253 Minn. 375 (1958)
91 N.W. (2d) 772
LOUIS E. GORR AND OTHERS
v.
CONSOLIDATED FOODS CORPORATION AND OTHERS.
CARL F. KLETT AND OTHERS
v.
SAME.
No. 37,387.
Supreme Court of Minnesota.
August 8, 1958.
Morgan, Raudenbush, Morgan, Oehler & Davis, for appellant Equitable Life Assurance Society.
Doherty, Rumble & Butler and Hopkins, Sutter, Owen, Mulroy & Wentz, for appellant Consolidated Foods Corporation.
Briggs, Gilbert, Morton, Kyle & Macartney, for appellants Kathryn Harris and others.
Donald C. Savelkoul and John T. McDonough, for respondents.
*376 NELSON, JUSTICE.
The actions here involved are for declaratory judgments to determine the respective rights and liabilities of the employer, former business participating empoyees, continuing active employees, and issuing life insurance company under a group annuity contract establishing a contributory retirement-income (pension) plan. It is claimed by the former participating employees that the contract was "discontinued" as to them, with the consequent vesting of employer contributions theretofore made in their behalf, when their employment terminated by reason of the shutdown of various departments of the employer's business. It is claimed by the employer, the continuing active employees, and the insurer that the contract was not "discontinued" by reason of the shutdowns in question and that the retirement incomes purchased with the employer's contributions in behalf of the former participating employees were canceled when their employments "terminated."
Judgments were entered pursuant to findings that the former participating employees, plaintiffs, are entitled to annuities commencing at their normal retirement dates based on employer contributions to the pension fund. Defendants and defendant-intervenors appealed from the judgments, the relief sought on appeal being a reversal of the judgments, with directions to the trial court to dismiss the actions, or, in the alternative, to enter new judgments construing the contract in accordance with the prayers for relief of the respective answers.
Plaintiffs and plaintiff-intervenors suggest that the single legal issue involved is whether the sale of the Griggs business in May 1953, followed by the employer's decision to go out of the food business and discharge 87 percent of its employees, constituted such a change or discontinuance of the pension plan as to the discharged food employees to entitle them to annuities based on prior employer contributions in their behalf.
The defendants and defendant-intervenors state that the single legal issue on appeal involves the interpretation of the provisions of a written contract; namely, did the closing down of those employer's departments which were unprofitable constitute a "discontinuance" of the pension plan under Article 7, Section II, Paragraph (b), and Article 8, Section II, Paragraph (4), of the group annuity contract setting forth *377 the pension plan involved in these proceedings, thus giving the plaintiffs, who, prior to reaching retirement age, were laid off by reason of the shutting down and closing out of many of the departments of the employer's business, vested interests in deferred employer-purchased annuities.
We take the facts to be as stipulated by the parties in the written stipulation made a part of the record. A determination of the rights of the litigants under this group annuity contract must be made upon the contract provisions and the facts as stipulated, subject to contract law as made applicable to similar contributory retirement-income plans.
In 1945 Griggs, Cooper & Company, hereinafter called Griggs, entered into a group annuity contract with the Equitable Life Assurance Society of the United States, hereinafter called Equitable, by the terms of which a pension or retirement-income plan was established for those employees of Griggs who met the eligibility requirements of the plan and elected to be included under it.
The record indicates that Griggs has a long history, having commenced business in St. Paul, Minnesota, in the year 1883, and that over the years the Griggs business experienced substantial fluctuations in the types of activities in which it was engaged. Prior to the year 1910, in addition to having operated a general wholesale grocery business, the company had developed departments for the manufacture of crackers, cookies, candies, spices and extracts, olives, salt fish, and roasted coffee. In 1926 the pickle and salt fish packing businesses were shut down. In 1926, 1927, and 1928, several wholesale grocery branches were opened up and a wholesale cigar business was started about 1930 and a wholesale liquor department was opened up in 1933. In 1941 Griggs shut down the jobbing of staple groceries and nationally advertised food products since that phase of operations had become unprofitable. In the early 1940's three of the wholesale grocery branches were shut down. This, generally, had been the history of the business up to 1945, when the pension plan was established.
The group annuity contract was issued by Equitable on November 15, 1945. At that time, the earnings of the liquor and cigar departments were close to their wartime peaks, while the earnings of the food departments as a whole had begun a sharp decline which by 1947 had *378 resulted in a net loss.
In 1949 Griggs lost its cigar dealership and the cigar department was discontinued. In 1950 what remained of the grocery-jobbing business was shut down since that department had consistently lost money.
On May 29, 1953, Consolidated Foods Corporation, hereinafter called Consolidated Foods, purchased the business and assets of Griggs. At that time, there were approximately 580 employees, of whom approximately 280 were active employees included in the pension plan.
When Consolidated Foods acquired the business and assets of Griggs in 1953, they undertook to continue the pension plan. The Griggs Division of Consolidated Foods was established as the separate operating unit to conduct the business formerly conducted by Griggs. Although there was a change in the identity of the employer, it was agreed that each employee's prior service with Griggs would be counted in determining his or her rights under the pension plan.
It was the purpose of Consolidated Foods in acquiring the assets and business of Griggs to continue to operate as many of the departments of the Griggs Division as could be operated at a profit. At the time of the acquisition it was the belief and expectation of the Consolidated Foods management that a large number of the food departments of the Griggs Division would be continued and operated profitably after effecting economies and improvements in their operations. It was also a part of Consolidated Foods' program with respect to its new Griggs Division, however, to sell, liquidate, or otherwise eliminate any department which could not be made profitable by such changes and economies.
During the 3-year period after the acquisition of Griggs by Consolidated Foods, one by one the various food departments failed to respond satisfactorily to the measures taken in an effort to make them profitable, and were either sold or discontinued and liquidated. As a department was discontinued, the employees in it were notified that their employment was to be terminated. In many instances employees in a discontinued department replaced other employees of less seniority in another department which was within the appropriate bargaining unit, pursuant to applicable collective-bargaining contracts.
*379 In April 1955, the discontinuance of departments had come to an end. Since that time the Griggs Division of Consolidated Foods has had approximately 75 employees, of whom approximately 42 were active employees under the pension plan. For the first time since 1951, the Griggs Division of Consolidated Foods made a net profit in the fiscal year ended June 30, 1955.
It has been stipulated between the parties herein that:
"* * * Subsequent to the acquisition of the Griggs Division by Consolidated the first appropriate payroll payment date for which payroll deductions were made occurred on June 26, 1953. On that date and on all subsequent appropriate payroll deduction dates, payroll deductions were made and have been made for employee contributions to the Retirement Plan for the Griggs Division. Such deductions were shown and have been shown on the stubs attached to the payroll checks distributed to Griggs Division employees. These deductions represented and have indicated a continuation of the Plan by Consolidated for Griggs Division employee participants as before. After the acquisition and up to the present time, pursuant to its assumption of Griggs Company's obligations under the Plan and its agreement with Equitable to continue the Plan, Consolidated has made to Equitable all the cash contributions due under the Plan. Employee participants in the Plan also have made to Equitable all contributions due under the Plan after the acquisition and up to the present time. Equitable has accepted and is continuing to accept all said contributions for the purposes of the Plan, and has credited and is continuing to credit certain employer purchase payment returns against the payment of employer premium liabilities." (Italics supplied.)
It has also been stipulated between the parties that:
"Neither Griggs Company nor Griggs Division nor Consolidated has ever elected by oral or written notice to discontinue the Retirement Plan under Article 8, Section I, Paragraph (2) of the Retirement Plan. * * * Equitable has never exercised its right by oral or written notice to discontinue the Plan under Article 8, Section I, Paragraph (3) of the Retirement Plan. Employer has never failed to pay any purchase payment by remitting cash or crediting of employer purchase payment *380 returns on or before the date upon which due or within the grace period as set forth in Article 8, Section I, Paragraph (1) of the Retirement Plan."
The record does not disclose any evidence that the employer has been guilty of bad faith in connection with the establishment, administration, or operation of the pension plan. Nor is there evidence that the closing down of the departments and the consequent laying off of plaintiffs and others was done in bad faith. Defendants and defendant-intervenors firmly contend that these actions were taken for compelling business reasons beyond the control of the employer.
The trial court came to the conclusion that the facts as found by the court constituted a discontinuance of the plan or a change therein which amounted to a discontinuance of the plan and that the plaintiffs were entitled to judgment of the court that they and all others similarly situated were entitled to annuities commencing at their normal retirement dates based on the employer's contributions to the pension fund. The trial court in its memorandum attached to its findings suggests that Griggs has, by a process of eliminating a department at a time, in the short space of 3 years, closed out everything except the liquor-jobbing department; that as a result the total number of employees shrank to 75, of whom 20 were executives and administrative employees; that the real parties in interest in these cases are the former employees and the defendant Consolidated Foods; and that Equitable has no real financial interest in the matter. The trial court suggests that the actual question is the distribution of the contributions made by the employer to the pension fund, viz., whether they go to Consolidated Foods or inure to the benefit of the employees. The trial court says that it has not been cited to any decision involving the precise questions here presented and that therefore there must be applied the general principles relating to the construction of contracts and that the contract does not specifically refer to a situation such as the record presents. The trial court reaches the conclusion that the actions of the employer amounted to a discontinuance of the plan as much as if there had been a complete closing out of the employer's operation at one time, which would result in a discontinuance of the plan, and that therefore, in order to determine *381 the proper construction of the contract, the court must consider the entire contract; the purposes sought to be accomplished; to some extent the construction placed upon the contract by Griggs when it invited its employees to join, which construction was disclosed to the employees by the booklet distributed to the employees who chose to participate; and the fact that the contract was taken into consideration when various bargaining agreements between the employer and employees were made.
We think it should be made clear at this point that no bargaining agent of an employee union or otherwise had any part in initiating the retirement plan here involved. Its establishment was the voluntary act of the employer Griggs. It became a tripartite agreement upon employee participation and has definitely remained such. It was made clear at the outset by explanatory documents to all who might participate as employees that the purpose of the plan was to provide eligible employees an opportunity to create, with the assistance of the company, retirement incomes independent of and in addition to the monthly benefits available under the Federal Social Security Act, 42 USCA, § 301, et seq.; that the plan would provide only for a pension upon retirement from the service of the employer (or a benefit in lieu of a pension upon death while in such service), or upon retirement from some other employment if the worker had left Griggs after (a) he had participated in the plan for 10 years, or (b) after the plan had been discontinued.
The rights of the parties hereto must be determined by reference to the group annuity contract and its amendments. The contract involved is an insured pension plan involving three parties: (1) The employee-participants; (2) the insurer, Equitable; and (3) the employer, Griggs Company Division of Consolidated Foods. The contract was originally executed by the insurer and employer and was thereafter entered into by each employee when such employee elected in writing to participate "under the group annuity contract" and to have payroll deductions paid to the insurer. An explanatory booklet and a group annuity certificate were furnished to each employee with reference to the operation of the group annuity contract. The booklet states at the outset that the contract provisions are controlling:
"* * * These contributions are turned over by the Company to * * * *382 Equitable * * * which guarantees benefits arising from the contributions under the Plan and makes payments when due to employees or their beneficiaries, in accordance with the terms of the Group Annuity contract between the Company and the Equitable. The terms of the Plan are governed in every respect by the provisions of the Group Annuity Contract.
"The benefits under the Plan are available, to only those eligible employees of the Company who join the Plan and make the required contributions. Each employee who participates in the Plan until retirement will receive a retirement annuity in an amount depending upon his salary and the length of his participation in the Plan." (Italics supplied.)
The certificate states:
"This individual certificate is furnished in accordance with and is subject to the terms of the Group Annuity Contract, which Contract, together with the Employer's application therefor, constitutes the entire contract between the parties. This certificate is merely a statement in substance of the benefits provided under the Group Annuity contract, which benefits apply only if the employee becomes included under the contract in accordance with its terms and remains included thereunder.

* * * * *
"The Employer has entered into a Group Annuity contract with the Equitable under which retirement annuities are provided for employees eligible therefor who elect to be included under the contract. All payments shall be subject to and shall be made in accordance with the terms of the Group Annuity contract." (Italics supplied.)
A similar pension plan has been described in Gallo v. Howard Stores Corp. (E.D. Pa.) 145 F. Supp. 909, 911:
"The exact relationship among an insurance company, an employer and an employee, created by such a pension plan as was agreed to here, is an extremely difficult one to classify. The employer and the insurance company agree with each other upon the terms of the plan which is, in effect, an annuity contract under which the annuity is to be paid to the employee upon certain conditions, the employer agreeing to pay a part of the consideration, but each employee as he becomes a participant *383 agreeing, in effect, to pay a portion of it. Such arrangement is a tripartite contract by which each party agrees with each of the others to perform certain acts, so that the insurance company, if it fails to pay the annuity is not only breaching its contract with the employer but also its contract with the employee.
"Such tripartite view of the contract would seem to be more nearly in accordance with the intention of the parties than other views which might be taken. For instance, it would be contrary to the facts to hold that the employer agreed with its employees to pay pensions to them and merely guarantee these payments through its contract with the insurance company. The language of the application card and of the policy excludes this view. This employer, apparently for business reasons, deemed it inadvisable to enter into such agreement with its employees but rather chose to procure for them a direct obligation from the Continental Assurance Company which both it and its employees would pay for.
"It is also difficult logically to view this transaction as a contract between the employer and the insurance company wherein the employees were merely third-party beneficiaries. At least, to refer to them as such is misleading. They applied to the insurance company, not the employer, for their rights under the plan and agreed with it that payroll deductions could be made."
The question which must be determined is of course whether the shutting down of unprofitable departments caused a discontinuance of the pension plan. Section I of Article 8 of the group annuity contract provides the manner in which the discontinuance of the contract may occur or take place:
"* * * Upon the occurrence of any one of the events described in Paragraphs (1), (2), (3) following, this contract shall be discontinued, as of the respective dates of discontinuance therein set forth, to the extent stated in Section II of this Article.
"(1) DEFAULT: Failure by the Employer to pay any purchase payment on or before the date upon which due or within the period of grace set forth in Article II shall constitute a default hereunder as of *384 such due date, and this contract shall be discontinued upon such due date.
"(2) DISCONTINUANCE BY EMPLOYER'S ELECTION: The Employer shall have the right to elect to discontinue purchase payments hereunder as of any purchase payment due date following exercise of such right, in which event this contract shall be discontinued upon such due date.
"(3) DECREASE IN NUMBER OF EMPLOYEES: The Equitable shall have the right to discontinue this contract as of the purchase payment due date next following any due date upon which the Employer shall make purchase payments hereunder with respect to fewer than fifty employees, or with respect to less than 75% of the number of employees eligible for inclusion under this contract as active employees." (Italics supplied.)
It is reasonable to assume that the paragraph under the title "DECREASE IN NUMBER OF EMPLOYEES" provided for an eventuality such as has occurred in the instant case; namely, a marked reduction of the working force due to department shutdowns. It has been recognized in that provision that the number of participating employees might at some time fall to "fewer than fifty" and this must have been specifically selected for Griggs for its employment conditions and for the plan of operation under the group annuity contract. It is to be observed that in providing this "fewer than fifty" clause in the contract, they gave to the insurer the right to discontinue the contract. So far as Equitable is concerned, the contract is being continued in full force and effect, and it has not, so far as this record discloses, exercised its right to discontinue the contract. It has been stipulated between the parties that there has been no discontinuance under any one of the three ways set forth in the contract. There has been no default by the employer; no election to discontinue by employer; and no election to discontinue by Equitable. We think that, by the very terms of the group annuity contract, there has been no discontinuance under the circumstances presented in the record before us. The record indicates that after each department shutdown, employer, employees, and Equitable all have considered the plan as continuing. The record clearly discloses that no notice of discontinuance has been served pursuant to the contract provisions by either the *385 employer or the insurer.
In the event of a discontinuance, the contract provides that: no further contributions (employer or employee) are to be made; no additional employees shall become included; and the number and identity of employees entitled to deferred employer-purchased annuities and the amounts thereof become finally fixed. The record indicates, however, that after each of the departmental shutdowns and employment terminations contributions continued to be made by employer and employees and continued to be accepted and applied as previously, neither the employer nor the insurer having effected a discontinuance under the contract provisions.
In any and all events, contributions made by the employer must under the terms of the contract be applied toward the purchase of annuities for employees. The employer can never under any circumstances get anything back from this plan. The contract specifically so provides. On the other hand, each employee-participant will in all events receive back what he contributed to the plan with compound interest if he so elects. Some employee-participants in the plan will necessarily receive the benefit of the company's contributions. Which employees will get those benefits is the real issue here.
The terminated employees are represented in this lawsuit by the plaintiffs and plaintiff-intervenors. The continuing employees are represented by the defendant-intervenors. The terminated employees, plaintiffs here, claim that there was a discontinuance of the plan. The continuing participants, defendant-intervenors, claim that there was no discontinuance of the plan and that, therefore, the employer-purchased payment returns then existing and later arising were available for use in purchasing past-service and future-service retirement annuities for them. In short, if the plan was terminated, employer contributions made with respect to the terminated employees will inure to their benefit; otherwise, those contributions will inure to the benefit of the continuing employees. In no event, however, would the employer receive back any contributions made by it under the plan.
The real parties in interest are the continuing employees on the one hand and the terminated employees on the other.
It is also interesting to note that even among the plaintiffs, themselves, *386 there is the same conflict of interest. Each individual plaintiff must show that the discontinuance of the plan occurred when his employer-employee relation was terminated. Otherwise, he is not entitled to the full relief sought.
Under Section II of Article 8 of the group annuity contract, the vesting of a participant's interest in employer-purchased annuities occurs only in the event that this contract is discontinued in the manner described in any one of the paragraphs of Section I, Article 8, set out above. We think it clear from the stipulated facts that there has been no discontinuance under any of the three provisions. We have already referred to the shutdowns of the departments and the marked decreases in employment to the "fewer than fifty" level and that these were within the contemplation of the parties when the plan was entered into. The parties in entering into the group annuity contract provided for the full vesting of a participant's interest in the employer-purchased retirement annuities under certain limited circumstances. This was covered in the case of a full plan discontinuance in Article 7, Section II (b), and in Article 8, Sections I and II, Paragraph (4), of the contract. Article 7, Section II (b), also vests fully the interest of a participant who does not elect to withdraw his own contribution if he has been included under this contract as an active employee for 10 years. The same is also true of participants who have arrived at their retirement date. No intimation is to be found in the group annuity contract, the booklet, or certificate furnished to participants, that a department shutdown, or the shutdown of several departments, or a reduction of labor force will effect a full vesting of the interests of participants in retirement annuities paid for by the employer. It must therefore be concluded that the omission was intentional and that the parties intended that neither department shutdowns nor the consequent reduction in the employer's labor force should result in the vesting of a participant's interest in employer-purchased annuities.
A specific agreement relating to terms of employment is to be found in Article 7 of the contract entitled "CANCELLATION OF ANNUITIES." Section I, Subsection B, under heading "CANCELLATION ON TERMINATION OF EMPLOYMENT" reads:
*387 "Subject to the restrictions set forth in Section II of this Article, the annuities purchased with the Employer's purchase payments with respect to an employee shall be cancelled as of the date upon which such Employee's employment with the Employer terminates for a reason other than death." (Italics supplied.)
Thus, subject to the limitations set forth in Section II of Article 7, all employment terminations for a reason other than death will result in a cancellation of the employer-purchased annuities under the contract. Section II of Article 7 of the contract provides as follows:
"No cancellation of the annuities purchased with Employer's purchase payments shall be made under Subsection A or Subsection B of Section I of this Article if the effective date of cancellation would be on or after
"(a) the employee's retirement date; or
"(b) the date of discontinuance of this contract, unless the contract is reinstated before the employee's retirement date, in which case the effective date of cancellation shall be the date of reinstatement;
"nor shall any such cancellation be made under said Subsection B if the effective date of cancellation would be on or after the date on which the employee shall have been included under this contract as an active employee for ten years." (Italics supplied.)
Except for Henry Schulte and Adolph A. Boden, none of the plaintiffs and plaintiff-intervenors can properly claim that they fall within these restrictions. Therefore, except in the case of Schulte and Boden by the very terms of the contract, none of the restrictions on the cancellation of employer-purchased annuities is applicable to the plaintiffs or plaintiff-intervenors because as of the dates upon which their employment terminated (1) none had attained retirement date; (2) there had been no discontinuance of the contract; and (3) none had been included as active employees under the contract for 10 years or more. The contract provides that a member's contributions and the company's contributions on his behalf cease upon termination of his employment and in such event he is permitted to elect one of the following options:
"(a) He may leave his own contributions with the Equitable and *388 receive, commencing at his normal retirement date, if then living, that part of the retirement income which has been purchased by his own contributions * * *; or, in lieu thereof,
"(b) He may have all of his own contributions returned to him by the Equitable with compound interest at 2% * * *.
"Special Right  If, upon termination of employment, the member has completed ten years of membership, and does not then or subsequently elect a refund of his own contributions (as described in paragraph (b) above), he will be entitled to receive at his normal retirement date the total retirement income  both for future service and past service  which has been purchased by the Company's contributions to date of termination of employment as well as by his own contributions."
The position of defendant-intervenors with respect to the legal issues involved on this appeal is the same as that of Consolidated Foods and Equitable; namely, that there has been no discontinuance of the pension plan. It is their position that the plan is in full force and effect according to its terms; that the annuities heretofore purchased by the employer for the plaintiffs have been canceled pursuant to the express terms of the annuity contract; and that the employer's purchase payment returns resulting from the cancellation of such annuities are to be applied under the contract toward the purchase of annuities for these intervenors and other continuing active employees. Without a discontinuance we think the position of the defendant-intervenors has merit. They contend, there being no discontinuance, that under the group annuity contract the employer's purchase payment returns resulting from employment terminations inure to their benefit and are available for use in purchasing service retirement annuities for them. It appears from the record that at the end of January 1956 these returns available for the use in payment of future premiums amounted to $51,569.89. The defendant-intervenors represent the continuing employees of Consolidated Foods in its Griggs division who are now and for some time past included as active employees under the group annuity contract. They were permitted to become parties to the litigation upon their application made on behalf of themselves and all other continuing *389 active employees after the filing of the decision from which this appeal has been taken.
The contract provisions clearly provide, and especially those of Section II of Article 8, that the vesting of a participant's interest in employer-purchased annuities occurs only "In the event that this contract is discontinued in the manner described in any one of the paragraphs of Section I of this Article and is not reinstated * * *." (Italics supplied.) It is our view that it clearly appears from the stipulated facts that there has been no discontinuance under any of the aforesaid provisions and that none of three ways of discontinuing the contract contemplates a partial discontinuance. It appears from rider No. 3 attached to the contract that the parties properly provided for a partial discontinuance in regard to employer-affiliated corporations, which were covered under the contract, but that these could be withdrawn from the contract by written notice from the employer. Such withdrawal would constitute a discontinuance as to the affiliate but it would not constitute a discontinuance as to the employer. In view of the provisions of the group annuity contract, the parties apparently having considered all factors which could not be claimed to cause a partial discontinuance of the plan, can it be said that the department shutdowns which have occurred were not considered as a future possibility by both employer, employees, and insurer in the inception of this retirement plan in 1945? For instance, the department handling the jobbing of staple groceries and nationally advertised foods had been dropped in 1941 and other wholesale grocery branches had been discontinued at that time. Under the circumstances can it be said that large decreases in employment were not contemplated by the parties and specifically provided for at the time, especially in view of the "fewer-than-fifty" provision in the contract? Based upon the contract terms, as well as the stipulated facts, we are forced to conclude that the shutdown of departments resulting in decreases in employment to the "fewer-than-fifty" level were within the contemplation of the parties when the plan was entered into. There is no intimation anywhere in the contract provisions that such a shutdown or reduction of the labor force would effect a full vesting of the interests of participants in retirement annuities paid for by the employer, Section I of Article 8 of the contract having definitely provided for *390 discontinuances only upon certain stated contingencies. The situation in the instant case presents a clear set of facts and circumstances for the application of the well-recognized rule in the law that the express enumeration of one or more instances of many belonging to the same class impliedly excludes the others. Tynan v. KSTP, Inc. 247 Minn. 168, 77 N.W. (2d) 200.
The record would indicate that none of the plaintiffs, excepting Schulte and Boden, had in any respect attained a retirement date; that there had been no discontinuance of the contract; and that none had been included as active employees under the contract for 10 years or more. The plan does not purport to guarantee employment until retirement nor does it guarantee pensions for employees who do not remain in service until their retirement. That an employee may retain the retirement annuity purchased with his contribution or cancel it and receive back his contributions plus interest is clear, but it is also clear that the employer, on the other hand, can never receive back any of its contributions toward such participant's pensions for such contributions must be retained by the insurer and applied against future premiums payable by the employer toward the pensions of other participants.
It is to be noted also that the participant is given an additional benefit under this retirement plan, for even if he does not remain with his employer until retirement, he may still, under some circumstances, receive a vested interest in the retirement annuities purchased by the employer on his behalf. If he has been a participant under the plan for at least 10 years, he becomes entitled to such a vested interest.
It appears to us that the provisions of the retirement plan are clear and understandable; that the employer voluntarily initiated the plan and provided what it considered fair and liberal terms with respect to those who might become participants. No one has claimed that the employer did not act in good faith with respect to the initiation and continuance of the plan.
We have not been cited to any case which sustains a claim of an employee to employer's purchase payments notwithstanding that the stipulated condition for the vesting of rights had not occurred or the stipulated period of participation had not elapsed. The basic question therefore in the case at bar, which involves contract interpretation, is *391 whether the intention of the parties appears from the agreement they have made. If it does, that is the end of the matter and the contract must be enforced as written.
The plaintiffs have cited Dom v. State Employes' Retirement Board, 345 Pa. 489, 28 A. (2d) 796; Sigman v. Rudolph Wurlitzer Co. 57 Ohio App. 4, 11 N.E. (2d) 878; Gilbert v. Norfolk & W. Ry. Co. 114 W. Va. 344, 171 S.E. 814; Hunter v. Sparling, 87 Cal. App. (2d) 711, 197 P. (2d) 807; Longhine v. Bilson, 159 Misc. 111, 287 N.Y.S. 281. We have carefully examined these cases to see what, if any, authority they may furnish for the contentions of the plaintiffs that the decision of the court below ought to be sustained and a discontinuance written into the contract based upon the stipulated facts. In the examination of the cases cited by plaintiffs, it must be observed at all times that the contract here involved is not a contract of employment but a group annuity contract which has not been issued pursuant to collective bargaining. It is only when the participant brings himself within the terms of the offer by acquiring the defined status that the right to participate in the pension funds under the terms of the offer vests. The plaintiffs herein undoubtedly had inchoate rights in the annuities purchased with the employer's purchase payments, but under the terms of the group annuity contract they had failed to vest. We have no differences with the general rules upon which plaintiffs rely when applied in their proper field, but where the language of an agreement is clear, there is no room for construction, and this rule applies to an insurance or annuity contract as well as to any other contract. The aforesaid cases are distinguishable on the stipulated facts in the instant case. "Clear and unambiguous language cannot be disregarded in the interest of the insured." 9 Dunnell, Dig. (3 ed.) § 4659, and cases cited.
In Williams v. Union Cent. Life Ins. Co. 291 U.S. 170, 180, 54 S. Ct. 348, 352, 78 L. ed. 711, 718, the United States Supreme Court said:
"* * * While it is highly important that ambiguous clauses should not be permitted to serve as traps for policyholders, it is equally important, to the insured as well as to the insurer, that the provisions of insurance policies which are clearly and definitely set forth in appropriate language, and upon which the calculations of the company are based, *392 should be maintained unimpaired by loose and ill-considered interpretations."
In George v. Haber, 343 Mich. 218, 72 N.W. (2d) 121, the Supreme Court of Michigan considered an employer-financed pension trust fund established in 1949 by the Kaiser-Frazer Corporation pursuant to a collective bargaining agreement. The substance of the complaint was stated by the court as follows (343 Mich. 221, 72 N.W. [2d] 122):
"In November, 1953, as it is claimed, the company disposed of its production facilities at Willow Run, Michigan, its principal place of business, and curtailed operations at other plants in this State. Claiming that such action was not in contemplation of the parties at the time of the making of the agreements for the retirement trust fund, the plaintiffs brought this action, asserting that because of the change in circumstances the trust fund should be terminated and that after making provision for the payment of benefits to employees retired prior to such change the balance of the fund should be divided among the remaining employees covered by the agreements between the union and the company `in proportion to the number of hours for which they were employed.'"
In that case the court said (343 Mich. 226, 72 N.W. [2d] 124):
"No reason is made to appear by the averments of the bill of complaint why the intent of the parties responsible for the creating of the retirement trust fund cannot be carried out. The jurisdiction of equity is not invoked here for the purpose of protecting the fund or preventing a use thereof for a purpose, or purposes, at variance with the plan under which it was established. It is the position of the plaintiffs, in the final analysis, that the plan outlined by the union representing plaintiffs, and the company, should be altered to the end that plaintiffs may receive immediately benefits from the fund under a substituted arrangement at variance with the plan and procedure contemplated by the contracts above discussed.
"* * * It will be noted that in the case at bar the appellants, under the express terms providing for the creation of the trust fund, have no right or interest in such fund. Rather they, like other employees of the company, were beneficiaries only to the extent of the pension or *393 disability benefits to which they might become entitled.

* * * * *
"Under the factual situation presented here the trial court properly denied the relief sought by plaintiffs. Equity may grant relief when necessary to protect the carrying out of the purposes of a trust or to prevent the destruction of, or injury to, trust funds, in the event that altered circumstances create an exigency justifying intervention. Such is not the situation in the case at bar. Plaintiffs are not asking for the protection of the trust fund but, rather, seek the termination of the trust and the distribution of the moneys remaining in the fund in a manner not consistent with the plan and purpose of the parties to the agreements. Such purpose may be accomplished in the manner provided therefor. The Court may not re-write the contracts here involved."
The following statement may be found in 2 Perry, Trusts and Trustees (7 ed.) § 920:
"* * * if it appears that the creator of the trust had in view a valid purpose which may be defeated by a termination of the trust before the time set by him the courts will not decree a termination so long as the purpose is capable of being accomplished."
The aforesaid George case is not essentially different from the instant case before this court, the sole basis for the suit in the George case being the claim that a substantial reduction in business had defeated the purposes of the plan. Another case wherein the facts are somewhat similar to the case at bar, so far as vesting provisions, departmental shutdowns, and employer good faith are concerned, is Wallace v. Northern Ohio Traction & Light Co. 57 Ohio App. 203, 210, 13 N.E. (2d) 139, 142, in which the Ohio court said:
"There is no suggestion, and if there were it would have no basis in proof, that the discharge of the employees was not fortuitous, logically required by the economic situation, and the necessary abandonment of the further operation of the traction lines. This is not a case where an employee is discharged, as an isolated case, as he nears the point of advantage. That two of the employees were very close to the qualifying period at the time of abrogation is, of course, subject for consideration, *394 but, as many others were involved in the later discharge which was caused by the abandonment of operations, we are unable to find anything inequitable in the discharge itself. [Cases cited.]

* * * * *
"This court has held consistently that pension and bonus plans constitute a continuing inducement to the employee to continue his loyal service to the company. Such continuance in the employment of the company under this inducement constitutes the consideration moving from the employee. On the other hand, the terms of the offer are always apparent to the employee and this court cannot write into the agreement features either in the interest of or against the interest of either party.

* * * * *
"We are constrained to hold that under the circumstances presented, there being no suggestion of bad faith, the company could at any time before the employee actually qualified under the terms of the offer of pension, withdraw the same. To hold otherwise, is to become involved in a discussion of purely ethical questions with no pertinent rule of law or related principle in equity to form a standard for our conclusion."[1]
We reach the conclusion, having determined that the group annuity contract is clear and unambiguous in its terms, that plaintiffs other than Boden and Schulte have failed to acquire any vested rights thereunder and that the decision of the trial court must be reversed. It is therefore ordered that the judgments entered below be reversed and these cases are accordingly remanded with directions to enter judgments therein in conformity with this opinion and on the merits in favor of defendants and defendant-intervenors.
Reversed and remanded.
NOTES
[1]  For other cases involving retirement funds, see Cowles v. Morris & Co. 330 Ill. 11, 161 N.E. 150; Menke v. Thompson (8 Cir.) 140 F. (2d) 786; Dolan v. Heller Brothers Co. 30 N.J. Super. 440, 104 A. (2d) 860; MacCabe v. Consolidated Edison Co. of New York, 30 N.Y.S. (2d) 445; McNevin v. Solvay Process Co. 32 App. Div. 610, 53 N.Y.S. 98, affirmed, 167 N.Y. 530, 60 N.E. 1115; Del Veccio v. Hood, 4 N.J. Super. 254, 66 A. (2d) 738.


27 So.3d 32 (2010)
GANOTE
v.
STATE.
No. 2D09-3520.
District Court of Appeal of Florida, Second District.
February 3, 2010.
Decision Without Published Opinion Affirmed.


Matter of Charles KK. v Jennifer KK. (2019 NY Slip Op 06433)

Matter of Charles KK. v Jennifer KK.

2019 NY Slip Op 06433

Decided on August 29, 2019

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: August 29, 2019

528512

[*1]In the Matter of CHARLES KK., Appellant,
vJENNIFER KK., Respondent. (Proceeding No. 1.)
In the Matter of PETER LL., Respondent, vCHARLES KK., Respondent, and JILLIAN KK., Appellant. (Proceeding No. 2.)
In the Matter of JILLIAN KK., Appellant, vvPETER LL., Respondent, et al., Respondent. (Proceeding No. 3.)

Calendar Date: August 22, 2019

Before: Egan Jr., J.P., Lynch, Devine, Aarons and Rumsey, JJ.

Theresa M. Suozzi, Saratoga Springs, for Charles KK., appellant.
Donnellan & Knussman, PLLC, Ballston Spa (Sarah I. Wood of counsel), for Jillian KK., appellant.
Jean M. Mahserjian, Esq., PC, Clifton Park (Katrin E. Falco of counsel), for Peter LL., respondent.
Elena Jaffe Tastensen, Saratoga Springs, attorney for the child.

MEMORANDUM AND ORDER
Egan Jr., J.P.
Appeals (1) from two orders of the Family Court of Saratoga County (Jensen, J.), entered October 30, 2018 and January 17, 2019, which dismissed petitioners' applications, in proceeding Nos. 1 and 3 pursuant to Family Ct Act article 6, for custody of the subject child, and (2) from an order of said court, entered January 28, 2019, which, among other things, granted petitioner's application, in proceeding No. 2 pursuant to Family Ct Act article 6, for custody of the subject child.
Jennifer KK. (hereinafter the mother), the mother of the subject child (born in 2012), died on September 16, 2018. At the time of the mother's death, the child resided with the mother and Jillian KK. (hereinafter the sister), the child's half sister. The mother married Charles KK. (hereinafter the husband) in 2000 and, although the child was born during their marriage, the mother and the husband had been living separate and apart since approximately 2003. From approximately 2003 or 2004 through 2015, the mother was involved in an intimate relationship with Peter LL. (hereinafter the father). In 2015, following the father's conviction for assault in the third degree, which stemmed from a domestic incident with the mother, the mother obtained an order of protection against the father in favor of both her and the child, which was set to remain in force until March 6, 2020 [FN1]. Later that same year, the father moved to California, where he presently resides.
Two days after the mother's death, on September 18, 2018, the husband filed a petition seeking custody of the child, naming only the mother as a respondent. On October 2, 2018, the father filed two petitions: one seeking an order of filiation declaring him to be the child's father and the other seeking sole legal and physical custody of the child. On October 30, 2018, Family Court dismissed the husband's petition for his failure to name any living party as a respondent, while also explaining to the husband, who was proceeding pro se, that a custody petition was unnecessary at that time because he was the child's presumptive father. However, in light of the father's paternity petition, the court ordered the father and the child to undergo genetic testing to determine paternity.
Thereafter, in November 2018, the attorney for the child moved for an order directing forensic psychological evaluations of the parties and the child given the history of violence between the mother and the father and the child's recent loss of not only the mother, but also the child's half brother, among other concerns. On January 4, 2019, having received paternity test results indicating that he was the child's biological father,[FN2] the father cross-moved for summary judgment on his petitions. On January 10, 2019, the sister submitted an affirmation in opposition to the father's cross motion and in support of the attorney for the child's motion, in addition to her own petition for custody of the child in which she alleged extraordinary circumstances. At a court appearance the following day, January 11, 2019, Family Court declined to consider either the sister's opposition to the father's cross motion or her custody petition, asserting that her submissions had not yet been administratively processed by the court, and, with the conclusion that there were no other petitions before it, the court granted the father's cross motion for summary judgment, awarding him custody of the child, without a hearing. The court also issued [*2]an order of filiation on that date declaring the father to be the child's biological parent. On January 17, 2019, the court issued an order indicating that it dismissed the sister's January 10, 2018 petition for her failure to file a petition compliant with the Uniform Child Custody Jurisdiction Enforcement Act (see Domestic Relations Law art 5-A [hereinafter UCCJEA]), as the father resides outside the state. On January 28, 2018, the court issued an order that, among other things, granted the father sole legal custody of the child. The husband appealed from the October 20, 2018 order dismissing his custody petition, and the sister appealed from Family Court's January 17, 2019 and January 28, 2019 orders that, respectively, dismissed her custody petition and granted that of the father.[FN3]
Initially, only the sister's appeal from the January 28, 2019 order granting the father's petition was perfected. We withheld decision on that appeal in light of the intertwined nature of the three proceedings and directed the respective appellants to perfect the remaining two appeals, providing a briefing schedule to that end (Matter of Peter LL. v Charles KK., 172 AD3d 1872, 1874 [2019]). All three appeals are now properly before us and are being decided together.
Having reviewed all three records, we find that Family Court should not have granted the father's cross motion for summary judgment on his custody petition without consideration of the sister's opposition papers to that motion or her own petition for custody of the child. In our view, once Family Court was made aware of the allegations of extraordinary circumstances, the necessary and proper course of action was to adjourn the proceedings for, at minimum, consideration of the relevant, and readily accessible, filings. Rather, the court chose to ignore the sister's papers despite its awareness of the minimal recent contact between the father and the child, allegations of the father's historic substance abuse and violence against the mother and the fact that an order of protection remains in effect against the father in favor of the child, among other concerns. With respect to the court's ex post facto UCCJEA rationale, we note that no motion to dismiss the petition on this ground was made, no opportunity to respond to the alleged statutory shortcomings was provided and the court failed to articulate any specific inadequacy with the petition in its order, leaving us largely to speculate as to its rationale. In any event, to the extent that the sister's petition lacked information required by the UCCJEA, the statute provides that the appropriate remedy would be to stay the proceeding until such information is furnished (see Domestic Relations Law § 76-h [2]), not dismiss the petition outright.
With respect to the husband's custody petition, we first find it incumbent to note that, at the time Family Court dismissed said petition, sua sponte, the court did not give the husband any opportunity to argue against dismissal thereof or to seek leave to amend as much. Indeed, the court assured the husband, who was self-represented, that he was the child's presumptive father and, thus, that his custody petition was unnecessary. With that understanding, the husband agreed to withdraw a paternity petition that he had also filed, and he did not file any subsequent petition thereafter, logically so. Notably, it was not until the January 4, 2019 filing of the father's petitions that the husband would have had any reason to think that subsequent petitioning was necessary, or would have had any idea who to name as a respondent in such petition. In light of the fact that, in Family Court's view, filing of a custody petition on January 10, 2019 would have been too late, this realistically gave the pro se husband, at most, three business days in which to act. We also note that the record reveals that, at the January 11, 2019 appearance, the husband was misinformed by the court that he himself had withdrawn his custody petition along with his paternity petition. Under these circumstances, we find that Family Court also erred in summarily dismissing the husband's custody petition.[FN4]
We therefore reverse and remit the matters to a different judge to, among other things, provide both the sister and the husband an opportunity to correct any of the alleged deficiencies in their respective petitions, consider any amended petitions in conjunction with the father's custody petition and then hold a consolidated hearing.
Lynch, Devine, Aarons and Rumsey, JJ., concur.
ORDERED that the orders are reversed, on the law, without costs, and matters remitted to the Family Court of Saratoga County for further proceedings not inconsistent with this Court's decision before a different judge.
Footnotes

Footnote 1: It was alleged that the father shoved the mother down a flight of stairs while she was holding the child.

Footnote 2: Paternity is not being challenged, and the genetic marker testing report indicated a 99.99% probability that the father is the child's biological parent.

Footnote 3: This Court granted the sister's subsequent motion for a stay pending appeal (2019 NY Slip Op 63807[U]).

Footnote 4: The father contends that the husband's notice of appeal from the October 30, 2018 order is untimely. However, there is nothing in the record demonstrating when, if ever, said order was received by the husband in court, mailed to him by the Clerk of the Court or otherwise served on him by another party, thereby precluding a finding of untimeliness on the record before us (see Family Ct Act § 1113; compare Matter of Richard HH. v Saratoga County Dept. of Social Servs., 163 AD3d 1082, 1083 n 2 [2018], lv denied 32 NY3d 911 [2018]).


132 F.3d 504
Bankr. L. Rep.  P 77,588, 48 Fed. R. Evid. Serv. 524,97 Cal. Daily Op. Serv. 9549,97 Daily Journal D.A.R. 15,303UNITED STATES of America, Plaintiff-Appellee,v.Leonhard BAUER, Defendant-Appellant.
No. 97-10046.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Nov. 6, 1997.Decided Dec. 22, 1997.

Amitai Schwartz and Dennis M. Farias, San Francisco, CA, for Defendant-Appellant.
Andrew M. Scoble, Assistant United States Attorney, San Francisco, CA, for Plaintiff-Appellee.
Appeal from the United States District Court for the Northern District of California;  D. Lowell Jensen, District Judge, Presiding.  D.C. No. CR-95-40179-DLJ.
Before:  CHOY, GOODWIN, and T.G. NELSON, Circuit Judges.
T.G. NELSON, Circuit Judge:

1
Leonhard Bauer ("Bauer") appeals his conviction for making false statements on his bankruptcy petition in violation of 18 U.S.C. § 152(3) and omitting certain assets from his bankruptcy petition in violation of 18 U.S.C. § 152(7).  Because we conclude that Bauer's attorney-client privilege was violated when the district court allowed Bauer's bankruptcy attorney to testify against him at his criminal trial, and this error was not harmless, we reverse Bauer's conviction.

FACTS

2
On October 11, 1990, Bauer filed for Chapter 11 bankruptcy, listing assets of $532,000.00 and liabilities of $960,588.00.  At the time, Bauer was represented by an attorney, Kenneth N. Rivera ("Rivera"), whom he consulted approximately twelve times.  In April 1991, a trustee was appointed and the case was converted to Chapter 7 bankruptcy in October 1991.  On November 2, 1994, all of Bauer's dischargeable debts were discharged and the case was closed on January 17, 1995.

3
In 1992, following the trustee's discovery that several of Bauer's assets had not been reported and that other assets had been transferred within one year of Bauer's filing of his bankruptcy petition, the case was referred to the FBI for criminal investigation.  The investigation revealed that Bauer had transferred several assets belonging to the estate within one year of the bankruptcy petition, forming the basis for the concealment charge.  On September 24, 1990, Bauer transferred ownership of his 1977 Dodge van to his daughter Suzanne.  On October 9, 1990, Bauer transferred his lease interest in a 1978 Cadillac to his other daughter Angelique.  On September 26, 1990, Bauer transferred ownership of a life insurance policy to his wife Sieglinde, after having requested the maximum available loan on the policy on September 22, 1990, and having deposited the proceeds in a bank account in the name of Bauer's grandson.  There was evidence that loan proceeds from other life insurance policies were handled in the same manner.

4
The investigation also revealed the existence of several assets that Bauer did not include in his bankruptcy petition.  In 1992, Bauer filed a theft-loss claim with State Farm, his insurance company, listing personal property valued at approximately $22,000.00 that was allegedly stolen during separate thefts in 1992.  Items contained on the inventory forms submitted by Bauer for which he listed a pre-bankruptcy petition acquisition date, but which had not been reported in the bankruptcy petition, included a handgun and several items of gold jewelry.  The value of these assets, as alleged by Bauer in the inventory forms, totaled $21,249.00.  There was also evidence that Bauer possessed a substantial collection of firearms which was not reported in the bankruptcy petition.  Finally, Bauer owned a Rolex watch, valued at $11,050.00, which he admitted failing to disclose in his bankruptcy petition, explaining that he did so because he was still making payments.

5
On October 5, 1995, a grand jury returned an indictment against Bauer, charging him with concealing assets in violation of 18 U.S.C. § 152(7) and making false statements in his bankruptcy petition in violation of 18 U.S.C. § 152(3).  On June 24, 1996, Bauer's jury trial began.

6
The case boiled down to a dispute over Bauer's intent.  As its final witness, the Government called Rivera, Bauer's bankruptcy attorney, to testify.  Over both Bauer's pretrial and at-trial objections, Rivera testified on direct examination by the Government as follows:

7
Q. Now, again, without asking about the contents of any privileged communications that you may have had with Mr. Bauer, did you advise him prior to filing his petition-prior to his filing the petition that generally there is a duty to disclose all property, something to that effect?

8
A. Well, I gave him a document which we reviewed, and in the review of the document-

9
....

10
In the review of the document, we went through a disclosure of the--of his estates, which included all property that he told me he had.

11
Q. Okay.  And as part of that process prior to filing his bankruptcy, did you advise him in one form or another-I'm not asking for exact words-of the fact that a bankruptcy petition and its attachments is filed under penalty of perjury, that it's sworn?

12
A. I think we covered that they were signed under penalty of perjury.

13
On July 2, 1996, the jury found Bauer guilty on both counts.  On January 15, 1997, after making a three-level downward departure based upon Bauer's extraordinary physical impairments, the district court sentenced Bauer to one year in prison, three years of post-prison supervised release, and ordered restitution in the amount of $84,967.51, plus additional restitution (for the Rolex watch) in the amount of $3,418.13.  This timely appeal followed.1

DISCUSSION

14
We must first determine whether Rivera's statements to Bauer concerning Bauer's duty to disclose all property in his bankruptcy petition and the perjury implications of falsifying a bankruptcy petition are in fact covered by the attorney-client privilege.  A party asserting the attorney-client privilege has the burden of establishing the relationship and the privileged nature of the communication.  Ralls v. United States, 52 F.3d 223, 225 (9th Cir.1995).  Whether the party has met these requirements is reviewed de novo.  Id. We also review the district court's rulings on the scope of the attorney-client privilege de novo.  United States v. Blackman, 72 F.3d 1418, 1423 (9th Cir.1995), cert. denied, --- U.S. ----, 117 S.Ct. 275, 136 L.Ed.2d 198 (1996).  We view the district court's conclusion that Rivera's communication to Bauer is not protected by the attorney-client privilege as "a mixed question of law and fact which this court reviews independently and without deference to the district court."  United States v. Gray, 876 F.2d 1411, 1415 (9th Cir.1989).

15
Although the Government offers several alternative grounds to support its argument that Rivera's statements are not covered by the attorney-client privilege, it is appropriate to begin with the ground on which the district court relied.  In ruling that the statements were admissible, the district court stated that "it's not within the attorney-client privilege when the attorney gives advice to that effect in that the attorney's acting as an officer of the court and not as attorney-client."2  After some discussion with Bauer's trial counsel, the district court concluded:  "I believe that-notwithstanding the grounds that are stated, Mr. Martinez, I think that this does fall within the notion that it's the attorney simply advising the client of the rules of court that apply to the proceeding that's involved, and so I think it's admissible."   This ruling was incorrect.

16
At the outset, it is important to recognize that the attorney-client privilege is a two-way street:  "The attorney-client privilege protects confidential disclosures made by a client to an attorney in order to obtain legal advice, ... as well as an attorney's advice in response to such disclosures."  United States v. Chen, 99 F.3d 1495, 1501 (9th Cir.1996) (emphasis added) (quotation omitted) (addressing a claim concerning the crime-fraud exception to the attorney-client privilege), cert. denied, --- U.S. ----, 117 S.Ct. 1429, 137 L.Ed.2d 538 (1997).  There is no dispute in this case that Rivera's testimony disclosed statements of the law that he made to Bauer in the course of representing him in the preparation and filing of his bankruptcy petition.

17
In support of the district court's ruling, the Government relies on three Ninth Circuit cases, all of which are distinguishable from the circumstances present in this case.  We discuss each case in turn.

18
In United States v. Freeman, 519 F.2d 67 (9th Cir.1975), we held that the attorney-client privilege does not cover an attorney's statement to a client regarding the date on which the district court ordered the client to appear for sentencing, where the client was charged with bail jumping (18 U.S.C. § 3150) and alleged that she did not know the date of her sentencing hearing.  Quoting the Second Circuit, we explained:

19
The relaying of this message is not in the nature of a confidential communication.  Defense counsel served merely as a conduit for transmission of a message.  ...  Defendant's counsel had a duty to relay the instructions to his client in his capacity as an officer of the court, and this in no way was inconsistent with his obligation to his client.

20
Id. at 68 (emphasis added) (quoting United States v. Hall, 346 F.2d 875, 882 (2d Cir.1965)).  We therefore held that "[t]he evidence sought to be elicited from [the attorney] was not of a confidential nature and hence was not protected by the attorney-client privilege.  It simply related to whether he had advised his client of the court's order to appear."  Id.

21
In United States v. Gray, 876 F.2d 1411 (9th Cir.1989), we were faced with virtually an identical situation, where the defendant argued that the district court should not have allowed his attorney to testify that he informed the defendant of his sentencing date.  After noting that "information concerning a defendant's obligation to appear for sentencing" does not qualify as confidential information, we held that "[a]n attorney's testimony regarding the fact that the client was informed of the hearing date 'simply relate[s] to whether [the attorney] advised his client of the court's order to appear.' "  Id. at 1415 (quoting Freeman, 519 F.2d at 68).

22
In McKay v. Commissioner, 886 F.2d 1237 (9th Cir.1989), the final case relied on by the Government, a delinquent taxpayer claimed that he had not received notice from the IRS that his previous tax returns were deficient.  The Government called the taxpayer's attorney to testify that he gave the taxpayer a copy of the deficiency notice from the IRS in ample time to file a timely petition for review in the tax court.  We held that such delivery of notice was not protected by the attorney-client privilege, stating:

23
[The attorney] testified only that he had conveyed information from the government to his client.  This case is analogous to those holding that an attorney may be required to testify in a prosecution for "bail jumping," 18 U.S.C. § 3150, that he had informed his client of the date of the hearing at which the defendant failed to appear.

24
Id. at 1238 (citing Freeman, 519 F.2d at 68).

25
These cases are simply not analogous to the circumstances present in Bauer's case.  All three cases evoke an image of "attorney as messenger," wherein the contents of a message that otherwise amounts to public information is not protected by the attorney-client privilege.  The conveyance of public information from an attorney to his client, such as the date of a hearing, sentencing, or trial, is not covered by the privilege because there is nothing confidential about the communication.  The only issue in those cases involving the conveyance of such information is notice.  When notice of a hearing date or a letter of tax delinquency is relevant to the proceeding, and the attorney is the party responsible as an officer of the court for conveying that notice to the client, the communication of that notice does not fall within the scope of the attorney-client privilege.

26
The situation in Bauer's case is vastly different.  Rather than merely passing along public legal information in furtherance of his obligation as an officer of the court, Rivera actually delivered legal advice to Bauer in the course of the preparation of Bauer's bankruptcy petition.  The mere fact that Rivera might tell all of his clients to disclose all of their assets and avoid lying on their bankruptcy petitions does not alter the advisory nature of the counsel given in completing that process.  While it is certainly true that not all communications between attorney and client are privileged, including such information as the identity of the client, the amount of the fee, the identification of payment by case file name, the general purpose of the work performed, and whether an attorney coached a client on his testimony, see, e.g., United States v. Carrillo, 16 F.3d 1046, 1050 (9th Cir.1994);  Clarke v. American Commerce Nat'l Bank, 974 F.2d 127, 129 (9th Cir.1992), no reasonable interpretation of Rivera's communications with Bauer regarding the legal obligations involved in filing a bankruptcy petition would characterize them as anything other than legal advice.  As legal advice, given to Bauer within the scope of the attorney-client relationship, those statements were protected by the attorney-client privilege.

27
The Government offers two alternative grounds to support the proposition that the targeted statements fall outside the protection of the privilege.  After careful consideration of both arguments, we remain convinced that the targeted statements were protected by the attorney-client privilege.

28
First, the Government argues that Bauer's situation is analogous to cases from other circuits holding that documentary information provided to an attorney by a client for inclusion in the client's tax return falls outside of the scope of the privilege.  The Seventh Circuit explicitly extended this rationale to cover documentary information relevant to bankruptcy proceedings:

29
When information is disclosed for the purpose of assembly into a bankruptcy petition and supporting schedules, there is no intent for the information to be held in confidence because the information is to be disclosed on documents publicly filed with the bankruptcy court.

30
United States v. White, 950 F.2d 426, 430 (7th Cir.1991).  The problem with the Government's argument is that the Seventh Circuit's rationale does not apply to this case.  Rivera's testimony did not involve the disclosure of documentary information that Bauer intended to use in the preparation of his bankruptcy petition.  Instead, the evidence at issue here consists entirely of oral statements of legal advice made by attorney Rivera to client Bauer.  The cases cited by the Government to support its first alternative argument are simply inapposite to this evidence.

31
As its second alternative ground, the Government argues that Rivera's statements fall under the crime-fraud exception to the attorney-client privilege, an argument explicitly rejected by the district court.3  "It is the purpose of the crime-fraud exception ... to assure that the 'seal of secrecy' between lawyer and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime."  United States v. Zolin, 491 U.S. 554, 563, 109 S.Ct. 2619, 2626, 105 L.Ed.2d 469 (1989) (quotation and citation omitted).  "To invoke the crime-fraud exception successfully, the government has the burden of making a prima facie showing that the communications were in furtherance of an intended or present illegality and that there is some relationship between the communications and the illegality."  Chen, 99 F.3d at 1503 (quotation omitted).  "The test for invoking the crime-fraud exception to the attorney-client privilege is whether there is 'reasonable cause to believe that the attorney's services were utilized in furtherance of the ongoing unlawful scheme.' "  Id. (quoting In re Grand Jury Proceedings, 87 F.3d at 381).   The exception applies "even where the attorney is unaware that his advice may further an illegal purpose."  Laurins, 857 F.2d at 540.

32
In this case, there is no reasonable basis for concluding that Rivera's legal advice to Bauer was used by Bauer "in furtherance of" his fraudulent scheme to falsify his bankruptcy petition.  Rivera advised Bauer to disclose all of his assets and avoid lying on his bankruptcy petition.  Bauer in fact did precisely the opposite.  It is impossible to discern a causal connection or functional relationship between the advice given by Rivera and the actions taken by Bauer.  Therefore, the crime-fraud exception to the attorney-client privilege does not apply here.

33
Our conclusion that it was error to admit Rivera's statements concerning the legal advice he gave to Bauer does not end the inquiry.  We can still affirm Bauer's conviction if we conclude that the district court's error was harmless.  Because a violation of the attorney-client privilege is not an error of constitutional magnitude,4 the Government must show that the prejudice resulting from the error was more probably than not harmless.  United States v. Morales, 108 F.3d 1031, 1040 (9th Cir.1997).  This requires the Government to show a "fair assurance" that the verdict was not substantially swayed by the error.  United States v. Annigoni, 96 F.3d 1132, 1144 n. 9 (9th Cir.1996).  See also Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946).  After considering the magnitude of the error and the Government's other evidence against Bauer, we conclude that the violation of Bauer's attorney-client privilege was not harmless.

34
It is important to note that the attorney-client privilege is, perhaps, the most sacred of all legally recognized privileges, and its preservation is essential to the just and orderly operation of our legal system.  "The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law."  Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981).  The defining principle behind this privilege

35
is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.  The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client.

36
Id.  That purpose "requires that clients be free to 'make full disclosure to their attorneys of past wrongdoings.' "  Zolin, 491 U.S. at 562, 109 S.Ct. at 2625 (quoting Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976)).  The attorney-client privilege has deep roots in this country's historical jurisprudence:

37
The rule which places the seal of secrecy upon communications between client and attorney is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure.

38
Hunt v. Blackburn, 128 U.S. 464, 470, 9 S.Ct. 125, 127, 32 L.Ed. 488 (1888).  Therefore, when faced with a violation of a criminal defendant's attorney-client privilege, we will make a particularly careful review of the Government's other evidence to determine whether this evidence, in light of the violation of this fundamentally important privilege, gives us a fair assurance that the verdict was not substantially swayed by the error.

39
Bauer's entire defense was that he did not possess the requisite criminal intent for conviction, claiming that he was the victim of his own "ignorance," "mistake," or "stupidity."  (Appellant's Opening Br. at 18.)   Bauer never denied that he failed to list assets in his bankruptcy petition that should have been listed or that he transferred assets within twelve months of filing the petition.  At the beginning of his closing argument, Bauer's attorney told the jury:  "I'm going to talk about the evidence that I suggest to you raises a reasonable doubt as to whether or not Mr. Leonhard Bauer had the intent to defraud or cheat.  That is really the only issue in the case."   In their briefs to this court, the parties view the strength of the Government's other evidence of Bauer's intent quite differently:  Bauer characterizes the evidence as "weak," while the Government characterizes the evidence as an "overwhelming" indication of Bauer's guilt.  This dual hyperbole is not very helpful in determining the effect of the error on the jury's decision and necessitates a careful examination of the Government's evidence of intent.

40
A close examination of the evidence presented by the Government indicates that almost all of it only supports indirectly, at best, the Government's theory that Bauer possessed the requisite intent to commit bankruptcy fraud.  The Government identifies the following evidence to support its theory of intent:  (1) the State Farm theft-loss inventory forms listing undisclosed assets;  (2) Bauer's request for a confidentiality agreement with State Farm (a fact of tenuous relevance);  (3) the omission of assets from Bauer's bankruptcy petition;  (4) the fact that Bauer had opportunities to come forward and reveal other assets, but failed to do so and never amended his bankruptcy petition;  (5) a residential loan application listing the joint net worth of Bauer and his wife at $600,000.00;  (6) an insurance policy, purchased shortly before the bankruptcy petition was filed, from which Bauer took a cash loan and placed the money in an account for his grandson, thereafter transferring the policy to his wife;  and (7) Bauer's sworn statement that he understood the concept of community property.  This evidence hardly amounts to an overwhelming indication of Bauer's allegedly fraudulent intent.  Indeed, this evidence is just as consistent with Bauer's defense that the omissions and illegal transfers were the result of Bauer's ignorance, mistake, or stupidity.  The Government attempted to prove Bauer's intent to defraud by employing the familiar strategy of showing what Bauer actually did, but this does little more than raise a general inference that his behavior could have been motivated by a criminal intent.

41
The Government offered only two other pieces of evidence that arguably would allow a jury to infer the presence of a guilty mind.  First, the Government argued that the fact that Bauer made most of the illegal transfers of property shortly before filing the bankruptcy petition is evidence that Bauer was hiding his assets.  Second, the Government points to a portion of testimony from Bauer's former bookkeeper, Margaret Greenlaw.  On direct examination by the Government, Greenlaw was asked about statements Bauer made concerning the ownership of his automobiles.  After the Government asked what Bauer said regarding the transfer of ownership, Greenlaw testified that Bauer said "[t]hat he was going to-he had 12 months before he filed a bankruptcy to put his vehicles into somebody else's name."5

42
Although this evidence, viewed as a whole, arguably supports the Government's theory of Bauer's criminal intent, it is certainly not overwhelming.  Greenlaw's testimony, in particular, is of dubious value.  Interpreted literally, her statement seems to indicate that Bauer believed he could transfer property during the twelve months prior to filing the bankruptcy petition.  Therefore, Greenlaw's testimony actually tends to support Bauer's theory that his own ignorance, mistake, or stupidity led to his downfall.  Coupling this testimony with the fact that Bauer in fact made such transfers shortly before filing the bankruptcy petition does not enhance the value of Greenlaw's testimony to the Government's theory.

43
The testimony from Bauer's attorney, however, given in violation of the attorney-client privilege, almost certainly sealed Bauer's fate in the eyes of the jury.  After Rivera's testimony, the Government was able to argue that Bauer was explicitly told about the bankruptcy rules requiring him to disclose all of his assets and refrain from transferring property within a year of filing the petition. This testimony defeated any chance of success for Bauer's sole defense at trial that he was the victim of his own ignorance, mistake, or stupidity.  Combined with the evidence that Bauer blatantly defied his attorney's explicit advice by transferring some assets and omitting others from the bankruptcy petition, it is not at all surprising that the jury found the requisite criminal intent and convicted Bauer.

44
We find it insightful that, both before and during the criminal trial, the Government did not view Rivera's testimony as insignificant to its case against Bauer.  The Government spent a lot of effort to present that testimony at trial and emphasized its importance to the jury in closing argument.  Fifteen pages of the Government's thirty-page trial brief were devoted exclusively to legal arguments supporting the admissibility of Rivera's testimony.  Rivera was the Government's final witness in its case-in-chief, creating the image that this was the Government's star witness who should leave the jury with a lasting impression of the importance of the attorney's testimony.  Finally, the Government emphasized Rivera's testimony in its closing argument to the jury:

45
Counsel also said "Well, under penalty of perjury, we all sign stuff that we don't really read."   That might fly as a defense if Mr. Bauer's own attorney had not testified that he advised Mr. Bauer before this thing was signed that it was going to be signed under penalty of perjury.

46
Even if Mr. Bauer somehow didn't read where it says "under penalty of perjury," he was told by his attorney.  And his attorney said, "We went over-I gave him the form.  He filled it out.  We went over it item-by-item."

47
For the Government now to argue on appeal that its other evidence of Bauer's intent was "overwhelming," after having fought so hard to present Rivera's testimony to the jury and emphasizing it in closing argument, is unconvincing.  Because we are not left with a fair assurance that the verdict was not substantially swayed by the error of admitting Rivera's testimony, Bauer's conviction must be reversed.6

CONCLUSION

48
Bauer's attorney-client privilege, the oldest and most revered of the legally recognized privileges protecting confidential communications, was violated by the admission of Rivera's testimony at Bauer's criminal trial.  Though it does not rise to the level of constitutional error, we do not view the violation of the sacred trust between an attorney and his client as an insignificant occurrence.  Given the conclusiveness with which Rivera's testimony rebutted Bauer's sole defense at trial, and the Government's otherwise tenuous evidence of Bauer's criminal intent that is arguably consistent with Bauer's theory of defense, we conclude that the Government has not proven by a preponderance of the evidence that there is a fair assurance that the jury's verdict was not substantially swayed by the admission of Rivera's testimony.  We therefore REVERSE Bauer's conviction.

49
REVERSED and REMANDED for a new trial or other appropriate disposition.

1
 Bauer began serving his prison term on July 16, 1997, and is currently incarcerated

2
 Both sides agree that the case cited by the district court, United States v. Laurins, 857 F.2d 529 (9th Cir.1988), was not applicable to this ground for admission but, rather, applied to the crime-fraud exception, which is discussed below

3
 The standard of review for deciding whether the Government has made a prima facie showing that the crime-fraud exception applies is unclear in this circuit.  See In re Grand Jury Proceedings, 87 F.3d 377, 380 (9th Cir.)  (noting the options of abuse of discretion or de novo review), cert. denied, --- U.S. ----, 117 S.Ct. 333, 136 L.Ed.2d 246 (1996).  We need not resolve this uncertainty in this case, however, because whatever the standard, the crime-fraud exception does not apply to the circumstances of this case

4
 "Issues concerning application of the attorney-client privilege in the adjudication of federal law are governed by federal common law."  Clarke, 974 F.2d at 129.   See also Zolin, 491 U.S. at 562, 109 S.Ct. at 2625-26;  Fed.R.Evid. 501

5
 The Government also argues that the testimony of Bauer's stepson corroborates Greenlaw's testimony that Bauer knew that it was unlawful to transfer assets within twelve months of filing a bankruptcy petition.  This is, however, an incorrect characterization of the stepson's testimony.  The only testimony given by the stepson regarding the automobiles was to confirm that Bauer wanted to transfer one of his cars to his daughter Angelique.  The stepson gave no testimony regarding Bauer's knowledge of the bankruptcy rules or his reasons for making the transfer

6
 Because we reverse Bauer's conviction for the violation of his attorney-client privilege, we need not reach Bauer's other arguments that he received ineffective assistance of counsel and that the restitution order contains multiple errors, because those issues have been rendered moot


         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D19-1201
                  _____________________________

CHARLES CALVIN REEDER III,

    Petitioner,

    v.

STATE OF FLORIDA,

    Respondent.
                  _____________________________

Petition for Writ of Habeas Corpus—Original Jurisdiction.

                        October 16, 2019

PER CURIAM.

    DENIED on the merits.

WOLF, B.L. THOMAS, and ROWE, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________
Charles Calvin Reeder III, pro se, Petitioner.

Ashley Moody, Attorney General, Tallahassee, for Respondent.

                                 2


87 F.3d 1328
U.S.v.Feola*
NO. 94-4165
United States Court of Appeals,Eleventh Circuit.
May 31, 1996

1
Appeal From:  S.D.Fla., No. 93-08050-CR-KLR

2
AFFIRMED IN PART, REVERSED IN PART.

*
 Fed.R.App.P. 34(a);  11th Cir.R. 34-3