411 B.R. 671 (2009)
In re Tich HUA, fdba DTD Precision Auto Repair, Debtor.
No. 06-03013-LT13.
United States Bankruptcy Court, S.D. California.
August 24, 2009.
Charles E. Fougeron, La Mesa, CA, for debtor.
Thomas H. Billingslea, San Diego, CA, Chapter 13 Trustee.
Tiffany L. Carroll, Acting United States Trustee, Office of the United States Trustee, Department of Justice, San Diego, CA, for U.S. Trustee.

ORDER AFTER EVIDENTIARY HEARING ON UNITED STATES TRUSTEE'S OBJECTIONS TO CONFIRMATION OF CHAPTER 13 PLAN
PETER W. BOWIE, Chief Judge.
This case has a lengthy history. It was originally filed as a Chapter 7 petition on *672 October 6, 2006. The real estate lender quickly filed a motion for relief from stay, which was not opposed, and relief was granted. Subsequently, the debtor stipulated to extending the time within which the United States Trustee could file a complaint objecting to discharge.
On April 12, 2007 the United States Trustee filed a complaint seeking denial of a discharge pursuant to 11 U.S.C. § 727(a)(3),(a)(4) and/or (a)(5). At the center of the complaint are the facts that debtor refinanced his real property in December, 2005 netting almost $67,000; and that debtor purchased fourteen or more items of jewelry at a cost of over $23,000 in the first four months of 2006, which he promptly resold. The United States Trustee's complaint alleges that debtor is unable to produce books and records to explain what happened to either the proceeds or the jewelry except for generally unsupported claims that the proceeds were dissipated through his and his wife's gambling. A collateral allegation was that debtor made a false oath when signing his Schedules because he omitted any mention of the purchase or sale of the jewelry. Although not tied to any of the § 727 causes of action, the United States Trustee also alleged that debtor provided false income information to credit card companies and to the real estate lender as part of the debtor's applications.
Debtor filed his answer to the complaint, and the case proceeded. Approximately six months after the complaint was filed, the debtor converted the Chapter 7 case to one under Chapter 13. Both the Chapter 13 Trustee and the United States Trustee objected to confirmation of the debtor's Chapter 13 plan. The United States Trustee's objection recited:
The Debtor converted this case to chapter 13 after the UST filed a complaint objecting to his discharge. The allegations in the complaint show evidence of the Debtor's bad faith in filing his bankruptcy case including, but not limited to, overstatements of income in credit applications, misstatements regarding the debtor's employment, the misuse of credit cards and the consultation of a bankruptcy attorney within six months of running up credit cards. Based on the Debtor's bad faith in filing the case, the plan should not be confirmed pursuant to 11 U.S.C. § 1325(a)(3) and (a)(7).
The United States Trustee also challenged the plan's feasibility.
The United States Trustee's objection to confirmation came on for evidentiary hearing and, after taking evidence, post-hearing briefs were submitted and the matter was thereafter taken under submission. The Court has subject matter jurisdiction over the proceeding pursuant to 28 U.S.C. § 1334 and General Order No. 312-D of the United States District Court for the Southern District of California. This is a core proceeding under 28 U.S.C. § 157(b)(2)(L).
In support of her objection to confirmation the United States Trustee repeats the oft-quoted statement to the effect that: "the principal purpose of the Bankruptcy Code is to grant a `fresh start' to the honest but unfortunate debtor.'" Marrama v. Citizens Bank of Massachusetts, 549 U.S. 365, 367, 127 S.Ct. 1105, 166 L.Ed.2d 956 (2007). Marrama goes further and says:
An issue that has arisen with disturbing frequency is whether a debtor who acts in bad faith prior to, or in the course of, filing a Chapter 13 petition by, for example, fraudulently concealing significant assets, thereby forfeits his right to obtain Chapter 13 relief.
Id. Marrama has to be understood in its factual context, which involved concealment *673 of an asset in the pending Chapter 7 case. When the trustee discovered and pursued the asset, the debtor sought to convert the case to Chapter 13. So while the debtor's bad faith conduct was committed prior to conversion, it was committed in conjunction with the filing of his chapter 7 petition and thereafter.
The point is simply illustrated. If the Congress had intended to make debtors ineligible for any bankruptcy protection or relief if they committed wrongful conduct before filing any bankruptcy petition, they could easily have said so in 11 U.S.C. § 109. But Congress did not. To the contrary, Congress provided that debts that arose prepetition because of wrongful conduct might be individually nondischargeable pursuant to 11 U.S.C. § 523(a), but the facts involved in how those debts arose are relevant to their individual dischargeability, but not to a debtor's eligibility to be a debtor under Title 11 of the United States Code.
To accentuate the point, 11 U.S.C. § 523(a) provides in part:
(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt
...
(4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny; ...
If Congress intended to preclude from bankruptcy eligibility persons who committed dishonest acts such as embezzlement or larceny, as examples, they could have said so easily. Instead, they structured a system that provided for the nondischargeability of those sorts of debts while discharging the rest. That enhanced the possibility that nondischargeable debts would receive some payment eventually because there were fewer debts competing for the debtor's post-discharge resources. To turn the process around and judicially create an exception denying debtors access to bankruptcy protection generally for committing the sorts of dishonest acts Congress has provided for in § 523(a) as individual nondischargeable debts turns Congress' carefully structured design on its head.
To be sure, the phrase "honest but unfortunate debtor" has a long and ill-defined history. In Williams v. United States Fidelity & Guaranty Co., 236 U.S. 549, 554-55, 35 S.Ct. 289, 59 L.Ed. 713 (1915), the Supreme Court wrote:
It is the purpose of the bankrupt act to convert the assets of the bankrupt into cash for distribution among creditors, and then to relieve the honest debtor from the weight of oppressive indebtedness, and permit him to start afresh free from the obligations and responsibilities consequent upon business misfortunes.
In Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 78 L.Ed. 1230 (1934), the court repeated:
One of the primary purposes of the Bankruptcy Act is to `relieve the honest debtor from the weight of oppressive indebtedness, and permit him to start afresh free from the obligations and responsibilities consequent upon business misfortunes.'
The Court then added:
This purpose of the act has been again and again emphasized by the courts as being of public as well as private interest, in that it gives to the honest but unfortunate debtor who surrenders for distribution the property which he owns at the time of bankruptcy, a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of pre-existing debt.
Id.
It is important to recognize that the shape, scope and objectives of America's *674 bankruptcy law have changed over the intervening years, as the Supreme Court recognized in Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). There, the court observed in addressing the burden of proof for nondischargeability proceedings:
This Court has certainly acknowledged that a central purpose of the Code is to provide a procedure by which certain insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy "a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt." [Citation omitted.] But in the same breath that we have invoked this "fresh start" policy, we have been careful to explain that the Act limits the opportunity for a completely unencumbered new beginning to the "honest but unfortunate debtor." Ibid.

The statutory provisions governing nondischargeability reflected a congressional decision to exclude from the general policy of discharge certain categories of debts-such as child support, alimony, and certain unpaid educational loans and taxes, as well as liabilities for fraud. Congress evidently concluded that the creditors' interest in recovering full payment of debts in these categories outweighed the debtors' interest in a complete fresh start.
Exemplifying the point is the decision of the Third Circuit Court of Appeals in In re Lilley, 91 F.3d 491 (1996). There, the debtor had been convicted of willful failure to file federal tax returns, and had run up a large tax debt. He filed a Chapter 7 petition, during which the bankruptcy Court determined the tax debt was nondischargeable. Then Congress increased the debt ceiling for chapter 13 and debtor filed under that chapter. The IRS filed a motion to dismiss based on the debtor's prepetition conduct which, on appeal, the district court granted. The Third Circuit reversed, noting that while the debt was nondischargeable in Chapter 7, it was dischargeable in Chapter 13. The court concluded:
It is therefore wholly implausible that Congress would hold that the type of conduct in which Mr. Lilley admittedly engaged is so egregious as to warrant dismissal of his petition, but benign enough that the debt incurred as a result of this conduct would be dischargeable if no effort to dismiss his petition were made.
91 F.3d at 496. The Third Circuit remanded for a good faith totality of the circumstances analysis.
The case of Handeen v. Le Maire, 898 F.2d 1346 (8th Cir.1990), although decided before Lilley, takes the analysis one step further. LeMaire was convicted of aggravated assault involving a shooting. A civil judgment followed, then the debtor filed under Chapter 13. The court rejected Handeen's argument that debtor's prepetition criminal conduct made the subsequent civil judgment nondischargeable in Chapter 13, just as it would be in Chapter 7. The court instead focused on the issue of debtor's good faith and set out a multi-factor list of items which it had applied in earlier cases. The court recognized, however, that many of those factors had been subsumed in 11 U.S.C. § 1325(b), and said that what remained of the factors was:
"[w]hether the debtor has stated his debts and expenses accurately; whether he has made any fraudulent misrepresentation to mislead the bankruptcy court; or whether he has unfairly manipulated the Bankruptcy Code."
898 F.2d at 1349. The court continued:
Thus, in considering whether LeMaire proposed his plan in good faith, factors *675 such as the type of debt sought to be discharged and whether the debt is nondischargeable in Chapter 7, and the debtor's motivation and sincerity in seeking chapter 13 relief are particularly relevant.
Id. Interestingly, a majority of the appellate court judges was appalled at the thought that a debtor might discharge such a debt through Chapter 13, even though it recognized that Congress had provided what some call a "superdischarge" as added incentive to use Chapter 13 over Chapter 7.
The Fifth Circuit took a different view in In re Chaffin, 836 F.2d 215, 216 (1988). There, the court stated:
We adhere to our holding that the fact that Chaffin is invoking chapter 13 to obtain discharge of a debt previously held nondischargeable in Chapter 7 because it was incurred through fraud cannot, as a matter of law, suffice to show bad faith.
To the extent courts were previously correct in concluding, as some did, that resort to Chapter 13 to discharge a debt that was or would be nondischargeable in Chapter 7 was somehow an unfair manipulation of the Bankruptcy Code, notwithstanding Congress' intent in designing the carrot of the super-discharge, Congress largely eliminated the super-discharge in 2005, revising 11 U.S.C. § 1328 to provide that any debt "of the kind specified ... in paragraph (1)(B), (1)(C), (2), (3), (4), (5), (8), or (9) of section 523(a)" would not be discharged in Chapter 13. Nor would a debt "(4) for restitution, or damages, awarded in a civil action against the debtor as a result of willful or malicious injury by the debtor that caused personal injury to an individual or the death of an individual."
To the extent the United States Trustee's objection to confirmation is predicated on this debtor's prepetition behavior that gave rise to the specific debts that he now seeks to address by way of his Chapter 13 plan, the Court finds and concludes that such an argument is not supportable, and is hereby rejected.
Moreover, the court notes in passing that although afforded a full window of opportunity while the case was pending in Chapter 7, no creditor filed an adversary claiming the debt owed to it was nondischargeable. The result is that the debts the United States Trustee asserts arose from debtor's prepetition conduct were all dischargeable in the Chapter 7 proceeding long before debtor's conversion of the case to Chapter 13. Indeed, in Chapter 13 debtor proposes to pay a dividend to creditors that would have received nothing in Chapter 7.
All of the foregoing said, it still remains for the Court to assess debtor's claims of good faith both in filing the present petition under Chapter 13, as required by 11 U.S.C. § 1325(a)(7), and in proposing his Chapter 13 plan, as required by 11 U.S.C. § 1325(a)(3). In the Objection to Confirmation filed by the United States Trustee, that office argued debtor's bad faith in terms of pre-BAPCPA Chapter 7 cases. However, the office provided no persuasive authority for the notion that § 1325(a)(7)'s good faith requirement should be measured by Chapter 7 analysis, much less that Congress intended such an approach. And even then, the conduct attributed to debtor as evidencing his bad faith was his conduct prior to filing his initial petition under Chapter 7. That is in distinct contrast with Marrama v. Citizens Bank of Massachusetts, 549 U.S. 365, 127 S.Ct. 1105, 166 L.Ed.2d 956 (2007), where the debtor's conduct was post-filing in concealing a significant asset and then trying to convert to Chapter 13 to keep the asset after the trustee started to pursue it for creditors.
*676 In looking at good faith filing under § 1325(a)(7), In re Hieter, ___ B.R. ___, 2009 WL 692301 (Bankr.D.Idaho 2009), is helpful. There, the court recognized:
Because BAPCPA effectively codified the good faith filing requirement previously employed in the case law, that case law is applicable to any analysis of § 1325(a)(7).
Subsection (a)(7) was added to § 1325 by BAPCPA in 2005. After reviewing prior authorities, the court advised:
In making a determination of good faith, this Court should consider:
1) whether the debtor has misrepresented facts in his or her petition or plan, unfairly manipulated the Bankruptcy Code, or otherwise filed the Chapter 13 petition or plan in our inequitable manner.
2) the debtor's history of filings and dismissals;
3) whether the debtor's only purpose in filing for Chapter 13 protection is to defeat state court litigation; and
4) whether egregious behavior is present.

Ho v. Dowell (In re Ho), 274 B.R. 867, 876 (9th Cir. BAP 2002). The Ninth Circuit has stated that a good faith test "should examine the intentions of the debtor and the legal effect of the confirmation of a Chapter 13 plan in light of the spirit and purposes of Chapter 13." [Citations omitted.]
In this case, almost all the United States Trustee's objections concern debtor's conduct prior to filing the original Chapter 7 petition, and those objections have largely been addressed. Debtor is not attempting to avoid or defeat state court litigation, nor is he trying to evade nondischargeability litigation in the Chapter 7. Moreover, if allowed to proceed and ultimately receive a discharge, that discharge will not reach any wider than a discharge in Chapter 7 would havethere would be no super-discharge, and the debtor will have had to fully perform his proposed plan over five years to receive the discharge, paying monies he would not have had to pay in Chapter 7.
The United States Trustee argues that if allowed to proceed in Chapter 13 debtor will avoid the consequences of a possible adverse ruling in their objection to discharge adversary in the Chapter 7. And it is certainly possible that the United States Trustee might have prevailed in that proceeding had it gone forward. The issue thus boils down to whether seeking to avoid § 727 litigation by converting to Chapter 13 and proposing to pay all disposable income for five yearsassuming that was debtor's intentis somehow bad faith on debtor's part. Even when a debtor was seeking to discharge a debt previously held nondischargeable, courts have concluded that is not enough to definitively establish bad faith. In re Chaffin, 836 F.2d 215, 216 (5th Cir.1988). There, the court remanded and instructed the lower court to assess whether debtor had proposed to commit all projected disposable income for three years to funding the plan. In addition, the court noted that while the creditor had obtained the nondischargeability judgment in Chapter 7, the creditor had not objected to the Chapter 13 plan. The appellate court stated: "The liberal policy of Chapter 13, affording a clean start even to a debtor with a tainted past, likewise requires a clear justification for denying confirmation of a plan to which no creditor has objected." 836 F.2d at 216-17.
Based on all the circumstances of this case, the Court finds and concludes that debtor has carried his burden of establishing that his conversion from Chapter 7 to *677 Chapter 13 was made in good faith as required by 11 U.S.C. § 1325(a)(7).
As already noted, 11 U.S.C. § 1325(a)(3) requires that debtor's plan have been "proposed in good faith and not by any means forbidden by law." In earlier years, courts developed non-exhaustive lists of factors to be considered. See, e.g., Handeen v. LeMaire, 898 F.2d 1346, 1349 (8th Cir.1990). As explained in that opinion, Congress amended § 1325 to add subpart(b), requiring a debtor to apply all projected disposable income for a period of three years. That incorporated many of the "ability to pay" factors in the earlier tests. 898 F.2d at 1349. Section 1325(b) was again amended as part of BAPCPA, and courts continue to wrestle with its interplay with § 1325(a)(3).
In In re Stitt, 403 B.R. 694 (Bankr.D.Idaho 2008), the court recognized the foregoing debate, and adopted what it called an "intermediate approach:"
Under this approach, "the sufficiency of the assets devoted to the plan is not a basis for a finding of lack of good faith under § 1325(a)(3), unless there is a showing of some sort of manipulation, subterfuge or unfair exploitation of the Code by the debtor." [Citations omitted.]
403 B.R. at 703. The essence of those grounds for a finding of bad faith have already been discussed. The Court finds and concludes that the record in this case does not reveal any sort of manipulation, subterfuge, or unfair exploitation of the Code. Accordingly, the Court finds and concludes that debtor has met his burden of demonstrating that his plan has been proposed in good faith, as required by § 1325(a)(3).
The remaining objection of the United States Trustee is to the feasibility of debtor's plan. Shortly after converting to Chapter 13, on November 7, 2007 debtor filed his amended schedules, including Schedules I and J. Schedule I showed that debtor had been employed for one month at an auto repair shop, and his non-filing spouse had been employed as a manicurist for the preceding three months. Their joint net income, before expenses, was $3,220. The joint family expenses are listed on Schedule J as $2,970, leaving a net income after expenses of $250 per month for the family.
The United States Trustee acknowledged at the evidentiary hearing that the feasibility objection was secondary to the good faith arguments. However, it was pointed out that debtor's nonfiling spouse testified that she had monthly expenses for her separate credit cards which were not included on Schedule J. The net effect of that information is that the family net income would be reduced below the level necessary to make the monthly plan payments to the Chapter 13 trustee, and thus rendered the proposed plan infeasible.
Feasibility is a very real concern. Countering it to some degree is the United States Trustee's stipulation at the hearing that debtor was current on all payments to the Chapter 13 trustee over the preceding one year. The Court is also mindful that while debtor is only required to propose a 36 month plan, debtor has committed to making payments for 60 months. While the dividend to unsecured creditors is small as a percentage, that is caused in significant part by inclusion of a junior mortgage obligation that became unsecured when the property was foreclosed. Lastly, the Court recognizes that debtor can earn a discharge of any of his scheduled debts only if he fully performs his plan over 60 months. If he fails, he is back at the beginning. He has an incentive to succeed.

*678 Conclusion

For all the foregoing reasons, the Court overrules the objections to confirmation filed by the United States Trustee. During the course of the proceedings, the Chapter 13 trustee joined in the objections of the United States Trustee, and asked to be excused from the evidentiary hearing. The Court's rulings as to the objections of the United States Trustee apply equally to the same objections of the Chapter 13 trustee.
IT IS SO ORDERED.


                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0465

                          Tommie Relando Norwood, petitioner,
                                     Appellant,

                                           vs.

                                   State of Minnesota,
                                      Respondent.

                                Filed November 24, 2014
                                        Affirmed
                                       Ross, Judge

                             Hennepin County District Court
                               File No.: 27-CR-11-32701

Kirk M. Anderson, Anderson Law Firm, PLLC, Minneapolis, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

         Considered and decided by Chutich, Presiding Judge; Halbrooks, Judge; and Ross,

Judge.

                         UNPUBLISHED OPINION

ROSS, Judge

         Tommie Norwood and three other men broke into a home and held multiple

residents at gunpoint. Norwood pleaded guilty to two counts of aggravated robbery under
a plea agreement in which Norwood stipulated that he would be sentenced to serve

consecutive prison terms totaling 108 months in exchange for the state’s dropping the

remaining two charges of kidnapping and first-degree burglary. The district court

sentenced Norwood to consecutive 67- and 41-month prison terms and then rejected

Norwood’s contention that the sentence is unlawful. Because the statutory prohibition

against imposing multiple sentences for single behavioral incidents excepts crimes that

involve multiple victims and because Norwood’s resulting sentence is fair, the district

court’s consecutive sentencing does not violate the statute, and we affirm.

                                         FACTS

       On an October 2011 evening, Tommie Norwood drove himself and three friends

to a Brooklyn Center house. The four men, masked and armed with handguns, forced

their way inside and began beating the three residents and demanding that they reveal the

location of money and marijuana. The victim residents at first included two men and a

woman, but a second woman arrived home and was met at the door by one of the masked

men pointing a gun at her. During the attack, one of the residents secretly sent a text

message to his girlfriend announcing the ongoing crime, and she called the police. Police

soon arrived and the attackers attempted to flee. After about two hours, police found

Norwood trying to crawl out of the garage.

       The state charged Norwood with one count of kidnapping, two counts of first-

degree aggravated robbery, and one count of first-degree burglary. Each of the two

counts of aggravated robbery related to a different victim. Norwood pleaded guilty to the

two counts of aggravated robbery under a plea agreement in which he agreed to be

                                             2
sentenced to consecutive imprisonment terms of 67 and 41 months and the state agreed to

drop the remaining charges.

       During the plea hearing, Norwood acknowledged that he and his acquaintances

robbed at least two people at gunpoint and that he was “pleading guilty to 108 months for

two counts of aggravated robbery.” The district court sentenced Norwood to consecutive

terms of 67 and 41 months in prison, achieving the 108-month total incarceration period

contemplated in the plea agreement. It then dismissed the remaining charges.

       Five months later, Norwood moved the district court to correct the allegedly

unlawful, consecutive nature of his sentence to effectively reduce his incarceration period

by 41 months. The district court denied the motion, relying on the multiple-victim

exception to the statutory prohibition against multiple sentences for single behavioral

incidents. Norwood appeals the district court’s order denying his motion for a corrected

sentence.

                                     DECISION

       Norwood contends that we must correct his sentence because consecutive

sentencing in this case is not authorized by law. We will not reverse a district court’s

denial of a motion for a corrected sentence unless the court abused its discretion or erred

as a matter of law. Anderson v. State, 794 N.W.2d 137, 139 (Minn. App. 2011), review

denied (Minn. Apr. 27, 2011).

       Norwood maintains that the district court erred as a matter of law by imposing a

sentence with consecutive prison terms. Norwood is correct that the district court

generally may not impose multiple sentences for offenses committed in a single

                                            3
behavioral incident. See Minn. Stat. § 609.035 (2012); State v. Skipintheday, 717 N.W.2d

423, 426 (Minn. 2006). But the supreme court has read this statutory prohibition to

incorporate a multiple-victim exception. State ex rel. Stangvik v. Tahash, 281 Minn. 353,

359–60, 161 N.W.2d 667, 672 (1968). Specifically, the Tahash court held that “multiple

crimes against multiple victims permit the imposition of more than one sentence.” Id.

Although Norwood’s two aggravated-robbery crimes were ostensibly part of a single

behavioral incident, they included two victims, and Norwood is therefore “equally

culpable to each victim” despite the limiting language of section 609.035. See State v.

Edwards, 774 N.W.2d 596, 605 (Minn. 2009).

      Because the multiple-victim exception applies and each of Norwood’s crimes can

be sentenced separately, the consecutive sentences are lawful. Norwood accepted these

sentences in his negotiated plea agreement. Standing alone, this cannot create substantial

and compelling circumstances for a sentencing departure. State v. Misquadace, 644

N.W.2d 65, 71 (Minn. 2002). But the district court did not depart; the two aggravated-

robbery convictions permit consecutive sentencing. See Minn. Sent. Guidelines 2.F.2.b

(2011) (stating that consecutive sentences are permissive for “[m]ultiple current felony

convictions for crimes on the list of offenses eligible for permissive consecutive

sentences found in Section 6”); see also Minn. Sent. Guidelines 6 (2011) (listing first-

degree aggravated robbery as eligible for permissive consecutive sentencing).

      Norwood argues that the multiple-victim exception should not apply because the

consecutive sentencing unfairly exaggerates the criminality of his conduct. Norwood

accurately recognizes that the multiple-victim exception applies only if the resulting

                                            4
sentence does not exaggerate the defendant’s criminal conduct. State v. Marquardt, 294

N.W.2d 849, 851 (Minn. 1980). But his argument is not convincing. We first observe that

he expressly agreed to the 108-month prison sentence as part of an agreement that,

presumably, benefited him. And as he pleaded guilty, he answered “Yes” when his

attorney asked, “And you understand that you are pleading guilty to 108 months for two

counts of aggravated robbery?” Norwood’s unfair-sentence argument ignores the fact that

he realized the bargained-for benefit of multiple dismissed charges in an agreement in

which he stipulated to serve the sentence he now challenges.

       We observe too that Norwood’s accomplices were also sentenced to serve 108

months in prison. Norwood suggests that it is unfair that they were sentenced to 108-

month terms after pleading guilty to only one crime while he received the same sentence

after pleading guilty to two crimes. But we see no merit in this; our focus is on the overall

sentence the robbers received in relation to the criminality of their conduct, not on the

number of their convictions. Sentencing Norwood to serve the same prison term as his

fellow robbers is a mark of uniformity and fairness, not unfairness. We hold that the

district court’s consecutive sentencing totaling 108 months does not unfairly exaggerate

the criminality of Norwood’s conduct.

       Because the multiple-victim exception applies and each of Norwood’s crimes can

be sentenced separately, the consecutive prison terms are authorized by law. Because

Norwood’s sentence is lawful, the district court did not abuse its discretion by denying

Norwood’s motion to correct his sentence.

       Affirmed.

                                             5


826 F.Supp. 780 (1993)
Peter DONATELLO, Jr. et al., Plaintiffs,
v.
Andrew McKENZIE, et al., Defendants.
Ivan BORGOS, et al., Plaintiffs,
v.
Peter DONATELLO, Jr., et al., Defendants.
Nos. 93 Civ. 4609 (LMM), 93 Civ. 4614 (LMM).
United States District Court, S.D. New York.
July 27, 1993.

*781 MEMORANDUM AND ORDER

McKENNA, District Judge.

1.
At issue in the above related actions is the validity of a trusteeship imposed on June 30, 1993 by the International Leather Goods, Plastics, Novelty and Service Workers Union (the "International") on the Four Joint Boards Council (which consists of a number of local unions) (the "Locals") and their health and welfare funds (the "Funds"). Ivan Borgos is the trustee; Peter Donatello, Jr. is the manager of the Locals; and Andrew McKenzie is the president of the International. The plaintiffs in 93 Civ. 4614 seek a preliminary injunction enforcing the trusteeship, the plaintiffs in 93 Civ. 4609 a preliminary injunction invalidating it.
It is not disputed that the Locals owe the International approximately $60,000 in per capita payments. Failure to remit such payments on a current basis and to prepare or initiate a satisfactory plan for past due amounts is the principal stated reason for imposition of the trusteeship.
A trusteeship may be imposed to the extent permitted by 29 U.S.C. § 462, which provides:
Trusteeships shall be established and administered by a labor organization over a subordinate body only in accordance with the constitution and bylaws of the organization which has assumed trusteeship over the subordinate body and for the purpose of correcting corruption or financial malpractice, assuring the performance of collective bargaining agreements or other duties of a bargaining representative, restoring democratic procedures, or otherwise carrying out the legitimate objects of such labor organization.
29 U.S.C. § 462 (1988). The International's constitution requires the Locals to "promptly" pay per capita tax and assessments to the International. (Moss Decl.Ex. A at Art. II, § 10(a).) The constitution also provides that:
Whenever a Local Union, Joint Board or Council fails to abide by its obligations under the International Union's Constitution or fails to abide by its obligations pursuant to applicable law in discharging such obligations either to the International Union or its members, the International Union either through its General Executive Board or Board of Directors, may declare the existence of a Trusteeship over such Local Union, Joint Board or Council and such Trusteeship shall continue until the conditions and circumstances giving rise to such Trusteeship are corrected and remedied.
(Id. at Art. XVII, § 1.)
In Nat'l Ass'n of Letter Carriers v. Sombrotto, 449 F.2d 915 (2d Cir.1971), the Court of Appeals set forth the standard to be applied to a challenge to the validity of a trusteeship.
The power of a local (or the Secretary of Labor) to contest the trusteeship in federal court, 29 U.S.C. 464(a), is subject to an eighteen month presumption of validity if the trusteeship has been established in accordance with the provisions of the parent's constitution and bylaws and has been authorized or ratified after a fair hearing, 29 U.S.C. @ 464(c). This presumption can be overcome only by "clear and convincing proof that the trusteeship was not established or maintained in good faith for a purpose allowable under @ 462." Congress contemplated that if the parent's constitution had an appropriate provision and this was complied with, the courts were to enter the picture to invalidate a trusteeship only if the local (or the Secretary) chose to contest the parent's decision and was able to overcome a rather stiff presumption of validity.
Id. at 920-21 (footnote omitted).
The Locals raise two issues in challenging the trusteeship. They argue, first, that per capita delinquencies are not "financial *782 malpractice" within the meaning of 29 U.S.C. § 462. No case made known to the Court decides whether failure to make per capita payments on a timely basis is "financial malpractice." "Malpractice," however, has been generically defined as "an injurious, negligent, or improper practice." Webster's Third New International Dictionary 1368 (1986) (definition 2). The word does not imply corruption.[1] In discussing the proper purposes of trusteeships, the Senate Report notes that "[i]t is not the intention of the committee to interfere in any way with the recognized authority and responsibility of a union to require compliance by subordinate organizations with all lawful and proper provisions of the union's constitution and bylaws." S.Rep. No. 187, 86th Cong., 1st Sess. (1959), reprinted in 1959 U.S.C.C.A.N. 2318, 2362. The trusteeship imposed here seeks to do that. The Court concludes that the trusteeship was validly imposed for a reason found in the International's constitution and permitted by 29 U.S.C. § 462. Under Sombrotto's "stiff presumption of validity," 449 F.2d at 921, the challenge to the trusteeship on this ground must be rejected.[2]
The Locals also claim that there was not a "fair hearing" as required by 29 U.S.C. § 464(c). In support of this contention, the Locals assert that they were refused a one week adjournment of the June 30, 1993 hearing at which the trusteeship was imposed although notice of the hearing, given on June 21, 1993, was not received until June 28, 1993, and that the decision to impose the trusteeship was made without an opportunity to submit additional information from the Locals' accountants. The Locals also object to the informality of the notice. The Locals cite no specific provisions of the constitution which they claim not to have been complied with.
In Becker v. Industrial Union of Marine & Shipbuilding Workers, 900 F.2d 761 (4th Cir.1990), the court summarized the characteristics of the fair hearing required before imposition of a trusteeship:
First, the notice should set out in writing the factual basis for alleged violations of law or the union's constitution that justify imposition of a trusteeship.... The notice should also provide the date, time, and location of the hearing and indicate that the local will have the opportunity to respond to the charges.... Notice of the charges sufficient to meet the requirements of the Act may be found in written communications supplementing the notice giving the date and time of the hearing....
At the hearing itself, the union seeking to impose the trusteeship must present evidence and witnesses in support of the reasons for imposing the trusteeship.... The local must be accorded the opportunity to cross-examine the international's witnesses and present rebuttal evidence.... Where the international union has provided the local with the opportunity for a hearing meeting the requirements of the Act, it may validly impose a trusteeship if the local declines to exercise that opportunity by failing to appear at a properly noticed hearing....
Id. at 768-69 (citations omitted). The hearing after which the trusteeship was imposed satisfies, if barely, these requirements.
The notice sets forth the principal charges of "[f]ailure to remit dues and initiation fees on a current basis" and "[f]ailure to propose or initiate a satisfactory plan for the payment of past obligations to the International." (Moss Decl. Ex. E at ¶¶ 1, 2.) It set forth the date, time and (implicitly) location of the hearing. Information concerning the charges was presented by the International, and Mr. Donatello (and counsel) were given an opportunity to present their defense. The Locals' request for an adjournment of a week in order to present financial information was denied, but the International did give an opportunity for submission of such information *783 post-hearing. The Locals, it appears, have not yet done so nor do they appear to consider that such a submission would change the result. It does not appear from the papers submitted, however, that any hearing was held relating to charges concerning the funds. (See id. at ¶¶ 3-5.)
The Court concludes that the Locals were afforded a "fair hearing" as that term is used in 29 U.S.C. § 464(c), and that the trusteeship must be enforced. It should be noted, however, that this conclusion relates only to the Locals, but not to the Funds, which are, legally, separate entities. The International has not shown a basis for imposition of a trusteeship over the funds.

2.
Plaintiffs in 93 Civ. 4614 seek reargument of this Court's Memorandum and Order of July 16, 1993 denying, upon certain conditions (which have been accepted in writing by the Locals), their motion enjoining the Locals from proceeding with votes to disaffiliate from the International and affiliate with another union and from taking any other action to dissociate locals or union members from the Four Joint Boards Council. The motion is denied. Such plaintiffs have not demonstrated that the votes would be uninformed or that the Locals are proceeding impermissibly.

3.
As to the trusteeship, to the extent it purports to be a trusteeship of the Health and Welfare Funds of the Four Joint Boards Council, the motion of plaintiffs in 93 Civ. 4609 is granted, that of plaintiffs in 93 Civ. 4614 is denied, and the trusteeship is declared invalid.
As to the trusteeship, to the extent it is a trusteeship of the Four Joint Boards Council (and its constituent locals), the motion of plaintiffs in 93 Civ. 4609 is denied, that of plaintiffs in 93 Civ. 4614 is granted, and defendants and their officers, agents, servants, employees and attorneys, and all persons in active concert or participation with them who receive actual notice of this Order by personal service or otherwise, are enjoined, pending final disposition of this action, but not beyond December 31, 1994, from:
a) failing to comply with the trusteeship imposed by the International on June 30, 1993;
b) failing to comply with directions given by Trustee Borgos, his agents and attorneys;
c) interfering with the functions or actions of Trustee Borgos;
d) failing to turn over all books and records of the Locals to the Trustee;
e) interfering with the decision of Trustee Borgos to move the Locals' records and office to the Seventh Floor at 265 West 14th Street;
f) failing to turn over to Trustee Borgos all the Locals' property, including the leased automobile;
g) failing to assist in the transfer of authority to Trustee Borgos, including executing any bank or other authorization cards or any other documentation needed to transfer full control of the Locals' funds to Trustee Borgos.
No bond or other security is required.

4.
The parties shall advise the Court in writing within ten days of the date of this order as to such further proceedings as they think to be necessary or appropriate, and of their proposed schedules therefor.
SO ORDERED.
NOTES
[1]  Indeed, nothing contained in this Memorandum and Order is intended in any way to suggest that the Court has found that the Locals have engaged in any corrupt or illegal practices.
[2]  Were the usual standard applicable to motions for a preliminary injunction to be applied, cf. Sombrotto, 449 F.2d at 923-25 (Oakes, J., dissenting), the Court might hold otherwise. Plaintiffs in 93 Civ. 4614 have not shown that they are threatened with irreparable harm.


		IN THE MATTER OF THE APPLICATION OF THE OKLAHOMA TURNPIKE AUTHORITY

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IN THE MATTER OF THE APPLICATION OF THE OKLAHOMA TURNPIKE AUTHORITY2018 OK 88Case Number: 117233Decided: 11/14/2018IN THE SUPREME COURT OF THE STATE OF OKLAHOMA
Cite as: 2018 OK 88, __ P.3d __

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

IN THE MATTER OF THE APPLICATION OF THE OKLAHOMA TURNPIKE AUTHORITY FOR APPROVAL OF NOT TO EXCEED $125,000,000 GILCREASE EXPRESSWAY TOLL REVENUE BONDS, SERIES 2018 (GILCREASE EXPRESSWAY WEST PROJECT: TIFIA 2018)
ORIGINAL PROCEEDING TO APPROVE REVENUE BONDS
¶0 The Oklahoma Turnpike Authority (Authority) seeks to issue revenue bonds for use in the construction of the Gilcrease Expressway Turnpike Project in Tulsa, Oklahoma. Pursuant to 69 O.S. 2011 §1718, the Authority filed an application in this Court seeking approval of the proposed bonds. No objections were filed. We accept original jurisdiction to determine the bonds' validity.

ORIGINAL JURISDICTION ASSUMED;
BOND PROPOSAL APPROVED.

Jered T. Davidson, Oklahoma City, Oklahoma, for Oklahoma Turnpike Authority.

KAUGER, J:

¶1 The cause before us is an original proceeding brought pursuant to the provisions of 69 O.S. 2011 §1718,1 which authorizes the Oklahoma Turnpike Authority (Authority) to file an application with this Court seeking approval of bonds to be issued for the construction and operation of turnpike projects. With no Protestants filing objections, we approve the bonds.
BACKGROUND
¶2 Since the 1950's, this Court has approved several bonds requested by the Authority. In 2017, the Oklahoma Legislature passed the Oklahoma Local Public and Private Facilities and Infrastructure Act (the Act), 74 O.S. Supp. 2017 §§5151 et. seq.2 The purpose of the Act is to facilitate public-private partnerships to improve public services.3
¶3 Even though the Authority is exempted from the Act, the Act does provide that the Authority may utilize the general provisions and processes of the Act to develop public-private partnership agreements.4 The purpose the agreements is to facilitate the construction and operation of various turnpike projects throughout the state. One such project is the proposal at issue here. The Gilcrease Expressway, the project presented here, is part of an original more than 50 year-old master plan for Tulsa, Oklahoma. The project will be four lanes, approximately 5 miles in length, serving west and north Tulsa. It will connect Interstate 44 and U.S. Highway 412, operating as an all-electronic toll collection system.
¶4 Financing for the project will come from the issuance of revenue bonds or a TIFIA loan, secured by and payable from revenues generated by the project. Additional financial commitments are also made by the Authority, the Oklahoma Department of Transportation, and the City of Tulsa utilizing a combination of: 1) long term debt, payable from project revenues in the form of a loan from the United States Department of Transportation (USDOT) under the Transportation Infrastructure Finance and Innovation Act (TIFIA)5; 2) $71,123,068 of bond proceeds from the "Grant Anticipation Notes (GARVEEs) issued and payable by ODOT; and 3) a contribution from the Authority's general fund. This project is described as a component of the "Driving Forward" program announced by the Governor in 2015. It is generally designed to expand and modernize the Authority's Turnpike Projects and improve safety throughout the state.6
DISCUSSION/CONCLUSION
¶5 There are no Protestants to this cause. Consequently, no one presents any legal authority showing that this project is a violation of the Oklahoma Constitution or any statutes. Nor does it appear that the Authority exceeded its authority as authorized by law, or that the Bonds appear to facially violate the law. Pursuant to In the Matter of Application of the Oklahoma Turnpike Authority, 2016 OK 124, ¶15, 389 P.3d 31 we need not engage in further research.7 The applicant explains that the bond financing procurement in this proposal cannot create an unlawful partnership interest in contravention to the Okla. Const. art. 10, §158 because at no time will the Authority enter into a joint venture or acquire a partnership or other ownership interest in a private entity.
¶6 Rather, the Authority will oversee construction and provide inspection. Upon completion it will be the owner of the project, and solely responsible for operating and maintaining the new turnpike. It will also establish the applicable rates and charges for use by the public.
CONCLUSION
¶7 The proposed bond issue was properly authorized as an essential governmental function.9 Valid notice of this application was given.10 No Protestants have come forward, therefore, there is no legally or factually supportable reasons to disapprove the application. Accordingly, the Authority's application is granted. Rehearing, if any, shall follow Okla. Sup. Ct. Rule 1.13.11
ORIGINAL JURISDICTION ASSUMED;
BOND PROPOSAL APPROVED.

COMBS, C.J., GURICH, V.C.J., KAUGER, WINCHESTER, EDMONDSON, REIF, and DARBY, JJ., concur.

COLBERT and WYRICK, JJ., dissent

WYRICK, J., with whom COLBERT, J., joins, dissenting:
The Court lacks jurisdiction to render this advisory opinion.

FOOTNOTES

1 Title 69 O.S. 2011 §1718 provides:
The Authority is authorized in its discretion to file an application with the Supreme Court of Oklahoma for the approval of any bonds to be issued hereunder, and exclusive original jurisdiction is hereby conferred upon the Supreme Court to hear and determine each such application. It shall be the duty of the Court to give such applications precedence over the other business of the Court and to consider and pass upon the applications and any protests which may be filed thereto as speedily as possible. Notice of the hearing on each application shall be given by a notice published in a newspaper of general circulation in the state that on a day named the Authority will ask the Court to hear its application and approve the bonds. Such notice shall inform all persons interested that they may file protests against the issuance of the bonds and be present at the hearing and contest the legality thereof. Such notice shall be published one time not less than ten (10) days prior to the date named for the hearing and the hearing may be adjourned from time to time in the discretion of the Court. If the Court shall be satisfied that the bonds have been properly authorized in accordance with this article and that when issued, they will constitute valid obligations in accordance with their terms, the Court shall render its written opinion approving the bonds and shall fix the time within which a petition for rehearing may be filed. The decision of the Court shall be a judicial determination of the validity of the bonds, shall be conclusive as to the Authority, its officers and agents, and thereafter the bonds so approved and the revenues pledged to their payment shall be incontestable in any court in the State of Oklahoma.

2 Title 74 O.S. Supp. 2017 §§5151 et seq. Section 5151 provides:
This act shall be known and may be cited as the "Oklahoma Local Public and Private Facilities and Infrastructure Act".

3 Title 74 O.S. Supp. 2017 §5154.1 provides:
Authority and Purpose of this Act
A responsible governmental entity may take any action and execute any Public-Private Partnership contract, authorized under this act, for the provision of a public purpose in order to more efficiently and effectively provide public services, including by generating additional resources in support of the public project.

4 Title 74 O.S. Supp. 2017 §5152.1 provides in pertinent part:
. . .B. The Oklahoma Department of Transportation and the Oklahoma Turnpike Authority shall be exempt from this act. However, the Oklahoma Department of Transportation and the Oklahoma Turnpike Authority may utilize the general provisions and process described herein to develop a public-private partnership contract for a transportation improvement in consultation with the Director of the Office of Management and Enterprise Services (OMES) and subject to the approval of the Oklahoma Transportation Commission or the Oklahoma Turnpike Authority Board as applicable

5 23 U.S. C. §§601-609.

6 See, In the Matter of Application of the Oklahoma Turnpike Authority, 2016 OK 124, ¶6, 389 P.3d 318.

7 In the Matter of Application of the Oklahoma Turnpike Authority, 2016 OK 124, ¶15, 389 P.3d 318 [We need not consider propositions unsupported by convincing argument or authority in an original action unless it is apparent without further research that they are well taken. S.W. v. Duincan, 2001 OK 39, ¶31, 24 P.3d 846.].

8 The Okla. Const. art. 10, §15 provides:
15. Pledge or loan of credit - Donation - Exceptions.
A. Except as provided by this section, the credit of the State shall not be given, pledged, or loaned to any individual, company, corporation, or association, municipality, or political subdivision of the State, nor shall the State become an owner or stockholder in, nor make donation by gift, subscription to stock, by tax, or otherwise, to any company, association, or corporation.
B. Pursuant to authority of and subject to requirements of law and according to professional norms established nationally in similar activities, the Oklahoma Center for the Advancement of Science and Technology or its successor may be authorized to use public funds not exceeding one percent (1%) of total state appropriations for the current fiscal year to promote economic development through grants or loans to individuals, companies, corporations or associations. Pursuant to authority of and subject to requirements of law and according to professional norms established nationally in similar activities, the Oklahoma Center for the Advancement of Science and Technology or its successor may be authorized to use public funds in order to promote economic development by purchase or ownership of stock or to make other investments in private enterprises and to receive income from such investments which are involved with research or patents from projects involving Oklahoma colleges or universities. The Oklahoma Center for the Advancement of Science and Technology or its successor may only use public funds for the purposes authorized in this subsection if a statute specifically authorizing such use is approved by an affirmative vote of at least two-thirds ( 2/3 ) of the members elected to the Senate and to the House of Representatives upon final passage of such measure in each of the respective houses and with the approval of the Governor.
C. The Legislature shall only authorize use of public funds by the Oklahoma Center for the Advancement of Science and Technology or its successor as permitted by this section for promotion of economic development by creation of new employment, enhancement of existing employment or by the addition of economic value to goods, services or resources within the State authorized by subsection B herein.
D. The Legislature shall establish procedures to review and evaluate the extent to which the purposes of any statute authorizing use of public funds by the Oklahoma Center for the Advancement of Science and Technology are achieved.
E. Bonds issued by the board of education of any school district or public institutions of higher education may be guaranteed by the corpus of the permanent school fund, provided:
1. As to bonds issued by the board of education such bonds must be approved by election of the school district upon the question of issuing such bonds;
2. As to bonds issued by an institution within The Oklahoma State System of Higher Education such bonds are issued in accordance with all applicable provisions of law; and
3. Provisions shall be made by the Legislature to guarantee prompt reimbursement to the corpus of the permanent school fund for any payment from the fund on behalf of a school district or on behalf of an institution within The Oklahoma State System of Higher Education. The reimbursement shall include a reasonable rate of interest. The provisions of this paragraph regarding use of the permanent school fund for guarantee of bonds issued by an institution within The Oklahoma State System of Higher Education shall not be self- executing and the Legislature shall provide by law the procedure pursuant to which such obligations may be guaranteed and the procedures for repayments, if any, required to be made to the permanent school fund.

F. Subject to requirements imposed by law, the governing boards of institutions within The Oklahoma State System of Higher Education and employees of those institutions may have an ownership interest in a technology, whether or not the technology is protected pursuant to federal or state law governing intellectual property, and may have an ownership interest in a business enterprise or private business entity, if the ownership interest is acquired as a result of research or development of a technology involving the authorized use of facilities, equipment, or services of such institutions.

9 The Enabling Act, 69 O.S. 2011 §1701 establishes the Authority to construct, maintain, repair, and operate turnpike projects and to issue turnpike revenue bonds payable solely from revenues to pay the cost of such projects. the term "project" includes highways and related infrastructure necessary for turnpike operation. The Authority is an instrumentality of the state and its purpose of construction, operating and maintaining turnpikes is an essential governmental function.

10 Pursuant to 69 O.S. 2011 §1718, see note 1, supra, on July 25, 2018, this Court issued an order setting the dates for protests to be filed and oral presentation on the matter in accordance with the statute. The Authority on August 14, 2018, filed an "Affidavit of Proof of Publication" attaching proof of compliance with the above notice requirements. No protests against the issuance of the bonds were filed nor did any interested persons or Protestants appear at the hearing before the referee.

11 Title 20 O.S. 2011 §14.1 provides that this Court shall fix the time for rehearing. It states:
Any department, institution, board, bureau, division, commission, agency, trusteeship, or authority of state government authorized to issue bonds, notes, or other evidences of indebtedness may, upon advice of bond counsel or upon governing board approval, file an application with the Supreme Court of Oklahoma for the approval of any obligations to be issued by it. Exclusive original jurisdiction shall be conferred upon the Supreme Court to hear and determine each such application pursuant to rules and procedures designated by the Court. The Court may give such applications precedence over the other business of the Court and to consider and pass upon the applications and any protests which may be filed against the application as expeditiously as possible.
Notice of the hearing on each application shall be given by a notice in a newspaper of general circulation in the state that on a day named, the applicant will ask the Court to hear its application and approve the obligations. Notice shall inform all persons interested that they may file protests against the issuance of the obligations and be present at the hearing and contest its legality. The notice shall be published one time not less than ten (10) days prior to the date named for the hearing and the hearing may be adjourned from time to time in the discretion of the Court.
If the Court is satisfied that the obligations have been properly authorized in accordance with the law and that when issued, they will constitute valid obligations in accordance with their terms, the Court shall render its written opinion approving the obligations and shall fix the time within which a petition for rehearing may be filed. The decision of the Court shall be a judicial determination of the validity of the obligations, shall be conclusive as to the applicant, its officers and agents, and thereafter the obligations so approved and the revenues pledged to their payment shall be incontestable in any court in this state.
Rule 1.13 of the Okla. Sup. Ct. Rules. 12 O.S. 2011 App. 1, provides in pertinent part:
(a) Petition.
Applications for a rehearing and a brief in support thereof, unless otherwise ordered by the Court, shall be made by petition to the Court, signed by counsel, and filed with the Clerk within twenty (20) days from the date on which the opinion in the cause is filed. The mailbox rule, extended to various papers by the terms of Rule 1.4 (c) and 1.4(e), applies to rehearing petitions to the Supreme Court. No oral argument on a petition for rehearing shall be allowed except upon order of the Court. No petition for rehearing shall be filed or considered without proof of service. . . .

Citationizer© Summary of Documents Citing This Document

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Name
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None Found.

Citationizer: Table of Authority

Cite
Name
Level

Oklahoma Supreme Court Cases
 CiteNameLevel
 2001 OK 39, 24 P.3d 846, 72 OBJ        1479, S. W. v. DUNCANDiscussed
 2016 OK 124, 389 P.3d 318, IN THE MATTER OF APPLICATION OF THE OKLA. TURNPIKE AUTHORITYDiscussed at Length
Title 20. Courts
 CiteNameLevel
 20 O.S. 14.1, Application for Evidences of IndebtednessCited
Title 69. Roads, Bridges, and Ferries
 CiteNameLevel
 69 O.S. 1701, Purpose - Authority to Construct, Maintain, Repair and Operate ProjectsCited
 69 O.S. 1718, Judicial Determination of Validity of BondsDiscussed at Length
Title 74. State Government
 CiteNameLevel
 74 O.S. 5151, TitleDiscussed
 74 O.S. 5152.1, Definitions - ExemptionsCited
 74 O.S. 5154.1, Authority and Purpose of this ActCited

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367 So.2d 1091 (1979)
Debra RILEY, Appellant,
v.
The STATE of Florida, Appellee.
No. 78-575.
District Court of Appeal of Florida, Third District.
February 27, 1979.
*1092 Robrish, Major & Logan and Joel D. Robrish, Miami, for appellant.
Jim Smith, Atty. Gen. and Susan Minor, Asst. Atty. Gen., for appellee.
Before HENDRY and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
PER CURIAM.
The appellant Debra Riley, defendant below, was charged by information with the crimes of robbery (two counts), aggravated battery, unlawful possession of a firearm while engaged in a criminal offense, battery of a law enforcement officer and resisting a law enforcement officer with violence to his person. Defendant pled not guilty, and was tried before a jury on one robbery count and on the count charging aggravated battery. The other charges in the information were dismissed by the State prior to trial. The defendant was found guilty of aggravated battery, and on the robbery count was found guilty of the lesser included offense of grand larceny. Two concurrent three-year sentences were imposed thereon. The defendant appealed.
Upon consideration of the several contentions of error presented by the appellant, in the light of the record, briefs and argument, we hold no reversible error has been shown.
The reference in the testimony of an arresting officer to the several charges upon which the defendant was arrested was harmless error, in view of the curative instruction given by the court. It was not error to deny defendant's motion for mistrial. Williams v. State, 327 So.2d 798 (Fla. 3d DCA 1976); Warren v. State, 270 So.2d 8 (Fla. 1972); Burkhead v. State, 206 So.2d 690 (Fla. 3d DCA 1968); Perry v. State, 146 Fla. 187, 200 So. 525, 527 (1941).
On authority of State v. Abreau, 363 So.2d 1063 (Fla. 1978), we hold the court did not commit error by refusing to include in the jury charges on lesser included offenses, the offense of assault with intent to commit robbery. The court charged the jury on robbery and on the lesser included offenses of attempted robbery, grand larceny and petty larceny. On the robbery count, the defendant was found guilty of the lesser offense of grand larceny, of which the offense of assault with intent to commit robbery was equal, but which, as was grand larceny, was two steps removed.
The court properly denied defendant's motion for dismissal under the speedy trial rule, where a continuance properly had been charged to the defendant. No undue limit was placed on the defendant, as to presentation of evidence. The court did not abuse discretion by not permitting excursion into irrelevant and collateral issues.
Affirmed.


           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Appeal of Amit Azoulay,       :
Idit Azoulay and Assaf Lavon,        :
                   Appellants        :
                                     :
                   v.                :    No. 1085 C.D. 2017
                                     :
Philadelphia Zoning Board of         :
Adjustment and City of Philadelphia :
and Hillcrest Preservation Alliance, :
LLC, and Friends of The Wissahickon :

                                   ORDER

             NOW, October 29, 2018, having considered appellee’s application for

reconsideration/reargument and designated appellants’ answer in response thereto,

the application is denied.

                                          MARY HANNAH LEAVITT,
                                          President Judge


505 F.2d 475
164 U.S.App.D.C. 368
Ditlowv.Pan American World Airways, Inc.
73-1936
UNITED STATES COURT OF APPEALS District of Columbia Circuit
9/19/74

D.C.D.C.
VACATED AND REMANDED

1
---------------

* The judgment or order is accompanied by a Memorandum explanatory of the judgment.  Such memorandum is not included with the opinions of the Court that are printed, and it may not be cited in briefs or memoranda of counsel as precedents, under local rule.


400 F.2d 930
CONSUMERS PRODUCTS OF AMERICA, INC., a corporation, Eastern Guild, Inc., a corporation and Jack Weinstock, Nat Loesberg, Jack Gerstel and Louis Tafler, individually, and as officers of the said corporations, Petitioners,v.The FEDERAL TRADE COMMISSION and the United States of America, Respondents.
No. 16956.
United States Court of Appeals Third Circuit.
Argued June 4, 1968.
Decided September 12, 1968.

Theodore R. Mann, Goodis, Greenfield, Narin & Mann, Philadelphia, Pa. (James M. Carter, Philadelphia, Pa., on the brief), for petitioners.
Charles C. Moore, Jr., Federal Trade Commission, Washington, D. C. (James McI. Henderson, Gen. Counsel, J. B. Truly, Asst. Gen. Counsel, Federal Trade Commission, on the brief), for repondents.
Before HASTIE, Chief Judge, and STALEY and SEITZ, Circuit Judges.
OPINION OF THE COURT
STALEY, Circuit Judge.

1
This case is before the court upon a petition to review a cease and desist order of the Federal Trade Commission. The order was issued at the conclusion of an administrative proceeding held pursuant to a complaint charging petitioners, Consumers Products of America, Inc., Eastern Guild, Inc., Keystone Guild, Inc., and four individuals, Nat Loesberg, Jack Weinstock, Jack Gerstel, and Louis Tafler, with violating § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, by engaging in unfair and deceptive acts and practices and unfair methods of competition in connection with the interstate sale of encyclopedias.

2
Aside from its basic finding that petitioners were engaged in bait-and-switch advertising,1 the Commission also found that advertisements of petitioners misled and falsely represented: that an encyclopedia will be delivered to prospective purchasers for a five-day free examination without any further condition, obligation or requirement; that the offer in the advertisements is limited to and expires within ten days; that a dictionary is "free" and is delivered to and may be retained by all prospective purchasers without charge, condition or obligation other than as set forth in the advertisement; and that through use of the trade name "Educational Foundation" petitioners operate a non-profit organization engaged in educational work. Paragraphs 4, 5, 6, and 8 of the Commission's order specifically enjoin petitioners from continuing the above-mentioned misrepresentations,2 and with the exception of a non-meritorious challenge to paragraph 8,3 petitioners do not object to this portion of the order. What they do vigorously oppose, however, is paragraph 1 of the order requiring them to forthwith cease and desist from:

3
"Using, in any manner, a sales plan, scheme or device wherein false, misleading or deceptive statements or rep-representations are made in order to obtain leads or prospects for the sale of merchandise or services."

4
It is urged by petitioners that this paragraph is too broad and too generalized because the only false, misleading or deceptive statements found by the Commission to have been made to obtain leads or prospects are those which are specifically covered by paragraphs 4, 5, 6, and 8 of the order. Thus, it is argued, if paragraph 1 is intended to refer to those particular statements, it is mere surplusage and therefore unnecessary, but if it is intended to cover something broader than that, it is improper and potentially may subject petitioners to contempt citations without benefit of the kind of administrative hearing to which they are entitled under the Act.

5
The Supreme Court of the United States has held that when the breadth of the Commission's order is attacked, the question on review is whether the Commission chose a remedy "reasonably related" to the violations which it found. See, e. g., F. T. C. v. Ruberoid Co., 343 U.S. 470, 473, 72 S.Ct. 800, 96 L.Ed. 1081 (1952); Jacob Siegal Co. v. F. T. C., 327 U.S. 608, 611-613, 66 S.Ct. 758, 90 L.Ed. 888 (1946). When considering this question, it must be kept in mind that Congress has placed the responsibility for fashioning orders upon the Commission, F. T. C. v. National Lead Co., 352 U.S. 419, 429, 77 S.Ct. 502, 1 L.Ed.2d 438 (1957); F. T. C. v. Cement Institute, 333 U.S. 683, 726, 68 S.Ct. 793, 92 L.Ed. 1010 (1948), and this responsibility necessarily includes the prevention of illegal future practices. As stated by the Court in F. T. C. v. Ruberoid Co., supra at 343 U.S. 473, 72 S.Ct. 803:

6
"* * * In carrying out this function the Commission is not limited to prohibiting the illegal practice in the precise form in which it is found to have existed in the past. If the Commission is to attain the objectives Congress envisioned, it cannot be required to confine its road block to the narrow lane the transgressor has traveled; it must be allowed effectively to close all roads to the prohibited goal, so that its order may not be by-passed with impunity. * * *"

7
An example of the latitude permitted the Commission in fashioning cease and desist orders, appears in the case of F. T. C. v. Henry Broch & Co., 368 U.S. 360, 82 S.Ct. 431, 7 L.Ed.2d 353 (1962). There the Commission found that Broch, a broker selling food products for many seller principals, had violated § 2(c) of the Clayton Act by reducing the commission that Canada Foods, Ltd., a processor of apple concentrate, ordinarily paid him, in order to make possible Canada Foods' acceptance of an offer from J. M. Smucker Co. to buy an unusually large quantity of apple concentrate at less than Canada Foods' established price. Paragraph 1 of the Commission's order prohibited Broch from repeating his illegal practice in connection with sales for Canada Foods, or for "any other seller principal," to Smucker, or "to any other buyer." Broch argued that this paragraph was too broad in its application to sales from all seller principals to all buyers because the order was based only upon findings limited to an asserted illegal payment from Canada Foods to Smucker. The Court, however, saw no merit in this argument, stating:

8
"* * * The Commission has a wide discretion to formulate a remedy adequate to prevent Broch's repetition of the violation he was found to have committed. See Jacob Siegel Co. v. Federal Trade Comm., 327 U.S. 608, 611-612, 66 S.Ct. 758, 759-760, 90 L. Ed. 888. We cannot say that the Commission exceeded its discretion in banning repetitions of Broch's violation in connection with transactions involving any seller and buyer, rather than simply forbidding recurrence of the transgression in sales between Canada and Smucker. * * *" 368 U.S. at 364, 82 S.Ct. at 433.

9
We think the Commission's discretion in cases involving false, deceptive and misleading advertising is at least as wide as that permitted in situations concerning illegal commission reductions. See F. T. C. v. Colgate-Palmolive Co., 380 U.S. 374, 85 S.Ct. 1035, 13 L.Ed.2d 904 (1965). For, in our judgment, the well-being of innumerable members of our society has been, and must continue to be, protected by vigorous, though judicious, exercise of the Commission's expertise in evaluating the impact and meaning of sophisticated advertisements and their capacity to deceive or mislead. Cf. Doherty, Clifford, Steers & Shenfield, Inc. v. F. T. C., 392 F.2d 921 (C.A. 6, 1968); Erickson v. F. T. C., 272 F.2d 318 (C.A. 7, 1959), cert. denied, 362 U.S. 940, 80 S.Ct. 805, 4 L.Ed.2d 769 (1960). In Erickson v. F. T. C., supra, the Court of Appeals for the Seventh Circuit was presented with a problem very similar to the one before us. There the Commission found that petitioner falsely represented and advertised that he could, without qualification, through the use of his preparations and method of treatment cause, among other things, new hair to grow on hairless heads. The court upheld the Commission's findings, but the petitioner argued that the facts as found would not support the Commission's order prohibiting the advertising "of any other preparations for use in treatment of hair and scalp conditions." The Court rejected this contention, holding that the above-quoted portion of the order related to the false representations contained in petitioner's advertising, and agreed with the Government's claim that "`[u]nless the Commission's order is broad enough to cover all preparations petitioner need only change the formula of his present preparations and continue to engage in the same false and deceptive practices condemned by the Commission.'" 272 F.2d at 322.

10
We think that this reasoning applies with equal force to the order in the instant case, and that paragraph 1 of the order does indeed have a "reasonable relationship" to the unlawful practices found to exist by the Commission. Were it not for this paragraph, petitioners could feel free to merely "change the formula" of their false, misleading and deceptive statements, and continue to deceive the public as they had before. Under the circumstances, we do not think that it is asking too much of petitioners to require them to simply tell the truth in their advertisements and oral representations.4 As stated by Mr. Justice Clark in F. T. C. v. National Lead Co., 352 U.S. 419, at 431, 77 S.Ct. 502, at 510, 1 L.Ed.2d 438, "[petitioners] must remember that those caught violating the Act must expect some fencing in."

11
Petitioners next object to the wording of paragraph 10 of the Commission's order requiring them to obtain from present and future salesmen an agreement "to abide by the requirements of said order and to refrain from engaging in any of the acts or practices prohibited by said order; and for failure so to do, agreeing to dismissal or to withholding of commissions, salaries and other remunerations."

12
The Commission, in its supplemental brief filed after oral argument, has informed the court that it would agree to a modification of paragraph 10 which would require petitioners to merely:

13
"* * * deliver a copy of this order to cease and desist to all present and future salesmen or other persons engaged in the sale of [petitioners'] products and * * * secure from each salesman or other person a signed statement acknowledging receipt of said order."

14
In light of this development, it is unnecessary for us to take up the objections lodged by petitioners against the initial paragraph 10. We think that the modified paragraph effectively accomplishes the Commission's main purpose of assuring that petitioners' salesmen are made aware of the terms of the order, while at the same time, it avoids the suspicion of possibly impinging upon the legal rights of petitioners and their salesmen. The modification, therefore, is approved.

15
We have carefully considered petitioners' remaining contentions, but we deem them all to be so lacking in merit that further discussion is unwarranted. Accordingly, the Commission's order, as modified will be enforced.

Notes:

1
 The evidence shows that petitioners' advertisements of World Wide Encyclopedia (a set purchased by petitioners for about $4.00 and advertised and sold in all cases for $9.95), were made for the purpose of obtaining the names and addresses of people who were interested in the purchase of an encyclopedia principally for the use of school age children. When the prospective buyer filled out the coupon and sent it to petitioners' place of business, the encyclopedia was not mailed out, instead, a salesman called upon the prospective customer, demonstrated at the most one copy of the World Wide Encyclopedia, and quickly introduced the purchaser to the more expensive New Standard Encyclopedia (a set which was not advertised and which was purchased by petitioners for $25 and sold at prices ranging from $129 to $159). The salesman then exerted every possible effort to sell the New Standard Encyclopedia
In the words of the hearing examiner: "This is nothing more than an age old bait and switch operation with the advertisement of the World Wide Encyclopedia being the bait to get the prospective purchaser's name and address and thereafter switch him to the New Standard Encyclopedia."

2
 These paragraphs require petitioners to cease and desist from:
"4. Representing, directly or indirectly, that said merchandise will be delivered to prospective purchasers for a five-day free examination or for any other period of time without clearly and conspicuously revealing all of the conditions, obligations or requirements, pertaining to said offer.
"5. Representing, directly or indirectly, that any merchandise is "free" or is delivered to or may be retained by purchasers or prospective purchasers without clearly and conspicuously revealing all of the terms, conditions or obligations necessary to the receipt and retention of said merchandise.
"6. Representing, directly or indirectly, that any offer is limited as to time, provided, however, that it shall be a defense in any enforcement proceeding instituted hereunder for [petitioners] to establish that such time restriction or limitation was actually imposed and in good faith adhered to by [petitioners].
* * * * *
"8. Using the trade name `Educational Foundation' in connection with [petitioners'] enterprises or representing, in any other manner, that [petitioners] operate any nonprofit organization engaged in educational work."

3
 Petitioners disagree with the Commission's finding that use of the term "Educational Foundation" has a tendency and capacity to mislead the public. The Commission fully agreed with the hearing examiner's conclusion that petitioners' use of this term "clearly imports that the [petitioners] are engaged in some sort of non-profit operation" when they are, in fact, in business strictly for profit. We think there is a basis for the Commission's finding in this regard, and therefore it will not be disturbed. Cf. F. T. C. v. Mary Carter Paint Co., 382 U.S. 46, 48-49, 86 S.Ct. 219, 15 L.Ed.2d 128 (1965); Carter Products, Inc. v. F. T. C., 323 F.2d 523, 528 (C.A.5, 1963); Perloff v. F. T. C., 150 F.2d 757, 759 (C.A.3, 1945)

4
 As for petitioners' fear of a possible contempt proceeding, the Supreme Court pointed to the solution in F. T. C. v. Colgate-Palmolive Co., 380 U.S. 374, 394, 85 S.Ct. 1035, 1047, 13 L.Ed.2d 904 (1965), noting:
"* * * If, however, a situation arises in which respondents are sincerely unable to determine whether a proposed course of action would violate the present order, they can, by complying with the Commission's rules, oblige the Commission to give them definitive advice as to whether their proposed action, if pursued, would constitute compliance with the order."
If petitioners fail to avail themselves of this procedure, and the Commission suspects a violation of paragraph 1 of the order, petitioners will have ample opportunity to dispute the applicability of the order's prohibition within the context of a given factual situation. See Jaffe, The Judicial Enforcement of Administrative Orders, 76 Harv.L.Rev. 865 (1963).


                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 16-2723
                       ___________________________

                          AMCO Insurance Company

                      lllllllllllllllllllll Plaintiff - Appellee

                                         v.

                       Judith Williams; Robert Williams

                    lllllllllllllllllllll Defendants - Appellants
                                     ____________

                   Appeal from United States District Court
               for the Western District of Missouri - Springfield
                                ____________

                          Submitted: February 7, 2017
                            Filed: March 16, 2017
                                ____________

Before SMITH1, BENTON, and SHEPHERD, Circuit Judges.
                            ____________

BENTON, Circuit Judge.

      Kelly D. Williams died when her car was hit by Dylan A. Meyer’s vehicle.
After settling with Meyer’s insurance company, Appellants Judith and Robert
Williams—Kelly’s parents and sole survivors—submitted a claim for underinsured

     1
       The Honorable Lavenski R. Smith became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on March 11, 2017.
motorist (UIM) coverage. AMCO Insurance Company sued, seeking a declaration
of no coverage under Kelly’s auto policy. Both parties moved for summary
judgment. The district court2 granted AMCO’s motion. Having jurisdiction under
28 U.S.C. § 1291, this court affirms.

                                          I.

      Meyer’s insurance had a limit of $250,000, all paid to the Williamses. Because
the damages exceed this amount, the Williamses sought $100,000 in UIM coverage
under Williams’ auto policy with AMCO.

      The policy’s Declarations page lists a UIM limit of $100,000 per person and
$300,000 per accident.       The Underinsured Motorists Coverage–Missouri
Endorsement says:

      UNDERINSURED MOTORISTS COVERAGE
      INSURING AGREEMENT
      A.  We will pay compensatory damages which an “insured” is legally
          entitled to recover from the owner or operator of an
          “underinsured motor vehicle” because of “bodily injury”:
          1.     Sustained by an “insured”; and
          2.     Caused by an accident.
          The owner’s or operator’s liability for these damages must arise
          out of the ownership, maintenance or use of the “underinsured
          motor vehicle”.

                                       ****

      C.    “Underinsured motor vehicle” means a land motor vehicle or
            trailer of any type to which a bodily injury liability bond or policy

      2
       The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri.

                                         -2-
            applies at the time of the accident but its limit for bodily injury
            liability is less than the limit of liability for this coverage. . . .
(emphasis added).

      The “Limit of Liability” section in the same Endorsement says:

      LIMIT OF LIABILITY
      A.  The limit of liability shown in the Declarations for each person
          for Underinsured Motorists Coverage is our maximum limit of
          liability for all damages, including damages for care, loss of
          services or death, arising out of “bodily injury” sustained by any
          one person in any one accident. Subject to this limit for each
          person, the limit of liability shown in the Declarations for each
          accident for Underinsured Motorists Coverage is our maximum
          limit of liability for all damages for “bodily injury” resulting from
          any one accident.
          This is the most we will pay regardless of the number of:
          1.      “Insureds”;
          2.      Claims made;
          3.      Vehicles shown in the Declarations; or
          4.      Vehicles involved in the accident. A vehicle and attached
                  “trailer” are considered one vehicle. Therefore the Limit of
                  Liability will not be increased for an accident involving a
                  vehicle which has an attached “trailer”.

                                        ****

      D.     We will not make a duplicate payment under this coverage for
             any element of loss for which payment has been made by or on
             behalf of persons or organizations who may be legally
             responsible.
      E.     Any amount otherwise payable for damages under this coverage
             shall be reduced by all sums paid because of bodily injury by or
             on behalf of persons or organizations who may be legally
             responsible. This includes all sums paid under Part A of the
             policy.

                                          -3-
      The Williamses moved for summary judgment, arguing the policy is ambiguous
and provides UIM coverage. AMCO cross-moved, asserting no coverage because
Meyer’s vehicle was not an “underinsured motor vehicle.” Relying on the Missouri
Supreme Court’s decision in Rodriguez v. General Accident Insurance Company, 808
S.W.2d 379 (Mo. banc 1991), the district court granted summary judgment for
AMCO.

       “This court reviews de novo a grant of summary judgment, viewing the record
most favorably to the nonmoving party and drawing all reasonable inferences for that
party.” Munroe v. Cont’l W. Ins. Co., 735 F.3d 783, 786 (8th Cir. 2013), citing
Chambers v. Pennycook, 641 F.3d 898, 904 (8th Cir. 2011). “Interpretation of an
insurance policy is a matter of state law.” Progressive N. Ins. Co. v. McDonough,
608 F.3d 388, 390 (8th Cir. 2010), quoting Stan Koch & Sons Trucking, Inc. v.
Great W. Cas. Co., 517 F.3d 1032, 1039 (8th Cir. 2008). The parties agree Missouri
law applies. This court is “bound by the decisions of the Missouri Supreme Court
regarding issues of substantive state law.” Owners Ins. Co. v. Hughes, 712 F.3d 392,
393 (8th Cir. 2013), quoting Bockelman v. MCI Worldcom, Inc., 403 F.3d 528, 531
(8th Cir. 2005).

                                        II.

        The Williamses argue the policy is ambiguous and must be construed in their
favor. “Under Missouri law, courts apply the general rules of contract construction
when interpreting an insurance policy.” Munroe, 735 F.3d at 786, citing Todd v.
Missouri United Sch. Ins. Council, 223 S.W.3d 156, 160 (Mo. banc 2007). “The key
is whether the [policy] language is ambiguous or unambiguous.” Peters v. Emp’rs
Mut. Cas. Co., 853 S.W.2d 300, 302 (Mo. banc 1993). “If the policy is unambiguous,
it will be enforced as written, absent statutory or policy considerations.” Munroe,

                                        -4-
735 F.3d at 786, citing Rodriguez, 808 S.W.2d at 382. “If ambiguity exists, the court
interprets the policy in favor of the insured.” Id., citing Todd, 223 S.W.3d at 160.

       “An ambiguity exists when there is duplicity, indistinctness, or uncertainty in
the meaning of the language in the policy. Language is ambiguous if it is reasonably
open to different constructions.” Burns v. Smith, 303 S.W.3d 505, 509 (Mo. banc
2010), quoting Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007).
“[C]onstruing the terms of an insurance policy,” courts should apply “the meaning
which would be attached by an ordinary person of average understanding if
purchasing insurance.” Id., quoting Seeck, 212 S.W.3d at 132. “Courts should not
interpret policy provisions in isolation but rather evaluate policies as a whole.”
Ritchie v. Allied Prop. & Cas. Ins. Co., 307 S.W.3d 132, 135 (Mo. banc 2009).
Courts “must endeavor to give each provision a reasonable meaning and to avoid an
interpretation that renders some provisions useless or redundant.” Dibben v. Shelter
Ins. Co., 261 S.W.3d 553, 556 (Mo. App. 2008).

       This case is controlled by Rodriquez v. General Accident Insurance Company
of America, 808 S.W.2d 379 (Mo. banc 1991). There, the tortfeasor’s vehicle had a
$50,000 liability policy. Id. at 380. After collecting the $50,000, the insured sought
the balance of damages under her policy’s UIM coverage which had a $50,000 limit
per vehicle. Id. The company declined, emphasizing the policy’s definition of
“underinsured motor vehicle.” Id. at 381. The insured sued, claiming the policy was
ambiguous and must be construed in favor of coverage. Id.

       The court rejected the insured’s arguments, finding the “contract between [the
company] and the [insured] clearly states that an underinsured motor vehicle is a
vehicle whose limits for bodily injury liability are ‘less than the limit of liability for
this coverage.’” Id. at 382. The court held, “Since [the tortfeasor’s] coverage is
equal to the limit of liability under the [insured’s] policy, [the tortfeasor] was not an
underinsured motorist as defined by the [] policy.” Id.

                                           -5-
       The definition of “underinsured motor vehicle” in Rodriguez is identical to the
definition here. The same analysis applies. Williams’ policy provides that “[AMCO]
will pay compensatory damages which the ‘insured’ is legally entitled to recover from
the owner or operator of an ‘underinsured motor vehicle’ because of ‘bodily injury.’”
The issue is whether Meyer’s vehicle was an “underinsured motor vehicle.” The
policy defines “underinsured motor vehicle” as:

       [A] land motor vehicle or trailer of any type to which a bodily injury
       liability bond or policy applies at the time of the accident but its limit for
       bodily injury liability is less than the limit of liability for this coverage.

(emphasis added). The policy “clearly states that an underinsured motor vehicle is
a vehicle whose limits for bodily injury liability are ‘less than the limit of liability for
this coverage.’” Id. at 382. It is undisputed that Meyer’s bodily-injury liability limit
is $250,000, and the policy’s UIM liability limit is $100,000. Because the bodily-
injury liability limit for Meyer’s vehicle is greater than the policy’s UIM liability
limit, Meyer’s vehicle is not an “underinsured motor vehicle.” Id. See Hughes, 712
F.3d at 396 (relying on Rodriguez and finding no UIM coverage because the
tortfeasor’s vehicle was not an “underinsured automobile”).

                                            III.

      The Williamses argue Rodriquez is inapplicable because the policy is
ambiguous. They contend the definition of “underinsured motor vehicle” conflicts
with the Declarations page, Insuring Agreement section, Limit of Liability section,
and Other Insurance clause.

                                            -6-
                                           A.

       The Williamses think that the definition of “underinsured motor vehicle”
conflicts with the Declarations page, which lists a UIM limit of liability of $100,000
but has no other limitations or exclusions. This reads the Declarations page in
isolation, contrary to Missouri law requiring courts to interpret policies “as a whole,”
Ritchie, 307 S.W.3d at 135 and “avoid an interpretation that renders some provisions
useless or redundant.” Dibben, 261 S.W.3d at 556. “The essential terms [of a policy]
are usually stated in abbreviated form on a declarations page.” Todd, 223 S.W.3d at
160. The district court properly found no ambiguity between the Declarations page,
which states “in abbreviated form” the UIM limit, and the UIM Endorsement which
limits coverage to cases where the tortfeasor’s bodily-injury liability limit is less than
the UIM liability limit. See Hughes, 712 F.3d at 396 (relying on Rodriguez to
enforce a definition of “underinsured automobile” despite the policy’s Declarations
page that provided $100,000 in UIM coverage).

                                           B.

       The Williamses claim the definition of “underinsured motor vehicle” conflicts
with the Insuring Agreement section by ignoring the promise to “pay compensatory
damages which an ‘insured’ is legally entitled to recover from the owner or operator
of an ‘underinsured motor vehicle’ because of ‘bodily injury.’” Like the Declarations
argument, this claim fails to read the policy as a whole, ignoring other policy
language that limits UIM coverage. See Ritchie, 307 S.W.3d at 135; Dibben, 261
S.W.3d at 556.

                                           C.

     The Williamses assert that the policy’s Limit of Liability section creates an
ambiguity because its “set-off” provisions make the UIM coverage illusory.

                                           -7-
However, the two Missouri Supreme Court cases they invoke are inapposite. See
Jones v. Mid-Century Ins. Co., 287 S.W.3d 687 (Mo. banc 2009); Ritchie, 307
S.W.3d 132. In Jones, it was undisputed that the tortfeasor’s vehicle was an
underinsured motor vehicle. Ritchie did not involve the definition of “underinsured
motor vehicle,” thus, neither case considered the issue here.

      This court has considered and rejected this argument:

      Burger argues that [the limit-of-liability] provision renders the extent of
      UIM coverage ambiguous because the policy first states that Allied will
      contribute $50,000 and then later indicates that it will pay only the
      difference between that $50,000 figure and the amount of money
      contributed by an underinsured tortfeasor. See Jones v. Mid–Century
      Ins. Co., 287 S.W.3d 687, 690 (Mo. 2009) (“[I]f a contract promises
      something at one point and takes it away at another, there is an
      ambiguity.” (quoting Seeck, 212 S.W.3d at 133)). This argument misses
      the mark. Even if the policy did contain inconsistent statements about
      the amount of coverage due once coverage has been triggered, such
      inconsistency would be immaterial to the question at issue here: whether
      the policy provides for coverage at all. As we explained in Hughes,
      disputes about the amount Allied must contribute simply do not “inject
      ambiguity into the meaning of what is a covered ‘underinsured motor
      vehicle’” so as to render the UIM definition unclear. 712 F.3d at 396
      (emphasis added). Nothing in Allied’s UIM limit-of-liability section
      undermines the requirement that a tortfeasor’s vehicle first must qualify
      as underinsured in order to trigger UIM coverage.

Burger v. Allied Prop. & Cas. Ins. Co., 822 F.3d 445, 450 (8th Cir. 2016) (emphasis
added).

      Although Rodriguez did not address this precise issue, the court examined
ambiguity arguments about the set-off provision—“the limit of liability shall be
reduced by all sums paid because of the ‘bodily injury’ by or on behalf of persons or

                                         -8-
organizations who may be legally responsible.” Rodriguez, 808 S.W.2d at 381. The
provision, the court stated, reinforced, rather than made ambiguous, the definition of
“underinsured motor vehicle:”

      The effect of this provision is to set-off the $50,000 paid by [the
      tortfeasor’s] insurer against the $50,000 coverage provided by the
      [insureds’ company]. The underinsured motorist coverage, therefore, is
      not excess coverage as the [insureds] argue. Instead, that coverage
      provides a total amount of protection to be paid to the [insureds] if other
      persons legally responsible for [the] injuries have lesser liability limits
      than those provided under the [insureds’] underinsured motorist
      coverage.

Id. at 382.

       Here, the set-off provision—“[a]ny amount otherwise payable for damages
under this coverage shall be reduced by all sums paid because of bodily injury by or
on behalf of persons or organizations who may be legally responsible”—also
reinforces that UIM coverage is not “excess coverage” but rather provides protection
if other persons legally responsible have lesser liability limits.

      The set-off provision does not render the policy ambiguous.

                                           D.

       The Williamses claim the definition of “underinsured motor vehicle” creates
an ambiguity by contradicting the Other Insurance clause. The Williamses did not
raise this argument in the district court. This court will not consider it on appeal. See
Satcher v. Univ. of Ark. at Pine Bluff Bd. of Trs., 558 F.3d 731, 735 (8th Cir. 2009)
(“[F]ailure to oppose a basis for summary judgment constitutes waiver of that
argument.”); Smith v. City of Des Moines, Iowa, 99 F.3d 1466, 1473 (8th Cir. 1996)

                                          -9-
(“We will not reverse a grant of summary judgment on the basis of an argument not
presented below.”).

                                         IV.

       The Williamses attempt to discredit Rodriguez, stating, “Numerous cases since
Rodriguez have considered policies defining an ‘underinsured motor vehicle’ as one
with liability limits less than the insured’s UIM limits, yet because of ambiguities in
the policies the insureds were entitled to collect the UIM coverage even though they
had collected the same amount as or limits greater than the UIM coverage from the
tortfeasor.” Yet the cases they cite are all appellate decisions. Although “[d]ecisions
by the Missouri Court of Appeals may be used as an indication of how the Missouri
Supreme Court may rule,” this court is “not bound to follow these decisions.”
Burger, 822 F.3d at 447, quoting Aerotronics, Inc. v. Pneumo Abex Corp., 62 F.3d
1053, 1068 (8th Cir. 1995). Rather, this court is “bound by the decisions of the
Missouri Supreme Court regarding issues of substantive state law.” Hughes, 710 F.
3d at 393.

       The Williamses recognize Rodriguez “is the only Missouri Supreme Court case
that directly addresses the definition of ‘underinsured motor vehicle’” at issue here,
and that “Rodriguez has not been overruled by the Supreme Court” despite “numerous
opportunities to revisit” it. This court has relied on Rodriguez to find similar UIM
provisions unambiguous. See Burger, 822 F.3d 445; Hughes, 712 F.3d 392.
“Considering the clarity with which the underinsured motorist coverage is defined in
the policy,” the district court did not err in finding the policy “is neither ambiguous
nor misleading.” Rodriguez, 808 S.W.2d at 383.

                                    *******
      The judgment is affirmed.

                       ______________________________

                                         -10-