619 F.2d 482
CORA PUB, INC., etc., et al., Plaintiffs-Appellees,v.CONTINENTAL CASUALTY CO., etc., Defendant-Appellant,Irving Rubin et al., Intervenors-Appellees.MOSS AND SON, INC., Plaintiff-Appellee,v.CONTINENTAL CASUALTY COMPANY, Defendant-Appellant,Irving Rubin et al., Intervenors-Appellees.
No. 77-3065.
United States Court of Appeals,Fifth Circuit.
June 19, 1980.

Greene & Cooper, P. A., Robyn Greene, Miami, Fla., for Continental cas. co.
Edward Perse, Miami, Fla., for Cora Pub, Inc.
Evan Langbein, Alan E. Greenfield, Miami, Fla., for Moss and Son, Inc.
Cassel, Benjamin & Chotiner, William Cassel, Miami, Fla., Joseph G. Gubman, New York City, for Irving Rubin, et al.
Appeal from the United States District Court for the Southern District of Florida.
Before MORGAN, ANDERSON and RANDALL, Circuit Judges.
LEWIS R. MORGAN, Circuit Judge:

1
The Coral Way Pub of Miami, Florida was totally destroyed by fire in May 1975.  Continental Casualty Co., the insurer, suspected arson by the lessee and refused to pay any claim on the loss.  Subsequently the lessee of the restaurant, Cora Pub, Inc., instituted this action against Continental on the policy.  Other parties having an interest in the property and insurance policy joined the action seeking their share of any insurance proceeds.1

2
The district court directed a verdict against Continental's arson defense and submitted the issue of damages to the jury, which returned an award of $409,000 in favor of Cora Pub and the intervenors.  On appeal, Continental contends that the evidence that Cora Pub committed arson was sufficient to create a question for the jury, and that a directed verdict against the arson defense was improper.  Cora Pub argues in reply that the evidence was sufficient neither to prove that there was arson nor to prove that arson was committed by any individual whose actions could be imputed to the corporation.  Joining Cora Pub against Continental on this issue are the intervenors owner/landlord Moss and Son, Inc., and mortgagees Irving Rubin, Saul Kaplan, Joseph Gubman and Walker Sitomer but the principal position of these appellees is that regardless of whether the lessee committed arson, their interest in the insurance policy is unimpaired.

3
Continental also contends on appeal that the district court erred in striking a fraudulent concealment defense which was based on the failure of Cora Pub to disclose the criminal record of one of its principal officers.  Lastly, Continental cites a number of errors in the proof of damages.  For the reasons which follow, we agree with Continental that the arson defense should have been submitted to the jury and that error was committed in the proof of damages, and therefore we reverse the judgment and remand the case to the district court for retrial.

4
I. THE ARSON DEFENSE.

5
As the district court disposed of Continental's arson defense by directed verdict, the standard of review on appeal is a demanding one.  A motion for directed verdict should be granted only if the court believes "that reasonable men could not arrive at a contrary verdict . . . ." Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969).  In making this determination, the court must examine the whole record in the light most favorable to the party opposing the motion.  Id. Viewed in that perspective, the record in this case reveals substantial evidence to support Continental's allegation of arson committed by Cora Pub.

6
The Coral Way Pub was a 27 year old restaurant owned by Moss and Son, Inc., and leased and managed by numerous different parties over its life.  In November 1974, Cora Pub acquired the lease and continued to manage the restaurant until it was destroyed half a year later.

7
Throughout Cora Pub's brief management, the restaurant operated at a loss.  At the time of the fire in May 1975, Cora Pub had current liabilities of $66,751.84, a mortgage of $207,416.67, and an indebtedness for loans from its officers totaling $51,291.20.  During the month of the fire, six of Cora Pub's checks bounced, and after the fire the Internal Revenue Service filed a $15,000 lien against Cora Pub for failure to pay withholding taxes on wages of employees.

8
The restaurant had been damaged by fire in February 1975, and on this occasion Continental paid $18,000 on a claim by Cora Pub. The following month, Cora Pub president and chief stockholder John Barbero put the business up for sale.

9
At 2:00 A.M. on the night of the fire that led to this claim, a passer-by noticed smoke coming from the restaurant, and then observed an unidentified man walk from the parking lot behind the restaurant to a car parked at a nearby gas station, and drive away.  The passer-by immediately notified the fire department, but the building burned rapidly to ruin after several explosions.  A fireman who arrived at the scene found the doors to the building unlocked.

10
Julian Kirsch general manager, secretary, and treasurer of Cora Pub was the last person to leave the restaurant on the night of the fire, although he testified that he had locked and left the building at 11:00 P.M. and was home with a girl when the fire started.  Earlier, the burglar alarm system for the restaurant had been disconnected, and although Kirsch had been informed of this fact, he gave a statement after the fire that he had set the alarm before leaving the restaurant.

11
All of Cora Pub's business records, including much important evidence of the actual financial loss suffered, have vanished.  Kirsch testified at trial that the records were destroyed in the blaze, but a fireman who had been at the scene testified that the fire never reached the office where the books and records were kept.

12
Frank Ogden, a lieutenant with the Dade County Fire Department and an expert in arson investigation, testified that in his opinion the fire was of incendiary origin.  His opinion was formed from his inability to find any possible accidental cause in the area where the fire began together with the rapidity with which the building had burned.

13
Though the case for arson is wholly circumstantial, we cannot deny that reasonable men might draw the inferences necessary for Continental's arson defense.  In a host of similar cases where sufficient motive and opportunity of the insured to commit arson were combined with proof of an incendiary cause of fire, this court and others have considered the arson defense to be supportable by inference.  Sullivan v. American Motorist Ins. Co., 605 F.2d 169 (5th Cir. 1979); Crown Colony Distributors, Inc. v. United States Fire Ins. Co., 510 F.2d 544 (5th Cir. 1975); Hanover Fire Ins. Co. of New York v. Argo, 251 F.2d 80 (5th Cir. 1958); Don Burton, Inc. v. Aetna Life & Cas. Co., 575 F.2d 702 (9th Cir. 1978); Elgi Holding Inc. v. Insurance Co. of North America, 511 F.2d 957 (2d Cir. 1975); Stein v. Girard Ins. of Philadelphia, 259 F.2d 764 (7th Cir. 1958).

14
Cora Pub contends, however, that the evidence of arson in this case is worse than merely circumstantial.  It characterizes Continental's arson defense as built on an impermissible pyramiding of inferences.

15
The rule against inferences upon inferences is frequently overstated as absolutely prohibiting the drawing of one inference from another.2 Behind the rule is the thought that unless the first inference is certain, the improbability of the second inference is compounded.  Consistently enforced, however, the rule would make proof by circumstantial evidence virtually impossible, since most generally accepted inferences may be dissected into intermediate inferences.  Like Achilles of Zeno's paradox, we might never reach a conclusion.  Wigmore offered the following examples in a refutation of the rule against inference upon inference:

16
(O)n a charge of murder, the defendant's gun is found discharged; from this we infer that he discharged it; and from this we infer that it was his bullet which struck and killed the deceased.  Or, the defendant is shown to have been sharpening a knife; from this we argue that he had a design to use it upon the deceased; and from this we argue that the fatal stab was the result of this design.  In these and innumerable daily instances we build up inference upon inference, and yet no Court (until in very modern times) ever thought of forbidding it.  All departments of reasoning, all scientific work, every day's life and every day's trials, proceed upon such data.  The judicial utterances that sanction the fallacious and impracticable limitation, originally put forward without authority, must be taken as valid only for the particular evidentiary facts therein ruled upon.

17
1 Wigmore on Evidence, § 41, at 435-36 (3d ed. 1940).

18
While it is routinely said in criminal cases that guilt may not be proven by inference upon inference, e. g., United States v. Aguiar, 610 F.2d 1296, 1304 (5th Cir. 1980), the practice in civil cases is to evaluate the probative value of every inference on its own merits.  The modern view of the rule against inference upon inference was well-summarized by Judge Wisdom in NLRB v. Camco, Inc., 340 F.2d 803, 811 (5th Cir. 1965).

19
The so-called rule against pyramiding inferences, if there really is such a "rule" and if it is anything more than an empty pejorative, is simply legalese fustian to cover a clumsy exclusion of evidence having little or no probative value.

20
See also Smith v. General Motors Corp., 227 F.2d 210, 213 (5th Cir. 1955); Alman Bros. Farms & Feed Mill, Inc. v. Diamond Lab., Inc., 437 F.2d 1295 (5th Cir. 1971).

21
In the case before us, as in most arson cases, the incendiary origin of the fire was proved by circumstantial evidence, including the rapidity with which the building was observed to burn, the lack of any discoverable accidental cause of fire where the fire began, and the suspicious activity of the unidentified man seen at the restaurant immediately after the fire began.  To reach the ultimate hypothesis sought to be proved requires another inference, joining the fact of the corporation's motive to commit arson with the opportunity of one of its principal figures, to arrive at the conclusion that Cora Pub intentionally destroyed the building.

22
There is nothing inherently wrong with this method of proof.  The same series of inferences was necessarily followed in Sullivan v. American Motorists Ins. Co., supra, and Crown Colony Distributors, Inc. v. United States Fire Insurance Co., supra.  The important question is whether the inference is reasonably well supported by the evidence.  We must judge the inference as we would any other, taking into consideration that its probability may be attenuated by each underlying inference.  Having examined the record carefully, we find the evidence sufficient to create an issue for the jury.

23
Cora Pub's second line of defense, and the district court's alternative ground for directed verdict, is that even if Kirsch kindled the fire that destroyed the building, his criminal act cannot legally be imputed to the insured corporation.  This argument seems to confuse two entirely separate issues, one being whether there is sufficient circumstantial evidence of corporate complicity to require a jury verdict, and the other being whether Kirsch's actions must be regarded as those of the corporation as a matter of law.

24
In no case can arson be attributed to a corporation unless it is established that the perpetrator acted with the corporation's assent.  Owl & Turtle, Inc. v. Travelers Indemnity Co., 554 F.2d 196 (5th Cir. 1977).  Of course, since the corporation has no physical existence, it can only act through its officers and agents.  Moreover, proof of corporate assent to arson, like proof of any other conspiracy, is not likely to be found in the archives of the corporation.  Hence, courts have permitted insurers to attribute arson to a corporation by a variety of methods other than proof of a formal grant of authority to the arsonist.

25
Where the individual arsonist owns all or substantially all of the stock of the corporation courts have pierced the corporate veil to treat the actions of the individual as those of the corporation.  E. g., General Electric Credit Corp. v. Aetna Cas. & Surety Co., 437 Pa. 463, 263 A.2d 448 (1970).  Where arson was committed for the benefit of the corporation by an officer or general manager who dominated corporate affairs, courts have often imputed the arson of the individual to the corporation, on the ground that when the owners entrust the business to one person, they should be bound by his actions.  E. g., Kimball Ice Co. v. Hartford, 18 F.2d 563 (4th Cir. 1927).  This theory of the law was repudiated in Owl & Turtle, a diversity case governed by Florida law.

26
In a third category of cases, courts have permitted the jury to decide from circumstantial evidence that the arsonist acted at the request or with the approval of the insured corporation.  E. g., Don Burton, Inc. v. Aetna Life & Cas. Co., 575 F.2d 702 (9th Cir. 1978); Crown Colony Distributors, Inc. v. United States Fire Ins. Co., 510 F.2d 544 (5th Cir. 1975); Jamaica Time Petroleum, Inc. v. Federal Ins. Co., 366 F.2d 156 (10th Cir. 1966).  Cf., Sullivan v. American Motorist Ins. Co., 605 F.2d 169 (5th Cir. 1979) (insurer not required to identify arsonist; jury may infer from circumstantial evidence that arsonist acted for insured individual).  These cases typically involve closely-held corporations in which principal officers, stockholders or general managers are implicated in the fraud.  In Crown Colony, for example, a panel of this circuit upheld a jury verdict finding a corporation responsible for the arson based on the financial plight of the corporation, overinsurance of the building, and circumstantial evidence linking the manager and the son of the president to the fire and to an attempted destruction of corporate records.

27
Cora Pub cites Owl & Turtle as a comparable case in which the court held that as a matter of law, arson could not be attributed to the corporation.  In that case, however, the insurer stipulated that the sole stockholder was completely innocent of the attempted fraud, and alleged only that the stockholder's son, who dominated corporate affairs, had procured the burning of the building.  In the case before us, there is no stipulation of the owner's innocence.  To the contrary, Continental implicated the owner by introducing evidence of his effort to withdraw from the business.  There is also evidence of intentional destruction of corporate records, and of the corporation's financial suffering.  While Kirsch's relationship to the corporation and the owner do not require that we hold as a matter of law that he personified the corporation, the fact that arson was committed by an agent and officer of the corporation is evidence of the corporation's complicity. 2 Wigmore on Evidence § 280, at 128-31 (3d ed. 1940).

28
The viability of the interests of the intervenors in the insurance policy in the event of a verdict in favor of Continental after retrial is a separate question which was avoided by the district court by its directed verdict for Cora Pub. We make no decision at this time concerning the severability of the intervenors' rights from those of Cora Pub under the policy.

29
II. THE FRAUDULENT CONCEALMENT DEFENSE.

30
Continental also appeals from an order of the district court striking the defense that Cora Pub fraudulently concealed the criminal record of John Barbero, president and chief stockholder.  We hold that the defense was properly stricken.

31
Continental concedes that it never inquired as to the criminal records of the officers and stockholders of Cora Pub when it accepted Cora Pub's application for insurance.  This being the case, Continental could avoid the policy only by proving that the concealment was intentional, fraudulent, and material to the risk assumed.  Roess v. St. Paul Fire & Marine Ins. Co., 383 F.Supp. 1231 (M.D.Fla.1974); Massachusetts Bonding & Ins. Co. v. Hoxie, 129 Fla. 332, 176 So. 480 (1937).  To prove fraud, it is not enough to show that the concealed information was of a fact which made the covered risk marginally more likely to occur.  The insured is entitled to presume that the insurance application asks all questions relevant to the insurer's decision to issue a policy. 9 Couch, Insurance (2d ed. 1968) § 38:72.

32
In the exceptional Florida cases cited by Continental that allowed the defense of fraudulent concealment despite the insurer's failure to inquire, the concealed fact was that the risk had already occurred, or that forces reasonably certain to cause the risk to occur were underway.  See, e. g., Roess, supra (lawsuit pending when insured applied for coverage against malicious prosecution liability); National Life Insurance Co. v. Harriott, 268 So.2d 397 (Fla.App.1972) (husband knew of wife's cancer when he applied for insurance on her life).  Where, as here, the nondisclosure is of a fact only logically relevant to an insurer's decision to issue a policy, and the insured has not employed any subterfuge to avoid inquiry, the nondisclosure is not a concealment and cannot have been fraudulent.III. PROOF OF BUSINESS INTERRUPTION LOSS.

33
To support its insurance claim for interruption of business losses, Cora Pub relied primarily on the testimony of accountant Phillip Paul, who testified that Cora Pub had suffered a business interruption loss of approximately $20,000 a month.  Continental's objection that Paul had used an erroneous formula was overruled by the district court.

34
The Continental policy provided that the insurer would pay:

35
Loss of earnings sustained, less operating expenses which do not necessarily continue, during necessary interruption of business. . . . Earnings are defined as net profit plus payroll expenses, taxes, interest, rent and all other operating expenses earned by the business.

36
It is important to note that noncontinuing business expenses are to be subtracted from the sum of operating expenses plus net profit not from gross earnings.  The purpose of the formula is to place the insured in the same financial posture it would have had if not for the casualty.  See Great Northern Oil Co. v. St. Paul Fire & Marine Ins. Co., 303 Minn. 267, 227 N.W.2d 789, 793 (1975).

37
Nevertheless, the district court allowed the witness to offer an opinion founded on projected gross earnings minus non-continuing expenses.  Had Cora Pub been unquestionably profitable, this variation from the terms of the policy would have been of no consequence, but in fact Cora Pub had never shown a profit.  Paul's opinion was developed from a clearly erroneous interpretation of the policy and should have been stricken from the record.

38
Continental also protests that much of Paul's opinion rests on assumptions never established by evidence.  While many of Continental's criticisms of Paul's reasoning would ordinarily present simple questions of fact for the jury, in this case they underline the importance of another error of the district court the limitation of Continental's right of cross-examination.

39
The foundation of Paul's opinion was a financial statement prepared by Jack Dobish.  When the Cora Pub called Dobish as a witness to lay the predicate for admitting the statement into evidence, the court barred Continental from any cross-examination as to the method of preparation.  The court further ruled that Continental could question Dobish about the preparation of the statement only if it called Dobish as its own witness, and that Continental would be bound by Dobish's testimony.

40
Dobish's financial statement was a summary of unspecified financial records of Cora Pub. As such, it was admissible only if opposing counsel was offered the right to cross-examine the person who prepared the summary.  Wright v. Southwestern Bank, 554 F.2d 661 (5th Cir. 1977); McDaniel v. United States, 343 F.2d 785 (5th Cir. 1965).  To deny Continental this right was reversible error.

41
IV. APPRECIATION OF AMOUNT OF INSURANCE.

42
Continental argues lastly that the district court erred in allowing the value of the policy to appreciate one percent per quarter to the date of verdict, rather than to the date of loss as provided by the policy.  We agree that the court's action was contrary to the clear terms of the appreciation clause.

43
The amount recoverable under the policy is limited "to the extent of actual cash value of the property at the time of loss."  (emphasis added).  An endorsement provided that the amount of insurance applying to the building would be increased automatically at the rate of one percent per quarter.  Thus, under those terms, the amount recoverable was the value of the building, but in no case greater than the amount of insurance on the building, at the time of the loss.

44
Another endorsement provided that the amount recoverable "is amended from actual cash value to replacement cost."  Cora Pub and the intervenors contend that the shift from cash value to replacement cost resulted in a new time frame for appreciation of value.  They reason that since the policy was amended to use replacement cost as the standard of measure for damages, appreciation must be allowed to the date of verdict when funds are released for reconstruction.  The clear language of the policy, however, ineluctably sets the date of loss as the point in time at which damages are determined.  By extending the commercial appreciation of the policy to the date of the verdict, the district court increased the amount recoverable beyond what could properly be allowed under the policy terms.

45
REVERSED and REMANDED.

1
 A suit instituted by plaintiffs Moss and Son, Inc. against Continental was consolidated with this action.  Irving Rubin, Saul Kaplan, Joseph Gubman and Walker Sitomer intervened

2
 In Standard Accident Ins. Co. v. Nicholas, 146 F.2d 376 (5th Cir. 1944), for example, it was stated in dicta that "a case cannot be established by piling one presumption or inference upon another presumption or inference."  However, the court had no need to invoke the rule since it found no evidence to support the first inference from which the ultimate conclusion was drawn
In Hunter v. Shell Oil Co., 198 F.2d 485 (5th Cir. 1952), another panel of this circuit stated, again in dicta, that "an inferred fact may not be used as a basis for a further inference thereby extending a chain of inferences into the realm of pure conjecture," but then concluded that the case before it did not present such a problem.


303 S.E.2d 236 (1983)
BAUCOM'S NURSERY COMPANY, a corporation
v.
MECKLENBURG COUNTY, NORTH CAROLINA, Edwin B. Peacock, Jr., Chairman and Member of the Board of County Commissioners of Mecklenburg County, North Carolina, and William H. Booe, Elisabeth G. Hair, W. Thomas Ray and Ann D. Thomas, Members of the Board of County Commissioners of Mecklenburg County, North Carolina.
No. 8226SC614.
Court of Appeals of North Carolina.
June 7, 1983.
*237 Boyle, Alexander, Hord & Smith by B. Irvin Boyle, Charlotte, for plaintiff-appellee.
Ruff, Bond, Cobb, Wade & McNair by James O. Cobb, Charlotte, for defendants-appellants.
BRASWELL, Judge.
The applicable standard for appellate review of a judgment rendered under the Declaratory Judgment Act was enunciated by this Court in Insurance Co. v. Allison, 51 N.C.App. 654, 657, 277 S.E.2d 473, 475, disc. rev. denied, 303 N.C. 315, 281 S.E.2d 652 (1981), to be as follows:
"[T]he [trial] court's findings of fact are conclusive if supported by any competent evidence; and a judgment supported by such findings will be affirmed, even though there is evidence which might sustain findings to the contrary, and even though incompetent evidence may have been admitted. [Citations omitted.] The function of our review is, then, to determine whether the record contains competent evidence to support the findings; and whether the findings support the conclusions."
It is fundamental under the Declaratory Judgment Act that a party who considers his rights to be affected by a zoning ordinance, in a situation where there can be no doubt that litigation involving him is imminent, does not have to wait to be sued, but that he may go to court, obtain a declaration of his rights under the ordinance and seek "relief from uncertainty and insecurity with respect to rights, status, and other legal relations." G.S. 1-264. Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35 *238 (1972); Bland v. City of Wilmington, 278 N.C. 657, 180 S.E.2d 813 (1971). See Insurance Co. v. Bank, 11 N.C.App. 444, 181 S.E.2d 799 (1971). Several factors created a genuine controversy and uncertainty as to the status of the tract of land and now require resolution by the courts: the existence of the Mecklenburg County Zoning Ordinance during the time in question; the issue of whether the plaintiff's 19.6-acre tract of land was a bona fide farm and therefore exempt from the Zoning Ordinance or whether the tract was used as a plant nursery and greenhouses and not for farm purposes; and the history of dealings between the parties as shown in the record.
It is the public policy of North Carolina to encourage farming, farmers, and farmlands. The General Assembly has stated this policy in various ways:
"It is declared to be in the interest of the public welfare that the North Carolina farmers who are producers of ... field crops and other agricultural products, including ... vegetables ... as well as bulbs and flowers and other agricultural products ... shall be permitted and encouraged to act ... in promoting and stimulating, ... the increased production, use and sale, domestic and foreign, of any and all of such agricultural commodities." G.S. 106-550.
"The farm, ... lands of the State of North Carolina are among the basic assets of the State and the preservation of these lands is necessary to protect and promote the health, safety, and general welfare of its people ...." G.S. 139-2(a)(1).
"It is the declared policy of the State to conserve and protect and encourage the development and improvement of its agricultural land for the production of food and other agricultural products." G.S. 106-700.
"It is declared to be the policy of the State of North Carolina to promote the efficient production and utilization of the products of the soil as essential to the health and welfare of our people ...." G.S. 106-583.
Section 106-583 also sanctions the "[d]evelopment of new and improved methods of production, marketing, distribution, processing and utilization of plant ... commodities at all stages from the original producer through to the ultimate consumer ... [and] methods of conservation, development, and use of land ...."
By the evidence presented, plaintiff has established that its acts and conduct on the 19.6-acre tract are within the State's declared public policy. The evidence shows that the plaintiff has utilized the most modern and efficient equipment and methods in growing, cultivating and harvesting agricultural products of all kinds,[1] including vegetables and vegetable plants, and in growing and cultivating shrubbery which is used for the prevention of soil erosion, for noise control, and for wind and sun screen. However, about 14 May 1979, defendants' zoning inspector informed the plaintiff that its 19.6-acre tract was zoned R-12 for single family residences and that plaintiff's raising agricultural products thereon in conjunction with its contiguous 83-acre tract was in violation of the Zoning Ordinance. Plaintiff's subsequent request to be rezoned to RU-Rural District was denied. This declaratory judgment action followed on 1 February 1980.
The basic evidence and findings of fact are not substantially in dispute. Plaintiff purchased the 19.6-acre tract in 1976, and during the three years prior to institution of this action in 1980, plaintiff prepared, developed and used the land for agricultural purposes in conjunction with its adjacent 83-acre tract. It is the application of the law to the facts that divide the parties. We now take a closer look at the zoning law.
*239 The grant of the power of zoning was given to the counties by the General Assembly in 1959 by former G.S. 153-266.10, now redesignated G.S. 153A-340. This enabling act allows a county to regulate and restrict, among other things, "(5) The ... use of... land for trade, industry, residence, or other purposes, except farming. These regulations may not affect bona fide farms, but any use of farm property for nonfarm purposes is subject to the regulations." (Emphasis added.) In 1967 the enabling act was amended through an act applying only to Mecklenburg County to add this sentence: "The board of county commissioners, as part of any ordinance adopted pursuant to this Article, may define `bona fide farm' and `farm purposes' in such reasonable manner as it may deem wise." 1967 N.C. Sess.Laws ch. 611.
Pursuant to the enabling act, Mecklenburg County adopted a Zoning Ordinance on 20 November 1967, which, as amended from time to time, remains in full force and effect. Section 2-21 of the Zoning Ordinance defines bona fide farm in these words:
"Farm, Bona Fide. Any tract of land containing at least three (3) acres which is used for dairying or for the raising of agricultural products, forest products, livestock or poultry and including facilities for the sale of such products from the premises where produced provided that, a farm shall not be construed to include commercial poultry and swine production, cattle feeder lots and fur-bearing animal farms."
Although the evidence may not show that plaintiff's operations fit the traditional and historic concept of a "farm," the evidence does show that to equip itself for the raising of agricultural products plaintiff has worked with N.C. State University Division of Agriculture, Clemson University, N.C. Department of Agriculture, and others. By experimentation and utilization of various methods of improving the raising of agricultural products, such as cost analysis, fertilizer control, pesticides, seeds, insecticides, plant analysis to fertilizer, nutrients, and soil mixture, plaintiff has developed a successful operation. Plaintiff grows many plants in pots on top of plastic ground cover, instead of planting seeds in the ground. Plaintiff utilizes a lake, greenhouses, cold frames, hanging baskets, potting sheds, planting beds, and other methods of cultivation advocated by the N.C. State Department of Agriculture. Plaintiff's improved methods of cultivation enable it "to produce on one acre what we used to produce on 50 acres," without the use of the traditional farm mule or row plow. Section 2-21 of the Zoning Ordinance does not say "how" the products must be raised on the land but that its use be "for the raising of agricultural products." Likewise, this section does not say that it is subject to any other provision of the Zoning Ordinance. The record before us contains abundant competent evidence to support the trial judge's findings of fact concerning the "raising of agricultural products." Thus, it follows that a 19.6-acre tract of land [more than 3 acres] which is used for the raising of agricultural products [i.e., vegetables, plants, shrubbery for soil erosion control] and including the facilities for the sale of such products from the premises where produced constitutes a bona fide farm.
Even so, defendants argue that the provisions of Section 2-21 "should not annul the efficacy of more specific provisions of the ordinance." Defendants contend that seven other sections were more specific; that all the other sections were ignored and disregarded by the trial judge; that these seven sections prohibit plaintiff's present use of the 19.6-acre tract; and that for this error of law in failing to apply these sections, the case should be reversed and remanded with direction to the plaintiff "to remove its greenhouse and plant nursery beds from this area, and to refrain from any future use of the 19.6 acre tract in connection with the activities presently conducted upon the adjoining 84 acres." We disagree and will examine the seven sections.
The jurisdiction section, 1-3 of the Ordinance, applies to all use of land in unincorporated areas, then adds: "[H]owever, *240 these regulations shall not be applicable to bona fide farms, except that such regulations shall be applicable in cases where non-farm uses are made of farm properties." We agree with defendants that this language is consistent with the enabling act of the General Assembly, that no effort was made to regulate bona fide farms, and that the regulations are applicable to non-farm use. We also agree with defendants' example that "a used car lot upon an area of a farm" would be a non-farm use made of farm properties. However, the evidence shows a farm use by plaintiff "for the raising of agricultural products." This section does not aid the defendants.
Another specific section is 3-1, Rural District, which provides: "The major uses permitted within this district are farms and residences plus commercial activities and enterprises related to agriculture, such as dairies, plant nurseries, and rural home occupation." Solely because this section mentions "plant nurseries" and because plaintiff once applied to have the 19.6-acre tract rezoned to Rural District are not of themselves controlling in a declaratory judgment action. The evidence before the Superior Court supported the judge's finding that as of the time of trial the plaintiff was making use of the property "for the raising of agricultural products." When agricultural products are grown, in part, in "plant nurseries" upon a tract of land containing not less than three acres, and within the ordinance definition of bona fide farm, the fact that "plant nurseries" may also be utilized in a Rural District does not require the bona fide farm to be zoned Rural District. It is exempt by the enabling act in conjunction with Section 2-21 of the Ordinance.
Defendants cite Section 4-1 for our consideration. This section is captioned "Zoning Affects Every Building and Use." Its last sentence reads: "The regulations contained herein shall not be applicable to bona fide farms." Thus, the Ordinance clearly expresses an intention not to regulate bona fide farms.
Defendants cite Section 6-2.1 as being a direct, explicit prohibition of the plaintiff's activities. This section is a table of permitted uses and is defendants' Exhibit No. 9. On page two of the exhibit is the following use: "Farm-type enterprises when not considered as being part of bona fide farms, such as ... plant nurseries, green houses... vegetable packing sheds, the sale of... vegetables and similar farm products,... and similar uses ...." Defendants argue that this table of uses permits the listed activities to be done only in Rural Districts, Light Industrial and General Industrial Districts. On the contrary, we hold that the explicit language of this table exempts plant nurseries, greenhouses, and vegetable packing sheds when they are considered as being a part of a bona fide farm. The evidence supports the trial judge's conclusion that the 19.6-acre tract of land is a bona fide farm and thus the complained of farm-type enterprises of the plaintiff must be considered as being a part of a bona fide farm.
Through Exhibit No. 10, defendants refer to an examination of Section 6-2.3 of the Ordinance. This exhibit is another table of uses, and it shows that "Greenhouses and nurseries involving retail and wholesale sales" are excluded from all residential districts. We agree with this interpretation, but must repeat that the evidence presented in the trial court shows that the 19.6-acre tract is a bona fide farm. When the whole of the Zoning Ordinance is read collectively, including the tables of uses contained in Exhibits Nos. 9 and 10, it shows that farm-type enterprises of greenhouses and plant nurseries, when used as a part of a bona fide farm, are exempt from the Zoning Ordinance.
Another section of the Ordinance with a negative proviso is Section 7-21.1. This section states: "When not considered as being part of bona fide farms, farm-type enterprises, such as ... plant nurseries, green houses, fruit or vegetable packing sheds, the sale of fruit, vegetables and similar farm products ... and similar uses are permitted within the Rural District subject to the following provisions, and other pertinent provisions of this ordinance." Although *241 this section does define "farm-type enterprises," we cannot overlook that it also contains the disclaimer of "When not considered as being part of bona fide farms." We hold that plant nurseries and greenhouses when used in conjunction with bona fide farms are excluded from this section of the Zoning Ordinance.
The final section of the Ordinance cited by defendants is Section 4-23. This section is a statement of the proposition that if a particular land use is not affirmatively permitted within a zoning district, such use is prohibited. Even though we agree with defendants' statement that "The Mecklenburg County Zoning Ordinance is complicated," this specific section does not aid defendants because the plaintiff's evidence brought it within the meaning of the enabling act and the exemption of Section 2-21 by being a bona fide farm. Our Supreme Court has held: "A zoning ordinance, however, is in derogation of the right of private property and provisions therein granting exemptions or permissions are to be liberally construed in favor of freedom of use." In Re Application of Construction Co., 272 N.C. 715, 718, 158 S.E.2d 887, 890 (1967).
Although the word "farm" appears in more than one section of the County's complex Ordinance, Section 2-21 does unconditionally define bona fide farm in a reasonable manner. Even when the seven other sections cited by the defendants are integrated into our consideration, the Ordinance definition of bona fide farm, as applied to this case, means (1) 3 or more acres of land, (2) used for the raising of agricultural products. This definition and the enabling act are clear and unambiguous. The evidence of the size and the use of the 19.6-acre tract fits the definition contained in the Ordinance.
We hold that the record before us does contain competent evidence to support the findings of fact of the trial judge and that the findings support the conclusions of law in the judgment.
For the foregoing reasons the judgment exempting plaintiff's 19.6-acre tract from the Zoning Ordinance is
Affirmed.
WEBB and WHICHARD, JJ., concur.
NOTES
[1]  Brussell sprouts, broccoli, cabbage, cauliflower, cucumbers, eggplant, greens, lettuce, onions, peppers, potatoes, squash, tomatoes, cantaloupe, watermelons; petunias, snapdragons, verbena, begonias, pansies, vinca; ageratum, alyssum, celosia, coleus, dusty miller, impatiens, marigolds, portulaca, salvia; photinia, ligustrum, burfordi juniper; azaleas, and other types of plants and shrubbery.


     Case: 15-11263      Document: 00513660164         Page: 1    Date Filed: 08/31/2016

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

                                      No. 15-11263                             FILED
                                                                         August 31, 2016
                                                                          Lyle W. Cayce
SARAH MOZINGO MARTIN; MARY S. MOZINGO,                                         Clerk

              Plaintiffs - Appellants

v.

TREND PERSONNEL SERVICES; DAN W. BOBST,

              Defendants - Appellees

                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:13-CV-3953

Before STEWART, Chief Judge, and CLEMENT and HAYNES, Circuit
Judges.
PER CURIAM:*
       The Employee Retirement Income Security Act of 1974 (“ERISA”), 29
U.S.C. §§ 1001-1461, governs claims arising out of employee welfare benefit
plans. The sole issue on appeal is whether a Bonus Agreement offered by
employer Trend Personnel Services, Inc. (“Trend”) to a select number of
employees qualifies as an ERISA employee welfare benefit plan. The district
court held that it does not. We affirm.

       * 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.
     Case: 15-11263       Document: 00513660164          Page: 2     Date Filed: 08/31/2016

                                       No. 15-11263
                                               I.
       Trend is a staffing and recruiting firm owned and operated by Dan W.
Bobst. Between 2000 and 2007, Sam Mozingo worked for Trend as an account
representative. In 2003, Trend purchased life insurance policies for Mozingo
and five other employees, pursuant to Key Employee Restricted Bonus
Agreements. Pursuant to the Bonus Agreements, Trend would hold the
insurance policies and pay the annual premiums for the duration of each key
employee’s employment with the company.
       After voluntarily leaving Trend in 2007 and then being diagnosed with
cancer in 2008, Mozingo requested that Trend transfer his insurance policy to
his name. He designated his sister, Sarah Mozingo, as the primary beneficiary
under the policy and his mother, Mary Mozingo, as the contingent beneficiary.
The policy was transferred to Mozingo’s name in August 2009 but lapsed six
weeks later due to a lack of funding. 1 Mozingo died the following year.
       The beneficiaries filed claims for breach of fiduciary duty and estoppel
under ERISA. 2 They alleged that Bobst and Trend failed to pay the insurance
policy premium, to keep Mozingo informed about the status of the policy, and
to promptly transfer the policy to Mozingo after he left the company. They
sought to recover as damages the $250,000 death benefit value of the policy.
After a bench trial, the district court determined that the Bonus Agreement
did not qualify as an ERISA employee welfare benefit plan because it was only
offered to a handful of Trend employees and did not necessitate an ongoing

       1  Although the annual premium on the policy had last been paid by Trend in May
2006, the cash value of the policy kept the policy in force through July 2009.
        2 The beneficiaries filed a previous lawsuit in the United States District Court for the

District of Kansas, asserting similar claims. There, the beneficiaries conceded before the
district court that the Bonus Agreement was not an ERISA employee welfare benefit plan,
but then argued for the first time on appeal that the Bonus Agreement was an ERISA plan.
The courts did not decide the issue.
                                               2
    Case: 15-11263    Document: 00513660164     Page: 3   Date Filed: 08/31/2016

                                 No. 15-11263
administrative scheme. Accordingly, the district court held that ERISA did not
apply and dismissed the beneficiaries’ claims. This appeal followed.
                                      II.
      The issue on appeal is whether the Bonus Agreement offered by Trend
qualifies as an ERISA employee welfare benefit plan. “Typically, the existence
of an ERISA plan is a question of fact that we review only for clear error.”
Shearer v. Sw. Serv. Life Ins. Co., 516 F.3d 276, 278 (5th Cir. 2008). “However,
when the facts are undisputed, we treat the issue as one of law and review it
de novo.” Id.
                                      III.
      ERISA defines an “employee welfare benefit plan” as
      any plan, fund, or program which was . . . established or
      maintained by an employer . . . to the extent that such plan, fund,
      or program was established or is maintained for the purpose of
      providing for its participants or their beneficiaries, through the
      purchase of insurance or otherwise, (A) medical, surgical, or
      hospital care or benefits, or benefits in the event of sickness,
      accident, disability, death or unemployment . . . .
29 U.S.C. § 1002(1). To determine whether a particular plan qualifies as an
ERISA employee welfare benefit plan, this court “ask[s] whether a plan: (1)
exists; (2) falls within the safe-harbor provision established by the Department
of Labor; and (3) satisfies the primary elements of an ERISA ‘employee benefit
plan’—establishment or maintenance by an employer intending to benefit
employees.” Meredith v. Time Ins. Co., 980 F.2d 352, 355 (5th Cir. 1993). “If
any part of the inquiry is answered in the negative, the submission is not an
ERISA plan.” Id. The parties only dispute whether the Bonus Agreement
satisfies the third requirement of the Meredith test. Thus, we must consider
whether the two statutory elements of an ERISA employee welfare benefit plan

                                       3
     Case: 15-11263      Document: 00513660164        Page: 4    Date Filed: 08/31/2016

                                     No. 15-11263
are satisfied: “(1) whether an employer established or maintained the plan; and
(2) whether the employer intended to provide benefits to its employees.” Id. 3
      In determining whether an employer “established or maintained” an
employee welfare benefit plan by purchasing insurance for employees, this
court “focus[es] on the employer . . . and [its] involvement with the
administration of the plan.” Gahn v. Allstate Life Ins. Co., 926 F.2d 1449, 1452
(5th Cir. 1991). In a line of cases, this court has held that while
      the purchase of insurance does not conclusively establish a plan,
      fund, or program, [it] is evidence of the establishment of a plan,
      fund, or program [and] the purchase of a policy or multiple policies
      covering a class of employees offers substantial evidence that a
      plan, fund, or program has been established.
Mem’l Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d 236, 242 (5th Cir. 1990);
see also Kidder v. H & B Marine, Inc., 932 F.2d 347, 353 (5th Cir. 1991). In
Memorial Hospital, the court concluded that an employer established and
maintained an ERISA employee welfare benefit plan where it provided group
health care benefits—including life, accidental death and dismemberment,
accident, prescription drug, and comprehensive medical insurance benefits—
for all of its full-time employees and paid one-half of the monthly premiums.
Mem’l Hosp., 904 F.2d at 241-43. Then, in Kidder, the court applied Memorial
Hospital to conclude that an ERISA employee welfare benefit plan existed
where an employer purchased a group health insurance policy that covered all
of its employees and paid a percentage of the monthly premiums. Kidder, 932
F.2d at 349-53. The court, however, did not “adopt the district court’s apparent
reasoning that the payment of premiums alone is sufficient to create a plan.”
Id. at 353.

      3 Because our analysis under the first element is dispositive, we do not address the
second element.
                                            4
    Case: 15-11263    Document: 00513660164     Page: 5   Date Filed: 08/31/2016

                                 No. 15-11263
      More recently, this court held that the mere payment of insurance
premiums for a select number of employees did not establish an ERISA
employee welfare benefit plan. See Shearer, 516 F.3d at 279-80. In Shearer, the
court held that an employer did not establish or maintain an ERISA employee
welfare benefit plan where it paid the premiums on insurance policies for two
employees but did not provide insurance for any other employees. Id.
Distinguishing the plan in Shearer from those in Memorial Hospital and
Kidder, the court reasoned that because the plans in those cases “were
purchased for all of the company’s employees, [that fact] lends greater support
to the argument that a plan existed.” Id. at 280.
      In addition to purchasing insurance for employees, other factors can
provide evidence that an employer established or maintained an employee
welfare benefit plan. See Hansen v. Cont’l Ins. Co., 940 F.2d 971, 978 (5th Cir.
1991). In Hansen, the court held that an employer established an ERISA
employee welfare benefit plan where it issued a booklet encouraging all
employees to participate in a group insurance plan and employed a full time
employee benefits administrator. Id. The court reasoned that even though the
employer “did not purchase the insurance for its employees,” it “assume[d]
some responsibility for the administration of the program.” Id. This court has
“consistently held,” however, that if “an employer does no more than purchase
insurance for its employees and has no further involvement with the collection
of premiums, administration of the policy, or submission of claims, the
employer has not established an ERISA plan.” Shearer, 516 F.3d at 279; see
also Hansen, 940 F.2d at 978 (requiring “meaningful degree of participation by
the employer in the creation or administration of the plan”).
      Here, the beneficiaries rely on Memorial Hospital and Kidder to argue
that the Bonus Agreement qualifies as an ERISA employee welfare benefit
plan. They contend that Trend purchased life insurance policies for its six key
                                       5
    Case: 15-11263    Document: 00513660164     Page: 6   Date Filed: 08/31/2016

                                 No. 15-11263
employees and paid annual premiums, which offers “substantial evidence that
a plan, fund, or program has been established.” Mem’l Hosp., 904 F.2d at 242.
They further contend that, as in Hansen, Trend employed a “benefits
administrator” and thus assumed responsibility for administration of the plan.
      Trend counters that these cases are distinguishable because the
employers in Memorial Hospital, Kidder, and Hansen offered insurance
benefits to all of their employees. Trend further counters that the Bonus
Agreement is not an ERISA employee welfare benefit plan because making a
once per year premium payment does not constitute an ongoing administrative
scheme. See Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 3, 12 (1987) (holding
that a Maine statute requiring employers to provide a one-time severance
payment to plant employees in the event of plant closure did not establish, or
require employers to maintain, an ERISA plan because “[t]he requirement of
a one-time, lump-sum payment triggered by a single event requires no
administrative scheme whatsoever to meet the employer’s obligation”);
Cantrell v. Briggs & Veselka Co., 728 F.3d 444, 451 (5th Cir. 2013) (holding
that a deferred compensation arrangement did not constitute an ERISA plan
because the amount of compensation was “based on a one-time calculation
using a fixed formula, and writing a check each quarter is hardly an
administrative scheme”) (internal quotation marks omitted).
      The beneficiaries are correct that purchasing “a[n] [insurance] policy or
multiple policies covering a class of employees offers substantial evidence that
a plan, fund, or program has been established.” Mem’l Hosp., 904 F.2d at 242.
The court’s more factually similar decision in Shearer, however, controls here.
There, the court held that the mere payment of premiums on policies for two
employees was not sufficient to demonstrate that the employer established or
maintained an ERISA employee welfare benefit plan. Shearer, 516 F.3d at 280.
Similarly here, Trend only paid once-per-year premiums on policies for a small
                                       6
     Case: 15-11263       Document: 00513660164          Page: 7     Date Filed: 08/31/2016

                                       No. 15-11263
number of key employees 4—in contrast to the employers in Memorial Hospital,
Kidder, and Hansen that offered insurance policies to all of their employees.
Further, unlike the employer in Hansen, Trend was not involved in the
administration of the policies or submission of claims and did not employ a
benefits administrator. 5 As in Shearer, Trend “d[id] no more than purchase
insurance for its employees and ha[d] no further involvement with the
collection of premiums, administration of the policy, or submission of claims,”
and therefore “has not established an ERISA plan.” 516 F.3d at 279 (reciting
“rule that the purchase of insurance alone is insufficient to demonstrate an
ERISA plan”).
                                              IV.
       We AFFIRM.

       4 Bobst testified that in 2009, Trend had more than 350 temporary employees.
       5 The beneficiaries characterize former employee Shonda Wigginton as a benefits
administrator for the Bonus Agreement. When asked about the Bonus Agreement at trial,
Wigginton testified that she “didn’t deal with it per se” and that the premium bills went
directly to the accounting department. When notices came from the insurance company,
Wigginton would simply “[p]ut it in the file.” The district court did not clearly err in finding
that Trend did not employ a benefits administrator.
                                               7


                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

                  No. 06-17-00177-CR

         MARLO DETRIC HOLLIE, Appellant

                           V.

           THE STATE OF TEXAS, Appellee

        On Appeal from the 196th District Court
                Hunt County, Texas
               Trial Court No. 30,960

      Before Morriss, C.J., Moseley and Burgess, JJ.
                                           ORDER

       Our review of the clerk’s record in this case indicates that it contains “sensitive data” as

that phrase is defined in Rule 9.10 of the Texas Rules of Appellate Procedure. See TEX. R. APP.

P. 9.10(a). Sensitive data includes “a driver’s license number, passport number, social security

number, tax identification number or similar government-issued personal identification number.”

TEX. R. APP. P. 9.10(a)(1).    The clerk’s record includes a social security number. Rule 9.10(b)

states, “Unless a court orders otherwise, an electronic or paper filing with the court, including the

contents of any appendices, must not contain sensitive data.” TEX. R. APP. P. 9.10(b).

       Rule 9.10(g) provides, “A court may also order that a document be filed under seal in paper

form or electronic form, without redaction.” TEX. R. APP. P. 9.10(g). Therefore, because the

clerk’s record contains sensitive data, we order the clerk of this Court or her appointee, in

accordance with Rule 9.10(g), to seal the electronically filed clerk’s record in this case.

       IT IS SO ORDERED.

                                                              BY THE COURT

Date: May 7, 2018

                                                  2


                                                                            FILED
                              NOT FOR PUBLICATION                            APR 15 2011

                                                                         MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS

                              FOR THE NINTH CIRCUIT

ROCKY MOUNTAIN BANK,                     )     No. 10-15522
a Wyoming corporation,                   )
                                         )     D.C. No. 5:09-cv-04385-JW
      Plaintiff – Appellee,              )
                                         )     MEMORANDUM *
      v.                                 )
                                         )
GOOGLE, INC., a Delaware                 )
corporation,                             )
                                         )
      Defendant – Appellee.              )
                                         )
      and                                )
                                         )
MEDIAPOST                                )
COMMUNICATIONS,                          )
                                         )
      Intervenor-Appellant.              )
                                         )

                     Appeal from the United States District Court
                        for the Northern District of California
                     James Ware, Chief District Judge, Presiding

                              Submitted April 12, 2011 **

      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. Rule 36-3.
      **
          The panel unanimously finds this case suitable for decision without oral
                                                                         (continued...)
                              San Francisco, California

Before:      FERNANDEZ, RAWLINSON, Circuit Judges, and WELLS,***
             District Judge.

      MediaPost Communications, the business name of Fadner Enterprises, LLC

(MediaPost), which intervened in an action by Rocky Mountain National Bank

against Google, Inc., appeals the district court’s denial of its motion to access a

compliance report submitted to the district court by Google. We reverse and

remand.

      The usual rule regarding judicial records and documents is that there is a

strong presumption that the public is entitled to access. See, e.g., Kamakana v.

City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006); Phillips ex rel.

Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1212 (9th Cir. 2002); see

also Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597, 98 S. Ct. 1306, 1312, 55

L. Ed. 2d 570 (1978). Like most presumptions, this one does not delineate an

absolute right, but to overcome it a compelling reason to deny access must be

shown. See Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678–79 (9th Cir. 2010);

      **
      (...continued)
argument. Fed. R. App. P. 34(a)(2).
      ***
        The Honorable Lesley Wells, Senior United States District Judge for the
Northern District of Ohio, sitting by designation.

                                           2
Kamakana, 447 F.3d at 1178–79. Some exceptions to that general rule are

instances where access is sought to grand jury transcripts,1 or to warrant materials

while a pre-indictment investigation is in progress,2 or to materials which were

filed or produced pursuant to a protective order.3

      Here, the district court carved out another exception by determining that if a

document is lodged, rather than filed, with the court, it is not a judicial record or

document at all and, therefore, the public is generally not entitled to access. Of

course, there are some distinctions between filed and lodged documents. See

Barcamerica Int’l USA Trust v. Tyfield Imps., Inc., 289 F.3d 589, 595 & n.6 (9th

Cir. 2002); N.D. Cal. Civ. R. 1-5(m). However, the district court did not point to

any authority for the proposition that lodging alone is sufficient to overcome the

public’s right to access. As we see it, the public’s long-standing right cannot be

absterged by the simple expedient of having documents lodged. Here, for

example, the report in question is a quintessential judicial document. The district

      1
          See Kamakana, 447 F.3d at 1178.
      2
          See id.
      3
       See Pintos, 605 F.3d at 678; Kamakana, 447 F.3d at 1179; Phillips, 307
F.3d at 1213; cf. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1131 (9th
Cir. 2003) (where blanket protective order issued, an actual showing of good cause
must be made if another seeks access to the document).

                                            3
court issued an ex parte temporary restraining order against Google and its

customer, and ordered Google to lodge a report with the court so that it could

assess whether Google had complied with the temporary restraining order. Rocky

Mountain and the court were satisfied with the response, and the action was then

dismissed. Absent some further determination,4 the public would be entitled to

access to the report. Thus, the district court erred.

      REVERSED and REMANDED for further proceedings.

      4
        We express no opinion about whether some or all of the information in the
report should be redacted or sealed. The district court did not decide that issue.
Nor will we. We leave the application of the usual standards for deciding
redaction and sealing issues to the district court in the first instance. See Hagestad
v. Tragesser, 49 F.3d 1430, 1434–35 (9th Cir. 1995).

                                           4


People v Mosqueda (2019 NY Slip Op 04210)

People v Mosqueda

2019 NY Slip Op 04210

Decided on May 29, 2019

Appellate Division, Second Department

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

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

Decided on May 29, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
JOHN M. LEVENTHAL
FRANCESCA E. CONNOLLY
ANGELA G. IANNACCI, JJ.

2018-08629

[*1]People of State of New York, respondent,
vOmar Mosqueda, appellant.

Clare J. Degnan, White Plains, NY (Salvatore A. Gaetani of counsel; Alexandra A. O'Donnell on the brief), for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Raffaelina Gianfrancesco and William C. Milaccio of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Westchester County (Susan Cacace, J.), entered May 24, 2018, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.
ORDERED that the order is affirmed, without costs or disbursements.
The defendant was convicted, upon his plea of guilty, of course of sexual conduct against a child in the first degree. After a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA), at which the defendant sought a downward departure from his presumptive level three risk designation, the Supreme Court designated the defendant a level three sex offender.
A defendant seeking a downward departure from the presumptive risk level has the initial burden of "(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence" (People v Wyatt, 89 AD3d 112, 128; see People v Gillotti, 23 NY3d 841, 861; see also SORA: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter the Guidelines]). If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism (see People v Gillotti, 23 NY3d at 861; People v Champagne, 140 AD3d 719, 720).
Here, the defendant's contention that certain factors warrant a downward departure from his presumptive risk level is unpreserved for appellate review because he did not raise those grounds at the SORA hearing (see People v Hogan, 163 AD3d 728, 728; People v Desito, 145 AD3d 1047, 1048). In any event, the mitigating circumstances identified by the defendant either were adequately taken into account by the Guidelines or were not proven by a preponderance of the evidence (see People v Alvin, 166 AD3d 1025, 1026; People v Rocano-Quintana, 149 AD3d 1114, 1115; People v Benoit, 145 AD3d 687, 688; People v Santiago, 137 AD3d 762, 764-765). Accordingly, we agree with the Supreme Court's determination to deny the defendant's application [*2]for a downward departure from his presumptive level three risk designation.
MASTRO, J.P., LEVENTHAL, CONNOLLY and IANNACCI, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


311 F.2d 288
In the Matter of COLORADO TRUST DEED FUNDS, INC., Debtor.
No. 6949.
United States Court of Appeals Tenth Circuit.
November 19, 1962.

Russell W. Bartels, Denver, Colo., for Colorado Trust Deed Funds, Inc.
J. Kirk Windle, Attorney, Securities and Exchange Commission (Peter A. Dammann, General Counsel, David Ferber, Associate General Counsel, Thomas B. Hart, Regional Administrator, and William D. Scheid, Attorney, Securities and Exchange Commission), for Securities and Exchange Commission.
Robert Swanson, Denver, Colo., receiver for Colorado Trust Deed Funds, Inc., amicus curiæ.
Before LEWIS, BREITENSTEIN and SETH, Circuit Judges.
BREITENSTEIN, Circuit Judge.

1
The issue is whether the trial court erred in dismissing a petition for reorganization under Chapter 10 of the Bankruptcy Act1 upon the ground that the petition was not filed in good faith.

2
The statute provides that a trial judge shall dismiss a Chapter 10 petition if he is not satisfied that it has been filed in good faith.2 Good faith is defined by 11 U.S.C. § 546 which, so far as is pertinent, reads:

3
"Without limiting the generality of the meaning of the term `good faith', a petition shall be deemed not to be filed in good faith if —

4
* * * * * *

5
"(2) adequate relief would be obtainable by a debtor's petition under the provisions of chapter 11 of this title; or "(3) it is unreasonable to expect that a plan of reorganization can be effected; or

6
"(4) a prior proceeding is pending in any court and it appears that the interests of creditors and stockholders would be best subserved in such prior proceeding."

7
When the petition was filed the court referred it to a referee in bankruptcy sitting as a special master. No objections to the petition were presented. After a hearing at which Debtor, representatives of the Securities and Exchange Commission (SEC), and attorneys for the sole stockholder of Debtor appeared, the Master made findings of fact and conclusions of law and recommended that the petition be dismissed as not filed in good faith because of each of the § 546 grounds listed above. The court, with some modifications not here material, adopted the Master's report.

8
Debtor and Mortgage Underwriting Corporation (Underwriting) are wholly owned subsidiaries of Mortgage Insurance Company of America, all the stock of which is owned by one Thomas.

9
Debtor was in the investment business and dealt in trust deeds. It issued certificates which were in the form of promissory notes. Underwriting obtained the trust deeds, transferred them to Debtor, sold the certificates of Debtor, and paid all the operating costs of Debtor. Underwriting had the opportunity for all profits arising through the acquisition of the trust deeds at a discount.

10
Cash investors bought certificates of Debtor having a face value of $154,490. Through arrangements made by Thomas or his agents, Debtor issued certificates having a face value of about $420,300 to investors in a fourth corporation, Colorado Trust Deed and Mortgage Markets, Inc. (Markets), in ostensible exchange for trust deeds acquired from Markets by those to whom such certificates were issued. In the Markets transactions certificates of Debtor in the amount of about $50,000 were issued without the receipt by Debtor of any trust deeds in exchange, and certificates for about $130,000 were issued in exchange for trust deeds without value because of foreclosure. The balance sheet submitted with the Chapter 10 petition showed offsetting items, listed as contingent assets and contingent liabilities, amounting to $420,300 and apparently representing the face value of the certificates issued by Debtor in the transactions with the Markets investors. The balance sheet showed an excess of liabilities over assets in the sum of $26,446.43.

11
Prior to the filing of the Chapter 10 petition, the SEC brought an action for injunction and receivership against Debtor and others charging violations of the Securities Act. A consent injunction was obtained and the application for receivership was deferred. After the dismissal of the Chapter 10 petition the court appointed a receiver for Debtor.

12
We do not have an adversary proceeding before us. No one has come forward with an objection to the allowance of the Chapter 10 petition. The SEC supports Debtor in its protest against the dismissal. The attorney for the receiver has filed a brief as amicus curiae which presents a helpful exposition of the issues but does not take sides on the disputed questions.

13
A court must dismiss a Chapter 10 proceeding when want of good faith appears on the part of the petitioner.3 Formal pleadings in opposition are not necessary for the court to determine the question of good faith.4 The burden of demonstrating good faith is on the petitioner and the court's finding on good faith will not be set aside unless clearly erroneous.5

14
Debtor and the SEC urge that the finding concerning the availability of Chapter 11 is wrong because Chapter 11 may not be used when secured creditors are present and that the certificate holders are secured creditors. They contest the finding that no reason exists to believe that a plan of reorganization can be effected and say that such finding is based on the misconception that Chapter 10 is not available because a trust is involved.

15
The conceptual equivocation in Debtor's offering circular is such that doubt exists as to whether the certificate holders are secured or unsecured, whether Debtor is the trustee of a trust of which they are the beneficiaries, or just what their status is. The determination of the rights of the certificate holders and of Debtor should be made in an adversary proceeding. We decline to define such rights in this proceeding and reject the two mentioned reasons as establishing the lack of good faith.

16
The trial court also found an absence of good faith on the statutory ground that the prior and pending receivership proceeding would best serve the interests of creditors and stockholders. Chapter 10 requires6 that a petition for relief shall state "the specific facts showing the need for relief." In Marine Harbor Properties, Inc., v. Manufacturers Trust Co., 317 U.S. 78, 84, 63 S.Ct. 93, 87 L.Ed. 64, rehearing denied 317 U.S. 710, 63 S.Ct. 254, 87 L.Ed. 566, the court reviewed the background of the good faith provision relating to prior proceedings and said:

17
"In view of that history, it seems clear that, when a prior proceeding is pending, a petitioner's showing of `need for relief' under Ch. X, required to be contained in every petition by the express provisions of § 130(7), must demonstrate that at least in some substantial particular the prior proceedings withhold or deny creditors or stockholders benefits, advantages, or protection which Ch. X affords. In absence of such a showing, the `need for relief' has not been established and the District Court is not enabled to make an informed judgment on the `good faith' issue."

18
The petition herein fails to satisfy this requirement and neither the evidence nor the arguments of Debtor or the SEC cure the fault. So far as stockholders are concerned, Debtor has only one. To maintain his insolvent company he will have to put some cash into it and he can do that just as well in receivership as he can in Chapter 10 proceedings. Debtor's effort to show a willingness by the one stockholder to make a financial contribution is so equivocal and conditional that it merits no discussion. Whatever the offer is, Debtor makes no showing that it may not be utilized just as well in receivership as in Chapter 10 proceedings.

19
The rights of the certificate holders, whether those paying cash or those transferred from Markets, can be as well resolved under receivership as under Chapter 10. The rights and status of certificate holders and the liability to them from Debtor and its management pose no unusual difficulties to an equity receivership. If liquidation is necessary, the principle that Congress did not intend Chapter 10 to be used "for the mere purpose of liquidation" applies.7

20
Debtor has failed to sustain the burden of demonstrating that the prior receivership proceedings will not best serve the stockholders and creditors. The court's finding of lack of good faith on this ground is sustained by the evidence and is not clearly erroneous. The rights and status of the creditors and stockholders present questions which are left open for future consideration.

21
Affirmed.

Notes:

1
 11 U.S.C. §§ 501-676

2
 11 U.S.C. § 541

3
 First Nat. Bank of Wellston v. Conway Road Estates Co., 8 Cir., 94 F.2d 736, 739, certiorari denied 304 U.S. 578, 58 S.Ct. 1047, 82 L.Ed. 1541. Cf. Tennessee Publishing Co. v. American National Bank, 299 U.S. 18, 22, 57 S.Ct. 85, 81 L.Ed. 13

4
 In re Grigsby-Grunow Co., 7 Cir., 77 F.2d 200, 203

5
 Grubbs v. Pettit, 2 Cir., 282 F.2d 557, 562, and cases cited therein

6
 11 U.S.C. § 530(7), § 130(7) of the Bankruptcy Act

7
 Fidelity Assurance Association v. Sims, 318 U.S. 608, 621, 63 S.Ct. 807, 87 L. Ed. 1032


524 F.2d 1405
Brownv.Cowan
74-2372
UNITED STATES COURT OF APPEALS Sixth Circuit
10/21/75

1
W.D.Ky.

AFFIRMED


194 Kan. 804 (1965)
401 P.2d 891
C.W. PICKERING and LILLIAN HUBBARD PICKERING, Appellees,
v.
ZOE L. HOLLABAUGH, JR., Executor of the Estate of Zoe J. Hollabaugh, Deceased, and MARY L. HOLLABAUGH, Appellants.
No. 44,082
Supreme Court of Kansas.
Opinion filed May 15, 1965.
William R. Smith and H.E. Jones, both of Wichita, argued the cause, and A.W. Hershberger, Richard Jones, Wm. P. Thompson, Jerome E. Jones, Robert J. Roth and Robert J. O'Connor, all of Wichita, were with them on the briefs for the appellants.
A.D. Weiskirch, of Wichita, argued the cause and was on the briefs for the appellees.
*805 The opinion of the court was delivered by
HATCHER, C.:
This was an action to enforce specific performance of an agreement to exchange real property.
On October 11, 1961, Zoe J. and Mary L. Hollabaugh, husband and wife, entered into an agreement with C.W. and Lillian Hubbard Pickering, husband and wife, for the exchange of real properties. The contract read in part as follows:
"First parties agree that they will, by a warranty deed and bill of sale, convey to second parties the Cubana Apartment Building, including the business building upon the ground floor, ... It is understood and agreed that the street address of said Cubana Apartment Building is 237 and 239 South Main Street in the City of Wichita, Sedgwick County, Kansas, and the exact legal description covering said property shall be used in the deed.
..............
"Second parties agree to transfer to first parties approximately 221 acres, located in Section One (1), Township Nine (9), Range Seven (7) East, Pottawatomie County, Kansas, including water, shore and access easements to Tuttle Creek Dam and Reservoir and, including grantors and previous owners of said described real estate reversionary and preferred tenant rights growing out of and appertaining to the creation and erection of what is described as the Tuttle Creek Dam and Reservoir by the United States Government and any of its agencies or divisions. This being an approximate acreage of 221 acres, but it is understood and agreed that there may be a slight variation of more or less than the definite acreage of 221 acres, but this is definitely understood to be all the real property owned by second parties in the above described Section 1.
..............
"It is further understood and agreed that should possession be taken before final approval of title that the mere taking thereof shall not release either party from meeting title requirements which may be reasonably required to perfect a merchantable title."
It became apparent after a time that the defendants did not intend to comply with the agreement and an action was brought by the Pickerings to enforce specific performance.
We will be unable to supply any dates as the record sets out an amended petition, an answer, a reply, a stipulation and a motion for judgment without giving any dates as to when such instruments were filed or served.
The substance of the petition was to the effect that plaintiffs are ready, willing and able to comply with the terms of the contract but that defendants refused to execute a conveyance and abide by the terms of the agreement.
*806 The answer denied that the plaintiffs had performed any of the conditions imposed upon them by the agreement and denied that they were able to perform. It was further alleged that the plaintiffs were guilty of laches in the prosecution of the action.
The reply was a general denial.
The parties entered into a stipulation, the material parts of which will be considered later.
The defendants then filed a motion for judgment on the pleadings and the stipulation for the reason that it was shown plaintiffs were unable to perform. The motion was overruled.
Zoe J. Hollabaugh died November 6, 1963, and his executor was substituted as a defendant in the action.
The case was tried to the court which made findings of fact and conclusions of law and decreed specific performance of the contract.
Defendants have appealed.
Appellants first contend that the court erred in overruling their motion for judgment on the pleadings and stipulation.
Appellants support their contention with the argument that the appellees agreed to convey approximately 221 acres located in section 1 (more specifically described):
"... This being an approximate acreage of 221 acres, but it is understood and agreed that there may be a slight variation of more or less than the definite acreage of 221 acres, but this is definitely understood to be all the real property owned by second parties in the above described Section 1."
They further suggest that it was stipulated:
"The parties further stipulate and agree that the records of the County Clerk of Pottawatomie County indicate that C.W. Pickering and Lillian Hubbard Pickering, own lands in Section 1, Township 9 South, Range 7 East, and that said lands contain 172.78 acres.
"There is attached hereto Xerox copy of a letter written by Robert W. West, who estimates the acreage from the description only without actual survey, to be 199.25 acres."
The appellants argue that the stipulation establishes the fact that the appellees were not in position to deliver the acreage covered by the agreement.
We are not informed on what ground the trial court overruled the motion for judgment. It must be assumed that it either felt that the stipulation as to the acreage was ambiguous or that the discrepancy in the acreage was immaterial at that stage of the proceeding. Either ground would have been valid.
*807 The stipulation tended to confuse rather than make definite the amount of acreage. According to the stipulation the records of the county clerk indicate the Pickerings owned 172.78 acres in section 1, while the surveyor estimated the acreage, from the description only, to be 199.25 acres. The stipulation left much to be explained.
It may also be suggested that the phrases "approximate acreage of 221 acres" and "more or less" constituted words of description which merely served to identify the property owned by the appellees in section 1. The words were not a warranty of the acreage conveyed. The land could only be described accurately by metes and bounds because of the Tuttle Creek Reservoir. The scrivener was attempting to reach all of the appellees' land in section 1.
We had the same question before us in Martin v. Ott, 114 Kan. 419, 219 Pac. 275. In the Martin case the land was conveyed as "lots 1 and 2 in S.W. fractional quarter of 32-12-21 East, containing 65 acres more or less." The farm in fact contained only 35.6 acres. It was held:
"A recital in a deed of conveyance describing the property, viz: `Lots 1 and 2 in S.W. fractional quarter of 32-12-21 East, containing 65 acres more or less,' merely serves to identify the property which is the subject of the grant, and is not a warranty of the acreage conveyed." (Syl. 3.)
The same rule was announced in Brewer v. Schammerhorn, 183 Kan. 739, 332 P.2d 526, at page 745 of the opinion:
"The words `more or less' when used in a deed with reference to the description of the property are to be construed with reference to the particular circumstances involved. Generally they relieve a stated distance or quantity of the attribute of exactness. Further, such words generally indicate a sale in gross, unless the words are qualified or defined. Such words negative the idea of exact knowledge and import that the actual quantity is a mere approximation to that named, but allow for a reasonable excess or deficiency. (See Armstrong v. Brownfield, 32 Kan. 116, 4 Pac. 185; Maffet v. Schaar, 89 Kan. 403, 131 Pac. 589; Martin v. Ott, 114 Kan. 419, 219 Pac. 275; 1 A.L.R.2d, § 30, p. 89; 26 C.J.S., Deeds, § 102b, p. 892; 91 C.J.S., Vendor & Purchaser, § 93c, pp. 978, 979, and cases cited therein.)"
If there was any ambiguity because of the language used it was clarified by testimony covering the particular circumstances involved and presented in connection with other issues to be discussed.
The appellants next contend that evidence of statements made by Zoe J. Hollabaugh, now deceased, should have been excluded *808 as hearsay. Zoe J. Hollabaugh died after the contract was made and before the case came to trial. During the trial C.W. Pickering, one of the appellees, was permitted to testify:
"We talked over the income of the Cubana Apartments and we talked over the income of the pasture and Mr. Hollabaugh said he was interested more in development of the Tuttle Creek property than in the pasture."
The appellants contend that the testimony was hearsay. However, declarations against interest have always been one of the recognized exceptions to the hearsay rule. Admissions against interests are always admissible if otherwise competent and presented by a competent witness. G.S. 1949, 60-2804 which prohibited a person from testifying respecting transactions or communications had personally with a person since deceased was not incorporated into the new Code of Civil Procedure and has therefore been repealed. This was the only prohibition against a party to a transaction with a person since deceased testifying as to his statements or declarations. In Hurley v. Painter, 182 Kan. 731, 324 P.2d 142, we stated at page 733 of the opinion:
"... Moreover, in the exhibit, Ellen by declaring that she had given all her property to her son disavowed her proprietary interest in the property. The note was therefore admissible under the well-recognized declaration against interest exception to the hearsay rule. In Mentzer v. Burlingame, 85 Kan. 641, 643, 118 Pac. 698, we said:
"`The declarations of a deceased person made against his pecuniary or proprietary interest concerning facts within his knowledge which are material and relevant to the issue, are admissible in evidence ... (1 Ell. Ev. § 434 et seq.; 1 Greenl. Ev., 16th ed., §§ 147-149; 1 Wharton, Ev., § 226; 2 Wig. Ev. §§ 1455-1470.) The admissibility of the evidence rests upon the improbability that one will admit that which it is for his pecuniary interest to deny.'" (See, also, 31A C.J.S., Evidence § 205, p. 575.)
Testimony such as we are now considering is specifically made admissible by the new Code of Civil Procedure. K.S.A. 60-460 provides in part as follows:
"Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible except:
..............
"(j) Declarations against interest. Subject to the limitations of exception (f), a statement which the judge finds was at the time of the assertion so far contrary to the declarant's pecuniary or proprietary interest ... that a reasonable man would not have made the statement unless he believed it to be true; ..."
*809 Appellants next contend that confidential communications between Zoe J. Hollabaugh and his attorney were improperly admitted in evidence and should have been excluded as privileged.
Mr. Walter F. McGinnis, an attorney residing at El Dorado, Kansas, prepared the contract in controversy. He testified that he did not know whether it was Mr. Zoe J. Hollabaugh or his broker that first talked to him, it was very possible the broker. He was not sure who gave him the information that went into the contract. The testimony to which the objection is addressed was summarized as follows:
"There's a provision in the contract that the acreage was approximately 220 acres but it was understood and agreed that there would be slight variation either more or less. It was definitely understood that it was to be all of the real estate owned by the second party in Section 1. It was talked to me in my presence that they couldn't set the exact number of acres. They had no way of knowing at that time as I understood it. They said put it in there some way so there could be a variation and that is the reason it is that way.
"The reason for the variation was due to the number of acres in the government easements...."
We find nothing in the record to indicate a confidential communication. It would appear that the attorney was acting as a mere scrivener in drafting the contract. There was no basis for applying the lawyer client privilege as that rule is announced in K.S.A. 60-426. In Cunningham v. Cunningham, 107 Kan. 318, 191 Pac. 294, we stated at page 323 of the opinion:
"One of the contentions urged by the plaintiffs is that the testimony concerning communications between the attorney and client was incompetent under section 321 of the civil code (Gen. Stat. 1915, § 7223). We think the objections to his testimony and the motion made to strike out were properly overruled. In addition to the fact that many of the things the attorney testified to were corroborated by other testimony, it has been decided that an attorney who acts as a scrivener in the preparation of a contract regarding property or in the drawing of a will may testify to communications with the deceased at the time the deed or will was prepared or executed, because under such circumstances the communications are not privileged. (Black v. Funk, 93 Kan. 60, 143 Pac. 426; Sparks v. Sparks, 51 Kan. 195, 32 Pac. 892; Lumber Co. v. Cox, 94 Kan. 563, 566, 147 Pac. 67; 4 Wigmore on Evidence, § 2297.)
"In Durant v. Whitcher, 97 Kan. 603, 156 Pac. 739, the rule was applied that `in an action to set aside a will the lawyer who drew it may testify to the conversation had at the time between himself and the testator' (syl. ¶ 1), and also that the scrivener and subscribing witnesses of a will are competent witnesses as to the mental condition of the testator."
*810 In Cranston v. Stewart, 184 Kan. 99, 334 P.2d 337, we held:
"In order for a communication from a client to his attorney to be confidential and to impose upon the attorney the duty of not disclosing the same it must be of a confidential character, and so regarded, at least by the client, at the time, and must relate to a matter which is in its nature private and properly the subject of confidential disclosure.
"Where an attorney serves merely as a scrivener to draft and put in legal form a contract for the transfer of title to real estate, communications concerning the drafting of the contract or the contract itself are not privileged." (Syl. 2 and 3. See, also, Hutton v. Hutton, 184 Kan. 560, 337 P.2d 635.)
It is contended that evidence varying the terms of the written contract should have been excluded as a violation of the parole evidence rule. Appellants state:
"As previously noted, the parties' written contract provided for the exchange of approximately 221 acres located in section 1 for the Cubana Apartments. Appellees' amendment at the close of their evidence would vary this written agreement by including land located in section 2 and varying the number of acres from approximately 221 acres to `the particular piece of ground that was pointed out to him' which was to be exchanged for the Cubana Apartments."
The evidence clearly disclosed that there had been a mutual mistake in the description of the land. The description covered only the land in section 1. There was also approximately 27 acres of adjoining land in section 2 which was intended to be conveyed. When this situation was called to the attention of a court of equity it was its responsibility to correct the mutual mistake before decreeing specific performance. The addition of the 27 acres from section 2 resulted in appellants' benefit. They are hardly in position to claim prejudicial error.
The appellants contend that there was no substantial evidence to support the trial court's findings of fact and conclusions of law; that appellants' motion for directed verdict should have been sustained, and that there was no substantial evidence to support the judgment.
The reasonable limits of a judicial opinion will not permit a review of all the findings and the evidence to support them.
Appellants' specific complaint is, first, it was impossible for appellees to perform their obligations under the contract because of acreage shortage and second, appellees made no tender of performance.
The court found the facts and concluded:
"The court concludes as a matter of law that there was error in the legal description of the plaintiffs' land in the contract and also in the stipulation *811 entered into between the parties prior to trial; that said error consisted of 27 acres of said land being situated in a different Section than the balance of said land.
"... the parties were dealing at arm's length; that the defendants had pointed out to them all of said land, and that, whether or not it was all lying in one Section or two Sections, the defendants knew what they were purchasing, and that the failure of the proper description did not void the contract.
"... if the error did exist it was the fault of the defendants in that the defendants had the contract prepared by the attorney, Walter McGinnis.
"... the motion of the plaintiffs at the conclusion of the evidence to amend to conform to said evidence, which the court sustained, any error as to the description of the property or the amount of acreage was corrected at the time of trial.
"... the plaintiffs, after ascertaining that the defendants did not intend to comply with their part of the contract, were relieved of further obligating themselves in obtaining release of the mortgages, extending their abstract of title, or having the survey of their land completed. (The law will not require one to do an act which is useless.)
"... that there is no fault on the part of the plaintiffs; that they did everything reasonable and legal that they could do to comply with the terms of the contract, but, to the contrary, the defendants failed to comply therewith, and all the fault lies with the defendants."
There was substantial competent evidence to support the basic findings and conclusions material to the determination of the issues.
The appellants' chief complaint stems from their error in construing the words approximately 221 acres more or less to be words of guarantee rather than description.
We have carefully considered the record, reviewed the contentions of appellants and find no trial errors which would justify the granting of a new trial.
Judgment is affirmed.
APPROVED BY THE COURT.
WERTZ, J., not participating.


TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-10-00110-CV

Texas Parks & Wildlife Department; Andrew Sansom, former Executive Director of the
Texas Parks & Wildlife Department, in his official capacity; Carter Smith, present
Executive Director of the Texas Parks & Wildlife Department, in his official capacity,
Appellants

v.

Milburn Dearing, Kenneth Head, Mike Warren, Ronnie L. Ainsworth, Alton E. Anderson,
Wayne Armstrong, Ronnie Aston, Stephen Backor, Edgar D. Baker, Kenneth L. Baker,
Stephen A. Barbour, William H. Bearden, Larry N. Benge, Ronald M. Bennett, Ralph E.
Bishop, Winston E. Bishop, William D. Blackburn, Michael W. Bradshaw, Ronald Brooks,
Garland W. Burney, Andy G. Carr, Jack H. Chancey, Tommy H. Charbula, Jerry Chilton,
Bobby D. Colston, Larry H. Cranford, Billy A. Dodd, Gordon K. Eckert, Raymond D.
Evans, Bobby Fenton, Bobby R. Ferguson, Keith R. Foltermann, William Francis, Faustino
S. Garcia, Charles Gluck, Bobby L. Goff, John D. Gould, David E. Greene, Larry H.
Griffin, Robert L. Hall, Kenneth N. Hand, Jerry D. Hearn, William J. Hiles, Gary W.
Hobbs, Jerome S. Hohman, Gary M. Hunt, Samuel T. Ilse, Donald W. Jackson, Nolan
Brent Johnson, August J. Kaderka, Johnny C. Karstedt, Steven Kennedy, James Kitchens,
Rodney A. Knight, Charles D. Koenig, Jackie W. Kohleffell, Ronald Kramer, Arthur L.
Lawrence, John LeLeux, Ernest L. Lerma, Robert A. Levens, Frank Luna, Kenneth W.
Lunsford, William W. McClendon, William McCool, Malcolm McDonald, Kirby D.
McRorey, Jimmy D. Mangum, Steven Medford, Forester Mills, Ernest B. Mobley, Timothy
M. Moorman, Audie D. Nelson, Kenneth D. Nevins, James E. Nixon, Jr., Robert D.
Norman, Larry D. Osborne, Eliseo Padilla, David L. Pagel, Douglas B. Parker, Billy G.
Patton, Mitchell L. Pawlik, David N. Perry, Michael A. Pike, Michael R. Porter, William O.
Potts, Charles M. Reed, Sammy Rippey, Larry B. Rowe, Lauro Salinas, Hilda M. Sanchez,
Benjie J. Smith, Jay Smith, Gustavo Sorola, Douglas Spivey, Raymond V. Stallings,
Michael V. Stinson, Dennis B. Thomas, Richard E. Thomas, Danny R. Tuggle, Dennis Mike
Urban, Steve R. Vail, Richard Veach, Jose Vega, Charles Vest, Danny Villalobos, Michael
L. Walker, Ronny O. Ward, Malcolm Watson, Harvey Burt Williams, Velton Williams,
Marvin C. Wills, Robert W. Wolford, and Pat Woodmansee, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-GN-01-002867, HONORABLE GISELA D. TRIANA-DOYAL, JUDGE PRESIDING

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

PER CURIAM
		The parties have requested that this appeal be abated pending finalization of the
parties' settlement agreement.  We grant the motion and abate the appeal.  Absent further order of
this Court, this appeal will be automatically reinstated on April 4, 2011.  The parties are directed to
file either a status report or a motion to dismiss by that date.

Before Justices Puryear, Pemberton and Henson
Abated
Filed:   February 4, 2011