286 S.W.3d 499 (2009)
In re WILD OATS MARKETS, INC. and Whole Foods Market, Inc.
No. 09-09-00031-CV.
Court of Appeals of Texas, Beaumont.
Submitted February 3, 2009.
Decided April 2, 2009.
David W. Waddell, Kate L. Birenbaum, Seyfarth Shaw LLP, Houston, Norman B. *500 Berger, Harold B. Holborn, Varga Berger Ledsky Hayes & Casey, Chicago, IL, for relators.
George R. Gibson, Kent Altsuler, Nathan Sommers Jacobs, PC, Houston, for real party in interest.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.

OPINION
PER CURIAM.
Kuykendahl-WP Retail, L.L.P. ("Kuykendahl") sued Wild Oats Markets, Inc., ("Wild Oats") for breach of a lease agreement and sued Whole Foods Market, Inc., ("Whole Foods") for tortious interference with the lease agreement between Kuykendahl and Wild Oats. Kuykendahl also alleges that Wild Oats and Whole Foods engaged in a conspiracy to commit fraud and that Wild Oats defrauded Kuykendahl. The lease contains a contractual waiver of jury trial. The trial court struck Kuykendahl's jury demand as to its claims against Wild Oats but set Kuykendahl's claims against Whole Foods for a jury trial. Because we find the contractual waiver of jury trial does not extend to Kuykendahl's non-contractual claims against Whole Foods, we vacate our stay order and deny relief.
Mandamus relief is appropriate to correct the trial court's failure to enforce a valid contractual jury waiver. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 139 (Tex.2004). Neither the right to a jury trial nor the right to enforce a contractual waiver is discretionary; the issue is what the waiving party agreed to, not what the courts deem to be fair. See In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 192-93 (Tex.2007)[1]. Kuykendahl does not challenge the validity of its waiver of the right to a jury trial, but contends that valid waiver does not extend to its claims against Whole Foods because Whole Foods did not sign the lease that contains the waiver.
The lease contained the following provision:

Waiver of Jury Trial. Landlord and Tenant hereby waive trial by jury in any court action, proceeding or counterclaim, including any claim of injury or damage and any provisional remedy. This waiver will expressly survive the expiration or earlier termination of the Lease.
Kuykendahl argues that Whole Foods cannot enforce the jury waiver because Whole Foods is not a party to the lease. This is not a situation where the jury waiver is imposed on a non-signatory to the agreement. Cf. In re Weekley Homes, L.P., 180 S.W.3d 127, 132-33 (Tex.2005) (contractual arbitration clause imposed on non-signatory plaintiff who derived direct benefits from the contract). Although Whole Foods did not sign the lease, Kuykendahl did. The issue here is whether the waiver language in the lease necessarily includes Kuykendahl's claims against Whole Foods. The provision covers any court action, any claim of injury, and any provisional remedy. While the contract places no express limitation on the parties affected by the provision, it does expressly refer only to the Landlord and the Tenant. *501 Although the damages Kuykendahl seeks in its petition for both its breach-of-contract claim and its tortious interference claim are both identical, a tortious interference claim against an unrelated third party is not a claim encompassed by the waiver-of-jury-trial clause contained in the lease.
Although direct benefits estoppel does not apply here, arguably the doctrine of concerted misconduct equitable estoppel would apply if the doctrine were accepted in Texas. See In re Merrill Lynch Trust Co. FSB, 235 S.W.3d at 191. Whole Foods acquired Wild Oats on or about August 28, 2007.[2] Kuykendahl contends that the jury waiver does not apply because Kuykendahl is suing Whole Foods for its tortious pre-merger conduct. Although Kuykendahl concedes the claims "might partially arise out of some common core of facts" it contends its claims against the two defendants are based on distinct conduct. In particular, Kuykendahl claims Wild Oats made material misrepresentations directly to Kuykendahl during the interim period of the merger, that Wild Oats failed to disclose material information to Kuykendahl during the interim period of the merger, that Wild Oats acted contrary to its contractual obligations and acted as if it were going to open the store on the leased property while Whole Foods directed Wild Oats not to open the store. Of course, Kuykendahl also alleges that the two defendants' conduct was a conspiracy to interfere with and breach the lease, restrain trade and commerce, and defraud Kuykendahl. Thus, according to Kuykendahl's own pleadings the two defendants "worked together toward[s] their joint goal[.]" We note, however, that the Texas Supreme Court declined to adopt concerted-misconduct equitable estoppel. Id. at 195. The relators have not shown that Kuykendahl waived its right to a jury trial on Kuykendahl's tortious interference claims against Whole Foods. Accordingly, we lift our stay order of January 30, 2009, and deny the petition for writ of mandamus.
PETITION DENIED.
NOTES
[1]  In its response, Kuykendahl suggests arbitration cases are treated more favorably than other contractual jury waiver cases. We disagree. Arbitration agreements are enforced the same as other contracts. See In re Bank of Am., N.A., 278 S.W.3d 342, 346 (Tex.2009); In re Merrill Lynch Trust Co. FSB, 235 S.W.3d at 192. The issue in this proceeding is whether the lease between Kuykendahl and Wild Oats unambiguously waived Kuykendahl's right to a jury trial of Kuykendahl's claims against Whole Foods for tortiously interfering with the lease.
[2]  Wild Oats has not been dissolved and Whole Foods is not the successor of Wild Oats. Accordingly, on the record before us, Whole Foods has not shown that Wild Oats' contractual rights under the successors and assigns clause contained in the lease agreement inure to its benefit.


                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 13-2720
                          ___________________________

                              United States of America,

                         lllllllllllllllllllll Plaintiff - Appellee,

                                             v.

                                David Vincent Gierlus,

                       lllllllllllllllllllll Defendant - Appellant.
                                        ____________

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

                             Submitted: January 16, 2014
                                Filed: July 15, 2014
                                   [Unpublished]
                                  ____________

Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
                           ____________

PER CURIAM.

      David Vincent Gierlus, a physician, pleaded guilty to unlawful distribution of
a Schedule III controlled substance. The district court1 sentenced Gierlus to ninety-six

      1
      The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
months’ imprisonment, a fine of $400,000, and a five-year term of supervised release.
Gierlus appeals, arguing that the district court committed procedural error and abused
its discretion in determining the amount of the fine and in imposing the term of
supervised release. We affirm.

                                           I.

       In January 2013, a grand jury charged Gierlus with ninety-five counts of
unlawful distribution of controlled substances, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C), 841(b)(1)(E)(i), and 841(b)(2). The indictment alleged that Gierlus
distributed the controlled substances “not for a legitimate medical purpose and outside
the scope of professional practice.” Gierlus pleaded guilty to one of the unlawful-
distribution charges, pursuant to a written plea agreement. As the factual basis for his
guilty plea, Gierlus admitted that he “had inappropriately engaged in sexual contact”
with a female patient before prescribing her hydrocodone “for other than a legitimate
medical purpose.”

       At sentencing, the parties agreed that the sentencing guidelines called for an
advisory range of seventy-eight to ninety-seven months’ imprisonment, a fine of
$12,500 to $500,000, and a period of supervised release of at least two years. The
parties agreed to recommend to the court a sentence of ninety-six months’
imprisonment, but made no joint recommendation about the amount of the fine or the
length of the term of supervised release.

      At the sentencing hearing, the government sought a fine of $500,000 and a ten-
year period of supervised release. Gierlus countered by urging a fine of $12,500 and
a three-year term of supervised release. After considering the factors laid out in
USSG § 5E1.2(d) and 18 U.S.C. §§ 3553(a) and 3572(a), the district court sentenced
Gierlus to ninety-six months’ imprisonment, a fine of $400,000 and a five-year term
of supervised release.

                                          -2-
                                             II.

       The district court explained its determination of the $400,000 fine as follows:

       Calculating a fine is difficult here. It’s an unusual case to the extent that
       you could pay the maximum. I recognize there are some mitigating
       factors here with respect to the fine.

       But what I ultimately have decided to do is structure the fine in a way
       that makes sense to me, and in doing so I in no way say that this is what
       happened—or what it was worth, what happened, but this is how I’ve
       decided to structure it.

       For each woman you injected and then sexually assaulted, I impose a
       fine of $100,000, for a total of $300,000. For each of the four additional
       women to whom you made sexual advances that they were required to
       accept in order to obtain controlled substances from you, I impose a fine
       of $25,000 each, for an additional fine of $100,000. The total imposed
       is therefore $400,000.

       Gierlus asserts that the district court improperly relied on unproved conduct to
which he did not plead guilty, but a district court is not prohibited from considering
uncharged or even acquitted conduct in calculating a defendant’s sentence. United
States v. Wohlman, 651 F.3d 878, 884 (8th Cir. 2011). Gierlus withdrew all
objections to the facts set forth in the presentence report, S. Tr. 6, and the district court
permissibly accepted those facts as true for purposes of sentencing. Fed. R. Crim. P.
32(i)(3)(A); United States v. Paz, 411 F.3d 906, 909 (8th Cir. 2005). Whatever the
district court might have had in mind when it said that it would “in no way say this is
what happened—or what it was worth,” the pertinent facts in the presentence report
were admitted, and it was not an abuse of discretion for the court to select $100,000
per victim as a measure for an appropriate fine.

                                            -3-
       Gierlus also complains that the district court failed adequately to weigh the
statutory and guideline factors that govern imposition of a fine. See 18 U.S.C.
§ 3572(a); USSG § 5E1.2. The record shows that the court did consider the need for
the combined sentence to reflect the seriousness of the offense, USSG § 5E1.2(d)(1);
S. Tr. 27, 30–32, 46, 53–60, the need to deprive Gierlus of illegally obtained gains,
18 U.S.C. § 3572(a)(5); S. Tr. 18–21, the burden the fine would place on Gierlus’s
dependents, 18 U.S.C. § 3572(a)(2); USSG § 5E1.2(d)(3); S. Tr. 21–28, and other
pertinent equitable considerations. USSG § 5E1.2(d)(8); S. Tr. 57–58. A district
court has wide discretion to weigh the undifferentiated factors in a given case. United
States v. Morais, 670 F.3d 889, 893 (8th Cir. 2012). Given the seriousness of the
criminal conduct, and the fact that more than $2 million in assets remained for
Gierlus’s wife and children after imposition of the fine, we do not think the district
court abused its considerable discretion.

        Gierlus next objects that the district court abused its discretion by imposing a
five-year term of supervised release, rather than the three-year term that he suggested.
The term imposed was within the statutory range, and Gierlus identifies no compelling
reason why the selection of five years was unreasonable. That he had surrendered his
license to practice medicine and had no criminal history does not dictate that only a
shorter term was permissible. On the other side of the balance, the district court also
was permitted to consider the circumstances of the offense and the need for the
sentence imposed to reflect the seriousness of the offense, to promote respect for the
law, to provide just punishment, and to afford adequate deterrence. 18 U.S.C.
§ 3583(c). Insofar as Gierlus asserts procedural error by the district court in failing
to consider adequately the statutory factors under § 3583(c) or to explain particularly
the choice of a five-year term, he forfeited those claims by failing to object at
sentencing. In any event, the district court did discuss the principal statutory factors
on the record, S. Tr. 53–58, and there is no requirement for the court on its own
initiative specifically to justify the number of years selected.

                                          -4-
                       *      *     *

The judgment of the district court is affirmed.
               ______________________________

                             -5-


532 N.W.2d 771 (1995)
CITY OF NEWTON, Iowa, and John Deegan, As Assessor of Jasper County, Iowa, Appellees,
v.
BOARD OF REVIEW FOR JASPER COUNTY, Iowa; Wesley Retirement Services, Inc.; and Park Centre Apartments, Appellants.
No. 94-281.
Supreme Court of Iowa.
May 24, 1995.
*772 John E. Billingsley of Walker, Knopf & Billingsley, Newton, for appellant Bd. of Review.
John R. Mackaman of Dickinson, Mackaman, Tyler & Hagen, P.C., Des Moines, for appellants Wesley Retirement Services, Inc. and Park Centre Apartments.
Ivan T. Webber of Ahlers, Cooney, Dorweiler, Haynie, Smith & Allbee, P.C., Des Moines, for appellees.
Considered by LARSON, P.J., and CARTER, LAVORATO, NEUMAN, and ANDREASEN, JJ.
NEUMAN, Justice.
This is an appeal from a property tax assessment. The question is whether the district court erred when it concurred in the assessor's classification of a residential retirement community as "commercial." Finding no error, we affirm.

I. Scope of Review.

Appeals from tax assessment cases are triable in equity. Iowa Code § 441.39 (1993). Our review, therefore, would ordinarily be de novo. Iowa R.App.P. 4. Here, however, the parties have stipulated to the facts. Thus our review is really limited to the correction of error, if any, in the court's application of pertinent statutes.

II. Background Facts and Proceedings.

As noted, the facts are undisputed. The property in question is a multistory building containing sixty-three living units, occupied by older adults as their primary residence. The real estate is owned by appellant Wesley Retirement Services, Inc. (WRS). WRS is a nonprofit corporation which operates other adult retirement communities in central Iowa. The building is leased by appellant Park Centre Apartments. Park Centre is organized as a cooperative under the Multiple Housing Act, Iowa Code ch. 499A (1989).
The residents of Park Centre occupy their units pursuant to a residency agreement with WRS. The agreement provides that each resident "shall have an estate in the nature of an estate for the life of the Resident...." By executing the agreement, residents agree to pay WRS an entry fee ranging from $41,300 for the smallest apartment to $173,700 for the largest. A portion of the amount so paid, not exceeding fifty percent, may be *773 refunded upon the death of a resident according to a specified schedule. In addition to the entry fee, each resident pays a monthly charge ranging from $520 to $1500, depending on the size of the unit and number of occupants.
Effective January 1, 1993, the Jasper County assessor classified Park Centre as commercial for property tax purposes. WRS and Park Centre protested, claiming that as a cooperativethe facility's proper designation was residential. They prevailed upon the Jasper County Board of Review to reverse the assessor's decision. The assessor and the City of Newton then sought review in the district court.
The district court reinstated the assessor's commercial designation. It concluded that, although organized as a cooperative, Park Centre is not owned or controlled by those who reside in the apartment units. Therefore, the court reasoned, the residential tax benefits authorized by Iowa Code section 499A.14 should not apply. This appeal by WRS and Park Centre followed.

III. Discussion.

By statute and administrative regulation, taxable real property in Iowa must be assessed within one of six categories: agricultural, residential, commercial, industrial, utilities, or railroads. Sperfslage v. Ames City Bd. of Review, 480 N.W.2d 47, 48 (Iowa 1992) (citing Iowa Code §§ 428.24, 434.15 (1989); 701 Iowa Admin.Code 71.3(3), 71.1(4)-(6)). Land and structures primarily used or intended as places of business are classified "commercial." 701 Iowa Admin.Code 71.1(5). Pertinent to this controversy, the "commercial" classification also includes "hotels, motels, rest homes, structures consisting of three or more separate living quarters and any other buildings for human habitation that are used as a commercial venture...." Id. Consistent with this definition, properties specifically excluded from residential classification are "[b]uildings for human habitation that are used as commercial ventures, including ... structures containing three or more separate living quarters, other than condominiums...." 701 Iowa Admin.Code 71.1(4).
It is beyond dispute that Park Centre contains more than three separate living quarters. Given the fact that the residents merely "live there," however, appellants contend that the facility has been improperly characterized as a commercial venture. The term "commercial" is nowhere defined in the Code or administrative regulations except in reference to the type of facilities already described. We turn, then, to a consideration of the generally accepted meaning of the term.
The word "commercial" relates to or is connected with "trade and traffic or commerce in general." Anderson v. Humble Oil & Refining Co., 226 Ga. 252, 252, 174 S.E.2d 415, 416 (1970) (quoting Black's Law Dictionary 336, 337 (rev. 4th ed. 1968)). It commonly includes the exchange of goods, production, or property of any kind. State ex rel. Lake County v. Zupancic, 62 Ohio St.3d 297, 301, 581 N.E.2d 1086, 1089 (1991). In order to be considered commercial, an endeavor must involve activity which a person would normally engage in for profit. See Callejo v. Bancomer, S.A., 764 F.2d 1101, 1108-09 (5th Cir.1985) (distinguishing between commercial and sovereign enterprise); Kaiser v. Western R/C Flyers, Inc., 239 Neb. 624, 629, 477 N.W.2d 557, 561 (1991) (profit motive distinguishes commercial enterprise from private recreational facility).
The rental of multiunit dwellings is generally regarded as an income or profit-oriented enterprise. See Sperfslage, 480 N.W.2d at 49; see also Zupancic, 62 Ohio St.3d at 301, 581 N.E.2d at 1089. We, like other jurisdictions, have recognized the commercial nature of apartment complexes and their resulting commercial classification for tax purposes. Sperfslage, 480 N.W.2d at 49; see Snow v. City of Memphis, 527 S.W.2d 55, 66 (Tenn. 1975).
Appellants argue that Park Centre's status as a cooperative distinguishes it from the customary commercial apartment complex. They concede that Park Centre's residents do not hold fee title to their dwelling units. But they note that their residency agreement provides that the document itself "shall be and constitute a certificate of ownership within the meaning of [section] *774 499A.11." Such "ownership," appellants argue, entitles the residentsand thus Park Centreto the tax benefits of section 499A.14. That section provides:
The real estate shall be taxed in the name of the co-operation, and each person owning an apartment or room shall pay that person's proportionate share of such tax, and each person owning an apartment as a residence and under the qualifications of the laws of the state of Iowa as such shall receive that person's proportionate homestead tax credit and each veteran of the military services of the United States identified as such under the laws of the state of Iowa or the United States shall receive as a credit that person's veterans tax benefit as prescribed by the laws of the state of Iowa.
Iowa Code § 499A.14 (emphasis added). The district court was not convinced by this argument, and neither are we.
A "cooperative" is generally defined as a multiunit dwelling in which each resident has (1) an interest in the entity owning the building, and (2) a lease entitling the member to occupy a particular apartment within the building. 15A Am.Jur.2d Condominiums and Co-Operative Apartments § 59 (1976); Sanders v. Tropicana, 31 N.C.App. 276, 280-81, 229 S.E.2d 304, 307-08 (1976). It is a vehicle for the common ownership of property, a means of enabling the occupantsas members of the cooperativeto own, manage, and operate the apartment without anyone profiting therefrom. 15A Am.Jur.2d Condominiums and Co-Operative Apartments § 62.
It is apparent from the stipulated record before us that the residents of Park Centre, although entitled to occupy units within the apartment complex, have no more ownership interest in the cooperative than an ordinary tenant. The residents lack any control over the affairs of Park Centre. Park Centre, for that matter, operates as no more than an arm of WRS. The residents' entry fee and monthly payments go to WRS. All expenses for building maintenance are paid by WRS. Park Centre has no employees. All necessary services for Park Centre residents are performed by WRS employees. Moreover, the financial statement for WRS includes Park Centre in the corporation's capital and long-term debt structure.
Like the district court, we are not convinced that the so-called "certificate of ownership" provision of the residency agreement gives the residents any true ownership interest in Park Centre. Appellants' bare assertion of such a claim is insufficient to transform a mere tenancy to cooperative ownership meriting preferential property tax treatment. Park Centre may be legally organized as a cooperative under chapter 499A (1989). But the fact that the "members" of the cooperative have no rights to ownership or management of the enterprise clearly defeats the purpose underlying section 499A.14's residential property tax benefit. As a result, Park Centre can make no legitimate claim to residential status for property tax purposes. It was correctly designated by the assessorand the district courtas a commercial enterprise.
AFFIRMED.


206 Cal.App.2d 500 (1962)
HOMER MILLER, a Minor., etc., et al., Plaintiffs and Respondents,
v.
NORTHWESTERN PACIFIC RAILROAD COMPANY et al., Defendants and Appellants.
Civ. No. 20163.
California Court of Appeals. First Dist., Div. Three.
Aug. 6, 1962.
 Bledsoe, Smith, Cathcart, Johnson & Phelps and Robert A. Seligson for Defendants and Appellants.
 Jeremiah F. O'Neill, Jr., Robert A. Kaiser, J. Adrian Palmquist and Fred Goss for Plaintiffs and Respondents.
 DRAPER, P. J.
 Homer Miller was killed in a collision of his automobile with a train. The widow and four surviving children recovered judgment upon jury verdict against the railroad and its engineer. Defendants appeal.
 The collision occurred October 30, 1956. Decedent was driving east on Ford Road. The train was southbound. A freight train was stopped on a siding west of the main line, some 200-250 feet north of the Ford Road crossing. The only surviving eyewitness to the collision is the engineer. He first saw the automobile when it was on the track 10-12 feet from the train. The car was moving but he could not estimate its speed. The driver was looking straight ahead. The jury viewed the scene of the accident.
 The appeal is based wholly on claimed error in instructions given and refused.
 The trial court properly instructed the jury upon the presumption that decedent exercised due care. Appellants do not attack this instruction, but argue that the giving of *502 it emphasizes the error of the trial court in refusing the instructions proposed by them dealing with speed of the automobile. Appellants' proposed instruction 34 quoted the code (Veh. Code  511, 511, subd. (a); now  22351-22352) to the effect that a speed not in excess of the prima facie limit "is lawful unless clearly proved to be in violation" of the basic speed law. This instruction correctly stated the prima facie limit at an obstructed grade crossing to be 15 miles per hour. However, appellants proposed that this instruction be immediately followed by number 35, in the language of BAJI 149, stating that if the driver violated the quoted section "a presumption arises that he was negligent," but that the presumption "may be overcome by other evidence" showing that his conduct was excusable or justifiable, and detailing the evidence necessary to overcome the presumption of negligence. But this 15- mile regulation, by its terms as well as by separate express provision of the code (Veh. Code,  513, now  40831), is only a prima facie limit. [1] It is established that speed in excess of a mere prima facie limit is not negligence as a matter of law, and that the burden is upon the party asserting negligence to establish as a fact that such speed was negligent (Mapes v. Yowell, 54 Cal.2d 231, 233 [5 Cal.Rptr. 159, 352 P.2d 527]; Harkey v. Luckehe, 19 Cal.App.2d 130, 132 [65 P.2d 77]). [2] Thus appellants' instruction 35 was erroneous, and was properly refused. But without it, instruction 34 has little meaning, and its omission, even if erroneous, could not be prejudicial to appellants. Appellants did not seek any of the variations of BAJI 144, which are specifically designed to cover the application of prima facie speed limits. There is no direct evidence as to the speed of the decedent's automobile at any time, and none, either direct or indirect, as to its speed at the crucial moment under section 511, i.e., "when traversing" the grade crossing. Similarly, there is no evidence to warrant defendants' proposed instruction 33, detailing the basic speed law (Veh. Code,  510, now  22350). We find no prejudice in the refusal of these instructions.
 [3] Appellants also assert error in the refusal of the trial court to instruct that to look is to see and that to listen is to hear (BAJI 140). As has been pointed out, the instruction serves little useful purpose because it states only what is common knowledge (Callahan v. Theodore, 145 Cal.App.2d 336, 339-340 [302 P.2d 333]). In any event, prejudice in refusal thereof does not appear when, as here, there is conflicting evidence as to whether warning signals were sounded by the *503 moving train, and a major issue as to the point at which the moving train became visible, from behind the freight on the siding, to the driver of the approaching vehicle (Wilson v. Foley, 149 Cal.App.2d 726, 734-735 [309 P.2d 97]).
 [4] The court correctly instructed that the bell must be sounded or the whistle blown as the train approached the crossing (Pub. Util. Code,  7604). Thus there was no error in refusing an instruction which merely elaborated on the fact that defendants were not required to give both warnings. Our case is distinguished, on its facts and on the other instructions given, from the authority relied upon by appellants (Smellie v. Southern Pacific Co., 128 Cal.App. 567 [18 P.2d 97, 19 P.2d 982]).
 [5] In one of its instructions, the court said that if plaintiff established that defendants were negligent and that such negligence was a proximate cause of Mr. Miller's death, plaintiffs are entitled to recover damages. The element of contributory negligence was erroneously omitted from this one statement. Obviously, however, the omission was but inadvertent. Immediately before and immediately after the challenged instruction, the court gave detailed and proper instructions upon the nature and effect of contributory negligence. Viewing the instructions as a whole, it is completely clear that the jury could not have been misled. Thus there is no reversible error (Martens v. Redi-Spuds, Inc., 113 Cal.App.2d 10 [247 P.2d 605]; Sandoval v. Southern Cal. Enterprises, Inc., 98 Cal.App.2d 240, 253-254 [219 P.2d 928]).
 Appellants assert error in other instructions given and refused. We find none. Furthermore, all such instructions relate to the issue of contributory negligence, as to which we find the instructions as a whole fair and complete.
 Judgment affirmed.
 Salsman, J., and Devine, J., concurred.


811 F.2d 849
UNITED STATES of America, Plaintiff-Appellee,v.Joseph Shea PEEPLES, Defendant-Appellant.
No. 86-1654

Summary Calendar.
United States Court of Appeals,Fifth Circuit.
Feb. 20, 1987.
J. Kevin Charters, Lexington, Ky., for defendant-appellant.
Sidney Powell, Asst. U.S. Atty., Marvin Collins, U.S. Atty., David B. Lewis, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before CLARK, Chief Judge, GARWOOD, and HILL, Circuit Judges.
PER CURIAM:

1
Joseph Shea Peeples contends that the district court erred in dismissing without prejudice a prior indictment against him.  He was subsequently reindicted and convicted on all counts.  Peeples argues that the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174, requires that the prior indictment be dismissed with prejudice.  Finding no abuse of discretion by the district court in dismissing without prejudice, we affirm the judgments of conviction.

I.

2
Peeples was indicted on three counts of wire fraud and one count of conspiracy to commit wire fraud.  His two codefendants were indicted on a number of related counts.  Peeples was arraigned on June 8, 1984.  The district court set trial for August 6, 1984.  Peeples moved for a continuance on June 29, 1984, and waived his right to a speedy trial.  In addition, on July 16, 1984, Peeples filed a document styled "Waiver pursuant to Speedy Trial Act" which provided as follows:

3
I, Joseph S. Peeples, understand that I have the right to a Speedy Trial, as provided by the Constitution and laws of the United States.

4
I, Joseph S. Peeples, hereby waive any right under the Speedy Trial Act and request a continuance of the trial date, pursuant to Title 18, United States Code, Section 3161(h)(8), et seq.

5
The district court granted Peeples' motion for a continuance on July 16 and entered an order as required by 18 U.S.C. Sec. 3161(h)(8)(A) that the continuance was justified because the ends of justice outweighed the interest of the public and the defendant in a speedy trial.  Trial was reset for October 1, 1984.  On September 7, 1984 Peeples filed a motion to sever his trial from the trials of his codefendants, which the district court granted on October 1, 1984.  The court reset Peeples' trial for February 4, 1985.

6
The trial was never held on February 4.  The docket sheet reflects no order granting a continuance.  Instead, the trial date was reset twice more and ultimately scheduled for January 6, 1986.  On December 13, 1985, however, Peeples moved to dismiss his indictment alleging that the delay in commencing trial violated the Speedy Trial Act.  The district court granted the motion to dismiss but provided it was to be without prejudice to the government's right to reindict.  The court reasoned that any violation of the Act that had occurred was due to "honest confusion" over whether Peeples' waiver of speedy trial rights was a general waiver or whether it was limited to his motion for a continuance, and stated that the government was not at fault for the delay.  In response to a memorandum by Peeples in support of his motion to dismiss with prejudice, the district court added that the case against Peeples was serious, Peeples' own conduct was responsible for much of the delay, and he was not prejudiced by the delay.

7
Peeples was reindicted on April 9, 1986 on three counts of wire fraud.  He moved to dismiss the indictment on the grounds that the prior dismissal should have been with prejudice.  At a hearing on Peeples' motion, the FBI agent in charge of preparing Peeples' prior case for trial testified that the U.S. Attorney's office repeatedly inquired of the court about the status of the case.  No other witness testified.  The district court refused to dismiss the second indictment, declining to reconsider the prior dismissal.  Peeples was convicted on all three counts and he now appeals, arguing that the prior indictment should have been dismissed with prejudice.

II.

8
The Speedy Trial Act requires the trial of a federal criminal defendant to commence within 70 days of arraignment or of the filing of the indictment, whichever is later.  18 U.S.C. Sec. 3161(c)(1).  The Act lists a variety of delays that are excludable from the 70-day limit.  Id. Sec. 3161(h).  If trial is not held within 70 days, on motion of the defendant the indictment must be dismissed.  Id. Sec. 3162(a)(2).  The defendant has the burden of proving that dismissal is appropriate.  Id.  Although dismissal is mandatory when the Act is violated, the district court has broad discretion in deciding whether to dismiss with or without prejudice.   United States v. Salgado-Hernandez, 790 F.2d 1265, 1267 (5th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 463, 93 L.Ed.2d 408 (1986).  In exercising its discretion the district court is to consider the following factors:  the seriousness of the crime, the facts and circumstances leading to dismissal, and the impact of reprosecution on the administration of the Act and on the administration of justice.  18 U.S.C. Sec. 3162(a)(2).  The district court's determination will be reversed only for an abuse of discretion.   Salgado-Hernandez, 790 F.2d at 1267.

9
In this case the district court's dismissal of the prior indictment was not an abuse of discretion.  We examine each of the factors in turn.

10
1. Seriousness of the crime.    Peeples was reindicted on three counts of wire fraud.  The indictment alleged that he attempted to defraud an investor of $500,000 by proposing to sell the investor an interest in a process that turned water into fuel.  The charged offenses are felonies each punishable by up to 5 years in prison.  18 U.S.C. Sec. 1343.  Peeples admits for the purposes of this appeal that the offenses charged were serious.

11
2. Facts and circumstances leading to dismissal.    Peeples estimates that the number of nonexcludable days between arraignment and the scheduled trial date was 306.  Neither the government nor the district court offered to calculate the number of nonexcludable days, although the district court did state that Peeples' health problems and his decision twice to plead guilty were responsible for much of the delay.  Peeples contends that the lengthy delay favors dismissal with prejudice.  He relies on United States v. Russo, 741 F.2d 1264, 1267-68 (11th Cir.1984), in which the court held that if the delay is lengthy mere negligence by the government does not justify dismissal without prejudice.  Peeples argues that the court violated the Speedy Trial Act by failing to enter an order continuing the February 1984 trial as required by 18 U.S.C. Sec. 3161(h)(8)(A).  He also maintains that the prosecutor had a duty to file a motion seeking to have the court set a trial date.

12
If the prosecutor or the district court were entirely at fault for the delay in this case we might view Peeples' arguments more favorably.  The adjudicated reason for the delay, however, was "honest confusion" about the scope of Peeples' waiver of Speedy Trial Act rights.  Peeples drafted and filed the waiver.  He does not challenge the reasonableness of the district court's belief that the waiver was a general waiver.1   Indeed, on its face the waiver filed July 16 is ambiguous as to whether it is a general one:  although Peeples requested a continuance he waived "any right under the Speedy Trial Act."    We cannot conclude that the district court was bound to construe the waiver as manifestly intended to secure a continuance and submitted for no other purpose.   United States v. Howell, 719 F.2d 1258, 1262 (5th Cir.1983), cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984).  Peeples did not indicate that he claimed the waiver was for the limited purpose of securing a continuance until he moved to dismiss on December 13, 1985.  The fact that the cause of delay was confusion for which Peeples was at least in part responsible favors dismissal without prejudice.  Moreover, Peeples' responsibility for the delay substantially undercuts any weight the length of the delay may have had in favor of dismissal with prejudice.

13
3. The impact of reprosecution on the administration of the Act and on the administration of justice.    Peeples argues that reprosecution in face of the prosecution's failure to move for a trial date and the district court's failure to order a continuance makes a mockery of the Speedy Trial Act.  The delay was especially costly to the administration of justice, according to Peeples, because the trial required witnesses from other countries.  He also contends that the delay was prejudicial to him because it caused or aggravated health problems and because it prevented him from taking the testimony of foreign witnesses.

14
Dismissal without prejudice of the prior indictment would not adversely affect the administration of the Act.  The district court acknowledged its adherence to the Speedy Trial Act by dismissing the prior indictment as it believed it would have been required to do had Peeples' waiver been limited.2   The prosecutor was at all times ready to proceed to trial and cannot be faulted for the ambiguity of Peeples' waiver.  Rather, since a primary cause of the delay was the ambiguity of the waiver, requiring dismissal with prejudice would hurt the administration of justice.  As the court explained in United States v. Pringle, 751 F.2d 419, 434 (1st Cir.1984):

15
Where it is the conduct of the defendant or defense counsel which creates the delay, it is only the public's interest in a speedy trial which has been violated.  Using the sanction of dismissal for such delay would be counterproductive because, even though it might keep the courts and the prosecution more on their toes, the possibility of dismissal would serve as a powerful incentive for defendants and defense counsel to create delay.

16
The court's reasoning is particularly appropriate here since Peeples seeks dismissal with prejudice.  Finally, the record contains no evidence that Peeples was prejudiced by the delay.  His general assertions of prejudice are not enough to meet his burden of proof under the Act.  18 U.S.C. Sec. 3162(a)(2).

17
Our review of the statutory considerations convinces us that, under the facts of this case, the district court's dismissal without prejudice was not an abuse of discretion.

18
AFFIRMED.

1
 Several other circuits have held that an affirmative waiver by a defendant is inoperative and does not suspend the requirements of the Speedy Trial Act.   See United States v. Ray, 768 F.2d 991, 998 n. 11 (8th Cir.1985);  United States v. Pringle, 751 F.2d 419, 433-34 (1st Cir.1984);  United States v. Carrasquillo, 667 F.2d 382, 388-90 (3d Cir.1982).  Peeples has never argued, however, that his waiver was inoperative as a matter of law, so we express no opinion on that issue.   Compare United States v. Rush, 738 F.2d 497, 509 (1st Cir.1984) (appellants concede that waiver has effect), cert. denied, 470 U.S. 1004, 105 S.Ct. 1355, 84 L.Ed.2d 378 (1985) with Pringle, 751 F.2d at 433 (appellants do not concede effectiveness of waiver)

2
 The government did not appeal the dismissal of the prior indictment without prejudice;  therefore, we do not face the question of whether that dismissal was proper.   Compare Pringle, 751 F.2d at 434 (delay caused by defendant's inoperative waiver excludable from Speedy Trial Act limit)


472 P.2d 174 (1970)
Ann Marlene FALLIS, Administratrix of the Estate of Jack D. Fallis, Deceased, and Tawny Rae Fallis, through her Guardian, Ann Marlene Fallis, Plaintiffs in Error,
v.
ZURICH INSURANCE COMPANY, Defendant in Error.
No. 70-087. (Supreme Court No. 23363.)
Colorado Court of Appeals, Div. I.
May 12, 1970.
Rehearing Denied May 21, 1970.
*175 Gordon H. Rowe, Jr., Monte Vista, for plaintiffs in error.
Charles R. Corlett, Monte Vista, for defendant in error.
Selected for Official Publication.
PIERCE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
Plaintiff in error was plaintiff below and will be referred to as such throughout this opinion although he is now deceased and his wife (as administratrix of his estate and as guardian of his daughter) and his daughter have been substituted as parties in his place.
This is a case of first impression in Colorado. The facts are as follows. Plaintiff was a member of the Colorado Farm Bureau, under whose group health insurance policy with Colorado Blue Cross he had obtained health and accident coverage. However, Farm Bureau decided to change insurers and, accordingly, took out a new policy with defendant. Under the terms of the agreement with defendant, Farm Bureau members would be allowed to transfer their coverage to the new policy without submitting proof of insurabilityprovided they did so prior to October 1, 1964. After that date, transfer could be made only by application giving proof of insurability for a ten-year period immediately prior to the date of the application.
Plaintiff did not transfer before the deadline; however, after conversations with one George Benton, an insurance agent of Farm Bureau, and while his coverage with Blue Cross was still effective, he ultimately decided to transfer and submitted the required application. The application was actually filled out by Benton in plaintiff's presence, and was read and signed by plaintiff. He requested coverage for his entire family, including his wife, Marlene.
The application contained, among other items, the following instruction:
"1. List the names of the persons you wish to insure. For what ailments have the members of your family (if they are also to be insured) been under observation of had medical or surgical advice or treatment or been hospital confined during the past ten years. (Give details below.)"
Opposite the name "Marlene Fallis," in the column provided for information required by Instruction 1, supra, there appeared the following complete entry:
"Phneumonia [sic]  Dr. John Haskins, Center, Colorado, January, 1964."
Plaintiff's application was approved and he was issued a certificate of coverage for his entire family, effective January 1, 1965. The date on which the certificate was received is not clear from the record, although it was prior to February 23, 1965.
*176 On February 23, 1965, Marlene was examined by a doctor and found to be suffering from a serious lung condition which required hospitalization and surgery. As a result, plaintiff filed a claim with defendant, which the latter refused to pay, instead tendering a return of premiums paid. Plaintiff then sued to recover the amount claimed. Defendant interposed as an argument of defense (1) that plaintiff had failed to disclose a complete medical history of his wife as required in the application, and had misrepresented her health history; (2) by so doing, he had made a fraudulent and material misrepresentation which induced defendant to provide coverage it would not otherwise have provided; and (3) that his coverage was, therefore, void. Plaintiff maintained that he had made no misrepresentation in his application. He further contended that even if he had, defendant could not defend against liability on the basis of statements contained in the application, since it was not attached to the insurance policy, or to the certificate of coverage issued to him.
The pretrial order, entered without objection, stated the sole factual issue to be determined was whether plaintiff's answers with regard to his wife's medical history were false; and if so, whether they constituted material, fraudulent misrepresentations which would void the coverage provided under the group policy.
At trial, it was conclusively established that Marlene had indeed had pneumonia in January of 1964, as reported on the application; but that she had also had it in 1961 and 1963, with phlebitis complicating it in 1963 and 1964. On this and other evidence, the court found that plaintiff's answers were not true, although, in part, the basis for extension of coverage to Marlene, which would not have been afforded had the truth been known; and that the "failure to disclose [Marlene's] medical history was material to the question of whether or not insurance would be issued." The court further found that although Colorado Farm Bureau's application for the policy was attached to the policy, plaintiff's individual application was not, but was "substantially attached" since filed in a drawer in the same filing cabinet with the policy. Finally, the court found that plaintiff's application was not attached to the certificate of coverage issued to him under the policy.
The court concluded (1) that defendant could defend against liability on misrepresentation, whether or not plaintiff's application was physically attached to the policy or certificate; and (2) that plaintiff's misrepresentation voided coverage under the policy. Judgment was entered for defendant; new trial was denied and error taken.
We are greatly aided in our examination of alleged errors in this action by the very detailed findings of fact and conclusions of law submitted by the trial court, and by the exhaustive and articulate briefs presented by counsel. There is a dearth of case authority regarding the problems presented. However, the leading case interpreting similar matters is Layman v. Continental Assurance Co., 416 Pa. 155, 205 A.2d 93. Our conclusions are in accord with the results reached in that action and the cases cited therein.
Did the Court Err in Permitting Defendant to Defend on the Basis of Statements Made in Plaintiff's Application for Coverage, Which was not Attached to the Policy, or to the Certificate Issued Under the Policy?
It is the plaintiff's contention that either C.R.S.1963, 72-10-11, or C.R.S.1963, 72-10-16, require the application of each individual member of the group seeking coverage under the group policy to be attached to the master policy or to the certificate issued thereunder, if the individual member is to be bound by statements made therein.
We have diligently searched for indications of the legislative intent behind these statutes as they apply to group health insurance. We have been unable to find any information as to whether or not the legislature intended that an individual group member's application be attached in the fashion plaintiff contends, since records of *177 legislative deliberation on these statutes have not been preserved. We are therefore forced to rely on the bare wording of the statutes in our determination of this issue.
C.R.S.1963, 72-10-11, as applicable to the instant case, states:
"(1) The insured shall not be bound by any statement made in an application for a policy unless a copy of such application is attached to or endorsed on the policy when issued as a part thereof.
"* * *
"(3) The falsity of any statement in the application for any policy covered by this article may not bar the right to recover thereunder unless such false statement materially affected either the acceptance of the risk or the hazard assumed by the insurer." (Emphasis added.)
The effect of this statute is (1) to bar the insurer from defending against liability to the insured under a policy, on the basis of statements in an application not attached to the policy; and (2) even when the application is attached, to bar the insurer from denying recovery unless the false statement involved materially affected the acceptance of the risk or hazard assumed by the insurer.
We do not rule in the instant case on whether plaintiff, as a member of the Farm Bureau, was an "insured" within the meaning of this statute. However, whatever his status in that regard, he was not the applicant for a "policy", but only the applicant for a certificate of coverage under the policy. Colorado Farm Bureau was the applicant for the "policy." Further, no "policy" was ever issued to plaintiff, to which his application must have necessarily been attached; but only a certificate of coverage.
C.R.S.1963, 72-10-16, regarding group sickness and accident insurance, as applicable in this case, states:
"(2) (a) Each such policy shall contain in substance the following provisions:
"(b) A provision that the policy, the application of the policyholder, if such application or copy thereof is attached to such policy, and the individual applications, if any, submitted in connection with such policy by the employees or members, shall constitute the entire contract between the parties, and that all statements, in the absence of fraud, made by any applicant or applicants shall be deemed representations and not warranties, and that no such statement shall avoid the insurance or reduce benefits thereunder unless contained in a written application for such insurance.
"(c) A provision that the insurer will furnish to the policyholder, for delivery to each employee or member of the insured group, an individual certificate setting forth in summary form a statement of the essential features of the insurance coverage of such employee or member and to whom benefits thereunder are payable. * * *" (Emphasis added.)
In effect, C.R.S. 1963, 72-10-16 requires the inclusion of the foregoing mandatory provisions as part of the terms of the contract of insurance, and makes them enforceable as such. Therefore, statements made by the policyholder can be used against it only if its application is attached to the policy.
Neither of these subsections, however, requires the mandatory inclusion in the policy of a provision that the application of an individual member must be attached to the policy, or to the certificate issued thereunder, as a condition precedent to the use of statements in that application as a defense to liability, although subsection (2) (b) indicates that any such statements are admissible in evidence whenever contained in a written application submitted to the insurer. The statements in the instant case were contained in a written application submitted to the insurer.
Subsection (2) (c) in no way addresses itself to the issue of attachment of the individual member's application to either the *178 policy or to the certificate issued thereunder.
We cannot believe that the legislature intended, by use of the wording of these statutes, that all applications made by individual employees or members of a group be attached to the original policy issued to the group.
We therefore hold that the provisions of C.R.S.1963, 72-10-11 and C.R.S.1963, 72-10-16 do not require attachment of a copy of the individual member's application for coverage under group health insurance policy to that policy, or to the certificate of coverage issued thereunder, and that the trial court's conclusion to this effect is not in error.
Did the Court Err in Finding That Plaintiff's Answer to the Question Regarding His Wife's Medical History was a Material, Fraudulent Misrepresentation Which Voided His Insurance Coverage?
The answer to this question is no. There is sufficient evidence in the record from which the trial judge, as finder of fact, could conclude (1) that the answer given by plaintiff regarding his wife's prior medical history, although true to the extent given, was nevertheless false, by omission of mention of several previous, similar illnesses of which plaintiff was completely aware; and (2) that it therefore constituted a material, fraudulent misrepresentation.
There is also sufficient testimony in the record that had the answer given included all the information requested, defendant would never have extended coverage to Marlene.
That the answer given by plaintiff in his application was sufficient to void the policywhether a "misrepresentation" or a "warranty"is clear from Germania Life Ins. Co. v. Klein, 25 Colo.App. 326, 137 P. 73, 75, where the court stated:
"The foregoing authorities [referring to cases cited previously in the opinion], including the decisions of the highest courts of this state, we regard as conclusive on the proposition that, if representations made in answer to specific questions material to the risk are untrue, the policy will thereby be rendered void, and it is immaterial whether such answers be considered warranties or representations, or whether they were made with intention to deceive the insurer or without such intention."
It is difficult to see how anything can be more material to the risk assumed under a health insurance policy than the previous medical history of those to be covered, even though no intent to defraud is indicated in the instant case. The trial judge's findings of fact are supported by the evidence and will not be overturned on review.
Did the Court Err in Finding that the Farm Bureau's Application for the Master Policy was Attached to the Policy as Required by Statute; and that the Defendant was not Negligent in Investigating the Wife's Medical History in Light of the Fact that it was on Notice that She had Previously had Pneumonia?
Our answer is again no.
We find in the record uncontrovered evidence that the Farm Bureau's application was attached to its policy.
The pleadings in this case do not put in issue defendant's negligence (if any) in the conduct of its inquiry (if any) into the wife's prior medical history. The pretrial order stated that the sole factual issue to be determined in this case was whether any material, fraudulent misrepresentations as to the wife's health were made in the application submitted by plaintiff. This order was not objected to. The issue of defendant's negligence was raised for the first time in this Court, and accordingly we refuse to consider it.
For the reasons above, we hold that the trial court's findings, and applications of *179 the law thereto, in this case were not in error.
Judgment is affirmed.
SILVERSTEIN, C. J., and ENOCH, J., concur.


                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 03-4030
RONDY JOSSHARE LILES,
              Defendant-Appellant.
                                       
           Appeal from the United States District Court
     for the Middle District of North Carolina, at Greensboro.
             N. Carlton Tilley, Jr., Chief District Judge.
                            (CR-02-214)

                      Submitted: April 17, 2003

                      Decided: April 23, 2003

   Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

                            COUNSEL

Joseph H. Craven, CRAVEN LAW FIRM, Durham, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney, Harry L.
Hobgood, Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                       UNITED STATES v. LILES
                              OPINION

PER CURIAM:

   Rondy Josshare Liles pled guilty to robbery of a postal service
employee in violation of 18 U.S.C. § 2114(a) (2000). Liles appeals
the enhancement of his sentence for the use of a dangerous weapon.
See U.S. Sentencing Guidelines Manual § 2B3.1(b)(2)(E), cmt. (n.1)
(2001) (providing for enhancement for use of non-lethal object in a
manner that created the impression that the object was a weapon).
Finding no error, we affirm.

   This court reviews a district court’s factual findings for clear error
and its application of the guidelines de novo. United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). The victim of the rob-
bery, the postmistress, testified at the sentencing proceeding that Liles
jumped over the counter and demanded postal orders. When she hesi-
tated, Liles stated he did not want to hurt her and reached into his
pocket and partially withdrew a black metallic object. She testified
she was afraid the object might have been a gun. The district court
found this testimony more credible than Liles’s version that he was
merely reaching toward a pocket for a glove and never withdrew any-
thing from his pocket. Despite the postmistress’s earlier statement that
the object may have been a cell phone, we conclude that the district
court did not clearly err in its factual findings.

   Accordingly, we affirm Liles’s sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the material before the court and argument would not aid in
the decisional process.

                                                            AFFIRMED


66 P.3d 710 (2003)
2003 WY 49
TPJ, a minor, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
No. C-01-3.
Supreme Court of Wyoming.
April 16, 2003.
*711 Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Senior Assistant Appellate Counsel, Representing Appellant.
Hoke MacMillan, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Director, and Tari L. Elam, Student Intern, of the Prosecution Assistance Program, Representing Appellee.
Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
GOLDEN, Justice.
[¶ 1] The Juvenile Court of the Ninth Judicial District adjudicated TPJ, age 16, to be delinquent following his admission of committing numerous acts of burglary. Following the adjudication hearing, at a later restitution hearing the juvenile court ordered TPJ to pay a total of $1,964.59 as restitution to the victims of his delinquent acts of burglary. The restitution amount included $41.59 as the cost of a car alarm which one of TPJ's victims purchased and installed in her car after TPJ's burglary of her car and $300.72 as the cost of repair to a garage door allegedly damaged during TPJ's burglary of another victim's residence. TPJ challenged these particular costs at the restitution hearing and renews that challenge on appeal. As for the cost of the car alarm, TPJ asserts that it is not authorized under the statutory language "any damage or loss caused by the *712 child's wrongful act." Wyo. Stat. Ann. § 14-6-247(a)(v) (LexisNexis 2001). As for the cost of the garage door repair, TPJ asserts that the State failed to prove by a preponderance of the evidence that he damaged the garage door.
[¶ 2] Although the State counters TPJ's challenge on its merits, it first contends that TPJ's notice of appeal is both defective and untimely filed. As we shall explain below, we hold that TPJ's appeal is neither defective nor untimely; the relevant statutory provision of the Juvenile Justice Act does not authorize an award of restitution for the cost of the car alarm purchased and installed by the victim of a delinquent act after the commission of that act; the State's evidentiary standard as to restitution under that relevant statutory provision is a preponderance standard; and, applying that evidentiary standard, the State's proof as to restitution for the garage door repair satisfied that standard. Consequently, we affirm the order of restitution with respect to the cost of the garage door repair and reverse the order of restitution with respect to the cost of the car alarm.

ISSUES
[¶ 3] TPJ presents the following issue for our review:
I. Did the district court abuse its discretion by ordering the appellant to pay restitution for a car alarm and alleged damage to a garage door?
The State contends that two issues are present in this appeal:
1. Does the defective and untimely notice of appeal deprive this court of jurisdiction to consider this appeal?
2. Did the juvenile court abuse its discretion in ordering appellant to pay restitution for the cost of a car alarm and for damage done to a garage door?

FACTS
[¶ 4] The initial hearing upon the specific allegations in the delinquency petition filed by the county and prosecuting attorney, as authorized by Wyo. Stat. Ann. § 14-6-226, was held March 29, 2001. TPJ admitted committing numerous acts of burglary, including those involving the Brent Galles residence, where a garage door was allegedly damaged, and a car owned by Barbara Smith, who later purchased a car alarm, and provided a factual basis to support his admissions. Following TPJ's admission, the juvenile court broached the subject of disposition.
[¶ 5] The State expressed hesitancy in proceeding in the initial hearing with disposition because it had "no idea what the restitutional figure is." The juvenile court then expressed the desire to proceed with disposition without having the restitution amounts, subject to TPJ's and his counsel's consent to proceed and subject to the State's supplying those amounts to TPJ and his counsel within twenty days. The juvenile court required TPJ and his counsel to make written objections, if any, within fifteen days after the State supplied the amounts to them. All agreed to the juvenile court's proposed procedure.
[¶ 6] The juvenile court then received the State's recommendation for disposition and comments about that recommendation from others present, including TPJ and his counsel. The juvenile probation coordinator, Teri Van Etten, who had prepared the dispositional report, TPJ's mother and grandmother, and TPJ's uncle were also present. Next, the juvenile court announced its disposition which included, among other matters, TPJ's placement at the Wyoming Boy's School for an indeterminate period of time.
[¶ 7] Before adjourning the hearing, the juvenile court instructed Ms. Van Etten to acquire and deliver the restitution information to the county attorney. Following the initial hearing, the juvenile court entered on April 2, 2001, the Order Following Initial Hearing, approved as to form by the county attorney, TPJ's counsel, and Ms. Van Etten, which order expressly included a provision addressing the court's requirement with respect to the restitution information.
[¶ 8] In April 2001, the county attorney timely provided TPJ's counsel with the required restitution information which included each victim's name and address, property lost or damaged and the amounts sought in *713 restitution for each victim. TPJ's counsel timely objected in writing to certain items contained therein. Not until August 3, 2001, however, did the county attorney move in writing for a restitution hearing to resolve TPJ's objections. The juvenile court scheduled that hearing for August 22, 2001. The hearing took place as scheduled. At the hearing, the juvenile court took evidence and heard argument from counsel concerning Barbara Smith's purchase and installation of a car alarm and the estimated cost of Brent Galles' garage door repair.
[¶ 9] At the conclusion of the hearing, the juvenile court announced its decision, ordering TPJ to pay a total of $1,964.59 as restitution, which included the amounts of $41.59 as the cost of the car alarm and $300.72 as the cost of garage door repair. This appeal followed.

DISCUSSION

Standard of Review
[¶ 10] Our standard of review of restitution orders is limited to a search for procedural error or a clear abuse of discretion. Alcaraz v. State, 2002 WY 57, ¶ 5, 44 P.3d 68, ¶ 5 (Wyo.2002). We will not find an abuse of discretion if sufficient evidence shows a reasonable basis for estimating the loss. Id. "Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously." Id.
[¶ 11] TPJ's first issue presents a question of statutory interpretation, and we look first to finding the answer in the language of these provisions. "Determining the lawmakers' intent is our primary focus when we interpret statutes. Initially, we make an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. We construe together all parts of the statutes in pari materia, giving effect to each word, clause, and sentence so that no part will be inoperative or superfluous. We will not construe statutes in a manner which renders any portion meaningless or produces absurd results." In re WJH, 2001 WY 54, ¶ 7, 24 P.3d 1147, ¶ 7 (Wyo.2001).
[¶ 12] In considering his second issue, we see that in his reply brief, TPJ agrees with the State that in criminal cases we review whether the amount of restitution was proved by a preponderance of the evidence and that burden of proof should be applied in juvenile restitution cases. We agree and hold that is the burden of proof by which we review whether sufficient evidence proved the amount of damages to the garage door. See Renfro v. State, 785 P.2d 491, 493 (Wyo.1990).
[¶ 13] The State's issue that the appeal was untimely is a jurisdictional challenge. To invoke appellate jurisdiction, appeals must be filed no later than thirty days after the district court enters its final order. In re Interest of BW, 12 P.3d 675, 677 (Wyo.2000); W.R.A.P. 2.01. The timely filing of a notice of appeal is jurisdictional. Holmquist v. State, 902 P.2d 217 (Wyo.1995). "A late filing of an appeal results in an incurable jurisdictional defect, leaving this Court with no authority to resolve the case." Id. at 217-18.

The Appeal Is Neither Defective Nor Untimely
[¶ 14] The juvenile court's Order Following Restitutional Hearing was entered September 4, 2001. One week later, on September 11, 2001, TPJ's counsel filed a notice of appeal giving notice of the intention to appeal the "Judgment and Sentence of the Court rendered on the 22nd day of August, 2001, by the Honorable Nancy Guthrie, District Judge, Ninth Judicial District."
[¶ 15] Accompanying this notice was a copy of the juvenile court's order following the restitutional hearing referenced above. The appellate proceeding progressed in normal course, with the parties submitting the case to this Court on written briefs. As earlier mentioned, although the State in its brief counters on the merits TPJ's enumerated errors with respect to the restitution ordered for Smith's car alarm and Galles' garage door repair, the State first contends *714 that TPJ's notice of appeal is defective and untimely filed. If the State's contentions are correct, the State reasons, then this Court lacks jurisdiction over this appeal.
[¶ 16] The State's contention that the notice of appeal is defective proceeds on two bases. First, focusing on the wording in the notice of appeal that references "the Judgment and Sentence of the court rendered on" August 22, 2001, the State asserts "[t]here is no judgment and sentence in juvenile cases.... Accordingly, there was no judgment and sentence in this case to appeal from." Second, although conceding that "the tenor of [TPJ's appellate brief] ... strongly indicates that it was the Order Following Restitutional Hearing which he wished to contest in this Court," the State condemns TPJ's notice of appeal for "fail[ing] to identify the juvenile court's Order Following Restitutional Hearing, which was entered September 4, 2001."
[¶ 17] TPJ's reply brief addresses the State's contention that the notice of appeal is defective. TPJ correctly points out that an express provision of the Juvenile Justice Act authorizes a juvenile to appeal "any final order, judgment or decree of the juvenile court ...." Wyo. Stat. Ann. § 14-6-233 (LexisNexis 2001). Identifying the crux of the State's contention to be that "TPJ's counsel did not correctly type the name of the hearing and order" in the notice of appeal, TPJ asserts that his counsel correctly identified in the notice of appeal the object of the appeal as the juvenile court's order rendered August 22, 2001, and also attached to that notice of appeal a copy of that juvenile court's order following restitutional hearing. Asserting that it is clear what TPJ was appealing, TPJ protests that for one to conclude otherwise is to put form over substance. We agree with TPJ's position and hold that the notice of appeal is not defective.
[¶ 18] The State's contention that the notice of appeal is untimely filed relies upon In re Interest of BW, 12 P.3d 675 (Wyo.2000), which the State contends is controlling. According to the State, in BW, as here, the juvenile court left open the amount of restitution when it entered the dispositional order and the juvenile did not appeal the dispositional order. In BW, according to the State, the juvenile court fixed the amount of restitution three years later; BW appealed, and this Court held that the appeal was untimely, and dismissed the appeal. Id. at 677.
[¶ 19] TPJ addresses the untimeliness issues in his reply brief. Confronting the State's reliance on BW, TPJ distinguishes the facts in that case from the facts in his case. He correctly points out that in BW, unlike in his case, in the initial hearing the juvenile court in fact ordered restitution in an amount to be determined after the victim of BW's sexual assault had received counseling and medical care. Id. We also note that in BW, unlike here, BW's legal contention was that the juvenile court lacked statutory authority to delay setting restitution. Id. at 676. We find that TPJ's analysis of BW is correct. In that case, we found that, unlike here, the juvenile court in the dispositional phase had "entered an open-ended restitution order from which no appeal had been taken." Id. at 677. Here, in contrast to BW, the juvenile court, with the consent of both the State and TPJ and his counsel, reserved the restitutional order to a later time. When the juvenile court later held the restitution hearing and entered its final order on restitution, TPJ timely appealed that final order. W.R.A.P. 2.01. We hold that TPJ's notice of appeal is timely.
The Applicable Statutory Provision Does Not Permit Restitution For Car Alarm
[¶ 20] We now turn to TPJ's contention that the cost of Smith's car alarm, which she purchased and installed after he burglarized her car, is not authorized under the statutory language "any damage or loss caused by the child's wrongful act." § 14-6-247(a)(v). The relevant part of that statute provides:
(a) For a child at any sanction level, the juvenile court may:
* * * *
(v) Require the child and his parents or guardian to make restitution for any damage or loss caused by the child's wrongful act, except that the liability of *715 the parent or guardian shall not exceed the limit established by W.S. 14-2-203[.]
Id. (emphasis added).
[¶ 21] TPJ contends that the statutory language does not cover a victim's post-wrongful act purchase of a car alarm to be installed to prevent future car burglaries and not to replace an existing car alarm that was damaged or stolen during the commission of the juvenile's wrongful act in question. He contends that Smith's car was not equipped with a car alarm at the time of TPJ's wrongful act of burglarizing her car and TPJ did not damage or steal a car alarm in Smith's car when he committed the wrongful act of burglarizing Smith's car.
[¶ 22] TPJ asserts that the facts of his case most resemble the facts in Alcaraz v. State, 2002 WY 57, 44 P.3d 68 (Wyo.2002). There the victim store owner purchased a surveillance camera system because someone was stealing money from the store during hours when it was closed and the system identified Alcaraz as the thief. Id. at 70. This Court reversed the district court's restitution order which ordered Alcaraz to pay for the system and remanded with directions that the district court make a reasonable apportionment of the system cost between Alcaraz and the store owner. Id. at 73. This Court reasoned that Alcaraz should not pay for the system, but only a reasonable proportion, because the store owner realized future benefits from the system, beyond those benefits realized by apprehending Alcaraz. Id. TPJ says Smith will realize no benefits from the car alarm associated with his apprehension because he was apprehended without her having a car alarm; but Smith will realize future benefits from the car alarm in the form of preventing/thwarting possible future car break-ins by other burglars.
[¶ 23] According to the State, TPJ misconceives the nature of the loss suffered by Barbara Smith as a direct consequence of TPJ's actions, and the State argues that although Smith bought the car alarm after TPJ's wrongful act, she bought it because that wrongful act made Smith insecure and afraid that her car would be broken into again. Therefore, reasons the State, her fear, which motivated her to buy the car alarm, was a direct result of TPJ's wrongful act; his wrongful act caused her fear, and to alleviate it, she bought the alarm, and the juvenile court properly considered that buying the car alarm was equivalent to "damage or loss" under the statute.
[¶ 24] The juvenile court held that TPJ's wrongful act was "the direct cause for [Smith's] purchasing a car alarm," relying on Dreiman v. State, 825 P.2d 758, 764 (Wyo.1992), a criminal burglary case in which the defendant paid restitution under Wyo. Stat. Ann. § 7-9-103 for the victim's expense in changing locks to her residence which the defendant had earlier burglarized. The State contends that an evident analogy exists between Dreiman and TPJ's juvenile case: in each case the victim's fear caused by the defendant's criminal act motivated the victim to incur expense.
[¶ 25] The State correctly states that proceedings under the Juvenile Justice Act are not criminal, but are special proceedings. BW, 12 P.3d at 677. The proceedings are equitable and not punitive to accomplish the purpose of providing "treatment, training and rehabilitation" for children, and to "provide for the care, the protection and the wholesome moral, mental and physical development of children coming within its provisions." Wyo. Stat. Ann. § 14-6-201(c)(ii)(C) and (c)(iii) (LexisNexis 2001); see also WJH, ¶¶ 9, 10. Accordingly, statutes providing for the care and discipline of juvenile delinquents are generally entitled to a liberal effect and a practical construction in favor of the child's welfare. WJH, ¶¶ 7, 8. The plain language of the statute, however, still controls our search for the legislative intent when it used the term "restitution for any damage or loss caused by the child's wrongful act." Id.
[¶ 26] Plainly, the statute limits the amount of restitution to the damages or losses caused by the juvenile's wrongful act and does not expressly extend to reimbursement of security devices added by the victim after the commission of the crime that will benefit the victim in the future. In Alcaraz, we determined that restitution should be ordered to compensate for legally recognized losses that directly resulted from the criminal act. Alcaraz, ¶ 14. To comply with this *716 rule in that case, the district court was required to distinguish between those damages that would compensate the victim for monetary losses and the benefits that would continue to inure to the victim and, thus, could not be subject to restitution lest the victim gain a windfall. Id. By requiring there to be a direct causal connection between the juvenile's criminal act and the damages or losses incurred, we see that the car alarm was purchased after TPJ's burglary not because he stole or damaged one from the car, but for the future benefit to the victim of preventing other burglaries. Using Alcaraz' analysis, we hold that the car alarm purchase was not caused by TPJ's criminal act, and we hold that the juvenile court abused its discretion in ordering restitution for reimbursement to Ms. Smith for the car alarm.
The Damage to the Garage Door Was Proved by Sufficient Evidence
[¶ 27] TPJ contends that the only evidence presented to the juvenile court was hearsay testimony by Irene Martinez, the victim/witness coordinator, that Mr. Galles had told her that the damage was not present before he and his family left for the weekend. The State contends that the juvenile court had TPJ's admissions that he and a friend had broken into the garage and evidence showing that it was likely that whoever broke into the garage had damaged the door, and the juvenile court found TPJ and his friend jointly and severally liable for the damages caused by their burglaries. An estimate for repairing the door was presented to the juvenile court, and based on the circumstantial evidence, the juvenile court had sufficient evidence to find that TPJ had damaged the door during the burglary in the amount shown by the repair estimate and did not abuse its discretion in ordering restitution. We agree with this assessment and hold that the juvenile court did not abuse its discretion.
[¶ 28] We affirm the order of restitution with respect for the cost of the garage door repair and reverse the order of restitution with respect to the cost of the car alarm.


757 N.W.2d 499 (2008)
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Darrell Jerome BURROWS, Defendant-Appellant.
Docket No. 137239. COA No. 278319.
Supreme Court of Michigan.
November 25, 2008.

Order
On order of the Court, the application for leave to appeal the August 26, 2008 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.


5 N.Y.3d 853 (2005)
PEOPLE v. JEAN.
Court of Appeals of the State of New York.
October 31, 2005.
Application in criminal case for leave to appeal denied. (G.B. Smith, J.)


[Cite as State v. Kaiser, 2016-Ohio-4890.]

                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       GREENE COUNTY

 STATE OF OHIO                                     :
                                                   :   Appellate Case No. 2015-CA-47
          Plaintiff-Appellee                       :
                                                   :   Trial Court Case No. TRC-1500679A
 v.                                                :
                                                   :   (Criminal Appeal from
 ELENI KAISER                                      :    Fairborn Municipal Court)
                                                   :
          Defendant-Appellant                      :
                                                   :

                                              ...........
                                             OPINION
                               Rendered on the 8th day of July, 2016.
                                              ...........

BETSY A. DEEDS, Atty. Reg. No. 0076747, Fairborn Prosecutor’s Office, 510 West Main
Street, Fairborn, Ohio 45324
       Attorney for Plaintiff-Appellee

JAY A. ADAMS, Atty. Reg. No. 0072135, 36 North Detroit Street, Xenia, Ohio 45385
      Attorney for Defendant-Appellant

                                             .............

FAIN, J.

        {¶ 1} Defendant-appellant Eleni Kaiser appeals from her conviction and sentence,

following a no-contest plea, for Operating a Motor Vehicle while Under the Influence of
                                                                               -2-

Alcohol. She contends that the trial court erred by overruling her motion to suppress

evidence. Kaiser contends that the traffic stop was invalid, and that the stopping trooper

lacked probable cause to further detain and arrest her.

       {¶ 2} We conclude that the stopping trooper's observation of three separate traffic

violations was sufficient to establish a basis for the traffic stop. We further conclude that

the violations, combined with the trooper’s observatons of Kaiser’s red eyes and strong

odor of alcohol, provided the trooper with probable cause to arrest Kaiser. Accordingly,

the judgment of the trial court is Affirmed.

                              I. Course of the Proceedings

       {¶ 3} Following a traffic stop, Kaiser was arrested for OMVI.         She moved to

suppress evidence, contending that the trooper did not have a valid reason to conduct a

traffic stop, that he did not have reasonable suspicion to further detain her, that he lacked

probable cause to make an arrest, and that he continued to question her after she invoked

her right to an attorney. Following a hearing, the trial court overruled the motion in part,

and sustained it in part. The trial court found that there was a valid basis for the traffic

stop, that the trooper had reasonable suspicion to detain, and probable cause to arrest.

However, the court also found that Kaiser invoked her right to counsel, and suppressed

all evidence obtained after that point.

       {¶ 4} Kaiser then pled no contest, was found guilty, and was               sentenced

accordingly. Kaiser appeals.

        II. The Trial Court Did Not Err in Overruling the Motion to Suppress

           Evidence Obtained as the Result of the Stop and Subsequent Arrest

       {¶ 5} Kaiser’s sole assignment of error states as follows:
                                                                               -3-

             THE TRIAL COURT ERRED IN OVERRULING IN PART THE

       MOTION TO SUPPRESS.

       {¶ 6} Kaiser first argues that the court erred by finding that the arresting trooper

had a valid basis for making the traffic stop. She argues that the trooper's stated reasons

for making the stop — that she had failed to drive within a continuous marked lane of

traffic — was completely refuted by a videorecording admitted in evidence that showed

the contrary. She next argues that even if the traffic stop was valid, the trooper had no

reasonable suspicion to detain her further, and that he lacked probable cause to

subsequently arrest her.

       {¶ 7} Appellate review of the overruling of a motion to suppress presents a mixed

question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003–Ohio–5372, 797

N.E.2d 71, ¶ 8. The trial court, as the trier of fact, determines the credibility of the

witnesses and weighs the evidence presented at the hearing. Id. When reviewing the

ruling of a trial court on a suppression issue, an appellate court must accept the findings

of fact made by the trial court if they are supported by competent, credible evidence. Id.

However, the reviewing court must independently determine whether the facts meet the

appropriate legal standard. Id.

      {¶ 8} The trial court conducted a hearing on the motion to suppress, and heard

testimony from the arresting trooper. The trooper testified that he was on patrol at 2:17

a.m., when he noticed a car following a truck too closely for the speed the vehicles were

traveling. He testified that the car was traveling one to one and a half car lengths behind

the truck at a speed of 60 to 65 miles per hour. He observed this for several seconds,
                                                                               -4-

when the car made a lane change into the right lane. According to the trooper, he twice

observed the car drive out of the lane and cross the solid line on the right side of the road.

He then initiated a traffic stop. During the hearing, the cruiser videorecording of the

incident was played for the trial court.

       {¶ 9} At the hearing, the trooper further testified that he asked Kaiser for her

license and registration. He testified that she did not have a license, but gave him an

Ohio ID card. He further testified that she fumbled with papers in her lap, and that he

had to show her which one was the registration.           The trooper testified that Kaiser

informed him she had picked up her passenger, a friend, from a bar. He testified that he

observed that Kaiser had red/glassy eyes, and that a strong odor of alcohol emanated

from her.1 He testified that he asked her to exit the vehicle, and had her sit in the front

seat of the cruiser while he ran her information through the cruiser computer. The

trooper then found that she was under a license suspension. He testified that he asked

her to perform a field sobriety test, when she began to cry, and asked for her attorney.

The trooper then offered to let her take a breath test, which she declined. He testified

that he then placed her under arrest.

       {¶ 10} At the conclusion of the hearing, the trial court noted that the video “does

not very well depict, quite frankly, distances [or] whether the vehicle is over [the line] by

a tire width because this Court is unable to figure that out from looking at the video.” Tr.

p. 56. But the trial court specifically stated that it relied upon the trooper’s testimony

regarding the traffic violations, and that it found his testimony credible. The trial court

1 Kaiser contends that the trooper was unable to be sure that the smell of alcohol came
from her and not her passenger. However, the trooper tesitifed that he detected the
smell of alcohol on Kaiser even after he asked her to exit the vehicle.
                                                                               -5-

found that the trooper observed a traffic violation, and the trooper made a valid stop.

       {¶ 11} Kaiser is correct in her assertion that the cruiser videorecording does not

clearly depict the violation of following too closely or crossing the right-lane marker; a fact

acknowledged by the trial court. However, from our review of the videorecording, we

cannot say that the trial court erred. The trooper’s testimony, which the trial court found

credible, sufficiently established that he observed Kaiser follow too closely and fail to drive

within her lane of traffic. This testimony, which is not clearly refuted by the videorecording,

was enough to establish that the trooper observed a traffic violation; hence, there was a

valid basis for the traffic stop. The trial court, as trier of fact, believed the trooper. We

have no basis for overturning this factual finding. Thus, we find no abuse of discretion

in the trial court’s decision to overrule the motion to suppress on this basis.

       {¶ 12} The trial court further found that the trooper’s observations that Kaiser had

red/glassy eyes, a strong odor of alcohol, and was unable to find the registration, taken

together with the traffic violations, created probable cause to effect an arrest.          We

acknowledge that the trial court is in the best position to resolve factual questions and

evaluate the credibility of witnesses. Consequently, we must accept the court's findings

of fact if they are supported by competent, credible evidence. We find nothing in this

record to contradict the trial court’s findings. Thus, we conclude that the trial court did

not abuse its discretion by overruling the motion to suppress with regard to the arrest.

The totality of the circumstances, which included the early morning hour, Kaiser’s having

just left a bar, her failure to submit to field sobriety tests or a field breath-alcohol test,

combined with the trooper’s personal observation of her, gave the trooper probable cause

to arrest Kaiser, for OMVI, for driving under a suspension, or for both offenses.
                                                                               -6-

       {¶ 13} The sole assignment of error is overruled.

                                    III. Conclusion

       {¶ 14} Kaiser’s sole assignment of error having been overruled, the judgment of

the trial court is Affirmed.

                                    .............

DONOVAN, P.J., and HALL, J., concur.

Copies mailed to:

Betsy A. Deeds
Jay A. Adams
Hon. Beth W. Root