112 B.R. 395 (1990)
In re FRONTIER AIRLINES, INC.; Frontier Leaseco One, Inc.; Frontier Leaseco Two, Inc.; and Frontier Holdings, Inc., Reorganized Debtors.
T.G. SHOWN ASSOCIATES, INC., Appellant,
v.
FRONTIER AIRLINES, INC.; Frontier Leaseco One, Inc.; Frontier Leaseco Two, Inc.; and Frontier Holdings, Inc., Appellees.
No. 89-K-421, Bankruptcy No. 86-B-8021 E.
United States District Court, D. Colorado.
March 28, 1990.
*396 Jay John Schnell, Denver, Colo., for Frontier Airlines, Inc.
Kathryn L. Schroeder, Denver, Colo., for T.G. Shown.
Michael E. Katch, Katch, Wasserman & Jobin, Denver, Colo., for Official Unsecured Creditors' Committee of Frontier Airlines.

MEMORANDUM OPINION AND ORDER
KANE, Senior District Judge.
This opinion covers an appeal arising from the Frontier Airlines bankruptcy which was consolidated with Civil Action No. 89-K-1782 for the purpose of oral argument. Since oral argument, the companion case of 89-K-1782 has settled and was dismissed by stipulation. In this case, 89-K-421, T.G. Shown & Associates, Inc. (Shown) argues that the court erred in awarding only $22,000 of the approximately $29 million it claimed against the Frontier estate. It contends that the court should have required Frontier to file a separate objection to its amended claim, that it misconstrued Shown's burden of proof, and that it misapplied Colorado contract law in denying all but a portion of the claim. I affirm.

I. Facts.

Frontier Airlines filed for bankruptcy in August, 1986. At this time, Shown was under contract with Frontier to market Frontier's air freight services. This contract (the Marketing Agreement), which took effect on July 1, 1985, provided for an automatic one-year extension of its terms if Shown met a minimum revenue forecast of $12 million in air freight sales from July 1, 1985, to July 1, 1986. It is undisputed that Shown never reached this goal.[1] Nevertheless, *397 Frontier continued to use Shown's marketing services after July 1, 1986 (and into August), paying Shown in advance for July.
On July 3, 1986, the parties executed a letter of intent (the Letter Agreement) concerning a transaction by which Frontier was to "farm out" to Shown its entire freight operations. At a meeting with Frontier on July 17, 1986, Shown presented a revision of the Letter Agreement to Larry Martin, Frontier's President. Martin did not execute it, however, because Frontier was about to be sold to United Airlines, and United performed its own freight marketing and operations. The parties continued to negotiate over the "farm out," but they never reached a final agreement on many of the details of the transaction. Martin testified at trial that his intent was simply to continue to use Shown on a month-to-month basis for marketing services pending the closing of Frontier's sale to United. The sale never occurred, however, and Frontier was forced to file for bankruptcy.
On November 24, 1986, Shown filed its Proof of Claim for $220,000 against the Frontier estate. Shown claimed the Marketing Agreement had been extended for a second year (July 1986 to July 1987) and that Frontier owed it $220,000 for services to be performed during that year. On October 1, 1987, Frontier filed its objection to this claim. Shown then obtained new counsel, and filed an Amended Proof of Claim on June 10, 1988. The amended claim was for over $29 million, alleged to be damages for Frontier's breach of the Letter Agreement. On June 16, 1988, Frontier filed a motion to strike the amended claim.
On July 14, 1988, the bankruptcy court denied Frontier's motion to strike, finding that Frontier did not give notice to Shown of the claim bar date. At the hearing on the motion, Shown's counsel questioned whether Frontier would be required to file a formal, written objection to the amended claim. The court responded that "for purposes of the record, the amended claim can be deemed objected to; the basic claim has been. Clearly, the fact that Frontier has filed a motion to strike indicates that the amended claim is objected to as well. So we will take the matter as being at issue." R.Vol. II at 4. Shown's counsel responded, "That's fine." Id. at 5.
Frontier then filed two pre-trial motions before the final hearing on Shown's claim. On October 4, 1988, it filed a motion for partial summary judgment. The motion was directed at Shown's argument that the Letter Agreement was a binding contract between the parties. Frontier alleged that, because the Letter Agreement expressly provided that the farm-out of its freight operations was "subject to successful negotiations between Frontier and the labor unions representing Frontier employees involved in cargo terminal operations" and these negotiations never occurred,[2] a condition precedent was not met and there never was a binding agreement between Frontier and Shown. The bankruptcy court declined to rule on the motion before trial; however, it severed the issue of damages and ordered trial to proceed solely on the issue of liability.
On October 28, 1988, Frontier then filed a motion for election of claim, seeking to have Shown choose whether its claim arose under the Marketing Agreement or the Letter Agreement. Frontier's position was that it was inconsistent that both of these agreements were in effect at the same time and that Shown could have a claim under both of them, especially since the Letter Agreement provided that if the farm-out occurred, the Marketing Agreement would cease. The bankruptcy court initially denied the motion on November 3, 1988, but noted on the opening day of trial that Shown's proofs of claim were inconsistent. It ruled that "the claimant [Shown] does *398 not have to make an irrevocable election before any evidence is put on concerning the contract under which claims are being asserted, but I think the burden lies on the claimant to go forward and establish which contracts, if any, it has a right to assert a claim under and, therefore, the burden is on Shown to go forward." Id. Vol. III at 5.
After approximately three days of trial, the bankruptcy court ruled in Frontier's favor. It held that the Letter Agreement was merely an "agreement to agree" and not a binding contract between the parties, and therefore it could not provide a basis for Shown's claimed $29 million in damages. The court further ruled that the Marketing Agreement had expired by its own terms on July 1, 1986, and that there had been no automatic extension of this contract because Shown had not met the requirement of generating $12 million in revenue during the previous year. Finally, it found that Shown was entitled to a claim for services provided during the month of August, 1986, because the marketing agreement had continued on a month-to-month basis and Shown had provided services during that time. On March 1, 1989, the court entered judgment for Shown for $22,000, after the parties were unable to reach an agreement on the amount due Shown for these services.[3] On March 10, Shown filed its notice of appeal.

II. Issues.

A. Frontier's Objection to Shown's Claim.
Shown's first argument is that Frontier should have been required to file a written objection to Shown's amended claim. Shown contends that Bankruptcy Rule 3007 requires that a specific, written objection be filed and that in the absence of such an objection, Shown's amended claim should have been deemed allowed. Shown also relies on Fed.R.Civ.P. 15, made applicable to bankruptcy adversary proceedings by Bankr.R. 7015. Shown argues that when it filed its amended claim, this rule of pleading required Frontier to file a new written objection. Shown asserts that this failure "required [Shown] to litigate this matter while blindfolded" and resulted in "trial by ambush." Shown Brief at 7, 8.
Frontier contests Shown's arguments by first noting that it is undisputed that Frontier filed an objection to Shown's original claim. Frontier further points out that Shown did not file a new claim, but an amendment to its original claim and arguably its objection to the original claim was sufficient to put Shown on notice that any claim arising out of the same facts would be disputed. Next, Frontier argues Shown waived any argument on this score because its counsel indicated her agreement to the court's taking the matter at issue without an amended objection. Frontier also disputes that Shown had no notice of Frontier's specific objections to the amended claim when discovery in this matter was extensive and Frontier's trial brief clearly indicated its position. Finally, Frontier argues that Fed.R.Civ.P. 15 does not apply to this action because it was not an adversary proceeding under Section VII of the Bankruptcy Rules.
I think Frontier's arguments are persuasive. I have found no case that addresses whether a party in interest must file a new objection when a creditor files an amended proof of claim, and the parties cite none. Without question, there have been cases in which the trustee has filed an amended objection, see, e.g., Lawler v. Guild, Hagen & Clark, Ltd. (In re Lawler), 106 B.R. 943 (N.D.Tex.1989); In re McLean Enters., Inc., 105 B.R. 928 (Bankr. W.D.Mo.1989), and this certainly would have been the most prudent course. However, there is nothing in the Code or Rules which requires that an amended objection be filed.
Shown's reliance on Fed.R.Civ.P. 15(a) and Bankr.R. 7005 as requiring an amended objection is misplaced. Rule 15 is *399 made applicable only to bankruptcy adversary proceedings. This was not an adversary proceeding as defined in Bankr.R. 3007 and 7001; it was a "contested matter" as provided in Bankr.R. 9014. As such, Bankr.R. 7015 does not apply unless the bankruptcy court specifically directs that it apply. Bankr.R. 7015; see also In re Calisoff, 94 B.R. 1002, 1004 n. 2 (Bankr.N.D.Ill. 1988) (noting that Fed.R.Civ.P. 15 does not apply to contested matters under Bankr.R. 9014). Moreover, the structure of the Bankruptcy Rules indicates that the full spectrum of procedural rules were not intended to apply to non-adversary, contested matters.
In this case, it is undisputed that the bankruptcy court did not order that Bankr.R. 7015 (and thus, Fed.R.Civ.P. 15) would apply to this matter. In fact, when specifically confronted with this issue by Shown's counsel, the court declined to require Frontier to amend its objection. Since there is no requirement in the Code or Rules that such an amendment be made, the bankruptcy court did not err as a matter of law by not requiring such an amendment, nor in denying that Shown's claim should have been "deemed allowed" because no valid objection was lodged. See 11 U.S.C. § 502(a) ("[a] claim or interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest . . . objects"). Likewise, Shown's argument that it was blindsided by the lack of information on the substance of Frontier's objection to its amended claim is patently ridiculous. It was obvious from the beginning that Frontier was contesting any claim by Shown relating to its freight marketing services. Certainly if Frontier objected to Shown's $220,000 claim, Shown could have anticipated an objection to a $29 million claim. It was also obvious that Frontier would focus on whether the Letter Agreement was ever made effective.[4] Therefore, I conclude that there was no error by virtue of Frontier's failure to file an amended objection to Shown's amended claim.
B. Burden of Proof.
Shown's next argument is that the court erroneously put the burden of proof on it to come forward with evidence of the validity of its claim. Shown focuses on the court's statement at the commencement of trial, after its consideration of Frontier's pretrial motions, that "the burden lies on [Shown] to go forward and establish which contracts, if any, it has a right to assert a claim under and, therefore, the burden is on Shown to go forward." Again, I disagree with Shown's analysis of this issue.
The Bankruptcy Code and Rules do not specify which party bears the burden of proof in a hearing on an objection to a claim; however, the issue has been considered by several courts. In California State Board of Equalization v. Official Unsecured Creditors' Committee (In re Fidelity Holding Co.), 837 F.2d 696, 698 (5th Cir.1988), the court outlined the shifting burdens of production and persuasion in these circumstances.
Under Bankruptcy Rule 301(b) [now Bankr.R. 3001(f)], a party correctly filing a proof of claim is deemed to have established a prima facie case against the debtor's assets. The objecting party must then produce evidence rebutting the claimant or else the claimant will prevail. If, however, evidence rebutting the claim is brought forth, then the claimant must produce additional evidence to "prove the validity of the claim by a preponderance of the evidence." The ultimate burden of proof always rests on upon the claimant.
Id. (citations omitted); see also In re Colonial Bakery, 108 B.R. 13 (Bankr.R.I.1989) (cataloguing cases following this approach).
While a literal reading of the judge's comment that Shown had the burden of coming forward would suggest error, taking *400 the comment in context, it is clear that he correctly applied the parties' burdens in this case. Shown's claim was presumed valid until Frontier filed its pretrial motion to strike, motion for partial summary judgment, and motion for election of claims. In each of these motions, Frontier brought forth evidence bringing into question the validity of the contracts upon which Shown relied for its claim. Thus, taking the court's comment in context, it indicated the view that the burden shifted to Shown at trial to prove the validity of the contracts which Frontier had drawn into question by its various pretrial motions.
Even interpreting the court's comment as misconstruing Shown's burden of proof in this case, as a practical matter, no error occurred. At the beginning of trial, Frontier requested its two witnesses be permitted to testify first because they had traveled from out of state. Shown agreed, and the court permitted Frontier to question these witnesses first. Consequently, Shown was not forced to go forward initially with its evidence and was not prejudiced in any way by the court's earlier comment. I conclude that the bankruptcy court's comment on Shown's burden of proof was harmless.
C. Colorado Contract Law.
Shown's final argument regarding the determination of its claim is that the bankruptcy court misconstrued Colorado contract law in holding that the Marketing Agreement had been extended only on a month-to-month basis, that Frontier had terminated the Marketing Agreement in August, 1986, and that the Letter Agreement was merely an "agreement to agree." Although Shown has characterized the court's error as one of law, Shown's arguments relate to the bankruptcy court's findings of fact. Therefore such findings are reversible only if clearly erroneous. Bartmann v. Maverick Tube Corp., 853 F.2d 1540, 1543 (10th Cir.1988).
First, Shown states that the bankruptcy court found that the Marketing Agreement was modified to a month-to-month arrangement by a letter sent by Frontier's president to Shown. Shown then argues that the court erred in concluding that "a unilateral offer to modify the [Marketing] Agreement met with the criteria for an effective modification under Colorado law." Shown Brief at 15. Frontier points out that this assertion misinterprets the bankruptcy court's findings and the record below. According to Frontier, the bankruptcy court did not find that the letter constituted a modification to the agreement, but that the parties conduct after the expiration of the Marketing Agreement manifested an intent to continue the arrangement on a month-to-month basis. There is more than adequate evidence to support the bankruptcy court's findings relating to the Marketing Agreement under the clearly erroneous standard.
The same conclusion applies to Shown's argument that there was overwhelming evidence that the Letter Agreement was an effective contract and not a mere agreement to agree. Again, Shown's citation to the record is weak; conversely, Frontier cites strong evidence that a meeting of the minds on the farm-out never occurred. For example, the agreement itself was titled "Letter of Intent to Enter into a Contract," and Frontier's president testified (as confirmed by other correspondence introduced at trial) that the agreement was only intended to enable Shown to talk with banks about financing the potential farm-out. The Letter Agreement stated that it covered "areas that we believe should be addressed in the agreement," indicating that a formal agreement was forthcoming. Many specifics of the transaction were not addressed in the Letter Agreement, including the crucial issue of insurance coverage. Finally, no negotiations had ever been commenced with the ALEA to obtain its approval of the farm-out, a prerequisite to the agreement. Consequently, there is more than adequate evidence to support the bankruptcy court's finding that the Letter Agreement was not a binding contract.
The bankruptcy court's ruling is AFFIRMED.
NOTES
[1]  Shown argued at trial that the $12 million figure had been revised downward during the term of the Marketing Agreement. Shown's evidence, however, was insufficient to establish that Frontier ever agreed to any reduction in the revenue forecast, and the bankruptcy court found that the $12 million figure was never achieved.
[2]  Frontier's labor agreement with the Air Lines Employees Association (ALEA) provided that the ALEA had the right to approve or reject any proposed farm-out of Frontier's air freight operation.
[3]  After trial on Shown's claim, Frontier filed a Combined Statement Concerning Damages and Motion to Tax Costs and Award Attorneys' Fees. The court granted the motion for sanctions on July 13, 1989. It imposed sanctions on Shown and its counsel for the amount of Frontier's costs and fees incurred in responding to Shown's amended claim of $28 million, which the court found to be specious.
[4]  Frontier notes that, in its motion to strike Shown's amended claim, it argued not only that the amendment was untimely, but that the Letter Agreement was not binding. Thus, early in the proceedings, Shown had knowledge of the essence of Frontier's objection. See In re Keyworth, 47 B.R. 966, 971 (D.Colo.1985) (court construed objections to claim contained in debtor's memorandum brief as sufficient written notice of objection under Bankr.R. 3007).


780 F.2d 1248
Jesse BONVILLAIN, Petitioner-Appellant,v.Frank BLACKBURN, Warden, Louisiana State Penitentiary andWilliam J. Guste, Jr., Attorney General, State ofLouisiana, Respondents-Appellees.
No. 85-3352

Summary Calendar.
United States Court of Appeals,Fifth Circuit.
Jan. 22, 1986.
John M.T. Mulvehill, Virginia Laughlin Schlueter, Asst. Fed. Public Defenders, New Orleans, La., for petitioner-appellant.
John M. Mamoulides, Dist. Atty., Research & Appeals, William C. Credo, III, Dorothy A. Pendergast, Elizabeth Gaudin, Asst. Dist. Attys., Gretna, La., for respondents-appellees.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before POLITZ, GARWOOD, and JOLLY, Circuit Judges.
GARWOOD, Circuit Judge:

1
Jesse Bonvillain appeals the denial of his habeas corpus petition under 28 U.S.C. Sec. 2254, challenging his Louisiana conviction and sentence for forcible rape.  Petitioner, who had been charged with the more serious offense of aggravated rape, pleaded guilty to forcible rape pursuant to a plea bargain, and was sentenced to seventeen years' confinement.  At that time he was on parole after serving five years of an earlier Louisiana rape conviction for which he had received a twenty-year sentence that had been commuted to fifteen years.

2
Petitioner's principal claim is that the plea bargain was for a "total" sentence of twenty years, including the remaining portion of his sentence on the earlier rape, which was to be three years, and that instead the remaining sentence on the earlier offense was indisputably ten years which, when added to the seventeen years on the instant offense, results in a "total" sentence of twenty-seven years, seven more than he bargained for.  He also claimed ineffective assistance on the part of his retained counsel in incorrectly advising him that his remaining sentence on the earlier offense would only be three years.  The United States Magistrate conducted an extensive evidentiary hearing at which petitioner was represented by capable counsel.  The magistrate recommended denial of the petition, finding, inter alia, that petitioner's guilty plea was knowing and voluntary, that he did not establish the plea agreement he claimed, and that he was not prejudiced by his counsel's performance.  After a de novo review of the record, the district judge adopted the magistrate's findings and recommendations and dismissed the writ.  We affirm.

Facts

3
Jesse Bonvillain pleaded guilty to simple rape in the Terrebonne Parish Judicial District Court on January 8, 1977.  He was sentenced to twenty years' imprisonment, which was later commuted to fifteen years.  Petitioner served five years of this sentence and was then paroled.  While on parole, petitioner was indicted for aggravated rape in Jefferson Parish on January 9, 1981.  On November 18, 1981, as the result of a plea bargain, petitioner pleaded guilty to a reduced charge of forcible rape in the Jefferson Parish Judicial District Court.

4
Before accepting the guilty plea, the judge advised petitioner that he had a right to trial by jury, a right to appeal the jury verdict, a right to cross-examine and confront the State's witnesses, and a right not to testify and that by pleading guilty, the petitioner was waiving these rights.  Petitioner indicated that he understood he was waiving those rights.  The judge also explained to the petitioner that by his plea of guilty "you admit that ... you committed forcible rape in accordance with Article 42.1 of the Criminal Code" and that he would be sentenced to seventeen years.  After Bonvillain acknowledged that he understood this, the following colloquy took place:

5
"THE COURT:  You further understand that as a result of your plea in this case, any further actions in matter 61534 from the Parish of Terrebonne on January 8, 1976 is not to be considered?    Do you understand that?"THE DEFENDANT:  No.

6
"THE COURT:  The parole that you were on as a result of that particular case at the time of the commission of this crime is not being considered in connection with this matter.  That's a separate matter altogether to be disposed of by the parole board and the authorities.  Do you understand that?

7
"THE DEFENDANT:  (Defendant nods his head)

8
"THE COURT:  I'm satisfied that he understands his rights and that he has intelligently waived same."

9
In accordance with the plea bargain, the judge then sentenced the petitioner to seventeen years at hard labor, the first five without benefit of parole, probation, or suspension of sentence.

10
Under a Louisiana statute in effect since 1968, if a person on parole is convicted of a felony, then the parole is automatically revoked and the person is under sentence for the portion of his original sentence which was unserved as of the date of his release on parole.  La.Rev.Stat.Ann. Secs. 15:574.9 and 15:574.10 (West 1981).  The sentences are to run consecutively unless the sentencing judge expressly directs otherwise.  La.Rev.Stat.Ann. Sec. 15:574.10.  The petitioner's parole was revoked, so that his remaining sentence on the original offense was ten years.  Petitioner claimed he had understood from his attorney that he had bargained for a twenty-year total sentence, seventeen for the forcible rape conviction and three for the remaining time on the prior rape conviction.  Petitioner asserted that he did not understand that he would effectively have a total of twenty-seven years until he was being processed in the state prison system.

Discussion

11
Lack of Knowledge of all the Elements of the Crime

12
Petitioner alleged in his petition, though it is doubtful he has raised this issue on appeal, that his plea was not voluntary because he was not aware of all of the elements of the crime.  The United States Supreme Court has stated that a guilty plea cannot be voluntary unless the defendant has "real notice of the true nature of the charge against him," Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 2257, 49 L.Ed.2d 108 (1976), quoting Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572, 574, 85 L.Ed. 859 (1941).  The Supreme Court indicated in Henderson that if the record showed that the defense counsel had explained the nature of the offense to the accused, then failure of the trial judge to describe the elements of the offense would not make the plea involuntary.   Henderson, supra, 96 S.Ct. at 2258.  The Court stated that "This case [Henderson ] is unique because the trial judge found as a fact that the element of intent was not explained to respondent."1   Id. at 2258-59.  Although the Court did not reach the point, Justice Stevens noted that the Court assumed that notice of the true nature of an offense did not always require a description of every element of the offense.   Id. at 2258 n. 18.  In Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir.1985), we stated that a guilty plea would be upheld as voluntary even if the trial judge failed to explain the offense if the record showed that the defendant understood the charge and its consequences.  While the guilty plea hearing transcript shows that petitioner was not expressly informed of the elements of forcible rape in open court at the guilty plea hearing, petitioner's attorney stated on the guilty plea form that he had "informed the defendant of his or her rights, particularly the nature of the crime to which he or she is pleading guilty."    The guilty plea form is prima facie evidence that petitioner was informed of the elements of forcible rape.  There is no evidence to the contrary.

13
The petitioner had an opportunity at his evidentiary hearing to offer evidence that he was not informed of all the elements of the crime;  however, petitioner failed to offer any proof.  Nor did petitioner claim he would have disputed any element.  In a habeas proceeding, the petitioner has the burden of proving that he is entitled to relief.   Walker v. Maggio, 738 F.2d 714, 716-17 (5th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 793, 83 L.Ed.2d 786 (1985);  Hayes v. Maggio, 699 F.2d 198, 200 (5th Cir.1983).  In this case, petitioner has not met his burden of proof.

Broken Plea Agreement

14
Petitioner's principal claim is that the agreement between the State and the petitioner was that he would be sentenced, in total, to twenty years and instead he received sentences totalling twenty-seven years, seventeen on the forcible rape conviction and ten as the balance of the sentence on the simple rape for which he had been paroled.  An unkept plea bargain is a basis for the grant of habeas relief if the petitioner can prove the existence of the allegedly broken plea.   Hayes v. Maggio, 699 F.2d 198, 203 (5th Cir.1983);  Jones v. Estelle, 584 F.2d 687, 689 (5th Cir.1978).  To prove the existence of the plea bargain, the petitioner must prove:  "1) exactly what the terms of the alleged promises were;  2) exactly when, where, and by whom such a promise was made;  and 3) the precise identity of an eyewitness to the promise."   Hayes, supra, at 203, citing Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 1630, 52 L.Ed.2d 136 (1977).

15
The magistrate found that Bonvillain failed to establish the terms of the alleged promise, when and by whom the promise was made, and the identity of an eyewitness to the promise.  The district court adopted the findings of the magistrate.  These findings of fact are not to be set aside unless they are clearly erroneous.   Hayes, supra, at 200.  In the case at bar, the record adequately supports the magistrate's findings.

16
Bonvillain argues that the testimony of his counsel who negotiated the plea bargain, Ralph Barnett, and his mother, Velma Bonvillain, established an agreed total sentence of twenty years.  However, neither Barnett nor Mrs. Bonvillain testified about the specific terms of the plea agreement.  Barnett merely believed the sentence would add up to a total of twenty years, with three years of that time being imposed for Bonvillain's parole revocation.  Barnett testified that the sentencing judge and the district attorney, who allegedly entered into the agreement, also understood the sentence would be twenty years.  The twenty years, according to Barnett, would be composed of seventeen years for the present offense and three years remaining on the prior offense.  But Barnett never claimed that the prosecutor or judge led him or Bonvillain to believe, or guaranteed to either of them, that the prior offense would have only three more years of sentence.  Rather, Barnett claims that this was what an unidentified parole officer told him at a bench conference with the judge and the district attorney.  Barnett's claim was contradicted by both the judge and the district attorney.  Judge Newlin, the sentencing judge, testified that he never took part in plea bargaining negotiations.  The former assistant district attorney stated that he would never make an agreement as to what would be received for revocation of parole because he had no authority to do so.2   No parole officer testified at the hearing.  Mrs. Bonvillain said she overheard from her seat in the courtroom the mention of "twenty years," but she was unable to identify the person who made the statement.

17
Bonvillain testified that Barnett led him to believe he would only be "sentenced" to three years for his parole revocation.  Barnett testified that he understood Bonvillain would "serve" an additional three years. This showing is not sufficient to establish that a plea bargain existed.  A defendant's "understanding" that he would serve less than his full sentence is not a promise or a plea bargain, and thus is not a basis for a claim that the State has breached its plea bargain.   Self v. Blackburn, 751 F.2d 789, 792-93 (5th Cir.1985).  In Self, we held that defense attorney's and prosecutor's statements to defendant indicating that defendant would probably be placed on parole in ten years and six months was not a guarantee by the state such that defendant's ineligibility for parole made the defendant's plea involuntary.   Id. at 793.  We cannot say that the finding that petitioner failed to establish the existence of the plea bargain he asserted is clearly erroneous.

18
It is apparently undisputed that under the Louisiana statute governing the "good time" allowances applicable to the remainder of Bonvillain's sentence for his first rape offense, Bonvillain will likely actually serve no more than three years, after the revocation of his parole, on that sentence.  The evidence shows that the district attorney was holding out for a minimum twenty-year sentence for the present offense.  Bonvillain testified that he understood his parole would be automatically revoked and that he had ten more years remaining on that sentence.  He testified that he told Barnett "I thought I could get ten years" on the revocation, and that Barnett told him "he thought he can get me ten" on the present offense in addition to what he had remaining on his initial sentence.  The district attorney apparently refused to accept the idea that the twenty-year sentence he was insisting on could be satisfied by ten years on the old sentence and ten years for the new offense.  The district attorney testified that Barnett later convinced him that Bonvillain would actually serve at least three more years on his original sentence, so the district attorney was then willing to agree to seventeen years for the present offense rather than twenty.  This testimony is not inherently unworthy of belief.

19
There is other evidence in the record to show that the Petitioner knew that the seventeen-year sentence was for the forcible rape conviction, and that the parole revocation was a separate, unrelated matter.  At the time that Bonvillain tendered his guilty plea, he executed a form styled "DEFENDANT'S ACKNOWLEDGEMENT OF CONSTITUTIONAL RIGHTS AND WAIVER OF RIGHTS ON ENTRY OF A PLEA OF GUILTY" in which his sentence was written by his attorney in longhand:  "17 years Dept. of Correction [sic] 1st 5 years w/o benefit of Parole or Suspension of Sentence."    Both Barnett and Bonvillain signed the form.  This acknowledgment, an official state record, is accorded great weight.   Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 117, 88 L.Ed.2d 95 (1985).

20
During the plea colloquy, the judge informed Bonvillain that "[t]he parole that you were on as a result of that particular case at the time of the commission of this crime is not being considered in connection with this matter.  That's a separate matter altogether to be disposed of by the parole board and the authorities."    In his habeas testimony, Bonvillain admitted that he understood this.  The colloquy further indicates that the alleged plea bargain of a twenty-year sentence for both the parole revocation and the forcible rape guilty plea is incorrect.

Ineffective Assistance of Counsel

21
Petitioner claims ineffective assistance of his retained counsel, Barnett, an experienced criminal lawyer.  This claim is solely based on Barnett's assertedly having misadvised him that the amount of time remaining on his original sentence would be three years, while actually there would be ten years, although petitioner would likely have to serve only three of these.

22
When a defendant is represented by counsel in the plea process and pleads guilty on the advice of his counsel, the voluntariness of the plea depends on whether "counsel's advice 'was within the range of competence demanded of attorneys in criminal cases.' "    Hill v. Lockhart, --- U.S. ----, ----, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985), quoting McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970).  In Hill, the Court stated that the standard for determining the effectiveness of counsel in a guilty plea proceeding is the two-prong test set forth by the Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).    Hill, supra, --- U.S. at ----, 106 S.Ct. at 369.  The defendant must show that counsel's representation fell below an objective standard of reasonableness, and that "there is a reasonable probability that but for counsel's unprofessional error the result of the proceeding would be different."    Hill, supra, at ----, 106 S.Ct. at 369, quoting Strickland, supra, 104 S.Ct. at 2068.

23
Even if we assume that Barnett misrepresented the contents of the plea bargain, it could reasonably be found that the sentencing judge's instruction that the seventeen-year sentence would be imposed only for the forcible rape charge and that Bonvillain's parole revocation was a separate matter for the correctional authorities cured the misrepresentation and made the error harmless.   Cf. Martin v. Blackburn, 606 F.2d 92, 94 (5th Cir.1979) (defense counsel's erroneous advice to defendant concerning consequences of guilty plea was cured by sentencing judge's warnings to defendant), cert. denied, 446 U.S. 911, 100 S.Ct. 1841, 64 L.Ed.2d 265 (1980).

24
To meet the prejudice prong of the Strickland test the defendant may not simply allege but must "affirmatively prove" prejudice.   Celestine v. Blackburn, 750 F.2d 353, 356 (5th Cir.1984) (citing Strickland, 104 S.Ct. at 2067), cert. denied, --- U.S. ----, 105 S.Ct. 3490, 87 L.Ed.2d 624 (1985).  The "defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."    Hill, supra, --- U.S. at ----, 106 S.Ct. at 370;  see United States v. Gavilan, 761 F.2d 226, 286 (5th Cir.1985).

25
In Hill, supra, the Supreme Court set out the methodology for determining if counsel's error prejudiced the defendant.  The error prejudiced the defendant if it is likely that but for the error counsel would have recommended that the defendant go to trial.  Such a recommendation would depend on the likelihood the evidence would have changed the outcome of the trial.  Applying this methodology to the case at bar, it is unlikely that a correct understanding of the effects of parole revocation would have resulted in a decision to go to trial rather than accept the plea bargain.

26
Petitioner was originally indicted for aggravated rape, which carries a mandatory sentence of life imprisonment without parole, probation, or suspension of sentence.  La.Rev.Stat.Ann. Sec. 14:42 (West Supp.1985).  The district attorney testified that the State had a strong case against the petitioner but he was willing to reduce the charge to forcible rape because the victim was thirteen years old and he did not want to put her through the trauma of testifying.  Bonvillain admitted to having sexual intercourse with the victim in a signed confession, though he indicated, through a patently contrived and unconvincing story, that she in effect solicited the intercourse.  Bonvillain presented no evidence even suggesting that the confession would have been inadmissible or any other factors which might have weakened the State's case.  When this offense was committed, Bonvillain had only recently been released on parole from a prior rape conviction.  Based on this record, it seems unlikely that counsel would have advised petitioner to go to trial on a charge that carried a mandatory life sentence when he had the opportunity to reduce it to a charge with a possible penalty of five to forty years, even though the term would not include the revoked parole sentence.

27
Significantly, neither Bonvillain nor Barnett, nor any other witness, testified that Bonvillain would not have pleaded guilty, or that Barnett would not have advised him to plead guilty, if they had understood that there would be ten years remaining on the original rape sentence as well as the seventeen years imposed for the present rape.  Thus even if the magistrate was required to credit Bonvillain's testimony that he understood from Barnett that his remaining sentence (as opposed to remaining time to be served) on his original offense would only be three years--a matter we do not reach--it is not established that but for such misadvice Bonvillain either would not have pleaded guilty or would not have received a sentence of at least seventeen years on the present offense.  The magistrate's finding that petitioner did not establish prejudice from the performance of his counsel is thus not clearly erroneous.  Accordingly, under Hill petitioner is not entitled to relief on this basis.

Conclusion

28
The magistrate's findings are not clearly erroneous.  Petitioner has not conclusively established that there was a plea bargain with terms as he asserts, that he was prejudiced by the performance of his counsel, or any other basis for relief.  Accordingly, the judgment below is

29
AFFIRMED.

1
 The defendant in Henderson was also different from Bonvillain in that the defendant in Henderson was mentally retarded, and there was an argument by defense counsel that although the defendant admitted stabbing the victim, he did not have the required intent for second degree murder

2
 Revocation of parole is automatic after the conviction of a felony and the revocation is for the unserved term, subject to the Parole Board's consideration for commutation and diminution due to good time.  La.Rev.Stat.Ann. Sec. 15:574.9 and 574.10 (West 1981)


666 F.Supp. 209 (1987)
Gloria P. BLOCKER, Plaintiff,
v.
AT & T TECHNOLOGY SYSTEMS and AT & T Information Systems, Defendants.
No. 86-486-CIV-ORL-18.
United States District Court, M.D. Florida, Orlando Division.
July 16, 1987.
*210 Harry L. Lamb, Jr., Orlando, Fla., for plaintiff.
Anne C. Conway, Orlando, Fla., Peter W. Zinober, Tampa, Fla., Laurel J. McKee, Berkeley Heights, N.J., for defendants.

ORDER
GEORGE KENDALL SHARP, District Judge.
This case is before the court upon the motion for summary judgment by defendants AT & T Technology Systems (AT & T Tech) and AT & T Information Systems (AT & T Info) (Doc. 10). In this action, plaintiff seeks redress under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII), and the Equal Pay Act, 29 U.S.C. § 206(d), for defendants' alleged sexual discrimination with respect to wages and salaries and promotion policies and practices. Defendants have filed plaintiff's deposition and affidavits by Charles Bendl, John M. Smith, James Curtin, and Richard Rhodes in support of their motion. Plaintiff has not responded to the motion.

STATEMENT OF FACTS
Plaintiff, a black female with a Bachelor of Science degree in business administration with a major in accounting from the University of Florida, became a Certified Public Accountant (C.P.A.) in 1979. After approximately two years as a staff auditor with Price Waterhouse in Atlanta, plaintiff transferred to the firm's Orlando office at her request and remained with Price Waterhouse until November, 1979. Thereafter, she was employed as a private accountant for an Orlando area savings and loan association for over three years, where her salary at the time of her departure was between $23,000 and $24,000.
Because she felt that her salary was not commensurate with her experience and abilities and because her position lacked room for professional growth, plaintiff began looking for a position elsewhere. In the late spring of 1983, she interviewed with AT & T Info. Although plaintiff indicated that she was interested in a senior auditor position, she was told by Charles Bendl, the Orlando Audit Manager, and William Kiamie, that no senior auditor positions were available in Orlando, and that her lack of experience and familiarity with the Bell System or AT & T also precluded her placement as a senior auditor. They told her that the other four auditors in the Orlando area were classified as senior auditors, but that they had a great number of years of experience with the Bell System. However, Bendl and Kiamie told her that the recently-opened Orlando office was growing and that openings for senior auditors should soon be available. Plaintiff was offered employment by AT & T Info as a junior or Level I Auditor, with a beginning salary between $28,000 and $29,000. The senior auditor position offered her by United Telephone paid less, and plaintiff accepted the junior auditor position with AT & T Info and started work on September 6, 1983.
*211 Charles Bendl, the Audit Manager for AT & T Info in Orlando, was responsible for supervising all of the Orlando internal auditing organization employees, including plaintiff, from April, 1983, through February, 1985. At her interview, he advised plaintiff in detail of the difference between the Level I and Level II Auditor positions. The Level I Auditor position is an entry-level position with work which normally is limited to simple audits. In addition, Level I Auditors sometimes assist Level II Auditors on their audits. Level II Auditors are responsible for more complex audits on a wider range of company operations.
When plaintiff began work at AT & T Info, the Orlando internal audit organization consisted of Charles Bendl, the Audit Manager, and Level II Auditors Jerry Armour, Cy Mescher, Clark Lytle and Eric Graham. As plaintiff admitted in her deposition, these other auditors had considerable experience in the AT & T or Bell System. According to James Curtin, AT & T Wage Practices Specialist in Orlando, Armour had been employed by AT & T affiliated companies since March 7, 1955, Mescher since October 23, 1946, Lytle since June 16, 1952, and Graham since February 20, 1961. Plaintiff was interviewed and hired during implementation of the divestiture of the Bell System, and AT & T Info was in an organizational phase with employees transferring in from various geographic and organizational components of the Bell System. AT & T's policy was to place qualified employees whose jobs were eliminated in other jobs at the same salary rather than to downgrade or demote them. When Mescher retired and Lytle was placed on medical disability in late 1983, Blaine Zimmerman and George Kerwer transferred in from other system facilities and were classified as Level II Auditors. Zimmerman had been employed by AT & T affiliated companies since January 20, 1956, and Kerwer since February 14, 1955.
Plaintiff was on medical disability leave for her pregnancy between January 28, 1984, and April 15, 1984. In the April, 1984, annual pay review, plaintiff received an annual salary increase of approximately $2,000 and an additional merit bonus. Bendl stated that, during his tenure, which ended with his retirement in early 1985, he was very pleased with plaintiff's job performance and that he recommended on several occasions that she be promoted to a Level II auditor. Bendl indicated that the only reason plaintiff was not promoted during his tenure was that there was a promotion and hiring freeze in effect, which adversely affected both qualified male and female Level I Auditors in other locations. Also in April, 1984, the Orlando internal audit group was transferred to AT & T Tech.
Two June, 1984, Level II Auditor openings in Orlando were filled by the lateral transfer of Donald Cullerton and Kenneth Bradshaw. Cullerton had been employed by AT & T affiliates since July 16, 1962, and had extensive experience as an internal auditor for AT & T. Bradshaw, a C.P.A. with prior non-AT & T auditing experience, was hired March 12, 1984, as a Data Systems Manager at an annual salary of $36,200. After his management position was eliminated, Bradshaw, pursuant to AT & T's policy of not demoting employees, was allowed to laterally transfer to the Level II Auditor position. He retained his $36,200 salary in accordance with the AT & T general policy of paying lateral transfer employees the same salary they had in their former position.
At some point in late 1984 or early 1985, Kerwer retired and Zimmerman left the Orlando internal auditing organization. Before Bendl's February, 1985, retirement, Peter Arcomone also was transferred into the Orlando internal auditing group as a senior or Level II Auditor. Arcomone had been employed by AT & T affiliates since June 1, 1970, and had extensive auditing experience. After Bendl's retirement, supervision of the Orlando internal audit group was handled by John M. Smith, District Manager of Internal Auditing for AT & T. According to Blocker and Smith, while she was under his supervision plaintiff received a $2,500 annual raise and a $2,500 merit bonus. Smith supported plaintiff's desire to be promoted, and to his knowledge the only reason she was not *212 promoted to a Level II Auditor while he supervised the group was the promotion freeze which was in effect. Plaintiff admitted she was told that there was a promotion freeze in effect at least part of the pertinent period. Plaintiff eventually was promoted to a Level II Auditor in April, 1986.
With the exception of Bradshaw, the salaries of the male Level II Auditors reflected the extent of their seniority or longevity of service with AT & T and its affiliates. Plaintiff's deposition supports this conclusion, since from a review of the deposition it is clear that defendants conducted a systematic, annual pay review and increase each April. Both Bendl and Smith stated that they had no knowledge of any facts indicating that plaintiff was paid less for the same work because of her sex.
Bendl indicated that after June, 1984, plaintiff complained that she was doing the same work as Bradshaw for less money, but did not complain about her salary in relation to any other male employee. Plaintiff's complaints eventually led to an EEOC discrimination charge filed April 5, 1985. By notice dated February 19, 1986, plaintiff was notified of her right to sue. The return receipt attached to the affidavit of Richard Rhodes, EEO Specialist in the Tampa Area Office of the EEOC, reflects that the notice of right to sue was delivered to Gloria Blocker on February 22, 1986, and the return receipt also is postmarked February 22, 1986. Plaintiff filed this suit under Title VII and the Equal Pay Act on May 27, 1986.

CONCLUSIONS OF LAW
This court has jurisdiction over plaintiff's Title VII and Equal Pay Act claims pursuant to 42 U.S.C. § 2000e-5 and 29 U.S.C. § 206(d). In evaluating this motion, the court has been guided by Federal Rule of Civil Procedure 56(c), which provides that summary judgment may be granted only where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material facts and that the moving party is entitled to a judgment as a matter of law." "By its very terms, [Rule 56(c)] provides that the mere existence of some alleged factual dispute between parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis in original); see Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Summary judgment analysis centers on the definitions of the adjectives "genuine" and "material." A "genuine" issue of fact is shown where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.; see also Williams v. Georgia Department of Human Resources, 789 F.2d 881, 883 (11th Cir.1986) (per curiam) (acknowledging the "genuine issue for trial" consideration). Once a moving party has made and supported a motion as required under Rule 56(c), "[t]he non-moving party must come forward with specific facts showing that there is a genuine issue for trial." Commuter Transportation Systems, Inc. v. Hillsborough County Aviation Authority, 801 F.2d 1286, 1291 (11th Cir.1986) (citing Matsushita). "Material" refers to "the substantive law's identification of which facts are critical and which facts are irrelevant that governs" or "a criterion for categorizing factual disputes in their relation to the legal elements of the claim...." Anderson, 106 S.Ct. at 2510.
Comparable to directed verdict analysis, a summary judgment motion "necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits." Id. at 2512. The trial judge's inquiry is "whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict. ... Whether a jury could reasonably find for either party, however, cannot be defined except by the criteria governing what evidence would enable the jury to find *213 for either the plaintiff or the defendant. ..." Id. at 2512-13. Therefore, at the summary judgment stage, "the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case." Id. at 2514. On the facts presented in this case and the applicable law, the court concludes that there are no genuine issues of material fact.

A. Title VII

Under 42 U.S.C. § 2000e-5(f)(1), a private plaintiff must file her Title VII action within ninety (90) days after receiving a right-to-sue notice from the EEOC. Law v. Hercules, Inc., 713 F.2d 691 (11th Cir.1983). This ninety-day limit is strictly enforced in the Eleventh Circuit. Laws, 713 F.2d at 692 (ninety-one days); Norris v. Florida Department of Health and Rehabilitative Services, 730 F.2d 682 (11th Cir. 1984) (ninety-one days). The evidence shows that plaintiff received her right-to-sue notice on February 22, 1986, and did not file her complaint until May 27, 1986, ninety-four days later. Although the ninety-day filing period is not jurisdictional and may be tolled, Lewis v. Conners Steel Co., 673 F.2d 1240, 1241 n. 2 (11th Cir.1982), plaintiff has not attempted to allege facts justifying tolling of the time limit, nor does the court's independent review of evidence reveal facts which require tolling of the limitation period. Norris, 730 F.2d at 683. Accordingly, plaintiff's claims under Title VII are barred by the ninety-day time limit.

B. Equal Pay Act

Plaintiff alleges that while she was a Level I Auditor, she performed the same work as higher-paid male, Level II Auditors. In order to establish a prima facie case under the Equal Pay Act, plaintiff must show that she and the male Level II Auditors performed "equal work on jobs the performance of which requires equal skill, effort and responsibility ... under similar working conditions...." 29 U.S.C. § 206(d); Schwartz v. Florida Board of Regents, 807 F.2d 901 (11th Cir.1987). For purposes of the motion for summary judgment only, defendants admit that plaintiff has alleged facts sufficient to create a fact question concerning the "equal work" requirement, and the court notes that there is testimony in plaintiff's deposition sufficient to create a fact question on this issue. However, defendants seek summary judgment on the basis of two of the statutory exceptions to the Equal Pay Act.
Under this act, the equal pay for equal work requirement does not apply if the employer can prove that a difference in pay is justified by: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential based on any factor other than sex. 29 U.S.C. § 206(d)(1); Schwartz, 807 F.2d at 907; Brock v. Georgia Southwestern College, 765 F.2d 1026, 1036 (11th Cir.1985). Defendants must prove that the factor of sex provided no basis for the wage differential. Schwartz, 807 F.2d at 907.
With respect to the higher-paid, male Level II Auditors other than Bradshaw, the Supreme Court has recognized in dictum that the Equal Pay Act "contemplates that a male employee with 20 years' seniority can receive a higher wage than a woman with two years' seniority." Corning Glass Works v. Brennan, 417 U.S. 188, 204, 94 S.Ct. 2223, 2233, 41 L.Ed.2d 1 (1974). The evidence in this case may not be sufficiently detailed to establish the formal system which appears necessary to prove the "seniority system" defense to the Equal Pay Act. See Morgado v. Birmingham-Jefferson County Civil Defense, 706 F.2d 1184, 1189-90 (11th Cir.1983), cert. denied, 464 U.S. 1045, 104 S.Ct. 715, 79 L.Ed.2d 178 (1984); E.E.O.C. v. Aetna Insurance Co., 616 F.2d 719, 724-26 (4th Cir.1980). However, defendants also assert the seniority or longevity of service reason as an informal, de facto system under the "factor other than sex" defense. See, e.g., Kilpatrick v. E.H. Sweet, 262 F.Supp. 561 (M.D.Fla.1967); Brownlee v. Gay & Taylor, Inc., 642 F.Supp. 347, 361-62 (D.Kan.1986); Salazar v. Marathon Oil Co., 502 F.Supp. 631, 636 (S.D.Tex.1980); *214 Wheeler v. Armco Steel Corp., 471 F.Supp. 1050, 1053-54 (S.D.Tex.1979); see also Pierce v. Duke Power Co., 811 F.2d 1505 (4th Cir.1987) (text available on Westlaw) (applying Equal Pay Act defenses to Title VII equal pay claims); Branco v. Sargent & Lundy, Case No. 85 C 8845 (N.D.Ill. Jan. 29, 1987) (text available on Westlaw) (applying Equal Pay Act defenses to Title VII equal pay claims).
The record shows that male Level II Auditors other than Bradshaw had extensive service with AT & T affiliates, that this seniority was reflected in their pay, and that plaintiff was aware of the importance of this longevity of service. When plaintiff was hired, her co-worker Armour had over twenty-eight years service, Mescher had over thirty-seven years service, Lytle had about thirty-one years service, and Graham over twenty-two years experience with the company affiliates. With respect to employees other than Bradshaw who transferred into plaintiff's Orlando group, Zimmerman had over twenty-seven years experience within the system when he transferred into the department, Kerwer had over twenty-eight years service, Cullerton had about twenty-two years longevity, and Arcomone had about fifteen years service with the company affiliates. At the time Arcomone entered the department, plaintiff had less than one and one-half years of experience with the company. Obviously, she had been through many fewer annual pay increases, and her salary consequently was lower than the senior employees. Thus, the facts amply support defendants' position that the higher position and pay afforded these employees was based upon their seniority or longevity of service.
Bradshaw was hired after plaintiff and, of course, seniority does not justify his higher salary. However, he was transferred into the group during a hiring and promotion freeze after the management position for which he was hired was eliminated. His transfer was pursuant to a company policy of placing qualified employees whose position had been eliminated in other jobs at the same salary rather than to downgrade or demote them. The courts and the Department of Labor have recognized that Congress intended to include the practice of "red circling," or paying higher wages to a particular employee for various reasons, in the "factor other than sex" defense. See, e.g., Gosa v. Bryce Hospital, 780 F.2d 917, 918-19 (11th Cir.1986); 29 C.F.R. § 800.146. Defendants' policy of paying transferred, qualified employees whose position has been eliminated their previous salary is not based upon sex, and appears reasonable in order to enhance the desireability of employment with AT & T and to provide security for employees, especially during this period of massive reorganization within the AT & T affiliates. Bradshaw's higher pay rate was determined pursuant to this reasonable, sex-neutral business policy, and, therefore, fits within the "factor other than sex" exception to the Equal Pay Act.
Thus, defendants have established that plaintiff's Title VII claim is barred by the ninety-day time limit, and they have established that the higher rates paid to plaintiff's co-workers were justified by factors other than sex, thus proving the § 2096(1)(iv) Equal Pay Act defense. Plaintiff has failed to produce any evidence, much less any evidence which raises a genuine issue of material fact as required by Rule 56(e).
Accordingly, it is ORDERED that defendants' motion for summary judgment is GRANTED. The clerk shall enter judgment for the defendants.
It is SO ORDERED at Orlando, Florida, this 16th day of July, 1987.


            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                    Fifth Circuit

                                                                                FILED
                                                                              January 24, 2008

                                             No. 07-11190                   Charles R. Fulbruge III
                                                                                Clerk

In The Matter Of: RICKY KLEIBRINK

                                                          Debtor
-------------------------------------------------------------------------

ELLEN KLEIBRINK; MID STATE TRUST VII

                                                          Appellees
v.

RICKY KLEIBRINK

                                                          Appellant

                      Appeal from the United States District Court
                           for the Northern District of Texas
                                      (07-CV-88)

Before JOLLY, DENNIS, and PRADO, Circuit Judges..
PER CURIAM:*
        The bankruptcy court held that Mid-State Trust had a claim secured by
debtor Ricky Kleibrink’s real property. On appeal, the district court affirmed.
The judgment was entered on August 29, 2007. On September 5, the debtor,

        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                    No. 07-11190

who was represented by counsel, filed a “Motion for New Trial” in district court,
stating that the motion “has been filed within 10 days of entry of the Judgment
as required by Rule 59 FRCP.” Mid-State objected, arguing that Rule 59 did not
apply when the district court was acting as an appellate court in a bankruptcy
case. The district court denied the motion for new trial in an order entered on
October 17. On November 15, the debtor, still represented by counsel, filed a
notice of appeal from the judgment and the order denying the motion for new
trial.
         Federal Rule of Appellate Procedure 6(b)(2)(A) provides that, if a timely
motion for rehearing under Bankruptcy Rule 8015 is filed, the time for filing a
notice of appeal “runs from the entry of the order disposing of the motion.”
Federal Rule of Civil Procedure 59 “applies only to appeals from the bankruptcy
court to the district court, and not to appeals from the district court to the court
of appeals.” Matter of Butler, Inc. (Butler v. Merchants Bank & Trust Co.), 2
F.3d 154, 155 (5th Cir. 1993). “When the district court is acting as an appellate
court in a bankruptcy case, ‘Bankruptcy Rule 8015 provides the sole mechanism
for filing a motion for rehearing.’” Id. (quoting Matter of Eichelberger, 943 F.2d
536, 538 (5th Cir. 1991)).
         Mid-State has filed a motion to dismiss the appeal. Mid-State argues that,
because Bankruptcy Rule 8015 is the sole means of seeking rehearing when the
district court is acting as an appellate court in a bankruptcy case, the debtor’s
motion for a new trial under Rule 59 did not toll the time for filing a notice of
appeal; therefore, the debtor’s notice of appeal, filed after the district court
denied the motion for new trial, is untimely. Mid-State argues that this court
should not treat the debtor’s motion for a new trial as a motion for rehearing
under Rule 8015 because the motion requested that the district court reopen the
case to take additional evidence, which is an invalid basis for relief under Rule
8015.

                                          2
                                  No. 07-11190

      In Butler, both parties assumed that Butler’s pro se “Motion to Set Aside
Judgment and for New Trial Because of Newly Discovered Evidence,” filed in the
district court, was governed by Federal Rule of Civil Procedure 59. 2 F.3d at
155. This court stated that, “despite its title, Butler’s motion for rehearing is
governed by Bankruptcy Rule 8015....” Id. Thus the court treated a motion
seeking relief under Rule 59 as one governed by Bankruptcy Rule 8015. See also
English-Speaking Union v. Johnson, 353 F.3d 1013 (D.C. Cir. 2004)
(irrespective of how parties characterize their motions for reconsideration in
bankruptcy appeals, the timing of the filing of a post-judgment motion
determines whether it tolls the time for filing an appeal; thus, a motion filed
within the ten-day limit of Rule 8015 should be treated as a Rule 8015 motion
that postpones appellate review during its pendency).
      Although Kleibrink’s motion for a new trial asks that the case be re-opened
for the taking of new evidence, it also asserts that the court should amend its
findings of fact and conclusions of law regarding the value of appellee’s claim.
Therefore, under Butler, we treat the motion as one governed by Rule 8015,
notwithstanding its title. Because a timely Rule 8015 motion tolls the time for
filing a notice of appeal until the district court rules on the motion, Kleibrink’s
notice of appeal was timely filed. The motion to dismiss the appeal is
                                                                        DENIED.

                                        3


       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE

HARPETH VALLEY UTILITIES                     )
DISTRICT OF DAVIDSON AND                     )
WILLIAMSON COUNTIES,                         )
                                             )
      Plaintiff/Appellant,                   )
                                             )
VS.                                          )
                                             )
THE METROPOLITAN GOVERNMENT                  )
OF NASHVILLE AND DAVIDSON                    )
COUNTY,                                      )      Davidson Chancery
                                             )      No. 97-2895-III
      Defendant/Appellee,                    )
                                             )      Appeal No.
                                             )      01A01-9711-CH-00686
RAY BELL, GLENDA BELL, WILLIAM               )
COBLE, DR. ROY PARKER, JIMMY                 )
JONES, WESLEY BARNES, FANNIE C.              )
BUCHANAN, KEITH VAUGHN, JOEL                 )
CHEEK, DANNY GRAVES, EDDIE                   )
GRAVES, JERRY GRAVES, ANNIE K.               )
GRAVES, MACK LOVELL, WANDA                   )
LOVELL, JOE COLLIER, JIM FESMIRA,            )
MAC KELL, THOMAS ROGERS, GENE                )
ROGERS, and GEORGE ROGERS,                   )
                                             )
      Intervenors-Defendants/Appellees.      )

                       CONCURRING OPINION

      We concur with the results of the presiding judge’s opinion because we believe
that the holding of Davidson County v. Harmon, 200 Tenn. 575, 292 S.W.2d 777
(1956) controls the outcome of this case. The Harpeth Valley Utility District has
been operating since 1959 under the aegis of the Utilities Law of 1937 [Tenn. Code
Ann. §§ 7-82-101, -804 (1992 & Supp. 1997)] providing water and sewerage disposal
services to areas of Davidson, Williamson, and Cheatham Counties. As such, it is a
governmental entity. See Tenn. Code Ann. § 7-82-301(a)(1) (Supp. 1997); First
Suburban Util. Dist. v. McCanless, 177 Tenn. 128, 132-34, 146 S.W.2d 948, 950
(1941). Unless specifically provided otherwise, a city’s zoning power does not
extend to state government instrumentalities located within its borders. See Davidson
County v. Harmon, 200 Tenn. at 583-84, 292 S.W.2d at 780-81.
      While a state governmental entity could be enjoined from maintaining a
nuisance on its property, see Davidson County v. Harmon, 200 Tenn. at 585, 292
S.W.2d at 781, there is no evidence in this record that Harpeth Valley’s proposed
wastewater treatment plant on the Cumberland River, when constructed, will be a
nuisance. To the contrary, the plans for the plant have already been approved by the
Tennessee Department of Environment and Conservation.

                                              _____________________________
                                              WILLIAM C. KOCH, JR., JUDGE

                                              _____________________________
                                              JERRY SMITH, SPECIAL JUDGE

                                        -2-


874 F.Supp. 332 (1995)
EDWARD KRAEMER & SONS, INC., Plaintiff,
v.
The CITY OF KANSAS CITY, KANSAS and Michael Johnston, in his capacity as the Secretary of the Kansas Department of Transportation, Defendants.
Civ. A. Nos. 94-2215-GTV, 94-2230-GTV.
United States District Court, D. Kansas.
January 25, 1995.
*333 Richard W. Miller, Stephen R. Miller, Weston A. Sechtem, Miller Law Firm, P.C., Kansas City, MO, for Edward Kraemer & Sons, Inc., in No. 94-CV-2215.
Mary A. Kancel, City of Kansas City, Kansas-Legal Dept., Kansas City, KS, for City of Kansas City, Kansas.
Timothy P. Orrick, Parkinson, Foth & Reynolds, Lenexa, KS, for Michael Johnston.
Richard W. Miller, Stephen R. Miller, Frederick J. Ernst, Miller Law Firm, P.C., Kansas City, MO, for Edward Kraemer & Sons, Inc., in No. 94-CV-2230.

MEMORANDUM AND ORDER
VAN BEBBER, District Judge.
This matter is before the court on the Motion to Dismiss or in the Alternative for Consolidation of Edward Kraemer & Sons, Inc. (Doc. 2, Case No. 94-2230-GTV). A hearing on the motion was held on January 23, 1995, and the court orally advised counsel of its ruling on the motion. The court also ruled on the following two motions in Case Number 94-2215-GTV: the motion of the City of Kansas City, Kansas to join Michael Johnston in his capacity as the Secretary of the Kansas Department of Transportation (Doc. 12, Case No. 94-2215-GTV), and the motion of the City of Kansas City, Kansas for leave to file its answer out of time (Doc. 13, Case No. 94-2215-GTV). The court now issues this written memorandum and order to memorialize the rulings made at the hearing.
In its motion to dismiss Edward Kraemer & Sons, Inc. (Kraemer) argues that dismissal is appropriate because KDOT cannot maintain a breach of contract action because it is not the real party in interest. Kraemer also argues that Count II of the complaint should be dismissed under Fed.R.Civ.P. 12(b)(6) for failure to state a claim because Kansas precludes actions for implied indemnity for economic damages caused by breach of contract. In the alternative, Kraemer requests consolidation with Edward Kraemer & Sons, Inc. v. The City of Kansas City, Kansas, 874 F.Supp. 332 (D.Kan.1995). For the reasons set forth below, the motion to dismiss is granted in part and denied in part, and the motion to consolidate is granted.

I. Background
On May 31, 1994, Kraemer filed its complaint in Case No. 94-2215-GTV, which names the City of Kansas City, Kansas (the City) as defendant in the action and seeks a declaratory judgment and damages for breach of contract. On June 9, 1994, Michael Johnston, as the Secretary of the Kansas Department of Transportation (KDOT), filed his complaint in Case No. 94-2230-GTV seeking damages from Kraemer. As discussed below, the court now orders consolidation of the cases and realignment of the parties. A review of the facts underlying the cases is helpful in understanding the issues confronting the court in resolving the above motions.
Kraemer was one of the contractors hired by the City and KDOT to construct a part of Interstate 670 (I-670). The construction of I-670 involved numerous governmental entities and contractors. The highway connects Interstate 70 at approximately 10th Street in Kansas City, Kansas and Interstate 35 in Kansas City, Missouri. I-670 is a divided section of interstate highway which is largely elevated to span the Central Industrial District in Kansas City, Kansas, the Kansas River, and the West Bottoms Industrial District in Kansas City, Missouri.
KDOT is authorized under several Kansas statutes to enter into agreements with various governmental entities and contractors to build, construct and maintain highways and to administer federal funding made available for highway construction. See K.S.A. §§ 75-5004, 75-5023, 75-5024. KDOT was responsible for administering the construction of the part of I-670 located in Kansas. KDOT entered into an agreement with the City to administer the federal funding that the City received for the construction of I-670.
The construction of the bridge piers and the superstructure was divided into a number of separate construction contracts. Kraemer was hired to construct the bridge *334 piers for the portion of I-670 that would span I-70 and 7th Street in Kansas City, Kansas.
Both of the cases filed involve disputes arising from the contract for construction of the I-670 bridge piers. In Case No. 94-2215-GTV, Kraemer seeks at Count I a declaration that KDOT cannot sue Kraemer on its own behalf and that the City is barred from filing suit against Kraemer by the statute of limitations. At Count II, Kraemer seeks damages from the City for additional costs and expenses in completing the contract and refund of wrongly assessed liquidated damages.
KDOT alleges in the complaint in Case No. 94-2230-GTV that Kraemer failed to undertake, execute and complete the work with a reasonable degree of skill, quality and workmanship in conformity with the contract plans and specifications. Complaint ¶ 27. KDOT alleges that such failure directly and proximately caused substantial delays in completion of the bridge pier project. As a result of these delays, the commencement of Lunda Construction Company's (Lunda) superstructure project was delayed. Complaint ¶ 28. Lunda submitted a delay claim to KDOT seeking $1,231,122.54. Complaint ¶ 29. KDOT and Lunda entered a settlement and compromise of the claim under which KDOT agreed to pay Lunda $450,500.00.
KDOT seeks to recover from Kraemer the $450,500.00 paid to Lunda in this action. KDOT's claims are set forth in three counts. Count I alleges a contract right of indemnification from Kraemer in the amount of the settlement paid to Lunda. Count II alleges a common law right of implied or equitable indemnification. Count III alleges breach of contract.

II. Discussion

A. Motion to Dismiss
In ruling on a motion to dismiss, the court must assume the truth of all well-pleaded facts in plaintiff's complaint and view them in the light most favorable to plaintiff. Zinermon v. Burch, 494 U.S. 113, 118, 110 S.Ct. 975, 979, 108 L.Ed.2d 100 (1990); Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984). All reasonable inferences must be indulged in favor of plaintiff, Swanson, 750 F.2d at 813, and the pleadings must be liberally construed. Gas-A-Car, Inc. v. American Petrofina, Inc., 484 F.2d 1102 (10th Cir. 1973); Fed.R.Civ.P. 8(a). The issue in reviewing the sufficiency of a complaint is not whether plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The court may not dismiss a case for failure to state a claim "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).
Fed.R.Civ.P. 8(a) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." The statement need not be factually detailed but it "must give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley, 355 U.S. at 47, 78 S.Ct. at 103. Similarly, "allegations of conclusions or opinions are not sufficient when no facts are alleged by way of the statement of the claim." Bryan v. Stillwater Board of Realtors, 578 F.2d 1319, 1321 (10th Cir.1977). While a plaintiff is not required to precisely state each element of the claim, Rule 8(a) nevertheless requires minimal factual allegations on those material elements that must be proved to recover. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

(1) Real Party in Interest
Kraemer argues in its motion that Case No. 94-2230-GTV should be dismissed because KDOT was acting as the agent of the City when it let, awarded and administered the construction project described above.
Kraemer asserts that an agent signing a contract for a disclosed principal is not a party to the contract and therefore cannot enforce the contract. See 3 Am.Jur.2d Agency § 346 (1986). Kraemer argues that if KDOT possesses no enforceable contract rights, then under Fed.R.Civ.P. 17(a), KDOT is not the "real party in interest" and cannot *335 maintain these claims. Rule 17(a) states that:
Every action shall be prosecuted in the name of the real party in interest.... No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
KDOT argues that while the general rule holds that the disclosed principal rather than the agent may enforce contract rights, there are exceptions that apply in the present case. For instance, if the agent has a beneficial interest then he can bring suit in his own name. 3 Am.Jur.2d Agency § 346. The real party in interest is one who has a "real, actual, material or substantial interest in the subject matter of the action." 59 Am.Jur.2d Parties § 36. The general rule that only a party to the contract can enforce the contract has been modified by the real party in interest statutes and rules. 59 Am.Jur.2d Parties § 28. One of the purposes of this modification is to relax the strict common law rules "to enable those who are directly interested but not parties to the contract to maintain an action for its breach." Id.
KDOT argues that the relationship between the City of Kansas City and itself fits the traditional concepts of principal and agent in name only. The City's only involvement in the construction of I-670 was to act as a recipient of federal funding. The City had no funding responsibility other than to turn over the federal funds to KDOT for administration. Additionally, the City had no rights of supervision or control over the construction project. Lunda presented its delay claim to KDOT and the settlement was paid for with KDOT funds.
KDOT argues that it has established in the complaint in Case No. 94-2230-GTV that its role in the project was more than a traditional agent. KDOT asserts that it was a party promisee to the contract because it was to pay for the work with its funds and with federal funds, and it had a real, actual, material and substantial interest in the contract.
The court concludes that KDOT has sufficient standing to bring the claims asserted in Case No. 94-2230-GTV. Although KDOT let, awarded and administered the construction contract as an nominal agent of the City of Kansas City, it acted as more than a traditional agent. KDOT administered the funds and had sole authority to supervise the construction of the project.
Additionally, consolidation of Case No. 94-2230-GTV with 94-2215-GTV will solve the real party in interest problem. Consolidation will bring together Kraemer, KDOT and the City into one action thereby avoiding the possible problem of a subsequent action by a party actually entitled to recover and insuring that any judgment will have its proper effect as res judicata regarding the issues litigated. See Fed.R.Civ.P. 17(a) advisory committee's notes 1966 Amendment.

(2) Implied Indemnity
Kraemer next asserts that Count II of KDOT's complaint in Case No. 94-2230-GTV should be dismissed because a claim of implied contractual indemnity does not exist under Kansas law. The Kansas Supreme Court has set forth the law regarding claims of indemnity as follows:
There are two traditional situations in which claims of indemnity are allowed. The first occurs where there is an expressed contract of indemnity, such as a "hold harmless" agreement. The second occurs where a contract of indemnity may be implied when one is compelled to pay what another party ought to pay. The implied or constructive liability usually arises when one personally, without fault, is made to pay for a tortious act of another. The person paying has a right of action against the person at fault.
Haysville U.S.D. No. 261 v. GAF Corp., 233 Kan. 635, 642, 666 P.2d 192, 199 (1983). At Count I, KDOT alleges an express indemnification agreement was set forth in the contract. In the alternative, KDOT alleges at Count II that a contract for indemnification should be implied because KDOT had to pay *336 Lunda's valid delay claim. KDOT alleges that Kraemer was exclusively responsible for the causes of Lunda's delay claim. KDOT seeks recovery from Kraemer in a theory of implied indemnity based on Kraemer's negligence and failure to timely complete the project with a reasonable degree of skill, quality and workmanship in conformity with the contract.
Kraemer argues that implied indemnity only arises when one party without fault is compelled to pay for the tortious acts of another who should have rightfully paid the damages. Kraemer argues that the Haysville court held that implied indemnity claims do not apply to economic damages for breach of contract.
The court in Haysville disapproved of GAF's attempt to apply comparative negligence and implied comparative indemnity principles to breach of contract claims. The opinion indicates that the theory of implied indemnity is best restricted to tort actions. "Kansas law appears to limit implied indemnity to tort actions." Nature's Share, Inc. v. Kutter Products, Inc., 752 F.Supp. 371, 387 (D.Kan.1990); see also Facilities Development Corp. v. Miletta, 180 A.D.2d 97, 584 N.Y.S.2d 491, 495-96 (1992) (The court disapproved of the plaintiff's attempt to assert an implied indemnity theory of recovery in the context of a contractual breach. "[T]he damages sought by plaintiff are for purely economic loss, and, in the absence of any evidence that [defendant] breached a legal duty independent of its contractual obligations, the exclusive basis for [defendant's] liability for plaintiff's damages is breach of contract.").
The court grants the motion to dismiss Count II of the complaint which asserts a cause of action for implied indemnity. The court finds that in the context of this suit, KDOT cannot state a claim for implied indemnity under Kansas law. The count is dismissed pursuant to Fed.R.Civ.P. 12(b)(6).

B. Consolidation
Kraemer urges in its motion that the court consolidate Case No. 94-2215-GTV with Case No. 94-2230-GTV. Both cases involve the same underlying facts and arise out of the same contract for the construction of the I-670 bridge piers.
Under Fed.R.Civ.P. 42(a), when actions involving a common question of law or fact are pending before the court, it may order the actions consolidated. The determination of a motion to consolidate is discretionary. Shump v. Balka, 574 F.2d 1341, 1344 (10th Cir.1978); Gillette Motor Transport v. Northern Oklahoma Butane Co., 179 F.2d 711, 712 (10th Cir.1950).
The court concludes that Case No. 94-2215-GTV should be consolidated with Case No. 94-2230-GTV. The cases shall proceed as captioned at the beginning of this memorandum and order. The court orders Michael Johnston in his capacity as the Secretary of the Kansas Department of Transportation (KDOT) to be added to Case Number 94-2215-GTV as a defendant and a counter-claimant. KDOT's claims in the complaint filed in 94-2230-GTV shall be filed as KDOT's counterclaims against Kraemer in the now consolidated action in Case No. 94-2215-GTV.
At the hearing, the parties informed the court of a forthcoming summary judgment motion by Kraemer that impacts the extent of discovery necessary in the consolidated action. The summary judgment motion will present to the court the issue of whether KDOT can seek actual damages from Kraemer when liquidated damages were previously assessed. The court set a schedule for the filing of the motion and ordered Kraemer to file the motion on or before February 10, 1995.
IT IS, THEREFORE, BY THE COURT ORDERED Kraemer's Motion to Dismiss (Doc. 2, Case No. 94-2230-GTV) is granted in part and denied in part. The court grants the motion to dismiss the implied indemnity claim asserted at Count II, but denies the motion to dismiss which asserts that KDOT is not the real party in interest.
IT IS FURTHER ORDERED that Kraemer's Motion for Consolidation (Doc. 2, Case No. 94-2230-GTV) is granted.
IT IS FURTHER ORDERED that the motion of the City of Kansas City, Kansas to join Michael Johnston in his capacity as the *337 Secretary of the Kansas Department of Transportation (Doc. 12, Case No. 94-2215) is denied as moot.
IT IS FURTHER ORDERED that the motion of the City of Kansas City, Kansas for leave to file its answer out of time (Doc. 13, Case No. 94-2215) is granted. The City has 10 days to file its answer.
IT IS FURTHER ORDERED that Kraemer shall file its motion for summary judgment on or before February 10, 1995.
Copies of this order shall be mailed to counsel of record for the parties.
IT IS SO ORDERED.


656 N.W.2d 877 (2002)
253 Mich. App. 202
DAN DE FARMS, INC., Plaintiff-Appellant,
v.
STERLING FARM SUPPLY, INC., Department of Agriculture and Michigan Millers Mutual Insurance Company, Defendants-Appellees.
Docket No. 217413.
Court of Appeals of Michigan.
Submitted August 22, 2002 at Lansing.
Decided September 27, 2002 at 9:05 a.m.
Released for Publication December 26, 2002.
*878 Abbey & Abbey (by Thomas D. Abbey), Caro, for Dan De Farms, Inc.
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Randall Whitworth, Assistant Attorney General, for the Department of Agriculture.
Willingham & Cote, P.C. (by John A. Yeager and Curtis R. Hadley), East Lansing, for Michigan Millers Mutual Insurance Company.
Before: GAGE, P.J., and HOLBROOK, Jr., and SAWYER, JJ.

ON SECOND REMAND
SAWYER, J.
This matter is once again before us. Earlier, the Supreme Court, in lieu of granting leave to appeal, vacated our original opinion, Dan De Farms, Inc. v. Sterling Farm Supply, Inc., 244 Mich.App. 278, 625 N.W.2d 393 (2001), and directed us to reconsider this matter in light of Sun Valley Foods Co. v. Ward, 460 Mich. 230, 596 N.W.2d 119 (1999). 465 Mich. 872 (2001). Specifically, the Supreme Court concluded that we erred in considering extratextual evidence of legislative intent in interpreting M.C.L. § 285.67a(1) without first finding that an ambiguity existed in the statutory language. Dan De Farms, supra. In our opinion on remand, we stated that we thought it obvious from our original opinion that we found the statute to be ambiguous, but that we apparently overlooked the requirement that we explicitly state such a finding in our opinion. Dan De Farms, Inc. v. Sterling Farm Supply, Inc. (On Remand), 248 Mich.App 511, 513, 640 N.W.2d 583 (2001). We then stated that we found M.C.L. § 285.67a, as it existed at the times relevant to this case, to be ambiguous with regard to whether the bonding requirements of that statute apply to all grain dealers for all transactions or is limited to warehouse receipt transactions for bailed grain. Having found the statute to be ambiguous and in need of judicial interpretation, including examination of extratextual evidence of legislative intent, we then readopted our original reasoning and original opinion.
Plaintiff again sought leave to appeal to the Supreme Court and, in lieu of granting leave to appeal, the Court again vacated our opinion and remanded the matter to us for further consideration and issuance of a new opinion. The shortcomings of our opinion on remand are identified as follows:
However, nowhere in its opinion on remand has the Court of Appeals identified the specific language of the statute which is allegedly ambiguous or explained how or why that language is ambiguous. Pursuant to the remand, the Court of Appeals is to do so and issue an opinion resolving this concern. [Dan De Farms, [Inc. ] v. Sterling Farm Supply, Inc., 467 Mich. 857, 648 N.W.2d 646 (2002).]
*879 We do note that Justice Cavanagh, joined by Justice Kelly, dissented, opining as follows:
I dissent from yet another remand. The Court of Appeals found the statute involved here to be ambiguous "with regard to whether the bonding requirements of that statute apply to all grain dealers for all transactions or is limited to warehouse receipt transactions for bailed grain." That Court's original six-page opinion and the six-page opinion on remand are sufficiently clear, in my view, to warrant a denial of leave in this matter. [Id. at 857-858, 648 N.W.2d 646.]
Although we agree with Justice Cavanagh that we thought our reasoning was sufficiently clear in our earlier opinions, we shall endeavor to lend greater clarity to this issue. At the times relevant to this case, M.C.L. § 285.67a(1) provided as follows:
An application for a grain dealer's license shall be made on a form provided by the director, shall be filed 30 days in advance of a license expiration date if there is an outstanding license, and shall be accompanied by a sufficient bond on a form provided by the director or an irrevocable letter of credit on a form provided by the director in favor of the department of agriculture which fulfills the requirements of subsection (4). The bond shall run to the department of agriculture with sufficient surety conditioned for the faithful performance of the duties of a grain dealer and compliance with all laws of this state relating to grain dealers. The amount of the bond for a grain dealer who is a bailee of farm produce or who issues warehouse receipts shall be $15,000.00 for the first 10,000 bushels of storage capacity of the grain dealer, plus $5,000.00 for each additional 10,000 bushel capacity or fraction of that capacity used for the storage of warehouse receipted farm produce. The amount of the bond for a grain dealer who does not own a farm produce storage or handling facility or does not own a vehicle used to transport farm produce shall be $50,000.00.
What we find to be ambiguous is whether the bonding requirement of the statute applies to all grain dealers and their transactions, as urged by plaintiff, or, as determined by the trial court and this Court in its earlier opinions, only to warehouse receipt transactions.
The ambiguity arises because the statute alternates between general references to "grain dealers" and to grain dealers who are bailees of farm produce or who issue warehouse receipts for stored grain. While it is certainly possible that a statute would provide different rules for different classes of grain dealers, that is not the case here because not all potential classes of grain dealers are covered by the statute. The first sentence of the statute suggests that the bonding requirement applies to all classes of grain dealers. However, when looking at the two final sentences of the statute, which establish the amount of the bond, we discover that the statute cannot cover all grain dealers because a bond amount is not established for all grain dealers and, worse yet, the statute applies two contradictory bond amounts for other dealers.
Specifically, the next to last sentence of the statute establishes the bond requirement for "a grain dealer who is a bailee of farm produce or who issues warehouse receipts" and sets forth the amount of the bond based on the grain dealer's storage capacity. The last sentence of the statute sets forth a flat-rate bond amount for "a grain dealer who does not own a farm produce storage or handling facility or does not own a vehicle used to transport *880 farm produce...." However, these two categories of grain dealers do not encompass the entire universe of all grain dealers and in other cases overlap. The wording of these two sentences suggests that grain dealers may fall into at least eight different categories on the basis of their status as bailees of farm produce or issuers of warehouse receipts and whether they have storage or handling facilities and a vehicle to transport farm produce: (1) Grain dealers who are bailees of farm produce or who issue warehouse receipts and who do have storage/handling facilities but do not own a vehicle to transport farm produce, (2) grain dealers who are bailees of farm produce or who issue warehouse receipts and who do have storage/handling facilities and do own a vehicle to transport farm produce, (3) grain dealers who are bailees of farm produce or who issue warehouse receipts and who do not have storage/handling facilities and do not own a vehicle to transport farm produce, (4) grain dealers who are bailees of farm produce or who issue warehouse receipts and who do not have storage/handling facilities but do own a vehicle to transport farm produce, (5) grain dealers who are not bailees of farm produce and do not issue warehouse receipts and who do have storage/handling facilities but do not own a vehicle to transport farm produce, (6) grain dealers who are not bailees of farm produce and do not issue warehouse receipts and who do not have storage/handling facilities and do not own a vehicle to transport farm produce, (7) grain dealers who are not bailees of farm produce and do not issue warehouse receipts and who do not have storage/handling facilities but do own a vehicle to transport farm produce, (8) grain dealers who are not bailees of farm produce and do not issue warehouse receipts and who do have storage/handling facilities and do own a vehicle to transport farm produce.
Now, if we attempt to apply the bonding requirements as set forth in the statute to these various categories of grain dealers, the ambiguity becomes, we think, obvious. We must keep in mind that the penultimate sentence applies by its terms only to grain dealers who are either bailees of grain or who issue warehouse receipts and have a storage facility (because the bond amount is based on the storage capacity). Similarly, the last sentence applies only to grain dealers who do not own a farm produce storage or handling facility or do not own a vehicle to transport farm produce. The bonding requirements for the various categories are as follows:
Category 1: Both bonding requirements apply. The penultimate sentence applies because the grain dealer bails grain or issues a warehouse receipt. The last sentence applies because the grain dealer does not own a vehicle to transport farm produce. Therefore, it's ambiguous whether the bond based on storage capacity or the flat rate bond would apply.
Category 2: This obviously is covered by the penultimate sentence and is excluded under the last sentence;
Category 3: Both bonding requirements apply for the same reasons as with category 1 and therefore it is ambiguous;
Category 4: Once again ambiguous because both provisions apply, the penultimate sentence because the dealer is a bailee or issues warehouse receipts and the last sentence because he does not own a storage facility;
Category 5: The flat rate bond applies because the penultimate sentence does not apply because the dealer does not bail grain or issue receipts and the last sentence applies because the dealer does not own a vehicle.

*881 Category 6: Same as category 5 (although a strict reading of the word "or" in the last sentence arguably renders it ambiguous because both the lack of a storage facility and the lack of a vehicle apply, rather than one "or" the other).
Category 7: Neither bonding provision applies; the penultimate sentence does not apply because the dealer does not bail grain or issue warehouse receipts and the last sentence does not apply because the dealer does own a vehicle to transport farm produce.
Category 8: Neither bonding provision applies, essentially for the same reasons as category 7 (except here, the dealer not only owns a vehicle, but also does have a storage or handling facility).
Thus, we think the ambiguity becomes readily apparent. Although the first sentence of M.C.L. § 285.67a(1) suggests that it applies to all grain dealers, the penultimate and last sentences, the only provisions regarding the amount of the bond, do not cover all grain dealers. Further, those last two sentences contain an ambiguity because they can, in certain circumstances, both apply conflicting bonding requirements to the same grain dealer. Thus, while in some cases it may be clear which bond requirement to apply, in others the statute applies either conflicting bond amounts or no bond amount.
However, if we look to the penultimate sentence of M.C.L. § 285.67a(1) for guidance, the ambiguity may be resolved. That is, if we read the statute as applying only to grain dealers who are bailees of farm produce or who issue warehouse receipts, the ambiguities are resolved. The penultimate sentence applies where the grain dealer has storage capacity and the last sentence applies where the dealer does not have storage capacity.
Furthermore, such an interpretation does not torture the wording of the statute. The penultimate sentence specifically refers to grain dealers who are bailees or issue warehouse receipts, while the reference to "a grain dealer" in the last sentence means the group of grain dealers as in the previous sentence, i.e., those who are bailees or who issue warehouse receipts. That is, the distinction between grain dealers referred to in the two sentences is not between bailees and nonbailees, but between those bailees who have storage capacity and those who do not.
Therefore, for the reasons set forth above, and for the reasons set forth in our earlier opinions, we hold that M.C.L. § 285.67a(1) is ambiguous and its proper interpretation is that it should apply only to warehouse receipt transactions for bailed grain.
We once again affirm. Defendants may tax costs.