  United States Bankruptcy Appellate Panel
                    FOR THE EIGHTH CIRCUIT

                           ____________

                           No. 97-6098NE
                           ____________

In re:                               *
                                 *
Michael Moeder                       *
                                 *
    Debtor.                      *
                                 *
Martha Moeder                    *
                                 * Appeal from the United
States
     Plaintiff-Appellee,                   *   Bankruptcy Court
for the
                               * District of Nebraska
     -v.-                        *
                               *
Michael Moeder                   *
                               *
     Defendant-Appellant.        *
                               *
                         ____________

                       Submitted: March 13, 1998

                              Filed:       April 28, 1998
                           ____________

Before KOGER, Chief Judge, SCOTT, and DREHER, Bankruptcy
Judges.
                        ____________

DREHER, Bankruptcy Judge.

     This appeal allows us to revisit the issue of the
dischargeability of marital obligations under § 523 of the
Bankruptcy Code. The bankruptcy court in this case held that
certain debts owed to the debtor's former spouse are
nondischargeable under 11 U.S.C. § 523(a)(5) and (a)(15).
After carefully considering the arguments of the parties and
the record on appeal, we affirm in part and reverse in part.

                             2
                        I.   BACKGROUND

     Michael ("Michael") and Martha ("Martha") Moeder were
married on November 20, 1982.     During their marriage, the
parties adopted Nicole Michelle Moeder, a minor child born on
September 13, 1990. Eventually Michael and Martha separated,
and, on March 22, 1996, they were divorced by decree entered
in Nebraska state court.     Under the terms of the divorce
decree, Martha was awarded sole custody of Nicole and Michael
was ordered to pay child support in the sum of $265 per month
until Nicole reached the age of majority, died or became
emancipated. In addition, the state court ordered Michael to:
(1) pay alimony in the amount of $100 per month for a term of
forty-eight months; (2) provide health insurance for Nicole;
(3) pay 78% of all unreimbursed medical expenses incurred on
Nicole's behalf; (4) pay a $985 outstanding debt to Nicole's
child psychologist; and (5) pay to Martha the sum of $10,392
plus interest, representing Martha's share of the marital
property awarded to Michael under the decree.

     On September 24, 1996, Michael filed a petition for relief
under Chapter 7 of the United States Bankruptcy Code.        On
October 24, 1996, Martha commenced the present adversary
proceeding, seeking a determination that certain of Michael's
obligations under the divorce decree are nondischargeable
pursuant to 11 U.S.C. § 523(a)(5) and (a)(15).            After
conducting a trial on the issue, the bankruptcy court ruled
that Michael's obligation to pay alimony, his obligation to pay
Nicole's medical expenses, and his obligation to pay the child
psychologist constituted nondischargeable "alimony, maintenance
or support" under § 523(a)(5). The bankruptcy court further
ruled that Michael's $10,392 property settlement obligation
constituted a nondischargeable property settlement pursuant to
§ 523(a)(15). In making its decision under § 523(a)(15), the
bankruptcy court found that Michael did not have the ability
to pay his debt to Martha from his disposable income, but

                               3
nevertheless concluded that the debt was nondischargeable
because the benefit to Michael of discharging the debt was
outweighed by the detrimental effect that nonpayment of the
debt would have on Martha. Michael appeals.1

1
        In addition to his appellate brief, Michael has submitted for consideration by the Court a
Reply Brief and an Affidavit of John D. Rouse, to which Martha has objected. In light of
Michael's pro se status, we believe that a certain degree of flexibility is warranted, and we
therefore deny Martha's motion to strike Michael's Reply Brief. As for Michael's submission of
the Rouse Affidavit, however, it is quite clear that the time for submitting evidence in this case has
passed and we deny Michael's request to submit additional evidence on appeal. Finally, as for
Michael's objection to the admissibility of exhibit #16 (a letter from Dr. Konar), Michael failed to
make this objection at trial and any objection he may have had has been waived.

                                                  4
                       II.   DISCUSSION

     Section 523(a) of the Bankruptcy Code excepts certain
categories of debts from a debtor's discharge granted under
section 727, 1141, 1228(a), 1228(b) or 1328(b).     Among the
debts rendered nondischargeable by this provision are marital
obligations owed to a spouse, former spouse, or child of the
debtor incurred by the debtor in the course of a divorce or
separation. Specifically, § 523(a)(5) of the Code excepts from
discharge any debt:

    to a spouse, former spouse, or child of the debtor,
    for alimony to, maintenance for, or support of such
    spouse or child, in connection with a separation
    agreement, divorce decree or other order of a court
    of record, determination made in accordance with
    State or territorial law by a governmental unit, or
    property settlement agreement, but not to the extent
    that --
              (A) such debt is assigned to another entity,
         voluntarily, by operation of law, or otherwise
         (other than debts assigned pursuant to section
         408(a)(3) of the Social Security Act, or any
         such debt which has been assigned to the Federal
         Government or to a State or any political
         subdivision of such State); or
              (B)   such   debt   includes   a   liability
         designated as alimony, maintenance, or support,
         unless such liability is actually in the nature
         of alimony, maintenance or support.

11 U.S.C. § 523(a)(5) (1994). Thus, under § 523(a)(5), a debt
that is "actually in the nature of alimony, maintenance or
support" of a spouse, former spouse, or child of the debtor"
is nondischargeable in bankruptcy.

     In 1994, Congress expanded the exception to discharge for
marital obligations by adding § 523(a)(15) to the Bankruptcy
Code. Section 523(a)(15) renders nondischargeable any debt:

                               5
    not of the kind described in paragraph (5) that is
    incurred by the debtor in the course of a divorce or
    separation or in connection with a separation
    agreement, divorce decree or other order of a court
    of record, a determination made in accordance with
    State or territorial law by a governmental unit
    unless --
              (A) the debtor does not have the ability to
         pay such debt from income or property of the
         debtor not reasonably necessary to be expended
         for the maintenance or support of the debtor or
         a dependant of the debtor and, if the debtor is
         engaged in business, for the payment of
         expenditures necessary for the continuation,
         preservation, and operation of such business; or
              (B) discharging such debt would result in a
         benefit to the debtor that outweighs the
         detrimental consequences to a spouse, former
         spouse, or child of the debtor.

Id. § 523(a)(15). Section 523(a)(15) excepts from discharge
those debts arising out of marital dissolution proceedings that
do not constitute nondischargeable alimony, maintenance or
support under § 523(a)(5); i.e. property settlement awards.
The legislative history of this provision indicates that it was
added to the Bankruptcy Code to provide greater protection for
nondebtor divorcing spouses who agree to take reduced alimony
and support payments in exchange for an increased property
settlement. H.R. REP. NO. 103-385, at 54 (1994), reprinted in
1994 U.S.C.C.A.N. 3340, 3363.        Thus, while a debtor's
obligation to make a settlement of marital property would be
dischargeable under § 523(a)(5), such an obligation is
nondischargeable under § 523(a)(15), with two important
exceptions: (1) subsection (A) of § 523(a)(15) provides that
a property settlement award arising out of divorce proceedings
is dischargeable where the debtor does not have the ability to
pay the debt from disposable income; and (2) subsection (B)
provides that such a property settlement award is dischargeable
where discharging such debt would result in a benefit to the
debtor that outweighs the detrimental consequences to the

                               6
nondebtor spouse. See Jodoin v. Samayoa (In re Jodoin), 209
B.R. 132, 139 (B.A.P. 9th Cir. 1997); Schaefer v. Deppe (In re
Deppe), 217 B.R. 253, 259 (Bankr. D. Minn. 1998); Johnson v.
Rappleye (In re Rappleye), 210 B.R. 336, 340 (Bankr. W.D. Mo.
1997); Williams v. Williams (In re Williams), 210 B.R. 344, 346
(Bankr. D. Neb. 1997); Wellner v. Clark (In re Clark), 207 B.R.
651, 655-56 (Bankr. E.D. Mo. 1997).

                               7
     As we have previously stated, the question of whether a
particular debt constitutes "alimony, maintenance or support"
or rather constitutes a property settlement is a question of
federal bankruptcy law, not of state law. Tatge v. Tatge (In
re Tatge), 212 B.R. 604, 608 (B.A.P. 8th Cir. 1997) (citing
Williams v. Williams (In re Williams), 703 F.2d 1055, 1056 (8th
Cir. 1983) (quoting H.R. REP. NO. 95-595, at 364 (1977))). The
crucial issue in making this determination is the intent of the
parties and the function the award was intended to serve at the
time of the divorce. Holliday v. Kline (In re Kline), 65 F.3d
749, 751 (8th Cir. 1995); Adams v. Zentz, 963 F.2d 197, 200
(8th Cir. 1992); Williams, 703 F.2d at 1056; Boyle v. Donovan,
724 F.2d 681, 683 (8th Cir. 1984). Factors to be considered
by the courts in determining whether an award arising out of
marital dissolution proceedings was intended to serve as an
award for alimony, maintenance or support, or whether it was
intended to serve as a property settlement include, but are not
limited to: the relative financial conditions of the parties
at the time of the divorce; the respective employment histories
and prospects for financial support; the fact that one party
or another receives the marital property; the periodic nature
of the payments; and whether it would be difficult for the
former spouse and children to subsist without the payments.
Tatge, 212 B.R. at 608; Kubik v. Kubik (In re Kubik), 215 B.R.
595, 599 (Bankr. D.N.D. 1997).         The bankruptcy court's
determination of this issue constitutes a finding of fact that
may be reversed only if it is clearly erroneous under the
evidence presented. First Nat'l Bank v. Pontow, 111 F.3d 604,
609 (8th Cir. 1997); Kline, 65 F.3d at 750; Adams, 963 F.2d at
200; Williams, 703 F.2d at 1056.

     Applying these principles to the first part of the
bankruptcy court's holding, we have no trouble affirming the
bankruptcy court's determination that Michael's obligations to
pay alimony, medical expenses and the psychologist's bill are
nondischargeable under § 523(a)(5).      The record before us

                               8
indicates that, in ordering Michael to pay these debts, the
divorce court was concerned with balancing the income and
earning capacities of the parties and with providing for the
proper care and support of Nicole. Thus, we hold that the
bankruptcy court's finding that these debts were intended to
serve the function of "alimony, maintenance or support" was not
clearly erroneous.

                               9
     We reach a different conclusion with respect to the
bankruptcy court's holding that Michael's obligation to pay
Martha $10,392 plus interest is nondischargeable under §
523(a)(15), however. Although the court's finding that this
debt was intended to serve the function of a property
settlement rather than an award of alimony, maintenance or
support is supported by the evidence, we believe that the
bankruptcy court incorrectly applied the law in this case in
two respects. First, the bankruptcy court found the property
settlement debt in this case nondischargeable despite its
specific finding that "the debtor does not have the ability to
pay his obligations to his former spouse from income or
property which is not reasonably necessary to be expended for
his maintenance or support, and the support of his child,
through child support payments."       As discussed above, a
property settlement award that otherwise qualifies for
nondischargeability under § 523(a)(15) will be nevertheless
dischargeable in bankruptcy if either of the two exceptions
contained in subsections (A) and (B) apply. The bankruptcy
court's finding, if upheld, would indicate that subsection (A)
of § 523(a)(15) has been satisfied in this case and that the
property settlement debt should therefore be dischargeable by
the debtor.

     Second, we think that the bankruptcy court improperly
allocated the burden of proof in this case. In making its
finding that Michael did not have the ability to pay under §
523(a)(15)(A), the bankruptcy court indicated that the evidence
on Michael's ability to pay his debts was incomplete; that
Michael's testimony was not credible; that Michael failed to
recall specific information; that he was evasive and
argumentative; and that he did not respond directly to
questions asked of him. Despite this apparent failure of proof
on the debtor's part, the bankruptcy court held that the burden
fell on the objecting creditor to prove the inapplicability of
an exception to nondischargeability under § 523(a)(15)(A), and

                              10
concluded that the debtor did not have the ability to pay
because Martha had failed to prove otherwise.          Although
"several courts have grappled with the issue of burden proof"
in § 523(a)(15) cases, see Crossett v. Windom (In re Windom),
207 B.R. 1017, 1020-21 (Bankr. W.D. Tenn. 1997), we think that
the burden of proof lies with the debtor to show that an
exception to nondischargeability under § 523(a)(15)(A) or (B)
applies in a given case. It is true that in general the burden
falls on the objecting creditor to prove an exception to
discharge under § 523; nevertheless the majority of courts have
ruled that, once the objecting

                              11
creditor proves that the debt constitutes a property settlement
award incurred in the course of divorce proceedings, the burden
shifts to the debtor to prove either of the exceptions to
nondischargeability contained in subsections (A) or (B). See
Jodoin, 209 B.R. at 139; Rappleye, 210 B.R. at 340; Williams,
210 B.R. at 346; Clark, 207 B.R. at 655-56; Scigo v. Scigo (In
re Scigo), 208 B.R. 470, 473 (Bankr. D. Neb. 1997); Wynn v.
Wynn (In re Wynn), 205 B.R. 97, 101 (Bankr. N.D. Ohio 1997);
Schmitt v. Eubanks (In re Schmitt), 197 B.R. 312, 316 (Bankr.
W.D. Ark. 1996); Johnston v. Henson (In re Henson), 197 B.R.
299, 302-03 (Bankr. W.D. Ark. 1996); Bodily v. Morris (In re
Morris), 193 B.R. 949, 952 (Bankr. S.D. Cal. 1996). See also
Kirchner v. Kirchner (In re Kirchner), 206 B.R. 965, 970
(Bankr. W.D. Mo. 1997); Florio v. Florio (In re Florio), 187
B.R. 654, 657 (Bankr. W.D. Mo. 1995); Silvers v. Silvers (In
re Silvers), 187 B.R. 648, 649 (Bankr. W.D. Mo. 1995) (holding
that the debtor bears the burden of going forward with respect
to § 523(a)(15)(A) and (B), but not the burden of proof). But
see Marquis v. Marquis (In re Marquis), 203 B.R. 844, 847
(Bankr. D. Me. 1997); Greenwalt v. Greenwalt (In re Greenwalt),
200 B.R. 909 (Bankr. W.D. Wash. 1996); Willey v. Willey (In re
Willey), 198 B.R. 1007 (Bankr. S.D. Fla. 1996); Dressler v.
Dressler (In re Dressler), 194 B.R. 290, 302-03 (Bankr. D.R.I.
1996); Kessler v. Butler (In re Butler), 186 B.R. 371, 373-74
(Bankr. D. Vt. 1995) (holding that the objecting creditor has
the    burden    of   proving     that   the    exceptions   to
nondischargeability contained in § 523(a)(15)(A) and (B) do not
apply). We believe that the statutory language of § 523(a)(15)
indicates that the exceptions contained in subsections (A) and
(B) constitute affirmative defenses to nondischargeability
which    must   be   proven    by    the   debtor   to   escape
nondischargeability of the disputed debt. Therefore, although
the bankruptcy court found that the debtor did not have the
ability to pay his debts from disposable income under §
523(a)(15)(A), we conclude that the bankruptcy court improperly
placed the burden of satisfying this test on the objecting

                              12
creditor, rather than on the debtor. Accordingly, we believe
that the bankruptcy court's decision under § 523(a)(15) must
be reversed and remanded to the bankruptcy court for new
findings of fact while placing the burden on the debtor to
prove either of the exceptions to nondischargeability contained
in § 523(a)(15)(A) or (B).

                              13
                       III.   CONCLUSION

     We conclude that the bankruptcy court's decision under §
523(a)(5) should be affirmed, but that the bankruptcy court's
decision under § 523(a)(15) incorrectly applied the law and
improperly allocated the burden of proof. Accordingly, the
bankruptcy court's decision is AFFIRMED IN PART, REVERSED IN
PART, and REMANDED for further proceedings consistent with this
opinion.

A true copy.

    Attest:

         CLERK, U.S. BANKRUPTCY APPELLATE PANEL
         FOR THE EIGHTH CIRCUIT

                               14


935 F.2d 69
20 Fed.R.Serv.3d 769
Darson H. PERSYN, et al., Plaintiffs-Appellants,v.UNITED STATES of America, et al., Defendants-Appellees.J.L. GUERRA and Herminia G. Guerra, Plaintiffs-Appellants,v.UNITED STATES of America, et al., Defendants-Appellees.
No. 90-5611.
United States Court of Appeals,Fifth Circuit.
July 5, 1991.

Craig L. Austin, San Antonio, Tex., for plaintiffs-appellants.
Paula Dlugosz, Judith A. Yacono, Asst. City Attys., San Antonio, Tex., for City of San Antonio.
Catherine M. Flanagan, Robert L. Klarquist, Dorothy R. Burakreis, Dept. of Justice, Land & Nat. Resources Div., Washington, D.C., for U.S.
Appeal from the United States District Court for the Western District of Texas.
Before CLARK, Chief Judge, JERRE S. WILLIAMS, and DAVIS, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge:

1
Landowners in the vicinity of Kelly Air Force Base in San Antonio, Texas, claim that the Air Force effectuated a taking of their property under the Fifth Amendment by generating noise and conducting hazardous activities on the base.  The landowners name the City of San Antonio ("City") as an additional defendant, alleging that the City acted under the authority of the United States when it passed ordinances greatly restricting the use of their property and diminishing its market value.

2
The district court transferred the cause of action against the United States to the United States Claims Court, finding that the Tucker Act, 28 U.S.C. Secs. 1346 and 1491, vested exclusive jurisdiction in that court since the landowners' claims exceeded $10,000.  The court then dismissed with prejudice the action against the City under Fed.R.Civ.P. 12(b)(6).  The landowners appeal both the transfer of the action and the dismissal of the claims against the City.  We find that we have no jurisdiction to review the transfer of the cause of action against the United States to the Claims Court.  We also find the appeal of the dismissal of the claims against the City premature.  Such an appeal must await the decision of whether the claims against the United States must be remanded to the district court.

Facts

3
In 1984, the Air Force initiated operations of both its C-5 and C-5A transport aircraft out of Kelly Air Force Base in San Antonio, Texas.  In 1986, the Air Force also began B-1 bomber flights from the base.  Noise generated from the base increased with the addition of the transport aircraft and bomber operations.  The landowners assert that the increased decibel levels and risks associated with the additional overflights diminished the value of property located near the base.

4
For safety purposes, San Antonio requires clear zones 3000 feet in length and width at the ends of military airport runways located within its jurisdiction.  In 1986, the Air Force requested the establishment of two military supplementary overlay zoning districts around Kelly Air Force Base as an additional safety precaution.  The City passed Ordinance 62739-A creating these special districts extending beyond the existing 3000 feet clear zones.  Zone 1 extended 5000 feet beyond the clear zone and Zone 2 extended 7000 feet beyond Zone 1.  San Antonio, Tex., Code, Sec. 35-222 (April 17, 1986).  The ordinance imposed restrictions on the use of all land located within the overlay districts.1   Two additional ordinances passed during the next year, 64225 and 64961, refined and amended the use restrictions.  The ordinances and their ultimate effect on property values near the base are the basis for a portion of the landowners' claims of a taking of their property.

5
Appellant Darson H. Persyn and the owners of 34 other tracts of land located adjacent to or near the base filed suit against the United States and the City of San Antonio on July 15, 1988.  The landowners sought $16,754,352.50 in damages, attorney's fees, and costs for the alleged reduction of the value of their property caused by the overflights and the restrictive ordinances.  Appellants J.L. and Herminia Guerra filed an identical suit seeking $2,215,000 in damages on December 6, 1989.  The district court consolidated these two cases.  The transfer of the claim against the Air Force and the dismissal of the claim against San Antonio followed.  Appellants ask us to reverse both rulings, and to remand the case for trial in the district court.

I. Notice of Appeal

6
We have an independent duty to determine our jurisdiction over any case presented to us for decision.  Morales v. Pan American Life Ins. Co., 914 F.2d 83, 85 (5th Cir.1990).  To vest jurisdiction in this Court, a party must comply with Fed.R.App.P. 3(a) by filing a timely notice of appeal.  Rule 3(c) provides that a notice of appeal "shall specify the party or parties taking the appeal."    Under Fed.R.App.P. 4(a)(1) appellants filed their Notice of Appeal ("Notice") on July 12, 1990, within the 60-day time limit for appeals in which the United States is party.  The Notice lists J.L. Guerra, Herminia Guerra, and Darson Persyn individually as the parties appealing to this court.  It refers to the remaining landowners as "Et Al."    We must determine whether we have jurisdiction over an appeal by all of the original plaintiffs or whether our jurisdiction is limited to the parties specifically named in the Notice.

7
The Supreme Court in Torres v. Oakland Scavenger Co., 487 U.S. 312, 318, 108 S.Ct. 2405, 2409, 101 L.Ed.2d 285 (1988) held that the use of "et al." will not suffice to perfect an appeal for unnamed appellants.  Under Torres, we lack appellate jurisdiction over parties other than those properly identified in the notice of appeal.  Samaad v. City of Dallas, 922 F.2d 216, 219 (5th Cir.1991).

8
We have recognized an exception to this strict rule.  A party may satisfy Rule 3(c) by filing some other paper identifying all of the appellants within the period allowed for appeals under Rule 4(a).  Brotherhood of Ry. Carmen v. Atchison, Topeka & Santa Fe Ry. Co., 894 F.2d 1463, 1465 (5th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 131, 112 L.Ed.2d 99 (1990).  In this case no such additional filing by any party was made.  The district court clerk, however, listed all of the original plaintiffs in the docketing statement recognizing receipt of the landowners' notice of appeal.  The landowners argue that this docketing statement cures the defect in their Notice under the Brotherhood of Ry. Carmen exception.  We disagree.

9
The landowners refer us to the Tenth Circuit's decision in Hubbert v. City of Moore, Okl., 923 F.2d 769, 772 (10th Cir.1991).  In Hubbert, a notice of appeal failed to indicate which parties were appealing the lower court's decision.  A docketing statement filed with the notice of appeal, however, listed the specific parties taking the appeal.  The Tenth Circuit held that the filing of the docketing statement cured the defect in the notice of appeal.

10
Although Hubbert superficially supports the landowners' argument, the facts of the two cases are distinguishable.  The parties themselves in Hubbert filed the docketing statement listing the intended appellants.  Here, the landowners did not file the docketing statement or any other document listing additional parties claimed to be appealing.  The clerk of the district court produced the docketing statement and transmitted it to us as a routine matter with the notice of appeal.  Our opinion in Brotherhood of Ry. Carmen specifically requires a party to file some other document naming the parties appealing a decision to take advantage of the exception to Rule 3(c).  The landowners have not satisfied that requirement.  The fortuitous decision of the district court clerk to include all of the original plaintiffs in the docketing statement does not release the landowners from the requirements of Rule 3(c).  We must conclude that only Darson H. Persyn, J.L. Guerra, and Herminia G. Guerra are involved in the asserted appeal to this Court.

II. Claims Against the United States

11
The landowners seek in excess of $18 million in damages under the Fifth Amendment for the alleged taking of their property by military overflights and by the passage of the restrictive ordinances.  The United States has waived sovereign immunity for civil actions founded upon the Constitution or an Act of Congress in the Tucker Act, 28 U.S.C. Secs. 1346 and 1491.  Both the district court and the Claims Court have jurisdiction to entertain these suits.  The jurisdiction of the district court is limited, however, to claims not exceeding $10,000.  28 U.S.C. Sec. 1346(a)(2).2   Congress has vested exclusive jurisdiction over claims in excess of $10,000 in the Claims Court.  28 U.S.C. Sec. 1491(a)(1).3

12
Since the landowners' claims exceeded $10,000, the district court held that the Claims Court was the only forum for the action.  The district court transferred the complaint to the Claims Court under 28 U.S.C. Sec. 1631.4   The landowners assert that this transfer was improper because other provisions in the Tucker Act deprived the Court of Claims of jurisdiction.  We do not consider those claims because we must first decide whether we have jurisdiction to review the district court's transfer order.

13
The landowners premise jurisdiction for appeal to this Court on 28 U.S.C. Sec. 1291.  Section 1291 only authorizes appeals from final decisions of the district court.  A transfer order is an interlocutory order, and generally is not appealable.  Section 1292(b) permits us to review some interlocutory orders, but only if the district court certifies the question.  The landowners made no application for certification in this case, and there is no certification.

14
Although we have no authority to review this transfer under Sec. 1291 or Sec. 1292, we must consider whether to exercise jurisdiction under the collateral order doctrine.  Cohen v. Beneficial Indust. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949);  see also Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 11-12, 103 S.Ct. 927, 934-35, 74 L.Ed.2d 765 (1983).  In Cohen, the Supreme Court held that direct appeal of an interlocutory order is appropriate if it (1) will determine conclusively the disputed question, (2) will resolve an important issue completely separate from the merits of the action, and (3) would be effectively unreviewable on appeal from a final judgment.  We have more explicitly stated the requirements that an order must meet to be reviewable under the collateral order doctrine in Acosta v. Tenneco Oil Co., 913 F.2d 205, 207 (5th Cir.1990):The collateral order doctrine has four requirements:  (1) the order must finally dispose of a matter so that the district court's decision may not be characterizable as tentative, informal or incomplete;  (2) the question presented must be serious and unsettled;  (3) the order must be separable from, and collateral to, rights asserted in the principal suit;  and (4) there should generally be a risk of important and probably irreparable loss if an immediate appeal is not heard.

15
Whether the collateral order doctrine authorizes us to review a district court's order transferring an action to the Claims Court is a question of first impression in this Court.  Other circuits addressing this specific issue differ.

16
The Tenth and Eleventh Circuits have held that the collateral order doctrine does not authorize review of these transfer orders.  Alimenta (USA) v. Lyng, 872 F.2d 382, 384-85 (11th Cir.1989);  Jesko v. United States, 713 F.2d 565, 567 (10th Cir.1983);  see also Raines v. Block, 798 F.2d 377, 379 (10th Cir.1986).  Both Circuits relied on the fact that the Claims Court would consider the jurisdictional issue and either dismiss the action for lack of jurisdiction or find jurisdiction and dispose of the case on the merits.  Either disposition of the case would be a final decision subject to review by the United States Court of Appeals for the Federal Circuit.  28 U.S.C. Sec. 1295(a)(3).  Since the original transfer order of the district court would be reviewed by the Claims Court and could be reviewed by the Federal Circuit, the Tenth and Eleventh Circuits found that the transfer orders failed the "effectively unreviewable" requirement of Cohen.

17
One other Circuit has reached a contrary result.  In Gower v. Lehman, 799 F.2d 925, 927 (4th Cir.1986), the Fourth Circuit relied on the collateral order doctrine to review a district court's order transferring an action to the Claims Court.  The court held that the "district court's determination that it lacks jurisdiction cannot be effectively reviewed on appeal to the Federal Circuit from a final judgment of the Claims Court."    The opinion offers no explanation for this conclusion.

18
Also, the D.C. Circuit in Goble v. Marsh, 684 F.2d 12, 14-15 (D.C.Cir.1982) allowed interlocutory review of a transfer order, but that case is distinguishable.  The dispute in Goble was whether the appellant had successfully waived any claims exceeding $10,000 so as to allow the district court to retain jurisdiction.  Even if the amount in controversy would not exceed $10,000, the Claims Court had jurisdiction over the action.  Thus, effective review of the district court's decision to transfer the case could not occur because if there was error in transferring the case it would be deemed harmless.  The unique facts of Goble present a clear case for application of the collateral order doctrine.  We do not have the same compelling facts before us.

19
We hold in agreement with the Tenth and Eleventh Circuits that the district court's order transferring the action to the Claims Court is not effectively unreviewable and does not, therefore, fall into that narrow class of interlocutory orders immediately reviewable under the collateral order doctrine.  We can see no obstacle whatsoever to a review in the Federal Circuit of the jurisdictional decision of the Court of Claims since the landowners assert that the Court of Claims has no jurisdiction.  Thus, this is not a concurrent jurisdiction case like Goble.    Since the district court's transfer order is not a final judgment, we must dismiss the landowners' appeal as to the claims against the United States for lack of appellate jurisdiction.5III. Claims Against the City of San Antonio

20
The landowners assert that the City acted under the authority and for the sole benefit of the United States when it passed a series of ordinances restricting the use of property near Kelly Air Force Base.  Passage of these ordinances allegedly subjected the City to joint liability with the United States for compensation to the landowners for the claimed taking of their property.  The district court granted the City's Fed.R.Civ.P. 12(b)(6) motion, finding that the landowners failed to state a claim against the City for a constitutional taking.  The landowners ask us to review that dismissal.

21
The landowners alleged in their complaint that the United States and the City were jointly liable for a taking resulting from the passage of the restrictive ordinances.  The landowners claimed, in effect, that the City acted as an agent of the United States when it passed the ordinances.  The landowners rely heavily on this alleged agency to argue that transfer of the claims against the United States to the Claims Court was improper.  Specifically, the landowners complain that there is no forum to adjudicate their joint taking claim against the United States and the City.  The landowners conclude that either 28 U.S.C. Sec. 1500 or the Tucker Act is unconstitutional because they are prevented from bringing their joint taking action either in the Court of Claims or the district court.

22
The Claims Court only has jurisdiction over claims against the United States, 28 U.S.C. Sec. 1491(a)(1), so it cannot hear the claims against the City.  In addition, 28 U.S.C. Sec. 1500 prevents the Claims Court from exercising jurisdiction over claims against the United States when a plaintiff has the same claim pending in another court against the United States or a party acting under the authority of the United States.  The landowners read Sec. 1500 to prevent the Claims Court from exercising jurisdiction since the landowners had claims pending in the district court against the City for acting under the authority of the United States.  Finally, the district court does not have jurisdiction over the joint claim because the damages sought by the landowners exceed $10,000.  28 U.S.C. Sec. 1346(a)(2).

23
The district court solved this unique jurisdictional dilemma by dismissing the action against the City, thereby removing the Sec. 1491(a)(1) and Sec. 1500 barriers to transfer of the claims against the United States to the Claims Court.  We have already held that we have no jurisdiction to review the propriety of that transfer.  We must now determine whether we have jurisdiction to review the court's dismissal of the claims against the City.

24
Dismissal with prejudice under Rule 12(b)(6) is a decision on the merits and is a final judgment for purposes of appeal under 28 U.S.C. Sec. 1291.  See Mahone v. Addicks Utility Dist. of Harris Cty., 836 F.2d 921, 940 (5th Cir.1988).  In a case involving multiple parties, however, an order adjudicating the rights and liabilities of fewer than all of the parties is generally not appealable as a final order.  Matter of Moody, 825 F.2d 81, 85-86 (5th Cir.1987).  The problem here is that the Claims Court or the Federal Circuit might remand the landowners' claims against the United States to the district court.  That contingency prevents the district court's judgment from being an appealable final order under Sec. 1291.

25
The dismissal is also not appealable under the collateral order doctrine.  Although the order finally disposes of the landowners' claims against the City, the issue involved is not separate from the claims against the United States.  See Cohen, 337 U.S. at 545-47, 69 S.Ct. at 1225-26;  Acosta, 913 F.2d at 207-08.    We also cannot conclude that the dismissal will be effectively unreviewable absent immediate appeal.  If the Claims Court resolves the landowners' claims against the United States, the landowners can then appeal the dismissal to this Court as a final order.

26
We hold that at this time we have no jurisdiction to review the district court's dismissal of the claims against the City.  Until the claims against the United States are decided by the Claims Court or remanded to the district court, the landowners cannot appeal the dismissal to this Court.

Conclusion

27
We do not have appellate jurisdiction to review the district court's order transferring the landowners' claims against the United States to the Claims Court.  The appeal of the court's order dismissing the claims against the City of San Antonio is premature.  The appeal from the latter order must await the decision of the Court of Claims involving the asserted right to a remand to the district court of the claim against the United States.  Accordingly, we dismiss the landowners' appeal of the two orders of the district court.

28
APPEAL DISMISSED.

1
 The prohibited uses of the land within the overlay zones are:

1
 Residential uses, except as provided for in Exceptions for Residential Uses

2
 Transient lodging, hotels, and motels

3
 Hospitals, sanitariums, and nursing homes

4
 Public and private schools, including day care centers, professional, trade, and technical schools

5
 Churches and cultural facilities

6
 Auditoriums, except as a proper accessory to a permitted use

7
 Correction, detention, and penal institutions

8
 Flea markets

9
 Amusement and recreational uses over 5000 square feet in size, except for golf courses, riding stables, and horse training facilities

10
 Restaurants, eating and/or drinking establishments, clubs and lodges

11
 Billboards

12
 Shopping centers/malls in Zone 1 and Shopping centers/malls in excess of 250,000 square feet in Zone 2
San Antonio, Tex., Code Sec. 35-224.

2
 28 U.S.C. Sec. 1346 states in pertinent part:
(a) The district courts shall have original jurisdiction, concurrent with the United States Claims Court, of:
....
(2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded upon either the Constitution, or any Act of Congress....

3
 28 U.S.C. Sec. 1491 states:
(a)(1) The United States Claims Court shall have jurisdiction to render judgment upon any claim against the United States founded upon either the Constitution, or any Act of Congress ... in cases not sounding in tort.

4
 28 U.S.C. Sec. 1631 provides:
Whenever a civil action is filed in a court ... and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed....

5
 We note that the jurisdictional problem presented here has been resolved for future cases by the addition of 28 U.S.C. Sec. 1292(d)(4)(A).  That section authorizes direct appeal to the Federal Circuit of orders transferring cases to the Claims Court.  The statute applies only to cases commenced on or after November 19, 1988
The original Persyn complaint was filed on July 15, 1988, prior to the effective date of the new section.  The Guerra complaint was filed on December 6, 1989, after the effective date of the amended statute.  The Claims Court will need to consider whether Sec. 1292(d)(4)(A) permits direct appeal of the Guerra's claims to the Federal Circuit.


495 A.2d 756 (1985)
UNITED STATES, Appellant,
v.
Francis BAILEY, Appellee.
No. 84-240.
District of Columbia Court of Appeals.
Argued November 27, 1984.
Decided July 25, 1985.
*757 Thomas Tourish, Jr., Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell, Steven D. Gordon and Natalia M. Combs, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellant.
Jennifer P. Lyman, Public Defender Service, Washington, D.C., with whom James Klein, Washington, D.C., was on the brief, for appellee.
Before FERREN, BELSON, and ROGERS, Associate Judges.
BELSON, Associate Judge:
The trial court dismissed an indictment charging appellee with second-degree burglary, D.C.Code § 22-1801(b) (1981), and grand larceny, id. § 22-2201, repealed and superseded by id. §§ 22-3811, -3812 (1984 Supp.), on the ground that appellee's rights under the Interstate Agreement on Detainers Act, 18 U.S.C.app. at 545-48 (1982); D.C.Code §§ 24-701-705 (1981), had been violated.[1] On appeal, the government argues that the IAD does not apply to detainers lodged against federal prisoners if they are based on violations of the District of Columbia Code prosecuted by the United States Attorney in the Superior Court of the District of Columbia. We affirm.
Appellee was convicted of interstate transportation of stolen property, 18 U.S.C. § 2314 (1982), in the United States District Court for the District of Arizona, and was incarcerated in the federal prison camp at Safford, Arizona. The United States Marshal lodged a detainer against appellee, dated March 30, 1983, based upon a warrant for his arrest for felonies allegedly committed in the District of Columbia. The detainer requested that the federal prison authorities notify the United States Marshal of the transfer or release of appellee. Apparently, the Safford prison officials failed to notify appellee of the existence of the detainer.[2] Shortly after appellee's transfer on June 14, 1983, to the federal prison camp in Tucson, Arizona, the prison officials there advised him of his right to request final disposition of the charges against him in the District of Columbia. The prison officials in Tucson sent the forms executed by appellee to the United States Marshal in Tucson, instead of *758 directly to the appropriate prosecuting official and court as provided for by Article III(b) of the IAD.[3]
The United States Marshal Service, however, never forwarded these forms to the United States Attorney for the District of Columbia, the Superior Court of the District of Columbia, or any other official in the District.
Appellee was later brought to the District on a writ of habeas corpus ad prosequendum, issued by the Superior Court on the petition of the United States Attorney for the District of Columbia. Appellee arrived in the District on December 14, 1983, and was arraigned in Superior Court on December 21, 1983.[4] The judge continued the case for status hearing and trial. The trial court later granted appellee's motion to dismiss the indictment, ruling that: (1) appellee had invoked the IAD; (2) appellee was not brought to trial in the District within the 180-day time limit of Article III, and (3) the provisions of the IAD applied to prisoners such as appellee. On appeal, the government does not seek review of the first two findings; it contends only that the requirements of the IAD do not apply to appellee.
The IAD is an interstate compact entered into by the "United States on its own behalf and on behalf of the District of Columbia." 18 U.S.C. app. § 2 at 545 (1982); D.C.Code § 24-701 (1981). A detainer is a notice "`filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction.'" United States v. Mauro, 436 U.S. 340, 359, 98 S.Ct. 1834, 1846, 56 L.Ed.2d 329 (1978) (quoting H.R.REP. No. 1018, 91st Cong., 2d Sess. 2 (1970); S.REP. No. 1356, 91st Cong., 2d Sess. 2, reprinted in 1970 U.S.CODE CONG. & AD. NEWS 4864, 4865. Prior to the IAD, prisoners were not able to initiate legal proceedings to clear detainers based upon charges arising in jurisdictions other than the jurisdiction where they were incarcerated. H.R.REP. No. 1018 at 2; S.REP. No. 1356 at 2. The purpose of the IAD is "to encourage the expeditious disposition of such charges and to provide cooperative procedures among member States to facilitate such disposition." Mauro, 436 U.S. at 351, 98 S.Ct. at 1842.
Article III of the IAD provides that a prisoner may demand final disposition of the charges forming the basis of the detainer from a foreign jurisdiction.[5] The *759 official of the sending state having custody of the prisoner must notify the prisoner of the source and contents of any detainer lodged against him, and must inform the prisoner of his rights under the IAD.[6] Article III(c). If the prisoner wishes to invoke his rights under the IAD he must submit to the official having custody written notice of the place of his imprisonment and a request for a final disposition of the charges giving rise to the detainer. Article III(a), (b). The official shall deliver the prisoner's written notice and request for final disposition, along with a prison certificate, to the "prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction." Id. The prisoner must be brought to trial in the receiving state on the charges underlying the detainer within 180 days after the prisoner has caused to be delivered the request for trial disposition.[7] Article III(a). If the prisoner is not brought to trial within 180 days, the appropriate court of the receiving state shall dismiss the indictment, information, or complaint upon which the detainer is based. Article V(c).[8] The court having jurisdiction may, however, grant any necessary or reasonable continuance for good cause shown.[9] Article III(a).
The government contends that the IAD does not apply to detainers lodged against federal prisoners for prosecutions by the United States Attorney in the Superior Court. The government observes that appellee was in the custody of the United States in Arizona; the detainer was filed by the United States Marshal; the United States Attorney sought appellee's presence in the District; and the United States Attorney was the prosecutor in the Superior Court. According to the government, the District's status as a "state" in the IAD is limited to those instances in which the detainer is based upon an offense prosecuted by the District of Columbia Corporation Counsel, rather than the United States Attorney *760 for the District of Columbia.[10] Thus focusing on the identity of the prosecuting authority, the government argues that the IAD is simply inapplicable to the present detainer because the IAD does not apply to intra-jurisdictional detainers.[11]
The trial court, on the other hand, concluded that the language, purpose, and legislative history of the IAD establishes that it applies to detainers lodged against federal prisoners based upon any D.C.Code charge tried in the Superior Court. In the view of the trial court, a distinction grounded upon the identity of the prosecutor is contrary to the plain meaning and purpose of the IAD. We agree with that view, and affirm the dismissal of the indictment against appellee.
The first step in statutory construction requires us to read the language of the statute and construe its words according to their ordinary sense and plain meaning. Peoples Drug Stores v. District of Columbia, 470 A.2d 751, 753-54 (D.C.1983) (en banc). The IAD defines a "state" as: "a State of the United States; the United States of America; a territory or possession of the United States; the District of Columbia; the Commonwealth of Puerto Rico." Article II(a). The plain meaning of this definition is that the District is a "state" distinct from the United States. Each jurisdiction in the definition is separated by semicolons. The language suggests no limitation based upon the identity of the prosecuting authority.
Other provisions of the Act indicate that it contemplates the District of Columbia and its court system as wholly distinct from the United States. The IAD requires each party state to designate an officer to promulgate rules and regulations and provide information to effectuate the IAD. Article VII. Congress designated the Attorney General of the United States as the officer for the United States, and, distinctly, the Mayor of the District of Columbia as *761 the officer for the District. 18 U.S.C.app. § 6 at 548; D.C.Code § 24-704.[12] The enacting legislation defines "Governor," as used in the IAD, separately with respect to the United Statesthe Attorney General  and with respect to the Districtthe Mayor. 18 U.S.C.app. § 3 at 547; D.C.Code § 24-702(a). It also defines the term "appropriate court" discretely with respect to the United States"the courts of the United States"and the District"the courts of the District of Columbia." 18 U.S.C.app. § 4 at 547; D.C.Code § 24-702(b). Thus, in the IAD and throughout the enacting legislation adopted by Congress, the United States and the District of Columbia are listed as distinct jurisdictions without limitation by reference to the prosecuting authority.
The government argues that there is a statutory focus upon the identity of the prosecuting officer, citing the language of Article III(a) to the effect that the IAD is invoked by the prisoner's request for final disposition addressed "to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction." We disagree, however, that Article III(a) stresses the role of the prosecutor above that of the "appropriate court." To the contrary, Congress defined the term "appropriate court" differently for the United States and the District, 18 U.S.C.app § 4 at 457; D.C.Code § 24-702(b), but did not define the term "prosecuting officer." This lends support to the interpretation that the identity of the "appropriate court" is central to the determination of when the IAD applies.
We thus conclude that the plain meaning of the IAD and the legislation that enacted it is that a detainer lodged against a federal prisoner with respect to charges to be tried in the Superior Court is a detainer from a "state" other than the United States, regardless of whether the prosecutor is the U.S. Attorney or the Corporation Counsel.
The government, however, suggests that a review of the legislative history of the IAD will support its interpretation. We agree that even though the language of the IAD has a "superficial clarity," that should not end our inquiry, for "a review of the legislative history or an in-depth consideration of alternative constructions that could be ascribed to statutory language may reveal ambiguities that the court must resolve." Peoples Drug Stores, 470 A.2d at 754.
The first formulation of what was to become the IAD was contained in a 1956 report of the Council on State Governments that recommended several uniform statutes to address the "difficulties inherent in the existing detainer system [that] affect judges, the institutional officials, the paroling authorities and the individual [prisoner] himself." COUNCIL OF STATE GOVERNMENTS, SUGGESTED STATE LEGISLATION PROGRAM FOR 1957 at 74 (1956) [hereinafter CSG SUGGESTED LEGISLATION]. Pertinent to our discussion, the report explained that "[a]t the present time, there is no means by which a prisoner may initiate proceedings to clear a detainer placed against him from another jurisdiction. This is equally true on an interstate and a federal-state basis." Id. at 78. The CSG SUGGESTED LEGISLATION defined a "state" as "a state of the United States; the United States of America; a territory or possession of the United States; the District of Columbia; the Commonwealth of Puerto Rico." Id. at 81.
Congressman Celler introduced an IAD bill in the House of Representatives based upon the draft CSG SUGGESTED LEGISLATION. H.R. 8365, 88th Cong., 1st Sess. (1963). No action was taken by Congress on the IAD until Congressman Celler reintroduced it in the 90th Congress. H.R. 15421, 90th Cong., 2d Sess. (1968). Section 2 of that *762 bill declared that the IAD "is hereby enacted into law and entered into by the United States with all jurisdictions legally joining. . ." Id. § 2. The definition of a "state" in the bill was identical to the definition in the CSG SUGGESTED LEGISLATION. See id. With respect to the United States, the bill defined the term "Governor" as the Attorney General, id. § 3, and "appropriate court" as the United States court in which detainers were pending. Id. § 4. The bill contained no definition of "Governor" or of "appropriate court" for the District of Columbia.
The House Committee on the Judiciary reported H.R. 15421 to the Committee of the Whole House, with "amendments . . . proposed by the government of the District of Columbia." H.R.REP. No. 1332, 90th Cong., 2d Sess. 1 (1968). The House Committee amended the IAD legislation to permit the District to join the Agreement. It added the District to the enacting clause: "the [IAD] is hereby enacted into law and entered into by the United States on its own behalf and on behalf of the District of Columbia." H.R. 15421, 90th Cong., 2d Sess. (1968) (emphasis in original).[13]
The government argues that the legislative history of the amendments concerning the District demonstrates that the United States and the District are separate "states" under the IAD only when the detainer concerns charges prosecuted by the Corporation Council. We find some support for this argument in the House Committee Report. That report reprinted the letter of the Assistant to the Commissioner of the District. The Assistant observed that, in the absence of amendments to the IAD bill concerning the District, persons convicted of any crime occurring in the District (and therefore committed to the custody of the Attorney General of the United States), and persons to be tried for offenses against the United States (against whom the United States has lodged a detainer) and serving a prison term in a party state would be subject to the IAD. The Assistant also pointed out that, in the absence of amendments, persons yet to be tried for violations of a municipal regulation or ordinance (prosecuted by the Corporation Counsel) would not be subject to the IAD. Id. at 6-7.[14] Congress passed the IAD bill with the amendments concerning the District in the 91st Congress.[15]
*763 The reported comments of the Assistant to the Commissioner thus reflect the underlying assumption that persons prosecuted by the United States Attorney in the local court for violations of the D.C.Code would be subject to the IAD without the amendments concerning the District. This supports the government's argument that Congress amended the proposed IAD to encompass cases prosecuted by the Corporation Counsel, rather than to cover cases like appellee's.
On the other hand, the remarks by two Congressmen reflect a more expansive view on the reason for the need to amend the IAD bill concerning the District. The floor manager of the bill, Congressman Kastenmeier, explained in 1968 that:
Participation by the District of Columbia is necessary in order to make the agreement applicable to the clearing of detainers against State prisoners where the detainers are based on alleged violations of municipal regulations, ordinances, or acts of Congress applicable solely within the District.

114 CONG.REC. 11795 (1968) (emphasis added). Congressman Kastenmeier repeated that statement again in 1970. 116 CONG. REC. 13999. Comments of the floor manager are "accorded the same weight as formal committee reports." 2A SUTHERLAND STATUTORY CONSTRUCTION § 48.14 at 335 (4th ed. 1984).
Congressman Poff also spoke on behalf of the bill in 1970, and affirmed Congressman Kastenmeier's observation that the District would be a party whenever the charges are based on statutes applicable solely to the District:
[The bill] would make the District of Columbia a party "State" with respect to violations of the District's municipal regulations and ordinances and of Federal statutes limited in their application to the District. The United States would become a party to the agreement with respect to Federal criminal laws of general application.
116 CONG.REC. 14000 (1970).
Thus, in discussing the amendments concerning the District's participation in the IAD, these Congressmen related the need for such participation not only to cases arising under municipal regulations and ordinances prosecuted by the Corporation Counsel, but also to acts of Congress applicable solely within the District prosecuted generally by the United States Attorney.
This ambiguous and conflicting legislative history provides no "persuasive reasons" for departure from the plain meaning of the IAD definition that the District is a distinct "state" for all offenses tried in its courts. See Peoples Drug Stores, 470 A.2d at 755.
Most significant, the legislative purpose of the IAD is best served by appellee's interpretation. The IAD is to be "liberally construed so as to effectuate its purposes." Article IX. A major purpose of the IAD is "to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints." Article I.[16] Outstanding detainers often interfere with a prisoner's rehabilitation. Dobson v. United States, 449 A.2d 1082, 1086 (D.C. 1982), cert. denied, ___ U.S. ___, 104 S.Ct. *764 109, 78 L.Ed.2d 111 (1983). The government's construction would leave an entire class of federal prisoners, including appellee Bailey, with no satisfactory means of effecting the final disposition of detainers based on serious alleged violations of the D.C.Code. This would occur whenever the United States Attorney, who prosecutes all felonies and other serious criminal offenses in Superior Court, should lodge against a person committed to a federal prison a detainer based on an alleged violation of a statute applicable only in the District of Columbia.[17] Without a clear indication of such a Congressional intent from the language of the IAD or the legislative history, we decline to exclude that class of prisoners from the protections of the IAD.
We therefore hold that detainers filed against federal prisoners arising out of alleged violations of the D.C.Code to be prosecuted in the Superior Court of the District of Columbia are subject to the requirements of the IAD regardless of whether the prosecutor is the United States Attorney or the District of Columbia Corporation Counsel.
Affirmed.
NOTES
[1]  The Interstate Agreement on Detainers Act (Act) joins the United States and the District of Columbia as parties to the Interstate Agreement on Detainers (IAD). United States v. Mauro, 436 U.S. 340, 343, 98 S.Ct. 1834, 1838, 56 L.Ed.2d 329 (1978); 18 U.S.C. app. § 2 at 545 (1982); D.C.Code § 24-701 (1981). The IAD, which contains nine articles is incorporated in full within the Act at 18 U.S.C. app. § 2 at 545-47, and at D.C.Code § 24-701. We shall refer to provisions of the IAD by their article numbers, as they are set forth in the IAD.
[2]  The IAD requires the official having custody of a prisoner to inform the prisoner promptly that a foreign jurisdiction has lodged a detainer against the prisoner. Article III(c).
[3]  The prison officials mistakenly provided appellee with Speedy Trial Act forms instead of IAD forms. The Speedy Trial Act, 18 U.S.C. §§ 3161-3174 (1982), does not apply to prosecutions in the Superior Court of the District of Columbia. United States v. Alston, 412 A.2d 351, 356 n. 10 (D.C.1980) (en banc).
[4]  The grand jury returned an indictment in the Superior Court on August 19, 1983. The clerk set the arraignment for August 23, 1983. On that date, however, the court continued the case to October 19, 1983, because appellee was imprisoned in Arizona. The docket entry concerning the court proceeding of that date reflects that the Assistant United States Attorney was to prepare a writ in order to secure appellee's presence. The court continued the case on two more occasions, each time with the understanding that the Assistant United States Attorney would prepare a writ. The Superior Court issued the writ in November 1983, and arraignment was set for December 20, 1983, The case was continued to December 21, 1983, because appellee was not brought up from jail on the 20th.
[5]  Article III provides in part:

(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party State, and whenever during the continuance of the term of imprisonment there is pending in any other party State any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint: Provided, that, for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decision of the State parole agency relating to the prisoner.
(b) The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections, or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
(c) The warden, commissioner of corrections, or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information, or complaint on which the detainer is based.
[6]  The IAD defines a "Sending State" as:

[A] State in which a prisoner is incarcerated at the time that he initiates a request for final disposition pursuant to article III hereof or at the time that a request for custody or availability is initiated pursuant to article IV hereof.
Article II(b).
[7]  The IAD defines a "Receiving State" as:

[T]he State in which trial is to be had on an indictment, information, or complaint pursuant to article III or article IV hereof.
Article II(c).
[8]  Article V(c) provides:

If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information, or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in article III or article IV hereof, the appropriate court of the jurisdiction where the indictment, information, or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.
[9]  Article IV of the IAD provides a procedure whereby the prosecutor who has lodged a detainer against a prisoner in another jurisdiction may obtain temporary custody of the prisoner for trial. Trial must be commenced within 120 days of the arrival of the prisoner in the receiving state, subject to continuance for good cause shown. Article IV(a), (c). Charges must be dismissed if trial is not commenced within the 120-day time period. Article IV(e), V(c).
[10]  The prosecuting authority for crimes committed in the District is bifurcated. The Corporation Counsel prosecutes only certain minor crimes, such as violations of municipal ordinances:

(a) Prosecutions for violations of all police or municipal ordinances or regulations and for violations of all penal statutes in the nature of police or municipal regulations, where the maximum punishment is a fine only, or imprisonment not exceeding one year, shall be conducted in the name of the District of Columbia by the Corporation Counsel for the District of Columbia or his assistants, except as otherwise provided in such ordinance, regulation, or statute, or in this section.
(b) Prosecutions for violations of section 6 of the Act of July 29, 1892 (D.C.Code, sec. 22-1107), relating to disorderly conduct, and for violations of section 9 of that Act (D.C. Code, sec. 22-1112), relating to lewd, indecent, or obscene acts, shall be conducted in the name of the District of Columbia by the Corporation Counsel or his assistants.
D.C.Code § 23-101(a), (b) (1981). The U.S. Attorney for the District of Columbia prosecutes most other criminal violations, including all felonies:
(c) All other criminal prosecutions shall be conducted in the name of the United States by the United States attorney for the District of Columbia or his assistants, except as otherwise provided by law.
Id. § 23-101(c).
[11]  For this argument to succeed, we must also accept the government's theory that intra-federal detainers are outside the scope of the IAD because the entire federal system is a single "state." Although some courts which have addressed this issue have held that all federal districts are one jurisdiction under the IAD, United States v. Bruton, 647 F.2d 818, 821 n. 1 (8th Cir.), cert. denied, 454 U.S. 868, 102 S.Ct. 333, 70 L.Ed.2d 170 (1981); United States v. Krohn, 558 F.2d 390, 392 (8th Cir.), cert. denied, 434 U.S. 868, 98 S.Ct. 207, 54 L.Ed.2d 145 (1977); United States v. Cappucci, 342 F.Supp. 790, 793 (E.D.Pa.1972), other courts have treated separate federal districts as distinct "states" under the IAD, United States v. Bryant, 612 F.2d 806, 810 (4th Cir.1979), cert. denied, 446 U.S. 920, 100 S.Ct. 1855, 64 L.Ed.2d 274 (1980); cf. United States v. Woods, 621 F.2d 844, 845-46 (6th Cir.,1980) (different federal districts not treated as single jurisdiction under the IAD when one federal district lodges detainer against state prisoner and another federal district secures prisoner's presence in that district by writ on unrelated charges), cert. denied, 449 U.S. 877, 101 S.Ct. 222, 66 L.Ed.2d 99 (1980). We need not reach this issue, however, in light of our holding that the detainer involved here was interjurisdictional.
[12]  Originally, Congress designated the Commissioner of the District of Columbia as the officer for the District. The statutory language was changed to the Mayor of the District of Columbia after the District of Columbia Self-Government and Governmental Reorganization Act abolished the Office of Commissioner in favor of the Office of the Mayor. See 18 U.S.C. app. note at 548 (Transfer of Functions); D.C.Code § 24-704 note on change in government.
[13]  The Committee made four other amendments to the bill providing "definitions and administrative provisions necessary to the entry into the agreement on the part of the District of Columbia." H.R.REP. No. 1332, at 2. These amendments added the D.C. Commissioner to the definition of "Governor" in section 3, added the District of Columbia courts to the definition of "appropriate court" in section 4, and added the District to the administrative provisions in sections 5 and 6. Id. at 1.
[14]  The House Committee Report explained in pertinent part that:

The government of the District of Columbia has reported that unless the legislation is made applicable to the District there is no method available whereby a prisoner who is serving a term of imprisonment in one of the party States and against whom there is pending in the courts of the District of Columbia an information or complaint based upon a violation of a municipal regulation or ordinance, or an act of Congress in the nature of a municipal regulation or ordinance which is applicable solely within the District of Columbia, may require the disposition of a detainer lodged against him. Furthermore unless the legislation is made applicable to the District, its prosecuting authorities would not be able to have a prisoner in a party State made available for disposition of local detainers. For these reasons the government of the District of Columbia recommended the amendments which the committee has adopted.
H.R.REP. No. 1332, at 4.
[15]  Although the House passed H.R. 15421 on May 6, 1968, 114 CONG.REC. 11793-96 (1968), the Senate Committee on the Judiciary did not report the bill out in the 90th Congress 114 CONG. REC. 11980 (1968). Congressman Celler reintroduced the IAD in the House of Representatives in the 91st Congress as H.R. 6951. 115 CONG.REC. 3790-91 (1969). As the House Committee noted in its report on H.R. 6951, the bill was "identical with H.R. 15421, 90th Congress, as it passed the House." H.R.REP. No. 1018, 91st Cong., 2d Sess. 1 (1970). The House Committee Report repeated its explanation of the concerns of the District of Columbia. Id. at 4; see also S.REP. No. 1356, 91st Cong., 2d Sess., reprinted in 1970 U.S. CODE CONG. & AD.NEWS 4864, 4866-67. The House passed H.R. 6951 without further amendment on May 4, 1970. 116 CONG.REC. 13997-14000 (1970). The Senate passed the identical bill on November 25, 1970. 116 CONG.REC. 38840-42 (1970). The bill became law on December 9, 1970. Interstate Agreement on Detainers Act, Pub.L. No. 91-538, 84 Stat. 1397 (1970).
[16]  Another purpose of the IAD is the development of a cooperative system whereby prosecutors may secure the presence for trial of a prisoner incarcerated in another jurisdiction. CSG SUGGESTED LEGISLATION at 78. Although the prosecutors in the United States courts and the Superior Court perhaps gained less from joining the IAD on this ground because these courts have an alternative means of obtaining prisonersthe writ of habeas corpus ad prosequendum  the Supreme Court held that the United States entered the agreement as both a "sending" and a "receiving" "state." United States v. Mauro, 436 U.S. 340, 354-56, 98 S.Ct. 1834, 1844-45, 56 L.Ed.2d 329 (1978).
[17]  The excluded class would also include persons convicted in Superior Court of charges prosecuted by the United States Attorney who seek final disposition of charges pending against them in United States District Courts. Such persons, however, have the benefit of the Speedy Trial Act. 18 U.S.C. §§ 3161-3174 (1982).


                         NOTICE: NOT FOR OFFICIAL PUBLICATION.
     UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                     AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

                                        IN THE
                 ARIZONA COURT OF APPEALS
                                    DIVISION ONE

  VR PARTNERS SRS, LLC, an Arizona limited liability company; VELOCITY
RETAIL GROUP, LLC, a Delaware limited liability company, formerly known as
   STAUBACH RETAIL SERVICES-WEST, LLC, a Delaware limited liability
              company, Plaintiffs/Appellees/Cross-Appellants,

                                            v.

 STAUBACH RETAIL SERVICES, INC., a Texas corporation doing business as
 SRS REAL ESTATE PARTNERS; and SRS REAL ESTATE PARTNERS, LLC, a
   Delaware limited liability company, Defendants/Appellants/Cross-Appellees.

                                 No. 1 CA-CV 13-0504
                                  FILED 1-20-2015

               Appeal from the Superior Court in Maricopa County
                              No. CV2009-026500
                     The Honorable Hugh E. Hegyi, Judge

                                      AFFIRMED

                                       COUNSEL

Osborn Maledon, PA, Phoenix
By Colin F. Campbell, John L. Blanchard, Thomas L. Hudson
Counsel for Plaintiffs/Appellees/Cross-Appellants

Dickinson Wright, PLLC, Phoenix
By Robert A. Shull, Anne L. Tiffen
Counsel for Defendants/Appellants/Cross-Appellees
                          VR et al. v. STAUBACH et al.
                             Decision of the Court

                         MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the Court, in which Judge
Kenton D. Jones and Judge Michael J. Brown joined.

S W A N N, Judge:

¶1            This appeal involves the separation of two members of a limited
liability company operating as a commercial real estate brokerage in Phoenix.
Staubach Retail Services, Inc. and its assignee SRS Real Estate Partners, LLC,
appeal from an order requiring them to pay Plaintiffs VR Partners SRS, LLC, and
Velocity Retail Group, LLC, a share of revenues generated from an office located
in Newport Beach, California. They also appeal the court's finding that Plaintiffs
did not breach an implied covenant of good faith and fair dealing. Plaintiffs cross-
appeal, arguing the superior court erred by denying their request for attorney's
fees as the prevailing party at trial. For the following reasons, we affirm.

                    FACTS AND PROCEDURAL HISTORY

¶2           The parties entered into an LLC operating agreement in 2005,
launching Staubach Retail Services-West, LLC ("SRS-West").1 SRS-West is a
Delaware limited liability company that operated as a commercial real estate
brokerage in Phoenix. Under the LLC agreement, Plaintiffs owned 25 percent of
SRS-West and Defendants owned 75 percent. The LLC agreement provided that
SRS-West would have "the exclusive right to operate in the Region as a subsidiary
of [Staubach Retail Services, Inc.]" The agreement defined "Region" as "the states
of Arizona, Nevada, New Mexico, and Utah."

¶3           The LLC agreement designated one representative from each party
as managers of SRS-West. The agreement gave these managers "complete
authority to make any and all amendments to [the LLC agreement] as they may
deem appropriate." In accordance with this provision, the parties twice amended

1      Before SRS-West was organized, another limited liability company with the
same name already existed and operated out of an office in Newport Beach,
California. That entity's region was initially defined as "the Western region of the
United States." One week before the formation of the new SRS-West, however, the
entity changed its name to Staubach Retail Services-Southern California, LLC
("SRS-SoCal"), and redefined its region as "Southern California."

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                           VR et al. v. STAUBACH et al.
                              Decision of the Court

the LLC agreement in writing. The first amendment expanded SRS-West's region
to encompass Wyoming and Montana. The second amendment changed the
ownership structure of the company, increasing Plaintiffs' ownership interest to
45 percent and decreasing Defendants' interest to 55 percent.

¶4          In connection with the second amendment, the parties executed an
assignment of interest that included the following clause:

       This Assignment contains the entire understanding between the
       parties hereto with respect to the subject matter hereof and
       supersedes    any     prior    understandings,       agreements      or
       representations, written or oral, relating to the subject matter hereof
       ....

¶5              Around this time, Staubach Retail Services, Inc., announced a plan
to "roll up" its various branches, including SRS-West, into a single national entity.
Plaintiffs decided not to participate, prompting the parties to negotiate a
separation of SRS-West.

¶6           After months of negotiation, the parties executed a reorganization
agreement that gave Plaintiffs complete ownership of SRS-West and left
Defendants free to compete as a separate commercial real estate brokerage. In
connection with the reorganization, Plaintiffs changed the name of SRS-West to
Velocity Retail Group, LLC.

¶7            Under the reorganization agreement, the parties agreed that certain
"house revenues" of the old SRS-West would continue to be split 45 percent to
Plaintiffs and 55 percent to Defendants for approximately two years. House
revenues referred to money left over from a sale after paying salesperson and
broker commissions.

¶8             The reorganization agreement stated that the LLC agreement
"represents the full and complete agreement between the managers, members, and
officers of [SRS-West] and no other instrument, document, or other agreement
relates to or would otherwise affect the agreements of the mangers and members
of [SRS-West]." It also provided that the reorganization agreement "supersedes all
prior agreements, whether written or oral, between the Parties with respect to its
subject matter . . . and constitutes . . . a complete and exclusive statement of the
terms of the agreement between the Parties with respect to its subject matter."

¶9          Soon after the parties entered into the reorganization agreement, a
disagreement arose as to its meaning. Plaintiffs believed the reorganization
agreement required sharing of house revenues on new deals for only a handful of

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                           VR et al. v. STAUBACH et al.
                              Decision of the Court

shared clients. Defendants, on the other hand, believed it required sharing of
house revenues on all new deals on all accounts.

¶10            The parties resolved this issue in favor of Defendants by entering
into a partial settlement agreement. In it, the parties acknowledged that revenues
generated on all new deals from the date of the reorganization agreement until
June 30, 2011, would be shared, except for those generated by new hires, i.e.,
salespeople hired after the date of the reorganization agreement.

¶11           In August 2009, Plaintiffs filed a complaint in superior court,
requesting, among other things, that the court declare the parties were free to set
their own house splits and that it award them a share of house revenues generated
by the Newport Beach office, either based on the parties' agreements or on the
theory of promissory estoppel. Defendants counterclaimed, arguing, as relevant
here, that Plaintiffs had breached the implied covenant of good faith and fair
dealing by improperly and unilaterally changing how they calculated their house
revenues.

¶12           A major issue at the ensuing bench trial was whether the parties
orally amended the LLC agreement to add the Newport Beach office into SRS-
West's "Region." After evaluating the evidence, the court found that the only
relevant agreement as to Region was the LLC agreement; that the LLC agreement
permitted oral amendments; and that the parties orally amended the LLC
agreement to add Newport Beach to SRS-West's region. Therefore, the court
concluded that Plaintiffs were entitled to an interest in house revenues from the
Newport Beach office under the parties' agreements.

¶13            The court also concluded Defendants were "promissorily estopped"
from denying Plaintiffs owned a 45 percent interest in Newport Beach office
revenues. It found that Defendants had misrepresented to Plaintiffs that they
"would conform the ownership documents to the oral agreement and course of
conduct the parties had been following" related to Newport Beach, and that
Plaintiffs detrimentally relied on those misrepresentations.

¶14           Finally, the court concluded Plaintiffs did not breach the implied
covenant of good faith and fair dealing. In doing so, the court relied heavily on its
findings that the parties were free to set their own house revenue formulas and
that they both understood this when they entered into the partial settlement
agreement.

¶15           Defendants timely filed a notice of appeal and Plaintiffs cross-
appealed.

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                            VR et al. v. STAUBACH et al.
                               Decision of the Court

                                   DISCUSSION

I.     The Judgment

¶16           In its liability ruling, the court found Plaintiffs owned a 45 percent
interest in house revenues generated from the Newport Beach office, and
instructed the parties to "submit new findings and conclusions relating to the
appropriate measure of damages and remedies." In its subsequent damages
ruling, the court found that "[a]ny house revenues collected on New Deals for . . .
Newport Beach shall be shared by the parties 45% to [Plaintiffs] and 55% to
[Defendants]." It also found that "[o]n Newport Beach Existing and New Deals
that closed after May 11, 2009, 45% of house revenues collected should be paid
from the closing to [Plaintiffs] under the Reorganization Agreement."

¶17            Defendants argue that the court lacked power to award revenues
generated by the Newport Beach office because those revenues belong to SRS-
SoCal, "a legally separate entity, which was not a party to the agreements at issue
or to the action." Defendants contend that a judgment cannot bind one who is not
a party to the action.

¶18           We agree with Defendants that a judgment cannot bind one who is
not a party to the action, see, e.g., Zenith Radio Corp. v. Hazeltine Research, 395 U.S.
100 (1969); Parada v. Parada, 196 Ariz. 428, 999 P.2d 184 (2000), but that is not what
happened here. The judgment did not "bind" SRS-SoCal, nor did it require SRS-
SoCal to hand over its own revenues to Plaintiffs. Instead, the parties stipulated
that SRS Real Estate Partners, LLC, one of the named defendants and appellants,
"would be the entity responsible for funding any judgment entered in this matter
against [Defendants] and in favor of [Plaintiffs]."2 Because a party, not SRS-SoCal,
is bound by the judgment, we conclude that Defendants' argument is unavailing.

¶19            Defendants next argue the court erred in awarding these revenues
because a judgment cannot require Defendants to pay money belonging to SRS-
SoCal, which Defendants do not own or have. Although the language found in
the liability and damages rulings could casually be read to mean that Defendants

2      Although Zenith Radio Corp. held that a stipulation was not "an adequate
substitute for the normal methods of obtaining jurisdiction over a person or
corporation," 395 U.S. at 110, that case is readily distinguishable from the case
before us. There a non-party stipulated to be "bound by and liable for" a judgment,
and the court found several defects with the stipulation. See id. Here, on the other
hand, a named party stipulated to be responsible for the judgment, and the parties
do not argue any defect with this stipulation.

                                           5
                           VR et al. v. STAUBACH et al.
                              Decision of the Court

are required to pay a percentage of actual house revenues generated by the
Newport Beach office, the stipulation of the parties indicates otherwise. As the
stipulation provides, SRS Real Estate Partners, LLC, is responsible for funding the
judgment. Thus, the court's damages ruling merely refers to SRS-SoCal's revenues
as the measure of damages rather than the source.

¶20           Finally, Defendants argue that if this court upholds the damages
award, then at the very least it should require Plaintiffs to share in "the normal
burdens of being an owner (operating expenses and other obligations of that
entity)." We reject this argument because the court did not find Plaintiffs had an
ownership interest in the Newport Beach office; it only concluded that Plaintiffs
were entitled to share in house revenues. Absent an ownership interest, Plaintiffs
have no ownership responsibilities.

II.    Parol Evidence

¶21           Defendants argue that the superior court erred by considering an
oral amendment to the LLC agreement, which purportedly modified the
reorganization agreement. Delaware law governs this issue and our standard of
review is de novo. See Town of Marana v. Pima County, 230 Ariz. 142, 147, ¶ 21, 281
P.3d 1010, 1015 (App. 2012) (interpretation of contract, including application of
parol evidence rule, reviewed de novo).

¶22            In Delaware, the parol evidence rule prohibits a court from
considering evidence of a prior oral agreement to supplement or contradict the
terms of a fully integrated writing. See Scott v. Land Lords, Inc., 1992 WL 276429, at
*3 (Del. Sept. 22, 1992).3 This is because a fully integrated writing represents the
complete and final expression of the parties and, as such, finally determines the
subject. See Taylor v. Jones, 2002 WL 31926612, at *3 (Del. Ch. Dec. 17, 2002);
Cunningham v. Esso Standard Oil Co., 118 A.2d 611, 613 (Del. 1955). If an oral
agreement does not modify the writing, however, the parol evidence rule does not
operate to bar evidence of it. See Restatement (Second) of Contracts § 213(2) (2014)

3      Unpublished decisions have precedential value in Delaware.                See
Aprahamian v. HBO & Co., 531 A.2d 1204, 1207 (Del. Ch. 1987) (unreported
decisions are "entitled to great deference"); Case Fin., Inc. v. Alden, 2009 WL
2581873, at *6 n.39 (Del. Ch. Aug. 21, 2009) ("unpublished opinions have
precedential value"); see also Wisdom Imp. Sales Co. v. Labatt Brewing Co., 339 F.3d
101, 115 n.14 (2d Cir. 2003) (recognizing Delaware Rules of Court do not restrict
citation to unpublished decisions for precedential value).

                                          6
                           VR et al. v. STAUBACH et al.
                              Decision of the Court

("A binding completely integrated agreement discharges prior agreements to the
extent that they are within its scope.") (emphasis added).

¶23          Defendants argue the reorganization agreement is fully integrated
and thus the court could not consider evidence of a prior oral agreement
expanding SRS-West's region to encompass Newport Beach. We hold that the
court properly considered this evidence because the oral agreement did not
modify the terms of the reorganization agreement. See id.

¶24           By its own terms, the reorganization agreement limited its scope to
its "subject matter." As the court found, Plaintiffs' region or territory "is not the
subject matter of the Reorganization Agreement." "The relevant agreement as to
the region owned by [Plaintiffs] is the LLC Agreement."

¶25           Thus, while the oral agreement undoubtedly modified the LLC
agreement by redefining "Region" to include Newport Beach, it did not modify the
subsequent reorganization agreement. Because the extent of Plaintiffs' region was
a topic beyond the scope of the reorganization agreement, and was exclusively
determined by the LLC agreement, the court did not err by considering evidence
of an oral agreement that redefined Plaintiffs' region.

III.   Promissory Estoppel

¶26           Defendants argue the court erred by relying on promissory estoppel
to enforce their oral promise to convey an interest in Newport Beach revenues to
Plaintiffs. They contend the doctrine was precluded here by an express agreement
-- the reorganization agreement -- which already governed how the parties would
divide their house revenues. See In re U.S. West, Inc. Secs. Litig., 201 F. Supp. 2d
302, 308 (D. Del. 2002), aff'd, 65 F. App'x 856 (3d Cir. 2003) ("[P]romissory estoppel
is precluded by an express contract governing the relationship out of which the
contract emerged . . . .") (internal quotations omitted). We review questions of
contract interpretation de novo. Town of Marana, 230 Ariz. at 147, ¶ 21, 281 P.3d at
1015.

¶27          For the reasons set forth above, Defendants' argument fails. The
reorganization agreement did not govern whether Plaintiffs had an interest in
Newport Beach revenues because that agreement did not discuss the concept of
"Region" at all. To resolve whether Plaintiffs had an interest in Newport Beach
revenues, the court examined evidence of an oral agreement expanding SRS-
West's Region to encompass Newport Beach, as well as the parties' course of

                                          7
                            VR et al. v. STAUBACH et al.
                               Decision of the Court

dealing. Consequently, the reorganization agreement did not preclude the
doctrine of promissory estoppel here.4

IV.    Implied Covenant of Good Faith and Fair Dealing

¶28           After the parties entered into the partial settlement agreement,
Plaintiffs modified the method by which they calculated their house revenues. The
change resulted in an overall decrease in the amount of revenues Defendants
previously had been receiving under the reorganization agreement. At trial,
Defendants argued this change amounted to a violation of the implied covenant
of good faith and fair dealing, but the court disagreed. Defendants now contend
the court erred because the change deprived them of revenues they reasonably
expected to receive under the agreements.

¶29           "Whether a party has breached the covenant of good faith and fair
dealing is a question of fact." Maleki v. Desert Palms Prof'l Props., L.L.C., 222 Ariz.
327, 333, ¶ 28, 214 P.3d 415, 421 (App. 2009). We will not disturb factual findings
unless they are clearly erroneous. Id.5

¶30             "The covenant of good faith and fair dealing is implied in every
agreement in Delaware." HSMY, Inc. v. Getty Petroleum Mktg., Inc., 417 F. Supp. 2d
617, 621 (D. Del. 2006). It "requires a party in a contractual relationship to refrain
from arbitrary or unreasonable conduct which has the effect of preventing the
other party to the contract from receiving the fruits of the bargain." Dunlap v. State
Farm Fire & Casualty Co., 878 A.2d 434, 442 (Del. 2005) (citation omitted). The
purpose of the covenant is "to ensure the parties' reasonable expectations are
fulfilled." Id.

4      Defendants argue only that the doctrine of promissory estoppel was
precluded by the reorganization. They do not challenge the court's factual
findings, nor do they challenge the court's application of those factual findings to
the legal standard. We therefore limit our review to that challenge.

5       Defendants argue the standard of review is de novo because the superior
court incorrectly applied the law to "undisputed facts" in resolving the issue. See
Brink Elec. Constr. Co. v. Ariz. Dep't of Revenue, 184 Ariz. 354, 358, 909 P.2d 421, 425
(App. 1995) ("When the material facts are undisputed, the role of this Court is to
determine whether the trial court correctly applied the substantive law to those
facts.") (citation omitted). To the contrary, the facts here were disputed. For
example, the parties offered competing testimony as to what they reasonably
expected to receive under the reorganization agreement. We therefore review for
clear error. See Maleki, 222 Ariz. at 333, ¶ 28, 214 P.3d at 421.

                                           8
                           VR et al. v. STAUBACH et al.
                              Decision of the Court

¶31            In this case, there are sufficient facts to support the court's finding
that Plaintiffs did not breach the covenant of good faith and fair dealing. For
example, at trial Defendants' chief operating officer and negotiator testified that at
the time the parties entered into the partial settlement agreement, he understood
Plaintiffs' position was that the parties were free to calculate their own house split
formulas on new deals. He also testified that in his view neither the reorganization
agreement nor the partial settlement agreement restricted the parties' ability to
change their house split formulas. Additionally, the court found that both parties
"changed their house revenue formulas without notifying the other on at least one
occasion." These facts, taken together, are more than enough to support the court's
conclusion that Plaintiffs "did not violate their duty of good faith and fair dealing
by modifying their house revenue formula." While such modifications might not
always be to the benefit of both sides of the transaction, there was adequate
evidence that the parties both intended and availed themselves of the right to
change their formulas.

V.     Attorney's Fees at Trial

¶32            Plaintiffs cross-appealed the superior court's denial of their request
for attorney's fees as the prevailing party at trial. Both parties agree Delaware law
governs this issue. When we evaluate a fee-shifting provision, we generally
enforce it according to its terms, so long as the provision is permitted by law and
the award is reasonable. See Geller v. Lesk, 230 Ariz. 624, 627, ¶ 10, 285 P.3d 972,
975 (App. 2012). Under Delaware law, fee shifting is permitted only when
provided by the parties in their agreement. See J.J. White, Inc. v. Metro. Merch. Mart,
107 A.2d 892, 894 (Del. Super. Ct. 1954).

¶33          The parties dispute whether the litigation arose under the LLC
agreement, which provides for fee shifting in certain circumstances, or the
reorganization agreement, which does not. Even if the litigation arose under the
LLC agreement, however, the fee-shifting provision in that agreement does not
authorize an award of attorney's fees in this case.

¶34            Section 8.12(d) of the LLC agreement only authorizes an award of
attorney's fees in arbitration proceedings. The parties labeled section 8.12(d)
"Costs of Arbitration" and placed it within the "Arbitration" section of the
agreement. The language of section 8.12(d) similarly limits its scope by giving
"exclusive authority" to an arbitrator to award "costs of arbitration." Thus, because
there was no arbitration in this case, section 8.12(d) does not authorize an award
of attorney's fees.

¶35           Plaintiffs' efforts to sever a stand-alone "fee-shifting provision" from
the arbitration provision of section 8.12(d) fall short. Plaintiffs argue that "[w]hile

                                          9
                           VR et al. v. STAUBACH et al.
                              Decision of the Court

the Parties certainly waived the arbitration procedures, no one waived the fee
shifting agreement that the costs of the dispute, including the 'costs incurred by any
party for their attorneys, advisors and consultants, if any' would be available to the
prevailing party." (Emphasis added). But the clause quoted by Plaintiffs is not a
stand-alone fee-shifting provision. That clause is an integral part of Section
8.12(d), indivisible from the arbitrator who was given exclusive authority to
determine and award costs of arbitration, including attorney's fees. Simply reading
section 8.12(d) in its entirety is enough to defeat Plaintiffs' argument: "Costs of
Arbitration. The arbitrator will have exclusive authority to determine and award
costs of arbitration, if any, and the costs incurred by any party for their attorneys,
advisors and consultants, if any."

                                  CONCLUSION

¶36           For the foregoing reasons, the superior court properly awarded a
share of Newport Beach revenues to Plaintiffs, did not clearly err by finding
Plaintiffs comported with the implied covenant of good faith and fair dealing, and
correctly denied Plaintiffs' request for attorney's fees. Plaintiffs request an award
for attorney's fees incurred on appeal as the prevailing party pursuant to ARCAP
21(c), and A.R.S. § 12-341.01(A). We deny this request because Delaware law
governs this appeal and does not authorize such an award. We affirm.

                                    :ama

                                           10