of the individual wrongdoer, they

could not allege a sufficient claim that Consolidation Coal acted to “cover up” its own

transgression by concealing evidence of Kovarbasich’s conduct.

       In response, Consolidation Coal argues that even if the plaintiffs’ fraudulent

concealment claim is cognizable under West Virginia law, the claim is barred by the two-

year statute of limitations provided in West Virginia Code § 55-2-12. Consolidation Coal

contends that, at the latest, the plaintiffs’ action accrued when they discovered the Layne

memorandum in 2008, thus rendering untimely the plaintiffs’ fraudulent concealment

claim filed in 2014. According to Consolidation Coal, the plaintiffs could have brought a

fraudulent concealment claim when they knew in 2008 that the safety system in the mine

intentionally had been disabled.

       Claims for fraudulent concealment in West Virginia are subject to a two-year

statute of limitations. See W. Va. Code § 55-2-12. Under West Virginia’s discovery

rule, the limitations period begins to run when a plaintiff “knew, or by the exercise of

reasonable diligence should have known, of the elements of a possible cause of action,”

namely, “(1) that the plaintiff has been injured, (2) the identity of the entity who owed the

plaintiff a duty to act with due care, and who may have engaged in conduct that breached

                                             8
that duty, and (3) that the conduct of that entity has a causal relation to the injury.” Dunn

v. Rockwell, 689 S.E.2d 255, 262, 265 (W. Va. 2009) (quoting Syl. Pt. 4, Gaither v. City

Hosp., Inc., 487 S.E.2d 901 (W. Va. 1997)).

       In the present case, it is not clear for purposes of applying the discovery rule,

whether the plaintiffs “knew, or by the exercise of reasonable diligence should have

known, of the elements of a possible” fraudulent concealment claim (1) when they

learned in 2008 that the safety system intentionally was disabled by an individual in the

Consolidation Coal mine; or (2) when they discovered in 2014 that the individual who

disabled the system was a member of mine management allegedly acting under the

direction of Consolidation Coal. Id. at 265. Under the argument advanced by the

plaintiffs, a claimant would not know whether he had a potential fraudulent concealment

claim against a corporate entity until he also knew, or had reason to know, that the person

who had sabotaged the mine safety system acted at the direction of the corporate entity.

Thus, the plaintiffs maintain that they did not know, and by the exercise of reasonable

diligence would not have known, of this element of their fraudulent concealment action

until they learned that an employee acting at the direction of Consolidation Coal had

caused the miners’ deaths. Rejecting this argument advanced by the plaintiffs, the district

court concluded that the plaintiffs could have asserted any fraudulent concealment claim

against Consolidation Coal in 2008, when the plaintiffs learned from the Layne

memorandum that the safety system intentionally had been “bypassed,” and that

Consolidation Coal had concealed this fact.

                                              9
       We have not found any West Virginia authority that definitively answers this

question concerning application of West Virginia’s discovery rule.              We therefore

conclude that the second question stated above likewise warrants certification to the

Supreme Court of Appeals of West Virginia.

                                             III.

       Under the privilege made available by the West Virginia Uniform Certification of

Questions of Law Act, it is hereby ORDERED: (1) That the questions stated above be,

and the same hereby are, certified to the Supreme Court of Appeals of West Virginia; (2)

that the Clerk of this Court forward to the Supreme Court of Appeals of West Virginia,

under the official seal of this Court, a copy of this order and, to the extent requested by

the Supreme Court of Appeals of West Virginia, the original or a copy of the record in

this Court; and (3) that any request for all or part of the record be fulfilled by the Clerk of

this Court simply upon notification from the Clerk of the Supreme Court of Appeals.

The names and addresses of counsel of record for the parties are:

Counsel for the plaintiffs, Michael D. Michael, et al.

Scott S. Segal
Segal Law Firm
810 Kanawha Boulevard, East
Charleston, WV 25301

Timothy C. Bailey
Bailey, Javins & Carter, LC
P. O. Box 3712
Charleston, WV 25337

                                              10
Mark Andrew Barney
Barney Law PLLC
P. O. Box 505
Hurrican, WV 25526

Connard Paul Estep
Estep & Shaffer, LC
212 West Main Street
Kingwood, WV 26537

Samuel A. Hrko
Bailey & Glasser, LLP
209 Capitol Street
Charleston, WV 25301

Counsel for the defendant, Consolidation Coal Company

William H. Jernigan
Dinsmore & Shohl LLP
P.O. Box 11887
Suite 600
Charleston, WV 25339

Alex Manuel Greenberg
Dinsmore & Shohl LLP
Suite 310
215 Don Knotts Boulevard
Morgantown, WV 26501

Christopher Michael Jones
Dinsmore & Shohl LLP
Suite 310
215 Don Knotts Boulevard
Morgantown, WV 26501

William E. Robinson
P. O. Box 11887
Charleston, WV 25339

      This Order is entered by Circuit Judge Keenan with the concurrences of Chief

Judge Gregory and Judge Motz.

                                        11
     QUESTIONS CERTIFIED

12