TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-11-00679-CV

Sandra Turbeville and Michael Turbeville, Appellants

v.

Lorraine M. Dailey, Individually and d/b/a LMD Architects, PLLC;
Lorraine M. Dailey, Architect, PLLC; TBP Enterprises I, Ltd.; and TBP Enterprises, Inc.,
d/b/a Genesis Custom Homes, Appellees

FROM THE DISTRICT COURT OF BLANCO COUNTY, 424TH JUDICIAL DISTRICT
NO. CV06361, HONORABLE DANIEL H. MILLS, JUDGE PRESIDING

M E M O R A N D U M   O P I N I O N

		Sandra and Michael Turbeville have filed a notice of appeal from an adverse
district court judgment. (1)  Appellees have moved to dismiss the appeal for want of subject-matter
jurisdiction, asserting that the Turbevilles filed their notice of appeal more than fifteen days
after the applicable deadline to perfect their appeal.  See Tex. R. App. P. 26.3; Verburgt v. Dorner,
959 S.W.2d 615, 617 (Tex. 1997) (explaining that once the fifteen-day period for filing a motion for
extension of time to file notice of appeal has passed, "a party can no longer invoke the appellate
court's jurisdiction").  Complaining that they did not receive timely notice of the judgment, the
Turbevilles have filed a motion purporting to seek relief under Texas Rule of Civil Procedure
306a(4) and an extension as permitted by the Texas Rules of Appellate Procedure.  Concluding that
the Turbevilles are not entitled to relief and that we have no discretion but to dismiss their appeal,
we grant appellees' motion and overrule the Turbevilles' motion.
		The district court's final judgment was based on an interlocutory no-evidence
summary judgment foreclosing some claims asserted by the Turbevilles and jury findings in a
subsequent trial on other claims asserted by the parties.  Following the jury's rendition of its verdict,
trial concluded on June 6, 2011.  The district court signed the final judgment roughly one month
later, on July 6, 2011.  On August 2, 2011--within thirty days after the date the judgment was
signed, i.e., timely--the Turbevilles filed a motion for new trial.  See Tex. R. Civ. P. 329b(a)
(motion for new trial must be filed within thirty days after the judgment is signed).  Under the
Texas Rules of Appellate Procedure, the Turbevilles' timely filing of a new trial motion served to
extend their deadline to file their notice of appeal until October 4, 2011, the ninetieth day after
the judgment was signed.  See Tex. R. App. P. 26.1(a)(1) (where timely new-trial motion is filed,
appellate deadline is the ninetieth day after the judgment is signed).  But the Turbevilles did not file
their notice of appeal until October 24, at the earliest (2)--twenty days after the deadline.  Thus, the
Turbevilles not only failed to comply with the appellate deadline in Rule 26.1(a)(1), but also missed
the fifteen-day window thereafter in which this Court would have had jurisdiction to grant an
extension of that deadline.  See Verburgt, 959 S.W.2d at 617.  Citing these reasons, appellees have
moved to dismiss the Turbevilles' appeal for want of subject-matter jurisdiction.
		The Turbevilles have responded with a "verified motion to extend time to file
their notice of appeal."  In it, they request that we "find that the appellate deadlines ran from July 27,
2011," rather than July 6, when the judgment was signed.  If we do so, as the Turbevilles observe,
their new trial motion (timely under either start date) would have served to extend their appellate
deadline until the ninetieth day after July 27--October 25--as opposed to the ninetieth day after the
date the judgment was signed, October 4.  See Tex. R. App. P. 26.1(a)(1).  In turn, the Turbevilles'
October 24 notice of appeal would have been timely. (3)
		The Turbevilles purport to rely on paragraph 4 of Texas Rule of Civil Procedure 306a.
Paragraph 4 of Rule 306a is an exception to the general rule, stated in paragraph 1 of rule 306a,
that deadlines for filing post-judgment motions or notices of appeal begin to run on the date
the judgment is signed.  See Tex. R. Civ. P. 306a(1), (4); see also Vaughn v. Drennon, 324 S.W.3d
560, 563 (Tex. 2010) (per curiam); John v. Marshall Health Services, Inc., 58 S.W.3d 738, 741
(Tex. 2001) (per curiam).  Paragraph 4 states, in relevant part:

If within twenty days after the judgment or other appealable order is signed, a party
adversely affected by it or his attorney has neither received the notice required by
paragraph (3) of this rule nor acquired actual knowledge of the order, then with
respect to that party all the periods mentioned in paragraph (1) shall begin on the date
that such party or his attorney received such notice or acquired actual knowledge of
the signing, whichever occurred first . . . .

Tex. R. Civ. P. 306a(4).  Paragraph 3 of Rule 306a requires that when a final judgment or other
appealable order is signed, "the clerk of the court shall immediately give notice to the parties"
of same by first-class mail.  Id. R. 306a(3).  The Turbevilles claim that the clerk failed to give this
required notice here.  They attach an affidavit from Sandra Turbeville averring that she first learned
that the judgment had been signed on July 22, 2011, when she visited the district clerk's office and
made inquiry. (4)  Sandra further indicates that she obtained a copy of the judgment and contacted her
counsel (who was in Arizona at the time) by telephone.  According to Sandra, counsel advised that
he would return to the office on July 27 and instructed her to mail him a copy so he could review it.
The Turbevilles' counsel verifies the same facts in the motion and adds that he first reviewed the
judgment upon his return to the office on July 27.
		In the Turbevilles' view, Rule 306a, paragraph 4, requires that we deem their
appellate deadlines to begin to run from July 27, 2011, the date on which their counsel reviewed
the judgment upon his return to the office.  Their analysis is flawed in several respects.
		To invoke the extension mechanism in Rule 306a(4), a party adversely affected
by a judgment must (1) comply with procedural requirements of paragraph 5 of Rule 306a, and
(2) prove it received notice of the judgment more than twenty days after it was signed.  In re Lynd
Co., 195 S.W.3d 682, 685 (Tex. 2006) (citing Tex. R. Civ. P. 306a).  The Turbevilles have not met,
and cannot meet, these requirements.  Among other procedural defects, they have filed their motion
in this Court rather than the district court, and cannot possibly obtain relief there now. (5)  As for proof,
the Turbevilles' verified motion and affidavit affirmatively negate that they could meet their burden
of proof.  Specifically, the verified motion and affidavit establish that both Sandra Turbeville and
the Turbevilles' attorney acquired actual knowledge of the judgment on July 22, 2011--only sixteen
days after the judgment was signed.  Cf. Tex. R. Civ. P. 306a(4) (applying only if the "party . . . or
his attorney has neither received the notice required by paragraph (3) of this rule nor acquired actual
knowledge of the order" within twenty days after it was signed) (emphasis added), (5) (requiring
movant to prove that "the date on which the party or his attorney first either received a notice of the
judgment or acquired actual knowledge of the signing and that this date was more than twenty days
after the judgment was signed.") (emphasis added).  It is this date, July 22, 2011, the date on which
they acquired actual notice of the judgment, that is material and controlling under Rule of Civil
Procedure 306a(4)--not, as the Turbevilles suggest, the date when their attorney returned to his
office and reviewed the written judgment.  See id. R. 306a(4). (6)  In short, the Turbevilles have not,
and cannot, show themselves entitled to relief under this rule.
		Absent relief under Rule 306a, paragraph 4, the Turbevilles' appellate deadlines
began to run on the date the judgment was signed, July 6, 2011, making their notice of appeal too
late even to invoke our jurisdiction to grant an extension of their appellate deadlines.  See Tex. R.
App. P. 26.3; Verburgt, 959 S.W.2d at 617.  Consequently, we must grant the appellees' dismissal
motion, deny the Turbevilles' extension motion, and dismiss the Turbevilles' appeal for want of
subject-matter jurisdiction.  See Tex. R. App. P. 42.3(a).

						__________________________________________
						Bob Pemberton, Justice
Before Chief Justice Jones, Justices Pemberton and Henson
Dismissed for Want of Jurisdiction
Filed:   December 14, 2011
1.   The judgment ordered that the Turbevilles take nothing on claims they had asserted against
appellees and awarded damages against the Turbevilles on a counterclaim asserted by one of
the appellees.
2.   The Turbevilles, through counsel who is based in Fredricksburg, Gillespie County, filed a
notice of appeal to our sister court who serves that area, the Fourth Court of Appeals, on October 24,
2011.  On October 26, they filed an amended notice of appeal correcting the error.  Appellees do not
dispute that the Turbevilles' October 24 filing is the one relevant to our jurisdictional analysis.
3.   The same would be true of the October 26 amended notice of appeal, as it would fall within
the fifteen-day extension window that would follow the expiration of the October 25 deadline.
4.   As previously noted, the case had been tried to a jury verdict a few weeks earlier.
5.   Paragraph 5 of Rule 306a requires that the party alleging late notice of judgment file a
sworn motion with the trial court establishing the date the party or its counsel first learned of the
judgment and that this date was more than twenty days after the judgment was signed.  Tex. R. Civ.
P. 306a(5); In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006).  This motion, moreover, "must be
filed before the trial court's plenary power--measured from the date of notice established under
Rule 306a(4)--expires."  In re Lynd Co., 195 S.W.3d at 685 (citing John v. Marshall Health Servs.,
58 S.W.3d 738, 741 (Tex. 2001) (per curiam)).  Here, accepting the Turbevilles' assertion that the
date of notice was July 27, the district court's plenary power would have expired on November 9
(the date following the thirtieth day after their new trial motion would have been overruled by
operation of law).  See Tex. R. Civ. P. 329b(c), (e).  See also Grondona v. Sutton, 991 S.W.2d 90,
91 (Tex. App.--Austin 1998, pet. denied) (holding that "[e]ven if [appellant] had offered prima-facie
evidence during the court's plenary power, he failed to obtain a ruling on his [Rule 306a] motion
within that period," and that order signed after the plenary power expired was "of no effect").
6.   Also immaterial to our analysis under Rule 306a(4) are various assertions by the
Turbevilles' counsel regarding the underlying causes of the clerk's failure to give notice.  Even
taking these assertions as true, none would cure the fatal procedural and substantive defects in the
Turbevilles' motion.

	     We would further observe that this is not a case where any absence of the notice required
by Rule 306a, paragraph 3, deprived the Turbevilles of a reasonable opportunity to perfect their
appeal.  After obtaining actual notice of the judgment on July 22, the Turbevilles filed a timely
motion for new trial, which served to extend their appellate deadline until October 4--giving them
over seventy days to file their notice of appeal, plus an additional fifteen days in which they
could have sought an extension.  Similarly, even counting from July 27, the date on which counsel
reviewed the judgment, the Turbevilles had sixty-nine days to perfect their appeal, plus fifteen days
to seek an extension.


In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2217

Eric D. Johnson,

Petitioner-Appellant,

v.

Gary R. McCaughtry, Warden,

Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99 C 162--Lynn Adelman, Judge.

Argued May 18, 2001--Decided September 7, 2001

  Before Easterbrook, Manion, and Evans,
Circuit Judges.

  Manion, Circuit Judge. Eric D. Johnson
was convicted in Wisconsin state court of
two counts of first-degree intentional
homicide and sentenced to life
imprisonment on both counts. After
exhausting the appellate process and
post-conviction review in state court,
Johnson filed a petition for habeas
corpus in federal court. The district
court denied his petition, finding that
it was barred by the one-year statute of
limitations, and that equitable tolling
did not apply. Johnson appeals, and we
affirm.

I.   Background

  On the morning of September 1, 1992,
while sitting in the back seat of a car,
Eric Johnson shot to death George Cole
and Torrance Jackson, who were seated in
the front seat. A detective dispatched to
the scene testified that Cole, sitting in
the driver’s seat, had a gunshot wound to
the left side of his face and an exit
wound on the right side of his head.
Jackson, sitting in the passenger seat,
had a gunshot wound to the back of his
head, with a majority of his head
missing. One of the police detectives
testified that Johnson confessed to
meeting with Cole and Jackson in order to
sell Jackson a shotgun, going to a bank
with them, getting into a disagreement
with Jackson, shooting Jackson in the
head and then shooting Cole in the head
because Cole saw him shoot Jackson. At
trial, Johnson testified in his own
defense, blaming a fourth individual
named Earl for the shootings. The jury
apparently believed Johnson’s confession
because, on December 3, 1992, it found
him guilty of two counts of first-degree
intentional homicide while armed. On
January 15, 1993, the trial judge
sentenced Johnson to serve a life
sentence on each count, to be served
consecutively. On November 21, 1994, the
Wisconsin Court of Appeals affirmed
Johnson’s conviction. Johnson then filed
a petition for review with the Wisconsin
Supreme Court, which was denied on
February 21, 1995.

  On June 27, 1996, Johnson filed his
first petition for post-conviction relief
in state trial court, arguing that he had
received ineffective assistance of trial
counsel, and that he had failed to raise
that issue on direct appeal because his
appellate counsel was ineffective./1 On
July 2, 1996, the trial court dismissed
his petition based on State v. Knight,
484 N.W.2d 540 (Wis. 1992) (holding that
in order to bring a claim of ineffective
assistance of appellate counsel,
defendant must file petition in appellate
court), and directing him to file his
petition in the state appellate court.
Johnson had ninety days to appeal that
decision, see Wis. Stat. sec. 808.04(1),
but he did not. Instead, on October 17,
1996, as the trial court had directed, he
filed his petition in the state appellate
court. On October 23, 1996, the Wisconsin
Court of Appeals, in State ex rel.
Rothering v. McCaughtry, 556 N.W.2d 136
(Wis. Ct. App. 1996), mandated that
habeas corpus petitions based on
ineffective assistance of postconviction
(as distinguished from appellate) counsel
be filed in a trial court. Relying on
Rothering, on November 29, 1996, the
Court of Appeals dismissed Johnson’s
petition and directed him to re-file his
petition in the state trial court.
Johnson had 30 days to appeal this
decision to the Wisconsin Supreme Court,
see Wis. Stat. sec. 809.62(1), but he did
not do so. Instead, on January 15, 1997,
Johnson filed his petition (for the third
time) in the state trial court, which
denied it on the merits on January 23,
1997. On March 10, 1997, Johnson appealed
the trial court’s decision, and on May 5,
1998, the Court of Appeals affirmed. On
June 12, 1998, Johnson filed a petition
for review with the Wisconsin Supreme
Court which was denied on July 24, 1998.
Then, on February 19, 1999, Johnson filed
the present habeas petition, which the
district court denied, finding that it
was barred by the one-year statute of
limitations and that equitable tolling
did not apply. The district court denied
Johnson’s request for a certificate of
appealability, which he renewed in this
court, and which we granted on January
22, 2001.

II.    Analysis

A.    Statute of Limitations

  The district court denied Johnson’s
petition, finding that it was barred by
the one-year statute of limitations
period applicable to a state prisoner
seeking habeas corpus relief under 28
U.S.C. sec. 2254. See 28 U.S.C. sec.
2244(d). This one-year period commences
on "the date on which the judgment became
final by the conclusion of direct review
or the expiration of the time for seeking
such review." 28 U.S.C. sec.
2244(d)(1)(A). Thus, Johnson’s state
court conviction became final on February
21, 1995 (the date the Wisconsin Supreme
Court denied direct review of his
conviction). Where, as here, the
petitioner’s state court conviction
became final prior to the statute’s
effective date, April 23, 1996, the one-
year period begins on April 24, 1996. See
Fernandez v. Sternes, 227 F.3d 977, 978
(7th Cir. 2000). Johnson did not file the
present habeas petition until February
19, 1999, nearly three years after the
one-year period began to run.

  At first glance it appears that
Johnson’s claim is time-barred. But,
under Section 2244(d)(2), the "time which
a properly filed application for state
post-conviction review or other
collateral review . . . is pending" is
excluded from the limitation period. A
state post-conviction petition is
"pending" between the date of one
appellate court’s decision and the
petitioner’s filing of a further appeal,
thereby tolling the period of limitation.
See Fernandez, 227 F.3d at 980 ("time
following an appellate court’s decision,
and preceding a timely application for
discretionary review [is] excluded from
the calculation under sec. 2244(d)(2).").
Thus, all of the time between January 15,
1997, when Johnson filed his (third)
petition, and July 24, 1998, when
theWisconsin Supreme Court denied his
request for review, is excludable.

  However, on appeal, Johnson argues that
all of the time to seek appellate review
within the state system, even where he
never filed for such review, should be
excluded from the countable year. There
are two crucial time periods at issue.
First, Johnson seeks to exclude the 90-
day period in which he could have
appealed from the trial court’s July 2,
1996 decision, although he did not do so,
instead letting 107 days elapse until he
re-filed his petition in the Court of
Appeals. Second, Johnson seeks to exclude
the 30 days he had to appeal from the
November 29, 1996 Court of Appeals
decision, even though he did not do so
and instead let 47 days elapse until he
re-filed his petition in the trial
court./2 In support of his position,
Johnson points to several other circuits
which have held that a collateral post-
conviction action is "pending" in state
court for the period during which further
review could have been sought, even where
such review is not actually sought./3
  This court has yet to consider this
precise issue. We have observed, however,
that "it is sensible to say that a
petition continues to be ’pending’ during
the period between one court’s decision
and a timely request for further review
by a higher court (provided that such a
request is filed)." Fernandez, 227 F.3d
at 980. In Fernandez, we reserved the
question "whether time provided for
filing a petition or appeal to a higher
court is treated as time during which an
application is pending, if the time
expires without a filing." Id. However,
in Gutierrez v. Schomig, 233 F.3d 490,
492 (7th Cir. 2000), we held that the
one-year limitations period for filing a
federal habeas petition was not tolled
during time in which petitioner could
have filed a petition for certiorari
review of denial of state post-conviction
relief in the United States Supreme
Court. Surprisingly, the government did
not try to persuade us to extend our
holding in Gutierrez to the present
facts. Even more surprising is the fact
that the government confessed error in
its response brief, stating that
Johnson’s habeas petition was timely
filed, and requesting remand to address
his ineffective assistance of counsel
arguments. At oral argument, the
government oscillated in its position,
initially repeating its statement that
the petition was timely filed, and then
agreeing that it might not be timely
filed.

  Regardless of which position the
government chooses to advocate, we will
make an independent judicial assessment
of whether the district court correctly
dismissed Johnson’s petition based on the
statute of limitations. See Sibron v. New
York, 392 U.S. 40, 58 (1968)
("[c]onfessions of error are, of course,
entitled to and given great weight, but
they do not ’relieve this Court of the
performance of the judicial function.’")
(quoting Young v. United States, 315 U.S.
257, 258 (1942)). We need not decide
today whether to extend Gutierrez because
we conclude that Johnson’s first
twopetitions were not "properly filed" as
required under Section 2244(d)(2).

  Under Section 2244(d)(2), we only
exclude the "time which a properly filed
application for state post-conviction
review or other collateral review . . .
is pending." An application is "properly
filed" when "its delivery and acceptance
are in compliance with the applicable
laws and rules governing filings." Artuz
v. Bennett, 531 U.S. 4, 8 (2000). Applic
able laws and rules include "the court
and office in which it must be lodged .
. . ." Id. See also Tinker v. Hanks, 255
F.3d 444, 445 (7th Cir. 2001) (quoting
same). We determine whether a petition is
"properly filed" by looking at how the
state courts treated it. See Freeman v.
Page, 208 F.3d 572, 576 (7th Cir. 2000).
If a state court accepts and entertains
the petition on its merits, it has been
"properly filed," but if the state court
rejects it as procedurally irregular, it
has not been "properly filed." Id.;
Fernandez, 227 F.3d at 978.

  Here, the Wisconsin state courts
concluded that Johnson had not lodged his
first two petitions in the appropriate
place, and accordingly dismissed them on
that procedural ground./4 Thus, under
Wisconsin state law, Johnson’s first two
state post-conviction petitions were not
"properly filed," and the clock continued
to run until his third petition was
properly filed. Cf. Owens v. Boyd, 235
F.3d 356, 357 (7th Cir. 2001) (where
state petition was untimely filed, sec.
2244(d)(2) does not exclude time it was
pending).

  Johnson responds by arguing that since
he was allowed to re-file his first two
petitions, and the court eventually
reached the merits, we should not
consider them improperly filed, and
should toll all of the intervening time.
Under this rationale, a petitioner could
file a petition years after the
limitations period expired, so long as
the state court eventually entertained it
on its merits. This would allow a
petitioner to successfully circumvent the
statute of limitations period. We have
previously declined to adopt this
position and will not do so now. See
Fernandez, 227 F.3d at 980 (such an
"implausible understanding of sec.
2244(d)(2) would sap the federal statute
of limitations of much of its effect.").
Accordingly, since Johnson’s first two
petitions were not "properly filed" under
Wisconsin law, his petition in federal
court, filed 111 days after the statute
of limitations period expired, was
untimely.

B.   Equitable Tolling

  Johnson also claims that the limitations
period should be equitably tolled.
Section 2244(d) itself is a kind of
tolling rule, see Owens, 235 F.3d at 360,
although we also noted in Owens that
equitable tolling "may be available when
some impediment of a variety not covered
in sec. 2244(d)(1) prevents the filing of
a federal collateral attack." Id.
However, this court has never
conclusively determined whether, or to
what extent, the one-year deadline in
sec. 2244(d)(1) is actually subject to
the doctrine of equitable tolling. See
Taliani v. Chrans, 189 F.3d 597, 597 (7th
Cir. 1999). We need not resolve this
issue today because we conclude equitable
tolling would not be appropriate based on
the facts of this case.

  Equitable tolling "excuses a timely
filing when the plaintiff could not,
despite the exercise of reasonable
diligence, have discovered all the
information he needed in order to be able
to file his claim on time." Taliani, 189
F.3d at 597. Johnson argues that he was
unfairly prejudiced when the state court
directed him first to file in the state
appellate court, which then directed him
back to the state trial court. First, if
we treated his second petition as if it
had been properly filed (because Johnson
filed it in the appellate court at the
direction of the trial court), we could
equitably toll the period subsequent to
that filing. However, this argument
ignores that, under then-current
Wisconsin law, Johnson still improperly
filed his first petition in the state
trial court, in contravention of Knight.
In any case, even if we were to toll the
entire period from the time Johnson filed
his second petition until the Wisconsin
Supreme denied review, he would still
have filed his federal habeas petition 21
days too late. Alternatively, we could
treat Johnson as if he had properly filed
his first petition, and the trial court
improperly re-directed him to the
appellate court, which correctly sent
back to trial court pursuant to
Rothering. It is only if we treat the
first petition as if it were "properly
filed" and equitably toll all of the
subsequent time that Johnson’s federal
petition would be timely. However, we
decline to do so.

  Even if both trial court and the Court
of Appeals incorrectly dismissed
Johnson’s first two petitions, an
argument we have noted Johnson did not
make, or if the confusion between the two
courts caused Johnson undue delay, we
emphasize two particular facts that
persuade us equitable tolling is not
appropriate in this case. First, Johnson
waited 107 days after the first decision,
and 47 days after the second decision, to
re-file essentially the same petition
(which was only about two pages long). In
short, he wasted 154 days through no
fault of any court. Second, a majority of
Johnson’s excludable year, 210 days,
elapsed between the time the Wisconsin
Supreme Court denied review, on July 24,
1998, and the time he finally filed for
habeas relief in federal court on
February 19, 1999. The limitations period
did not expire while he was going back
and forth between courts (in which case,
we point out that he still could have
filed a protective federal petition, see
Pizzo v. Bekin Van Lines Co., 258 F.3d
629, 635 (7th Cir. 2001)). Rather,
Johnson’s entire year elapsed (364 days
to be exact), as the district court noted
in its unpublished order denying his
habeas petition, "because substantial
time elapsed when petitioner had no
motions or cases pending before any
court, and not because any court misled
petitioner."

  Johnson also argues that the time period
should be equitably tolled because the
delays were due to his incompetent
attorney. Generally, a lawyer’s mistake
is not an extraordinary circumstance
justifying the application of equitable
tolling. See Taliani, 189 F.3d at 598.
Johnson argues that his case is unique
because he was incarcerated, and
therefore was unable to demand better
representation from his counsel. He
argues that the circumstances of
incarceration make it difficult for a
prisoner-petitioner to ensure that
petitions are filed on a timely basis.
The prisoner is put in the position of
either waiting for his attorney to file
or else filing a protective petition on
his own in the event that his attorney
misses the deadline (as Johnson’s
counsel--a different lawyer from his
counsel before this court--seemed to do
with remarkable consistency). However,
habeas relief, by definition, is almost
always sought by an incarcerated
petitioner, and we decline to find that
this circumstance is so extraordinary as
to warrant the application of this
rarely-applied doctrine. Unfortunately,
many clients, whether in prison or not,
must vigilantly oversee the actions of
their attorneys and, if necessary, take
matters into their own hands.

III.   Conclusion

  We conclude that Johnson’s habeas corpus
petition was barred by the one-year
statute of limitations, and that
equitable tolling does not apply to the
circumstances of his case. Because his
petition was untimely and equitable
tolling is inapplicable, we need not
reach whether Johnson received
ineffective assistance of counsel.
Accordingly, we affirm the judgment of
the district court.

FOOTNOTES

/1 Because the dates discussed here are significant
in this court’s determination on the limitations
period and the equitable tolling issue, a chart
showing a timeline of significant dates is at-
tached as an appendix.

/2 There is also the question of whether this entire
period should be tolled (the 90 days he had to
appeal plus the additional 17 days it took him to
re-file his petition (for a total of 107 days)
and the 30 days he had to appeal plus the addi-
tional 17 days it took him to re-file his peti-
tion (for a total of 47 days)) or whether just
the time periods during which Johnson could have
appealed should be tolled (the 90 days and the 30
days). If we were to exclude only the time in
which he could have appealed (but did not),
Johnson would still have 57 days left in his
excludable year and the additional 34 days would
not make a difference. In any case, given our
holding, we need not reach this issue.

/3 See, e.g., Bennett v. Artuz, 199 F.3d 116, 119-20
(2d Cir. 1999) (stating in dicta that a "state-
court petition is ’pending’ from the time it is
first filed until finally disposed of and further
appellate review is unavailable"), aff’d on other
grounds, 531 U.S. 4 (2000); Swartz v. Meyers, 204
F.3d 417, 420-24 (3d Cir. 2000) (holding that,
because a judgment is not final until the time
for seeking review expires, the word "pending"
includes that time period, whether or not such
review is sought) (collecting cases); Taylor v.
Lee, 186 F.3d 557, 561 (4th Cir. 1999) (holding
that "under sec. 2244(d)(2) the entire period of
state post-conviction proceedings, from initial
filing to final disposition by the highest state
court (whether decision on the merits, denial of
certiorari, or expiration of the period of time
to seek further appellate review), is tolled"
from the limitations period); Williams v. Cain,
217 F.3d 303, 309-10 (5th Cir. 2000) (following
Swartz); Mills v. Norris, 187 F.3d 881, 884 (8th
Cir. 1999) (holding that state post-conviction
motion was "pending" until expiration of ninety-
day period appellant had to file a transcript to
perfect state-court appeal); Gibson v. Klinger,
232 F.3d 799, 804 (10th Cir. 2000) ("regardless
of whether a petitioner actually appeals a denial
of a post-conviction application, the limitations
period is tolled during the period in which the
petitioner could have sought an appeal under
state law.").

/4 We note that Johnson does not argue that either
the state trial court or the state Court of
Appeals incorrectly dismissed his claim. In fact,
he specifically acknowledges that "in each in-
stance, the court which ordered him to take his
claim elsewhere acted properly and within the
law." Appellant’s Reply Brief at p. 2.

Appendix

  EVANS, Circuit Judge, dissenting. I respectfully
dissent. This case, as far as filing papers in
the right state court at the right time is
concerned, was gummed up from the get-go. So
although Judge Manion’s majority opinion is quite
persuasive, given the unique circumstances here
I would accept Wisconsin’s confession of error,
or find equitable tolling on our own, and give
Johnson a chance to air his ineffective assis-
tance of counsel claim on its merits in the
district court.


140 N.J. Super. 529 (1976)
357 A.2d 17
WASHINGTON MOTOR SALES, PLAINTIFF-RESPONDENT,
v.
OLWVIOLE FERREIRA, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued November 17, 1975.
Supplemental memoranda filed March 1 and March 4, 1976.
Decided April 9, 1976.
*531 Before Judges FRITZ, SEIDMAN and MILMED.
Mr. Alan S. Ziegler (Newark Legal Services Project), argued the cause for the appellant.
Mr. Peter A. Forgosh argued the cause for the respondent (Messrs. Eichler & Forgosh, attorneys; Mr. Fred Garodnick on the brief).
The opinion of the court was delivered by MILMED, J.A.D.
Plaintiff sought recovery on a claimed deficiency arising following defendant's default on a retail installment contract under which defendant had purchased from plaintiff a used Ford auto. Defendant sought a setoff under the federal Truth in Lending Act.[1] The essential facts are set out in the opinion of the Essex County District Court reported at 131 N.J. Super. 328 (Cty. D. Ct. 1974), and need not be repeated here. Following trial of the issues the trial judge found no merit in any of defendant's claims for a setoff and directed the entry of judgment in favor of plaintiff and against defendant for $530, plus attorney's fees of $103, and interest and costs of suit.
Defendant contended below, as he does on this appeal, that the installment contract violates the Truth in Lending Act, 15 U.S.C.A. §§ 1631 and 1638, in that (a) it failed properly to disclose on the face of the contract plaintiff's right of acceleration upon defendant's default, and (b) it failed to include in the amount of the finance charge the premiums for credit insurance. He claims he is entitled to a setoff in the amount of twice the finance charge.[2]
*532 It appears that the credit insurance authorization on the face of the contract, although signed by defendant, was not dated as required by Regulation Z,[3] 12 C.F.R. § 226.4(a) (5) (ii). The trial judge found that the omission of the date was unintentional and a bona fide error. That finding is supported by the evidence, and the exemption from liability contained in 15 U.S.C.A. § 1640 applies.
The remaining issue before us is whether the Truth in Lending Act and Regulation Z thereunder required, in the circumstances of this case, that plaintiff-creditor disclose on the face of the installment contract its right to accelerate, upon default, the balance due under the contract  a right set forth in one of the "Provisions" contained on the back of the document. On this issue the trial judge found and concluded that there was "no obligation" on the part of plaintiff-seller to place the terms of that acceleration clause on the face of the contract. His reasons for that holding are set out in his opinion at 131 N.J. Super. 332-334. Solely for the reasons hereinafter set forth, we are satisfied that the judgment entered in favor of plaintiff should be affirmed. We therefore find it unnecessary to comment on the trial judge's reasoning.
The credit transaction in this case is subject to the provisions of the Truth in Lending Act (Consumer Credit Protection Act, 15 U.S.C.A. §§ 1601-1665). See N.J.S.A. 17:3B-1 and 2. One of the stated purposes of the Truth in Lending Act is "to assure a meaningful dislosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit. * * *" 15 U.S.C.A. § 1601. Required disclosure in installment contracts includes "The default, delinquency, or similar charges payable in the event of late payments," 15 U.S.C.A. § 1638(a) (9), and *533 "The amount, or method of computing the amount, of any default, delinquency, or similar charges payable in the event of late payments," Truth in Lending Regulations (Regulation Z), 12 C.F.R. § 226.8(b) (4). These disclosures are to "be made clearly, conspicuously, in meaningful sequence * * *." Regulation Z, 12 C.F.R. § 226.6(a).
In the retail installment contract signed by defendant a clause on the reverse side (Provision No. 10), which allows the seller to "declare the unpaid balance of the contract immediately due and payable" upon a default by the buyer, appears in small type and makes no provision for rebate of any unearned finance charge upon such acceleration. A statement is contained on the face of the contract for rebate in the event of prepayment of the entire balance.[4]
Following oral argument of this appeal the United States Court of Appeals for the Third Circuit filed its opinion in Johnson v. McCrackin-Sturman Ford, Inc., 527 F.2d 257 (Dec. 16, 1975). Thereafter, at our request, counsel filed their letter memoranda commenting on the effect of that opinion on the appeal before us. Emphasizing "that we are not here confronted with the question whether the Truth in Lending Act or Regulation Z require disclosure of an acceleration provision under which the creditor is not required to rebate the unearned finance charge,"[5] the Third Circuit reasoned in Johnson:
* * * the phrase "default, delinquency and similar charges" in section 128(a) (9) of the Truth in Lending Act mandates disclosure only of specific monetary sums, in addition to the amounts already due under the loan, that are imposed because of late payment of an installment or installments. A right of acceleration under which the creditor must rebate the unearned portion of the finance charge is not encompassed within the disclosures required by section 128 *534 (a) (9). When a creditor is required to rebate the unearned portion of the finance charge upon acceleration, the result is a shortening of the time for repayment of the principal, not the assessment of an additional penalty charge. * * * The borrower incurs no cost other than that disclosed on the face of his credit contract. The creditor is merely given the right to pursue his remedies against the defaulting borrower without awaiting the expiration of the term of the contract. [at 266]
Federal Reserve Board Staff Opinion Letter No. 851, 4 CCH Consumer Credit Guide ¶ 31,173 (October 22, 1974), states in pertinent part that:
For the purposes of Truth in Lending disclosures, this staff views an acceleration of payments as essentially a prepayment of the contract obligation. As such, the disclosure provisions of § 226.8(b) (7) of the Regulation, which require the creditor to identify the method of rebating any unearned portion of the finance charge[6] or to disclose that no rebate would be made, apply. If the creditor rebates under one method for acceleration and another for voluntary prepayment, both methods would need to be identified under § 226.8 (b) (7). Failure to disclose the method of rebate or nonrebate would be a violation of the Truth in Lending Act.
If, under the acceleration provision, a rebate is made by the creditor in accordance with the disclosure of the rebate provisions of § 226.8(b) (7), we believe that there is no additional "charge" for late payments made by the customer and therefore no need to disclose under the provisions of § 226.8(b) (4). On the other hand, if upon acceleration of the unpaid remainder of the total of payments, the creditor does not rebate unearned finance charges in accordance with the rebate provisions disclosed in § 226.8(b) (7), any amounts retained beyond those which could have been rebated under the disclosed rebate provisions represent a "charge" which should be disclosed under § 226.8(b) (4).
The court in Johnson found that the Board Staff's interpretation of § 226.8(b) (4) was a reasonable one and agreed that:
when a creditor is required[7] to rebate the unearned portion of the finance charge, his right of acceleration is not a "default, delinquency or similar charge." [527 F.2d at 268]. *535 We are in accord. In such a situation there is no "additional `charge'" and no need to disclose the acceleration provision under § 226.8(b) (4) of Regulation Z, 12 C.F.R. § 226.8 (b) (4) or § 128(a)(9) of the Truth in Lending Act, 15 U.S.C.A. § 1638(a) (9).
Rebate upon prepayment in full is required by § 43 of the Retail Installment Sales Act of 1960, N.J.S.A. 17:16C-43. Here, paragraph 12 on the face of the retail installment contract sets forth the method of rebate in the event of prepayment. As did the court in Johnson, supra, we consider acceleration to be essentially a prepayment. We, accordingly, hold that plaintiff was required, upon acceleration, to rebate to defendant the unearned portion of the finance charge,[8] and in the circumstances of this case it was unnecessary to include in the contract "a separate provision delineating the method of rebate in the event of acceleration." See Johnson v. McCrackin-Sturman Ford, Inc., supra, 527 F.2d at 269, n. 28.
The judgment under review is affirmed. No costs.
NOTES
[1]  Consumer Credit Protection Act, 15 U.S.C.A. §§ 1601-1665 (1970).
[2]  Defendant additionally argues on this appeal that "plaintiff has failed to adduce facts sufficient to demonstrate its right to relief." Although this issue was not raised below, we have considered it in our review of the record and find it to be clearly without merit.
[3]  Federal Reserve Board Truth in Lending Regulations (Regulation Z).
[4]  ¶ 12. "Rebate Provisions  In the event Buyer prepays the entire balance, creditor will retain the first $15.00 of the finance charge and allow a rebate on any excess, computed by the `Rule of 78'."
[5]  527 F.2d at 260, n. 3.
[6]  In the event of prepayment in full.
[7]  While pointing out that the pertinent acceleration clause in the McCrackin-Sturman contract did not expressly state that the unearned portion of the finance charge would be rebated, the court noted (at n. 13): "Nevertheless, we find that the contract incorporated Pennsylvania's rebate provision [Pennsylvania Motor Vehicle Sales Finance Act § 22(B), 69 P.S. § 622(B) (1965)] as a term of the acceleration clause." There is no similar New Jersey statutory provision which mandates rebate upon acceleration in the case before us. However, a rebate was made in this case.
[8]  Here, since no express provision for such rebate is made in the retail installment contract between the parties, the required method of rebate for acceleration is the same as that for voluntary prepayment. See N.J.S.A. 17:16C-43.


251 S.W.2d 677 (1952)
FUCHS et al.
v.
REORGANIZED SCHOOL DIST. NO. 2, GASCONADE COUNTY.
No. 42621.
Supreme Court of Missouri, Division No. 1.
September 8, 1952.
Motion for Rehearing or to Transfer to Denied October 13, 1952.
*678 Joseph T. Tate, Owensville, for appellant.
J. H. Mosby, John P. Peters, Linn, for respondents.
Motion for Rehearing or to Transfer to Court en Banc Denied October 13, 1952.
COIL, Commissioner.
In this action to quiet title to an acre of ground in Gasconade County both plaintiffs-respondents and defendant-appellant claimed fee simple title. We shall refer to the parties as plaintiffs and defendant. The trial court adjudged fee simple title in plaintiffs. Defendant has appealed.
Plaintiffs' motion to dismiss defendant's appeal or affirm the judgment of the trial court was taken with the case. Plaintiffs contend that defendant failed to comply with Supreme Court Rule 1.08 in that, it is alleged, defendant failed to make a jurisdictional statement, failed to make a fair and concise statement of the facts, and failed to set forth sufficiently the points relied on with allegations of error and citation of authorities.
We have examined defendant's brief in the light of the claimed deficiencies. We are of the opinion that plaintiffs' motion to dismiss or affirm should be, and it is, overruled. However, we emphasize again that the clear, specific, and simple provisions of Supreme Court Rule 1.08 should be fully complied with in the preparation of briefs.
Plaintiffs, the only heirs of the grantors in the deed later set forth, base their claim of title on the propositions that the deed conveyed to School District 51 (defendant's predecessor in title) a determinable fee with a possibility of reverter; that defendant had abandoned the real estate for school purposes; that the intent of the grantors was to provide for the automatic reversion of the fee simple estate upon abandonment; and that the possibility of reverter has descended to plaintiffs as the heirs of the grantors.
Defendant contends that the deed conveyed a fee simple title with no limitations or conditions on the grant.
The deed, dated August 30, 1892, was: "Know All Men By These Presents: That, Anton Fuchs, and Annie Fuchs, of the County of Gasconade, in the State of Missouri, have this day, for and in consideration of the sum of One and no/100 Dollars to the said Anton Fuchs in hand paid by School District No. Fifty-One, Township No. 41, Range Five West, of the County of Gasconade, in the State of Missouri, Granted, Bargained and Sold, and by these presents do Grant, Bargain and Sell, unto the said School District on which to Keep and Maintain a Public School-House, the following described tracts or parcels of land, situated in the County of Gasconade, in the State of Missouri, that is to say:
"One Acre, bounded as follows: Commencing at the Northwest corner of the Southeast Qr. of the Northwest Qr. of Section No. Eleven, in Township No. Forty-One (41), Range No. Five (5) West; thence running South 8 Rods; thence East 20 Rods; thence *679 North 8 Rods and thence West 20 Rods to the place of beginning.
"To Have And To Hold The premises hereby conveyed, with all the rights, privileges and appurtenances thereto belonging or in anywise appertaining, unto the said School District No. 51, Twp. 41, Range 5 West, for the above purpose, forever, I, the said Anton Fuchs hereby covenanting to and with the said School District No. 51, Twp. 41, Range 5 West and its assigns, for himself, his heirs, executors and administrators to Warrant and Defend the title to the premises hereby conveyed, against the claim of every person whatsoever."
Plaintiffs contend that the language in the granting clause "on which to Keep and Maintain a Public School-House" and the language "for the above purpose" in the habendum clause, limited the estate conveyed to a determinable fee.
We are of the opinion that the deed conveyed a fee simple title without limitation or condition. The language relied upon by plaintiffs constitutes nothing more than an expression or declaration of the purpose for which the grantors expected the land to be used. The deed contains no express exception or reservation, no express limitation upon the duration of the estate conveyed, no express condition upon which the estate was conveyed, and no express provision for forfeiture, for re-entry, or for reverter.
Plaintiffs concede that there are no express terms in the deed which provide for a reverter in the event that a public school house is no longer kept and maintained. However, they contend that such intention is manifest from a consideration of the deed as a whole; that the words "on which to Keep and Maintain a Public School-House" and "for the above purpose" are "sufficient to create `a possibility of reverter' even though it (the limitation) may be lacking in completeness and precision," and that to "give force to a `possibility of reverter', the law implies a reverter as of necessity to effect the forfeiture." The difficulty with plaintiffs' contention is that there is nothing in the deed or in the evidence as to circumstances under which it was executed from which an intention to convey a determinable fee may be found. No words usually employed to create such an estate, like "until", "during", "so long as", are used, nor is any other language used in the deed expressing or indicating an intention to limit the title to a determinable fee. Chouteau v. City of St. Louis, 331 Mo. 781, 790[3], 791 [4], 55 S.W.2d 299, 301[3], [4]. This is not a case in which language has been used which, though not complete or precise, is sufficient to permit the court to find an intent to convey a determinable fee. Plaintiffs rely upon Koehler v. Rowland, 275 Mo. 573, 582, 205 S.W. 217, 219, 9 A.L.R. 107. That case on its facts lends no support to plaintiffs' position. The rule of construction there stated is a proper one, viz., "If the grantors fail to express their contract with completeness and precision, but the intention, nevertheless, clearly appears from the instrument, if its spirit and purpose are manifest from a consideration of the instrument as a whole, it will be given an interpretation in accordance with such intention." 205 S.W. 219. But this rule may not be applied to the instant deed. Here, there is no manifest purpose clearly appearing from the deed as a whole justifying the interpretation contended for by plaintiffs. We may not rewrite a deed in order to effectuate what conjecturally may have been the unexpressed intention of the grantors.
It is well established that language which merely states the purpose for which land is conveyed and which does not contain words which relate to time, does not create a determinable fee. Holekamp Lumber Co. v. State Highway Commission, Mo.Sup., 173 S.W.2d 938, 943[8, 9]; Chouteau v. City of St. Louis, supra; note, 44 L.R.A.,N.S., 1220, 1222(III).
It is true that the consideration expressed in the instant deed was $1. Consideration may be a proper circumstance to consider as an aid in determining the intention of the parties. The fact that the consideration was nominal might, in connection with language lacking in preciseness or in connection with other circumstances *680 surrounding the conveyance, be an important aid in determining whether a determinable fee was intended to be conveyed. But, as here, the fact of nominal consideration, standing alone, is not sufficient from which to find an intention to convey other than an unlimited fee.
Plaintiffs do not contend that the deed conveyed an estate upon condition subsequent. Clearly, it did not. Chouteau v. City of St. Louis, supra, 55 S.W.2d 301; Holekamp Lumber Co. v. State Highway Commission, supra, 173 S.W.2d 942[5-7].
We hold that the deed from Mr. and Mrs. Fuchs conveyed an absolute estate in fee simple; that defendant is vested with fee simple title to the described real estate; that plaintiffs have no right, claim, interest, or title in or thereto.
Judgment reversed with directions to enter decree and judgment in accordance with the views herein expressed.
VAN OSDOL and LOZIER, CC., concur.
PER CURIAM.
The foregoing opinion by COIL, C., is adopted as the opinion of the court.
All concur.


339 F.2d 419
Melvin JONES, Harold James Cutno and Clifford John Woods, Appellants,v.UNITED STATES of America, Appellee.
No. 21357.
United States Court of Appeals Fifth Circuit.
December 22, 1964.
Rehearing Denied February 9, 1965.

Adolph J. Levy, Milton P. Masinter, Bernard A. Horton, New Orleans, La., for appellant.
John C. Ciolino, Asst. U. S. Atty., Louis C. LaCour, U. S. Atty., New Orleans, La., for appellee.
Before JONES and BELL, Circuit Judges, and HUNTER, District Judge.
JONES, Circuit Judge:

1
The appellants and a codefendant, James Gary Martin, were charged in a two-count indictment with a violation of 21 U.S.C.A. § 174. The first count specified certain acts done in conspiracy with each other and the second count specified that the defendants "did unlawfully, wilfully, knowingly and feloniously receive, conceal and facilitate the concealment of 19.88 grams of heroin hydrochloride in 301 capsules, 110 milligrams of bulk heroin hydrochloride and 180 milligrams of heroin hydrochloride in 58 capsules, knowing the same heroin hydrochloride to have been imported in the United States contrary to law."

2
All defendants filed timely motions to suppress the evidence sought to be used in the trial of this matter. After a hearing on the motion to suppress, the court overruled appellants' motions to suppress. The case was tried and the jury found the three appellants guilty as charged. The defendant James Gary Martin had previously pleaded guilty to the indictment. The court sentenced each of the appellants to six years on each count, the sentences to run concurrently. On this appeal, we review the conviction and sentence.

3
During the trial the appellants reurged their objection to the admission of said evidence and moved for directed verdict of acquittal, both of which were overruled.

4
The undisputed facts are that Agent Chandler of the United States Bureau of Narcotics heard rumors that narcotics were available somewhere along Shrewsbury Road in Jefferson Parish, Louisiana, at which time he contacted a Mr. Marsalis, the owner and operator of the Marsalis Mansion Motel. Mr. Marsalis indicated suspicions that the occupants of Room 7 were engaged in illegal activity, the type of which was not known. On instructions from Agent Chandler the contents of the wastebasket in Room 7 were saved and shown to the agents. At the request of Agent Chandler, Mr. Marsalis permitted the agents to enter Room 6 of the motel, which is next door to Room 7.

5
The physical arrangement of the rooms is such that Room 6 and Room 7 have one common party wall. Built into this common wall and forming a part thereof is a dual gas heating unit, designed to warm both rooms. Near the base of this unit is a control panel which lifts out by using a finger in a hole in the panel. The unit as a whole protrudes into each room a few inches. With the panel in place one cannot see or hear into the adjoining room. With the panel removed some vision and hearing are possible. During their vigil the agents removed the panel in Room 6. The corresponding panel in Room 7 had been removed previously by some unknown person.

6
After the agents had waited about an hour Martin and Cutno arrived in Room 7, followed five minutes later by Jones and Woods. Through the space in the common wall where the heating unit had been located before the removal the agents overheard a conversation among the four occupants of Room 7 concerning the price of heroin, discussion of a place for its concealment, and mention of the involvement of other persons in the narcotics trade. They also overheard a long-distance telephone call to a person apparently their supplier, saw defendant Jones inhale what appeared to be heroin, saw the counting and concealment of capsules appearing to contain heroin, and saw the counting of money. When Jones and Woods started to leave the agents intercepted them in the corridor outside Room 7. Jones dropped a bag containing 301 capsules of heroin as he was arrested. Woods escaped by running down the hall and was captured some time later. Martin and Cutno were arrested in Room 7 and a search disclosed other narcotics. No warrant was sought and none obtained.

7
The sole question presented by the appeal is whether there has been a violation of the appellants' Fourth Amendment right to be secure against an unreasonable search and seizure. The answer to the question will depend upon whether there was a physical intrusion or encroachment within an area protected by the Constitution. Silverman, et al. v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734; Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322; Cullins v. Wainwright, 5th Cir. 1964, 328 F.2d 481, cert. den. 85 S. Ct. 33. Cf. Clinton v. Virginia, 377 U.S. 158, 84 S.Ct. 1186, 12 L.Ed.2d 213. In this case there was no invasion of the premises occupied by the appellants. The movable panel was moved, and although it was made movable for a purpose other than the purpose for which the Government agents moved it, there was no penetration of the dividing wall, and it may be noted that no electronic or mechanical devices were here used.

8
A situation very similar to that which is before us was considered by the Tenth Circuit. The appellants there were in a hotel room. The agents were in an adjoining room. Between the two rooms were back-to-back doors, one opening from each room. The agents, opening the door from their room, were enabled to hear conversations in the adjoining room through the other door. It was held that there was no intrusion and no violation of the rights of those in the adjoining room. Anspach v. United States, 10th Cir. 1962, 305 F.2d 48, 305 F.2d 960, cert. den. 371 U.S. 826, 83 S.Ct. 46, 9 L.Ed.2d 65, reh. den. 371 U.S. 917, 83 S.Ct. 252, 9 L.Ed.2d 176.

9
The evidence was properly admitted and the judgment of conviction and sentences are

10
Affirmed.


947 F.2d 946
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Jon Thomas CUMMINS, Defendant-Appellant.
No. 91-1876.
United States Court of Appeals, Sixth Circuit.
Nov. 6, 1991.

1
Before BOGGS and ALAN E. NORRIS, Circuit Judges, and BERTELSMAN, Chief District Judge.*

ORDER

2
Jon Thomas Cummins appeals from the district court's order denying his motion to correct an illegal sentence, which he filed pursuant to Fed.R.Civ.P. 35(a).   This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.   Upon examination, this panel unanimously agrees that oral argument is not needed.   Fed.R.App.P. 34(a).

3
In 1988, a jury convicted Cummins of eight counts of criminal activity surrounding the receipt and possession of an unregistered firearm and of being a felon in receipt and possession of a firearm, in violation of 26 U.S.C. §§ 5845, 5861, 5871 and 18 U.S.C. §§ 2 and 922(g).   Cummins was sentenced to ten years in prison on count one, ten years on count two (to run consecutively with the sentence imposed for count one), and to other various prison terms ranging from five to ten years on the remaining eight counts, all to be served concurrently with the sentence imposed for count one.   In addition, Cummins was ordered to pay special assessments totalling $400.00.

4
In support of his motion, Cummins alleged that the sentences imposed in counts one, two, four, seven, and nine violate the holding of  Haynes v. United States, 390 U.S. 85 (1968), because the statute under which he was convicted required registration of firearms and supplying information that would incriminate him in violation of the Fifth Amendment.   The district court, while acknowledging that the Supreme Court in Haynes did find certain statutes under the National Firearms Act to be unconstitutional, noted that the Act was subsequently amended and that the constitutionality of the amended statutory scheme was upheld by the Supreme Court in  United States v. Freed, 401 U.S. 601, 605 (1971).   Lastly, the district court held that the crimes for which Cummins was charged did not amount to multiple counts for one act, because each firearm possessed could properly be the subject of separate prosecutions, under 28 U.S.C. § 5861.   United States v. Alverson, 666 F.2d 341, 346-47 (9th Cir.1982);   United States v. Arrington, 618 F.2d 1119 (5th Cir.1980), cert. denied, 449 U.S. 1086 (1981).

5
Upon review, this court concludes that the district court properly decided this case for the reasons stated in its opinion filed July 22, 1991.   Accordingly, the district court's judgment is hereby affirmed.   Rule 9(b)(3), Rules of the Sixth Circuit.

*
 The Honorable William O. Bertelsman, Chief Judge for the Eastern District of Kentucky, sitting by designation


295 B.R. 803 (2002)
In re Lonnie Lee BOLEN, Debtor.
Lonnie Lee Bolen, Plaintiff,
v.
Mercedes Benz, Inc., Defendant.
No. C/A 01-13028-W, Adversary No. 01-80333-W
United States Bankruptcy Court, D. South Carolina.
June 21, 2002.
*804 Lawrence Keitt, Orangeburg, SC, for debtor.

*805 ORDER
JOHN E. WAITES, Bankruptcy Judge.
THIS MATTER comes before the Court upon the Adversary Complaint (the "Complaint") filed by Lonnie L. Bolen ("Debtor"). In the Complaint, Debtor alleges that Mercedes Benz, Inc. caused Debtor's 1997 Freightliner semi-truck (the "Truck") to be repossessed after Debtor filed for bankruptcy protection. Debtor named Mercedes Benz, Inc. as the Defendant in the caption of his Complaint; however, in the Joint Pre-Trial Order, the parties stipulate that DaimlerChrysler Services North America LLC, successor by merger to Mercedes-Benz Credit Corporation, ("Defendant") is the proper Defendant. Originally, Debtor sought both the return of the Truck as well as damages for Defendant's willful violation of the automatic stay pursuant to 11 U.S.C. § 362(h); however, after Debtor filed the Complaint, Defendant returned the Truck to Debtor.[1] Debtor, however, continues to assert his claim for damages stemming from the postpetition repossession and the period when Defendant retained the Truck, including damages for Debtor's lost wages totaling $14,000.00, the attorney's fees and costs Debtor incurred to bring the adversary proceeding, and punitive damages. In response, Defendant asserts that it did not receive a notice of Debtor's bankruptcy filing from either the Bankruptcy Noticing Center or correspondence from Debtor prior to the repossession. Defendant argues that the Notice of Chapter 13 Bankruptcy Case (the "Official Notice") from the Bankruptcy Noticing Center as well as correspondence from Debtor were mailed to Defendant's payment processing center, not to its customer service center, and that, had Debtor used the appropriate address, Defendant would have had notice of the bankruptcy and would not have repossessed the Truck. As an additional defense, Defendant justifies its retention of the Truck after learning of the bankruptcy filing because of its policy requiring debtors to inform Defendant that they seek the return of the collateral and to present it proof of insurance. Finally, Defendant disputes the amount of damages Debtor seeks. After considering the pleadings in the matter and the arguments made by counsel at the hearing, the Court makes the following Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52, applicable in bankruptcy proceedings by Federal Rule of Bankruptcy Procedure 7052.[2]

FINDINGS OF FACT
1. Debtor filed a Voluntary Petition for relief under Chapter 13 of the Bankruptcy Code on December 3, 2001.
2. When Debtor filed his petition, he had possession and ownership of the Truck. Debtor bought the Truck in December 2000 from Defendant, who loaned Debtor the funds to purchase the Truck and who received a security interest in the Truck. As an asset in which Debtor held an interest, the Truck was part of Debtor's bankruptcy estate.
3. In the mailing matrix supplied to the Court when he filed his Voluntary Petition, Debtor lists Defendant as a creditor at the following address: P.O. Box 2916, Milwaukee, Wisconsin XXXXX-XXXX. The Bankruptcy Noticing Center mailed the Official Notice to Defendant at the same Milwaukee *806 address but to the correct zip code of XXXXX-XXXX on December 6, 2001.
4. On December 5, 2001, Debtor's attorney informed Debtor's creditors, including Defendant, of his bankruptcy filing by letter. The letter does not contain an addressee, and no addressed envelope was admitted into evidence. The letter was addressed to Defendant at either the Milwaukee address or one of its other addresses, Post Office Box 354, Lisle, Illinois XXXXX-XXXX; however, there is no physical proof where the letter was sent. An employee of Debtor's attorney, Bridgette Bennekin, testified that she mailed the letter to the Lisle address.
5. At approximately 2:30 a.m. on December 15, 2001, the Truck was repossessed on behalf of Defendant. Although Debtor informed the repossession agents of his pending bankruptcy case by showing them his bankruptcy papers, the agents resumed and completed the repossession.
6. Although Defendant did not concede that the repossessors were its agents, the Court finds that the repossessors were Defendant's agents. Defendant offered no evidence to refute the agency relationship, and the testimony clearly indicates that the repossessors appeared to work for Defendant. Moreover, the result of the repossession also indicates an agency relationship as, after the Truck was repossessed, it was placed in Defendant's control.
7. On December 19, 2001, Debtor filed his Notice, Chapter 13 Plan and Related Motions (the "Plan") with the Court. In the Plan, Debtor proposes to value and retain the Truck, and it was served on Defendant at the Milwaukee address.
8. Defendant admits that on December 19, 2001 its employee responsible for directing the repossession of the Truck, David Howe, learned of Debtor's bankruptcy filing.
9. On December 21, 2001, Debtor filed the Complaint in this adversary proceeding, and, on December 28, 2001, Debtor's attorney served by mail a copy of the Summons, Notice, and Complaint to Defendant and its agent for acceptance of process at the Milwaukee address. Debtor's attorney received a return receipt, which indicated that C. Eichorn, an apparent agent or employee of Defendant, accepted the mailing on January 1, 2002.
10. On January 8, 2002, Defendant, through the law firm of Hale Headrick Dewey Wolf Golwen Thornton & Chance, PLLC, inquired with Debtor to determine whether he would consent to an order granting Defendant relief from the automatic stay as to the Truck. On January 10, 2002, Debtor's attorney responded by advising Defendant's counsel of the pending adversary proceeding and requesting the immediate turnover of the Truck.
11. On February 6, 2002, Debtor provided proof of insurance to Defendant.
12. Some time in February 2002, Defendant advised Debtor he could pick up the Truck from Defendant's agent in Wilmington, North Carolina. On February 16, 2002, Debtor and his spouse traveled to Wilmington to retrieve the Truck from a Freightliner dealership holding the Truck for Defendant; however, the dealership refused to release the Truck to Debtor. In undertaking this trip, Debtor incurred expenses for travel as well as loss of time from work or other endeavors. Defendant later returned the Truck to Debtor on February 22, 2002.
13. At the time the Truck was repossessed, Debtor performed over-road hauling for Carroll Fulmer, a company based in Groveland, Florida. His gross income averaged $1,800.00 per week before costs *807 for fuel, maintenance, insurance, and fees. Once the Truck was repossessed, Debtor was not available for dispatch to transport loads, and Carroll Fulmer canceled the parties' contract. Afterward, Debtor was unable find work for eight weeks until February 2002 when he worked for two weeks and grossed a total of $1,500.00. Once the Truck was returned to him, Debtor began and continues to haul concrete materials on a flatbed trailer; however, he earns approximately $500.00 to $1,000.00 less per week than he earned as an over-road hauler under the contract existing at the time of repossession.
14. Debtor's costs associated with maintaining the Truck fluctuate. Although he pays certain costs like license fees and tags once per year, other expenses like fuel and maintenance costs vary depending on his use of the Truck. During the period when Debtor did not have access to the Truck, he did not pay maintenance expenses for its upkeep; however, he maintained insurance on the Truck at monthly payments of approximately $200.00. Further, he had already paid certain registration fees mid-year 2001.

CONCLUSIONS OF LAW
I. Was the postpetition repossession of the Truck a willful violation of the automatic stay pursuant to § 362(h)?
The parties stipulate that the repossession of the Truck was postpetition and violated the automatic stay. In fact, Defendant admits that damages are appropriate. The issues are whether Defendant willfully violated the automatic stay with its repossession and continued retention after learning of Debtor's bankruptcy case and, if so, what are the damages Debtor suffered as a result.
The Fourth Circuit defined a willful violation of the automatic stay as occurring when a creditor knows of the pending bankruptcy petition and intentionally attempts to continue collection procedures in spite of it. See Budget Serv. Co. v. Better Homes of Virginia, Inc., 804 F.2d 289, 293 (4th Cir.1986) (upholding a finding of a willful violation of the automatic stay where the creditor was served with written notice of the bankruptcy filing yet the creditor repossessed one vehicle postpetition and attempted to repossess two others postpetition). The moving party bears the burden of proof in an action for violation of the automatic stay and must prove the violation by clear and convincing evidence. See Brockington v. Citizens & S. Nat'l Bank of South Carolina (In re Brockington), 129 B.R. 68, 70 (Bankr.D.S.C.1991); see also Diviney v. NationsBank of Texas (In re Diviney), 211 B.R. 951, 961 (Bankr.N.D.Okla.1997), aff'd 225 B.R. 762 (10th Cir. BAP 1998).
Regarding the element of knowledge of the pending bankruptcy, Defendant argues that it did not have notice of the bankruptcy case when it repossessed the Truck. Debtor disputes this assertion, claiming his attorney mailed notice of Debtor's bankruptcy case to Defendant on December 5, 2002. Defendant does not deny that the Bankruptcy Noticing Center mailed it a notice on December 6, 2001 to the Milwaukee address or that Debtor mailed it materials relating to his bankruptcy filing on December 5, 2001; however, Defendant argues the service was ineffective because Debtor used the incorrect zip code and because the Milwaukee address where the materials were sent is for payment processing only. According to Defendant, if Debtor had notified it of his bankruptcy at the customer service address in Lisle, Illinois, Defendant would *808 have known of the case and not repossessed the Truck.
Although there is confusion regarding where Debtor's attorney office mailed the notice of the bankruptcy on December 5, 2001, this issue is not pivotal. Regardless of where the correspondence was addressed on December 5, 2001, the fact remains that Debtor informed Defendant's repossession agents at the time they sought repossession of the Truck that he had filed bankruptcy. Indeed, Debtor showed these agents a packet of bankruptcy materials that included his case number, petition date, petition, and schedules, and these materials verified that he had filed his bankruptcy case.[3] When this notice was received, the agents should have stopped their repossession efforts and inquired further as to Debtor's pending bankruptcy case. See Brockington, 129 B.R. at 71 (finding a willful violation of the automatic stay when, at the time of repossession, the creditor had not yet received notice of the bankruptcy case but the debtors informed the creditor's repossessing agent of their filing). Moreover, Defendant acknowledged that the employee responsible for repossession and collection efforts learned of Debtor's bankruptcy on December 19, 2001. This admission indicates that, during most of the period when Defendant retained the Truck, it knew of the bankruptcy. See, e.g. Skinner v. Cumberland Auto Ctr. (In re Skinner), 238 B.R. 120, 124 (Bankr.M.D.Tenn.1999) (ruling that the element of knowledge in the context of a willful violation of the automatic stay was satisfied where the creditor admitted knowledge of the debtor's Chapter 13 case before repossessing the debtor's vehicle and deliberately ignoring the stay). Defendant did not explain how it received notice of the case; however, it is inferable that the Official Notice from the Bankruptcy Noticing Center or correspondence from Debtor was received by Defendant prior to December 19, 2001 and clearly arrived in the appropriate department of Defendant at least by that date. This inference is further bolstered by the fact that Defendant timely answered Debtor's Complaint, which was also mailed to the Milwaukee address. Although Defendant disputes its ability to receive bankruptcy notices at the payment processing address, its actions later in the case suggest that this address was effective for service.[4]
The Court now shifts its focus to determine whether Defendant intentionally continued its collection attempts with notice of *809 the bankruptcy case. The Court concludes that Defendant did exactly this. Despite knowledge of Debtor's bankruptcy, Defendant retained the Truck from December 15, 2001 until February 22, 2002. The continued retention of collateral that was admittedly wrongly repossessed postpetition constitutes a willful violation of the automatic stay when the creditor has notice of the pending bankruptcy case. See McCarthy v. Imported Cars of Maryland, Inc. (In re Johnson), 230 B.R. 466, 470-71 (Bankr.D.D.C.1999) (ruling that a creditor who retained a vehicle wrongly repossessed postpetition and who had notice from the Chapter 7 trustee of the bankruptcy case willfully violated the automatic stay); LaTempa v. Long (In re LaTempa), 58 B.R. 538, 542 (Bankr.W.D.Va.1986) (finding a willful violation of the automatic stay where the creditor who knew of the debtors' bankruptcy filing retained possession of a vehicle that it repossessed postpetition for three days before returning it to the debtors); Mullis v. USA Rest. Equip. Co. (In re Harsh), 277 B.R. 833, 836-38 (Bankr.M.D.Ga.2001) (finding that continued control over collateral wrongly repossessed postpetition with knowledge of the bankruptcy case constituted a knowing and willful violation of the automatic stay); Ard v. Auto. Acceptance (In re Ard), C/A No. 95-70839-D, Adv. Pro. No. 95-8051-D, slip op. at 2 (Bankr.D.S.C. Mar. 5, 1996) (holding that a creditor who wrongly repossessed a vehicle postpetition willfully violated the automatic stay when he retained the vehicle despite notice of the bankruptcy case).
Relying on its policy that requires debtors to provide proof of insurance and to demand the return of the collateral before it returns trucks, Defendant justifies its retention of the Truck. As support for its position, Defendant cites Jennings v. R & R Cars and Trucks (In re Jennings), 2001 WL 1806980 (Bankr.D.S.C.). Jennings examines the appropriate procedure debtors should follow when, pursuant to § 542, they seek the turnover of collateral in which they own an interest that a creditor rightfully repossessed prepetition. In Jennings, the debtors filed a joint petition for relief under Chapter 13 four days after a creditor repossessed their vehicle, and, subsequently, they filed an adversary complaint seeking the turnover of the vehicle. After examining the issue of turnover, the Court concluded that when a creditor holds collateral that was properly repossessed prepetition, a debtor is entitled to the return of the collateral upon satisfying the following three steps: (1) notifying the creditor in writing of the bankruptcy case, (2) demanding in writing the turnover of the collateral, and (3) providing proof of insurance protecting the creditor's interest in the collateral. See id. at *6.
The case currently before the Court, however, differs from Jennings. As noted previously, Jennings involved a prepetition repossession that took place before any automatic stay was in effect. In contrast, this proceeding involves a situation where Debtor filed bankruptcy, the automatic stay was in effect, and Defendant repossessed collateral postpetition. By repossessing the Truck postpetition and before the automatic stay was lifted, Defendant acted improperly and violated the automatic stay. To retain the Truck and demand proof of insurance or other means of adequate protection before returning it to Debtor is a continuing and deliberate violation of the stay and increased the damages of Debtor. Further, to allow Defendant to continue its wrongful possession of the Truck blurs the lines between two distinct, albeit closely related, issues, turnover and the automatic stay. Indeed, a creditor may have a defense to a turnover action, such as a demand for insurance or other adequate protection, but this defense *810 may not apply to an action for violation of the stay for property wrongfully repossessed postpetition. For example, in Skinner, the creditor, an automobile dealer, repossessed a vehicle from the debtor postpetition despite knowing of the bankruptcy case. See 238 B.R. at 120. The creditor took this action without seeking or obtaining relief from the automatic stay. The debtor filed a complaint alleging a willful violation of the automatic stay and seeking the turnover of the vehicle. The court ruled that the creditor willfully violated the automatic stay; however, it also ruled that turnover was inappropriate. See id. at 126. The court reasoned that the debtor's interest in the vehicle was only a purchase order for the vehicle that was contingent upon the debtor's obtaining financing and that this interest was too tenuous to justify the turnover of the vehicle. As Skinner illustrates, a creditor could decide its turnover position is so strong and convincing that it retains the collateral, yet it does so at the risk of exposing itself to increased damages for a willful violation of the automatic stay.
In concluding that Defendant's retention of the collateral willfully violated the automatic stay, the Court notes that Defendant could have inquired with the Court to determine whether its actions were appropriate. See Brown v. Town & Country Sales & Serv. Inc. (In re Brown), 237 B.R. 316, 321 fn. 7 (Bankr.E.D.Va.1999) ("The automatic stay is the most fundamental protection afforded a debtor when bankruptcy is filed. Where there is uncertainty as to whether the creditors' actions will violate the automatic stay or not, the creditor should seek court permission and relief from stay. The creditor undertakes the risk of sanctions pursuant to section 362 when it attempts to interpret the application of the automatic stay and the scope of property to which it applies.") (citations omitted). Indeed, once it learned of the bankruptcy filing and its postpetition violation, Defendant had the duty to contact Debtor or his counsel and move quickly to restore matters to the status quo. See Belcher, 189 B.R. at 18.
II. What is the amount of damages Debtor suffered as a result of Defendant's willful violation of the automatic stay?
The Court believes that damages are warranted in this case. Debtor was without the Truck, his sole means of supporting his family, for nearly ten weeks, and he was unable to find work for eight of those weeks. Pursuant to § 362(h), the Court shall award a party who is injured by a willful violation of the automatic stay actual damages, including costs and attorney's fees, and, in appropriate circumstances, punitive damages.
As actual damages, Debtor seeks the gross income he anticipates he would have earned had he continued working for Carroll Fulmer, the over-road hauling company; however, the Court concludes that the more accurate measure of damages Debtor suffered is represented by the net income he would have earned during that period. The Court reaches this conclusion based upon the many variables that factor into the Truck's upkeep and maintenance. Debtor admitted that he did not pay for some of these expenses while Defendant possessed the Truck; therefore, the Court will not award him damages for expenses that he did not incur. However, the Court recognizes that some expenses like Debtor's licensing fees and taxes were paid mid-year 2001 and that, although Debtor paid these as a condition of operating his Truck during a certain period, he was unable to use his Truck because of Defendant's retention of it. Because there is a great overlap in expenses that were incurred with others that were not, the *811 Court concludes it should rely on Debtor's net income. The Court has reviewed Debtor's weekly Operator Settlements from Carroll Fulmer, and these statements indicate Debtor's gross and net pay. From March 21, 2001 when he began working for Carroll Fulmer through December 18, 2001, Debtor's average net weekly pay was approximately $700.00.[5] The Court multiplies this amount by the eight weeks[6] when Debtor could not find work and concludes that Debtor is entitled to damages for his lost wages in the amount of $5,600.00.[7]
The Court also finds that Debtor incurred expenses and damages traveling to Wilmington, North Carolina on February 16, 2002 in an unsuccessful attempt to retrieve the Truck in the amount of $250.00.
The Court also finds that Debtor incurred attorney's fees and costs associated with the prosecution of this adversary proceeding. The Court finds that Debtor is entitled to damages for reasonable attorney's fees he incurred in the amount of $5,000.00.[8]
Finally, the Court concludes that punitive damages are warranted in this case. The Court notes that, in recent decisions, several courts severely punished creditors who demonstrate their disdain of the automatic stay by retaining property that was repossessed improperly. See Diviney v. NationsBank of Texas (In re Diviney), 225 B.R. 762, 778 (10th Cir. BAP 1998) (affirming a punitive damages award of $40,000.00 for the creditor's postpetition repossession, retention, and sale of the debtors' vehicle despite notice that the debtors' case was reinstated and active); Progressive Motors, Inc. v. Frazier, 220 B.R. 476, 479 (D.Utah 1998) (affirming a punitive damages award of $20,000.00 that increased to $30,000.00 in ten days if the damages award were not paid where the creditor repossessed a vehicle postpetition without obtaining relief from the automatic stay and subsequently sold it at auction); In re Meeks, 260 B.R. 46, 48 (Bankr.M.D.Fla.2000) (finding that a debtor was entitled to punitive damages of $35,000.00 and canceled the debtor's indebtedness on the repossessed vehicle for the creditor's improper postpetition repossession of the vehicle after receiving actual notice of the debtor's filing bankruptcy on at least three occasions). Closer to home, this Court decided to award a minimal amount of *812 punitive damages where a creditor mitigated its damages by promptly returning the repossessed vehicle after learning of the debtor's bankruptcy. See Brockington, 129 B.R. at 71 (finding that punitive damages of $500.00 were warranted for the willful violation of the automatic stay but noting that these damages were mitigated because the creditor voluntarily returned the vehicle to the debtor the day after it was repossessed). The Court concludes this case contrasts Brockington as, instead of returning the repossessed collateral one day after learning of the debtor's bankruptcy case (the creditor's action in Brockington), Defendant retained the vehicle for ten weeks before returning it. Moreover, the retention caused the loss of employment to Debtor, and, although Defendant soon learned of Debtor's bankruptcy, it took no steps to contact Debtor or his counsel to attempt to return the Truck to Debtor. As noted previously, a creditor who blatantly violates the automatic stay may not do nothing without running the risk of being assessed punitive damages for a willful violation; it must actively attempt to return matters to the status quo.
Because of the egregious facts of this case, including the early morning repossession with notice of the bankruptcy filing, the length of time Defendant retained the property, Debtor's traveling to North Carolina to retrieve the Truck at Defendant's directions (unsuccessfully), and Debtor's actual damages and his loss of the Carroll Fulmer employment contract that he valued, the Court rules that Debtor is entitled to punitive damages of $12,500.00. This amount of punitive damages is intended to deter Defendant and other creditors from such actions. The automatic stay is one of the most essential and basic rights a debtor has when filing bankruptcy. To ignore it as blatantly as Defendant did in this case merits a serious punitive damages award that will get Defendant's attention, encourage it to change its policy, and deter it from engaging in further erroneous conduct.
IT IS THEREFORE ORDERED that Debtor is entitled to actual damages for lost wages ($5,600.00), expenses incurred in traveling to North Carolina to obtain the truck ($250.00), and attorney's fees and costs ($5,000.00) as well as punitive damages ($12,500.00) for Defendant's willful violation of the automatic stay. A judgment is therefore entered in the amount of $23,350.00 against DaimlerChrysler Services North America LLC, successor by merger to Mercedes-Benz Credit Corporation.
AND IT IS SO ORDERED.
NOTES
[1]  Further references to the Bankruptcy Code shall be by section number only.
[2]  The Court notes that, to the extent any of the following Findings of Fact constitute Conclusions of Law, they are adopted as such, and, to the extent any Conclusions of Law constitute Findings of Fact, they are so adopted.
[3]  At the hearing, the Court took under advisement the issue of whether an acknowledgment by the repossession agents that they reviewed Debtor's Chapter 13 bankruptcy materials before repossessing the Truck should be admitted into evidence. Defendant argued that this acknowledgment was not included as an exhibit in the Joint Pre-Trial Order, and Debtor argued that Defendant had adequate notice of the document as Debtor testified to it in his deposition. The Court admits the document into evidence (identified as Debtor's Exhibit C) on the ground that it is cumulative and supports the testimony that the repossessors were Defendant's agents and were advised at the time of repossession of Debtor's prior bankruptcy filing.
[4]  Defendant's representative, David Howe, admitted on cross-examination that Defendant has a responsibility to communicate among its different departments and that it failed to do so in this instance. Indeed, it is undisputed that Debtor provided written notice of the bankruptcy filing to Defendant, and this case contrasts In re Belcher where the debtor failed to notify creditors of her bankruptcy filing until nearly a month after filing her petition. See 189 B.R. 16, 17 (Bankr.S.D.Fla.1995). Unlike the Belcher case, where the court described the creditor's repossession of collateral as a "self-inflicted wound" that the debtor likely could have avoided by providing her creditors with notice, Debtor contacted Defendant and informed it of his bankruptcy case.
[5]  The Court relied on statements from March 21, 2001 through July 18, 2001 and statements from September 5, 2001 through December 18, 2001. Debtor testified that he continued to work for Carroll Fulmer during July and August 2001 but that he inadvertently failed to include these statements in Debtor's Exhibit D. Accordingly, the Court determined Debtor's average net pay from the only evidence before it, the thirty-four statements that were admitted into evidence, and did not take into account the six weeks where no statement substantiates Debtor's earnings.
[6]  Although Defendant retained the Truck for nearly ten weeks, the Court will consider only eight weeks for determining Debtor's lost wages because Debtor found other employment for two weeks of the period.
[7]  The Court notes the difference between the amount of lost wages damages ($5,600.00) and the amount sought at the hearing ($14,000.00) and explains that one reason for this difference is because neither the Carroll Fulmer employment contract nor his current contract (or the terms of his regular employment) was introduced into evidence. Consequently, the Court is unable to compare the two contracts and determine Debtor's diminished future income attributable to the "lost" contract.
[8]  Debtor's counsel represented to the Court that he devoted thirty hours to this adversary proceeding and that his rate is $200.00 per hour; however, he seeks a minimum of $5,000.00 in fees.


683 F.2d 1374
*Evansv.Wainwright
81-5694
UNITED STATES COURT OF APPEALS Eleventh Circuit
8/6/82

1
M.D.Fla.

REVERSED

2
---------------

* Fed.R.App. P. 34(a); 11th Cir. R. 23.