                                       In the Missouri Court of Appeals
                                               Eastern District
                                                                       DIVISION TWO

KAREN ELLIS and TODD ELLIS,                                                       )   No. ED100836
                                                                                )
              Plaintiffs/Appellants,                                              )   Appeal from the Circuit Court
                                                                                )   of St. Louis County
v.                                                                                )
                                                                                )   Hon. Colleen Dolan
KEVIN HEHNER,                                                                     )
                                                                                )
              Defendant/Respondent.                                               )   Filed: October 7, 2014

                                                                         Introduction
              Karen Ellis and Todd Ellis (collectively Appellants) appeal from the trial court’s

February 20, 2013 Order and Judgment in favor of Kevin Hehner (Respondent) on Count I

(Declaratory Judgment and Permanent Injunction) of Appellants’ three-count petition,1 and in

favor of Respondent on his Counterclaim for Declaratory Judgment and Injunctive Relief. We

affirm.

                                                               Factual and Procedural Background

              This case concerns a shared driveway between the respective homes of Appellant Karen

Ellis and Respondent. Appellant Todd Ellis is Karen Ellis’s son. Both Karen Ellis and

Respondent have lived in their respective neighboring homes for a long period of time, and the

driveway they share was created by an easement recorded in 1967 benefitting Respondent’s

1
 Counts II (trespass) and III (battery) of Appellants’ petition were severed on October 9, 2012, then dismissed with
prejudice by the trial court on July 24, 2013.
property and burdening Karen Ellis’s property. The driveway itself is wide enough to

accommodate two cars side by side. However, the parties have been feuding over each other’s

various uses of and activities upon the driveway, such as the spraying of pesticide, the shoveling

of snow, the placing of railroad ties, and the pilfering of rocks. Todd Ellis has become involved

in this dispute between the parties as he often comes to his mother’s home to do various projects

on and about her property, including the shared driveway.

       On January 27, 2011, Karen Ellis filed a three-count petition against Respondent, asking

for equitable relief in the form of a declaratory judgment that the recorded easement is invalid

and injunction in Count I; alleging trespass in Count II; and battery in Count III. On February 9,

2011, prior to receiving service of Karen Ellis’s petition, Respondent filed a petition for

injunctive and declaratory relief against Karen Ellis and Todd Ellis requesting that the easement

be declared valid. Respondent also filed an answer and counterclaim to Karen Ellis’s petition.

Respondent filed a motion to consolidate the actions on July 21, 2011. On August 3, 2011, the

cases were consolidated as they concerned the same easement and involved the same set of facts

and issues. Also upon Respondent’s motion, Counts II and III of Karen Ellis’s petition were

severed from the equitable claims asserted in Count I.

       On March 7, 2012, Respondent filed a Motion to Dismiss Count I of Karen Ellis’s

petition and for Summary Judgment on said count as well as on his counterclaim. The trial court

called, heard and took the motion as submitted on June 22, 2012, denied it on July 19, 2012, and

set the matter for trial on November 26, 2012.

       A bench trial of the parties’ remaining claims was held on November 26 and 27, 2012.

At the conclusion of trial, the court requested the parties submit their respective proposed

findings of fact and conclusions of law. On February 20, 2013, the trial court entered judgment

                                                 2
in favor of Respondent on his counterclaim and Count I of Karen Ellis’s petition. The trial

court’s judgment found the easement belonging to Respondent and his successors at the property

where he resides, granted in an Easement Deed recorded on August 4, 1967 at Book 5600 Page

481 of the records of St. Louis County, is a valid interest in the real estate described in said

Easement as the property where Karen Ellis lives, as well as said property’s successors-in-

interest. The judgment further provides:

                2. The object and purpose of the Easement is for egress and ingress
       between [Respondent’s] property and Victory Drive. Pursuant to said object and
       purpose, [Respondent] and his successors shall have the right to use the Easement
       for traffic, including that of vehicles, lawn equipment and by foot; for parking; for
       undertaking reasonable maintenance including but not limited to the addition of
       gravel, minor repairs, leveling, weed control, and removal of snow, debris,
       obstacles, and refuse from the driveway; and for any and all other purposes
       reasonable and natural to the use of a suburban driveway.
                3. The boundary line separating [Respondent’s] and [Karen Ellis’s]
       properties is hereby declared to be the line determined by Land Surveyor James
       Whitehead of Glasper Professional Services (formerly Cornerstone Land
       Surveying & Civil Engineering) as set out more fully in the survey, marked as
       [Respondent’s] Exhibit W (a true and accurate copy of which is attached hereto),
       and as physically marked on the land by set iron pipes with licensed caps.
                4. The land survey attached to the Easement Deed, found at Book 5600
       Page 483, (a true and accurate copy of which is attached hereto) record with the
       St. Louis County Recorder of Deeds, sets out the dimensions of the Easement, as
       they relate to the above-referenced boundary line.
                5. The costs for repairs to that portion of the driveway embraced by the
       Easement (i.e. that portion upon the Ellis property) shall be shared equally
       between the parties so as to maintain a white limestone gravel suburban driveway
       that includes an existing curb on its western boundary. Should [Karen] Ellis, her
       personal representative, or any of her successors permanently remove the circle
       driveway connecting to the Easement driveway and forever cease all use of the
       Easement driveway, abandoning all use in writing, then all maintenance shall be
       borne by [Respondent], his personal representatives or successors.
                6. Karen Ellis, Todd Ellis, their agents, representatives, employees,
       successors and any and all others at their direction are hereby permanently
       enjoined and prohibited from:
                a. Blocking, obstructing, impeding or otherwise limiting the reasonable
       use or maintenance by [Respondent] or [Respondent’s] guests and successors of
       the portion of the driveway embraced by the Easement;
                b. Removing or altering any part of the driveway embraced by the
       Easement, except as mutually agreed upon in writing between [Karen Ellis] and

                                                  3
       [Respondent] or their personal representatives or successors. Any agreement to
       perform substantial repairs or maintenance to the driveway which is embraced by
       the Easement shall be signed by [Karen Ellis] and [Respondent] or their personal
       representatives or successors;
              c. Altering that portion of the driveway embraced by the Easement in any
       manner that would change the essential character of the driveway as a white
       limestone gravel, suburban driveway that includes an existing curb on its western
       boundary (i.e. as it has existed for the last 25 years);
              d. Entering any portion of the driveway which is upon [Respondent’s]
       property for any purpose, including driving upon that portion of the driveway
       which lies outside the Easement. [Karen Ellis] and Todd Ellis, as well as their
       successors, shall take reasonable steps to prevent others servicing the property at
       910 Victory, including delivery persons, and those operating transport vehicles
       and postal vehicles, from driving upon that portion of the driveway which lies
       outside the Easement by instructing or advising such persons or entities of this
       Order;
              e. Placing or installing any obstacles or impediments on the Easement.
       [Karen Ellis] and Todd Ellis are specifically ordered to remove any wooden
       landscaping timbers or beams from the portion of the property which lies inside
       the Easement, as well as any rebar stakes holding such timbers or beams in place.

       The trial court also awarded Respondent his attorney’s fees and costs, the proper amount

of which would be determined by the court at a hearing on a later date after Counts II and III of

Karen Ellis’s petition were tried. Counts II and III of Karen Ellis’s petition were scheduled for

trial on July 29, 2013. Prior to that date, however, Respondent filed a Motion for Enforcement

of the court’s Order and Judgment, asserting that Appellants had not yet removed the railroad

ties blocking the driveway easement as ordered in paragraph 6(e) of the judgment. The trial

court heard the motion on June 14, 2013, and ordered Appellants to remove the railroad ties from

the driveway easement within 20 days of the date of the order. The trial court further noted that

failure to comply with this order would result in Karen Ellis’s remaining two claims being

dismissed with prejudice. On July 3, 2013, Karen Ellis filed a Motion to Reconsider Order of

February 20, 2013. On July 8, 2013, Respondent filed a Motion to Dismiss Karen Ellis’s Counts

II and III, as she had failed to comply with the court’s June 14, 2013 order of enforcement of

paragraph 6(e) of its February judgment to remove the railroad ties. The trial court held a

                                                 4
hearing on the motions to reconsider and to dismiss, respectively, on July 24, 2013, and on that

date denied Karen Ellis’s motion to reconsider and granted Respondent’s motion to dismiss,

dismissing Karen Ellis’s two remaining claims with prejudice for failure to comply with the

February 20, 2013 judgment and June 14, 2013 order of enforcement. The court also set for

hearing on August 14, 2013 Respondent’s award of attorney’s fees. At the hearing on

Respondent’s attorney’s fees, both parties submitted testimony and Respondent submitted

exhibits, and the court heard arguments from both sides. On October 2, 2013, the trial court

entered an Order and Judgment awarding $5,000 in attorney’s fees to Respondent.

              This appeal follows.

                                                               Discussion of Points on Appeal

                                                                  Point I – Attorney’s Fees

              In their first point, Appellants claim the trial court erred by granting Respondent’s request

for attorney’s fees in the amount of $5,000 because an award of attorney’s fees was not

warranted under Section 527.1002 as Respondent failed to show “special circumstances.”

              Section 527.100, titled “Costs,” provides: “In any proceeding under sections 527.010 to

527.130 the court may make such award of costs as may seem equitable and just.” Under this

statute authorizing circuit courts to award costs in an amount the court deems equitable and just,

in declaratory actions, “costs” may include attorney’s fees when there are special circumstances.

Smith v. City of St. Louis, 395 S.W.3d 20, 26 (Mo.banc 2013); see also Bernheimer v. First

National Bank of Kansas City, 359 Mo. 1119, 225 S.W.2d 745 (1949) (court held that attorney’s

fees may be awarded in a declaratory judgment action when there are special circumstances).

The standard of review is abuse of discretion. Smith, 395 S.W.3d at 26.

2
    All statutory references are to RSMo 2006, unless otherwise indicated.

                                                                             5
          At the August 19, 2013 post-trial hearing on attorney’s fees and costs, Respondent

presented testimony and exhibits setting forth the attorney’s fees he incurred in connection with

the litigation totaling $14,802.19. On October 20, 2013, the trial court entered an Order and

Judgment finding that:

          [Respondent] has incurred reasonable attorneys’ fees in bringing and defending
          the claims in the above cause … Section 527.100 RSMo. provides for payment of
          attorneys’ fees when there are “special circumstances.” Goellner v. Goellner
          Printing, 226 S.W.3d 176, 179 (Mo.App. E.D. 2007). Based on the evidence
          adduced at trial, the court finds [Respondent] in this case is not nearly as
          sympathetic a party as was the prevailing party in Goellner and the court finds he
          is not entitled to reimbursement from [Appellants] for all of the fees he has
          incurred. However, the evidence supports an award of a portion of his fees as
          [Appellants] blocked [Respondent] from using the driveway for ingress and
          egress to and from his property on numerous occasions for no other reason than
          spite, to inconvenience and annoy him. [Respondent] is therefore awarded
          attorney’s fees in the amount of $5,000.00.

In Goellner, wife brought an action against her deceased husband’s former employer after

employer stopped paying wife’s health insurance despite its contractual obligation to do

so for all of wife’s life. Id. at 179. We found that after paying for wife’s insurance for

over 20 years, employer terminated her benefits out of spite, and wife, who was 92 years

old at the time of trial, was forced to bring action for declaratory judgment. Id.

          In the instant case, we find that the trial court’s determination that Appellants

acted out of spite on numerous occasions in blocking Respondent’s use of the driveway,

use of which Appellants knew he was legally entitled, justified awarding a portion of

Respondent’s fees in the action in which he prevailed. The trial court did not abuse its

discretion in awarding Respondent $5,000 of his total fees of $14,802.19. Point I is

denied.

                                                    6
                        Point II – Injunction for Enforcement of Easement

       In their second point, Appellants maintain the trial court erred in finding that Respondent

made a submissible case for an injunction for enforcement of the previously recorded easement

in that there was no probative evidence concerning or reference in the court’s judgment to a legal

description or survey of the boundary portion of the driveway.

       Contrary to Appellants’ assertion that there is no reference in the judgment to a legal

description or survey of the boundary portion of the driveway, the judgment reads:

               3. The boundary line separating [Respondent’s] and [Karen Ellis’s]
       properties is hereby declared to be the line determined by Land Surveyor James
       Whitehead of Glasper Professional Services (formerly Cornerstone Land
       Surveying & Civil Engineering) as set out more fully in the survey, marked as
       [Respondent’s] Exhibit W (a true and accurate copy of which is attached hereto),
       and as physically marked on the land by set iron pipes with licensed caps.
               4. The land survey attached to the Easement Deed, found at Book 5600
       Page 483, (a true and accurate copy of which is attached hereto) record with the
       St. Louis County Recorder of Deeds, sets out the dimensions of the Easement, as
       they relate to the above-referenced boundary line.

The survey prepared as a document by James Whitehead (Whitehead) and as physically marked

out on the parties’ properties and photographed, and the easement deed with accompanying

survey as recorded in the Office of the St. Louis Recorder of Deeds in 1976 at Book 5600 Page

483, cited in the judgment as set out above, were attached and incorporated into the judgment by

reference and fully and completely set out the legal dimensions of the easement. Additionally, in

further contravention of Appellants’ point, these items of documentary and physical evidence as

historically recorded, professionally reconstructed, reproduced and testified to by an expert land

surveyor witness constitute ample probative evidence of the dimensions of the previously

recorded easement.

       Appellants maintain the trial court’s judgment should be reversed because it did not

incorporate a “metes and bounds” description of the easement driveway. However, there is no

                                                 7
specific requirement that such a manner of measurement be used in delineating the dimensions of

an easement. Rather, the judgment must describe with reasonable certainty the real estate

affected by the judgment. Dillon v. Norfleet, 813 S.W.2d 31, 32 (Mo.App. W.D. 1991);

Patterson v. Harrison, 46 S.W.3d 580, 581 (Mo.App. S.D. 2001). As previously noted in

response to this point, the trial court’s judgment references and incorporates the 1967 deed of

easement recorded with the St. Louis County Recorder of Deeds, Book 5600, Page 483, to which

a survey is attached depicting Karen Ellis’s property; the easement thereon; and the entire east

driveway, indicating the property line that divides it, designating distances and specific points of

origin and termination with respect to the dividing property line. In addition, the judgment also

incorporates the survey performed by Whitehead on the property, also depicting the boundary

line separating the properties. The easement as recorded and referenced by the trial court in its

judgment was sufficiently specific as to the easement’s use, although such specificity is not

strictly required. The easement in question is described as a “driveway” and has been used for

ingress and egress between Respondent’s home and the street as well as for the normal usages to

which a driveway is put. Such is to be its continued use.

       In this case, the trial court’s judgment in all respects has affirmatively determined and

declared the parties’ respective titles and privileges with regard to a fully and completely legally

dimensioned easement, such as would be required for the benefit of any future conveyance of the

property. See, e.g., Maune v. Beste, 292 S.W.3d 528, 529-30 (Mo. App. E.D. 2009). As such,

Appellants’ Point II is without merit and is therefore denied.

                                    Point III – Unclean Hands

       In their third point, Appellants contend the trial court erred by granting the injunction

because it failed to consider the undisputed evidence of ongoing and systematic misuse of the

easement by Respondent.
                                                 8
        In this case, the record evidences allegations and instances of bad behavior on the parts of

both parties. The courts have officially recognized bad behavior on the part of Appellants, in

fact, by issuing a restraining order to Respondent in his Adult Abuse action and in the underlying

action in the instant case by awarding Respondent a portion of his attorney’s fees based on the

actions taken by Appellants to disturb Respondent’s peaceful enjoyment of his property purely

out of spite.

        In any event, there is no authority that a properly recorded easement may be extinguished

because of the owner’s conduct. An easement runs with the property and not the property’s

owner. In this case, the easement is particularly necessary because its extinction would deprive

Respondent, and future owners of his property, of the only means of ingress and egress from the

property to the street.

        Finally, in a court-tried case, issues of the witnesses’ credibility are matters within the

trial court’s discretion. McAllister v. McAllister, 101 S.W.3d 287, 290-91 (Mo.App. E.D. 2003).

The trial court is in a better position to judge factors such as credibility, sincerity, character of

the witnesses, and other intangibles which are not revealed in a trial transcript. Id. The trial

court is free to accept or reject all, part, or none of the testimony of a witness. Id. And, it may

disbelieve testimony even when it is uncontradicted. Id. The trial judge has absolute discretion

as to the credibility of witnesses and the weight of their testimony is a matter for the trial court,

and its findings on witness credibility are never reviewable by the appellate court. Id.

        For the foregoing reasons, Point V is denied.

                                Point IV – Removal Of Railroad Ties

        In their fourth point, Appellants assert the trial court erred in striking Karen Ellis’s non-

equitable, bifurcated claims for failure to remove the railroad ties from the driveway as she was

physically incapable of removing the railroad ties due to her age and incapacity and Todd Ellis
                                                   9
was subject to possible criminal prosecution if he removed the railroad ties due to a restraining

order.

         The trial court’s February 20, 2013 judgment, paragraph 6(e) stated: “[Karen Ellis] and

Todd Ellis are specifically ordered to remove any landscaping timbers or beams from the portion

of the property which lies inside the Easement, as well as any rebar stakes holding such timbers

or beams in place.” More than 60 days later, on May 13, 2013, Respondent had to file a motion

for enforcement of the court’s judgment because Appellants had not removed the timbers as

ordered by the court. The trial court then entered a judgment stating in pertinent part, “[Karen]

Ellis shall cause the removal of the wooden landscaping timbers or beams from the driveway (as

ordered in the Feb. 20, 2013 Judgment) within 20 days of this date. Failure to comply shall

result in the dismissal with prejudice of [her] remaining cause of action.” Appellants again failed

to comply and thus the trial court dismissed the remaining claims.

         We find Appellants’ contentions that they could not comply with the order because Karen

Ellis is unable to move the timber herself due to her age and Todd Ellis cannot move the beams

because the restraining order prevents him from going onto Respondent’s side of the driveway to

be disingenuous. The court did not order that Karen Ellis herself or Todd Ellis himself had to

physically remove the timbers from the driveway. Therefore, their claims that they failed to

comply with the court’s directive because Karen Ellis is too frail and Todd Ellis is legally

prohibited from doing so are unpersuasive. Appellants can hire someone to move them if need

be.

         Based on the foregoing, Point IV is denied.

                                     Point V – Expert Testimony

         In their fifth point, Appellants argue the trial court erred by allowing Whitehead to testify

at trial because he had not been disclosed as an expert opinion witness and he had no personal
                                                  10
knowledge of any of the measurements taken or work performed on the driveway, making his

testimony inadmissible hearsay opinion testimony.

              Rule 56.01(b)(4)(a)3 requires the disclosure of experts expected to be called to testify at

trial. An expert witness is a person retained by a party in relation to litigation and who by reason

of education or specialized experience possesses superior knowledge respecting a subject about

which persons having no particular training are incapable of forming an accurate opinion or of

deducing correct conclusions. St. Louis County v. Pennington, 827 S.W.2d 265, 266 (Mo.App.

E.D. 1992). A trial court has broad discretion in its choice of action in response to non-

disclosure of evidence or witnesses. Id.

              In the case sub judice, Respondent did not timely disclose his expert witness Whitehead

in response to Appellants’ requests in discovery, but disclosed his identity as an expert witness

and his boundary survey in his motion for summary judgment filed March 12, 2012, more than

eight months before trial. As such, Appellants were not prejudiced by Respondent’s failure to

disclose Whitehead and his survey during discovery, because Appellants had ample time to

prepare a rebuttal to Whitehead and his survey prior to trial. There was no unfair surprise or

concealment. The purpose of the discovery rule is to eliminate the element of surprise during

trial and provide the parties with all relevant materials. State ex rel. Plank v. Koehr, 831 S.W.2d

926, 927 (Mo.banc 1992). Furthermore, Whitehead’s testimony at trial was limited to

identifying the survey he prepared, photographs of the property as surveyed and explaining the

process of compiling a boundary survey. He did not offer any opinions and the 1967 Easement

Deed was entered into evidence as self-explanatory. Therefore, the trial court acted within its

discretion in allowing Whitehead’s testimony and survey to be allowed into evidence at trial and

considered in fashioning its declaratory judgment.

3
    All rule references are to Mo R. Civ. P. 2011, unless otherwise noted.

                                                               11
       Appellants’ Point V is denied.

                                 Point VI – Motion to Reconsider

       In their sixth point, Appellants aver the trial court erred in denying their motion to

reconsider on the basis of splitting a cause of action and/or collateral estoppel because

Respondent had litigated the same issue of the blockage of the driveway before two different St.

Louis County courts.

       Appellants maintain the Order of Protection Respondent obtained in his action under the

Adult Abuse Act, Sections 455.010 to 455.085, for verbal threats made against him on

September 23, 2012 by Todd Ellis collaterally estops him from litigating his claims in the instant

case. This contention is without merit. That action was filed over a year and a half after the

claim filed by Respondent in the instant action and involved a different cause of action than the

instant one, which was filed for declaratory and injunctive relief with regard to a recorded

easement. The Order issued in the adult abuse case is based on the parties’ conduct, and

provides that both Respondent and Appellant Todd Ellis are to “refrain from any contact,

communication, or interaction of any kind.” It also ordered them to remain within their

respective property boundaries or within the driveway easement, to-wit: “[Todd Ellis] shall not

use any portion of the East driveway (includes the person) and shall remain on the 910 Victory

property boundaries. [Respondent] shall not use any portion of the west driveway (including the

person) and shall remain on the 906 Victory property boundaries and within the Driveway

Easement.” The Order and Declaratory Judgment in the instant case covers legal usage and

ownership of the subject easement-shared driveway based on the recorded easement on the

property. These are different issues.

       Collateral estoppel is defined as issue preclusion. Adams v. Inman, 892 S.W.2d 651, 654

(Mo.App. W.D. 1994). Collateral estoppel precludes the same parties or their privies from
                                                 12
relitigating issues that have been previously litigated. Id. In order to invoke collateral estoppel,

the following four elements must be found: 1) the issue decided in prior litigation must be

identical to the issue presented in the present action; 2) the prior litigation must have resulted in

a judgment on the merits; 3) the party against whom collateral estoppel is asserted must have

been a party or in privity with a party to the prior litigation; and 4) the party against whom

collateral estoppel is asserted must have had a full and fair opportunity to litigate the issue in the

prior action. Id. The first and most fundamental element of collateral estoppel, i.e., identity of

issues, is missing here. Determination of rights of shared use and ownership of a driveway that

is subject to a recorded easement does not involve issues of communication and adult abuse.

       The rule against splitting a cause of action is related to the doctrine of collateral estoppel.

Finley v. St. John's Mercy Medical Center, 958 S.W.2d 593, 595 (Mo.App. E.D. 1998). A cause

of action that is single may not be split and filed or tried piecemeal, the penalty for which is that

an adjudication on the merits in the first suit is a bar to a second suit. Id. However, distinct

causes of action may arise from a single contract, transaction or occurrence. Id. Respondent’s

adult abuse claim and resulting protective order against Appellant Todd Ellis arose eighteen

months after the instant cause of action was filed, and involved verbal threats made by Todd

Ellis to Respondent, and not the legal right to property ownership and use of the driveway based

on a recorded easement.

       For the foregoing reasons, Point VI is without merit and denied.

                                                  13
                                                               Conclusion
                                                               C

              The trial cour judgmen is affirmed 4
              T            rt’s    nt          d.

                                                                         Sher B. Sulliva P.J.
                                                                            rri        an,

Mary K. Hoff, J., andd
Philip M. Hess, J., co
                     oncur.

4
    Responde
           ent’s Motion to Dismiss for Lack of Jurisdiction is denied
                         o             L                            d.

                                                                    14


469 So.2d 826 (1985)
G.J.P., a Child, Appellant,
v.
STATE of Florida, Appellee.
No. 84-2083.
District Court of Appeal of Florida, Second District.
April 24, 1985.
Rehearing Denied May 24, 1985.
James Marion Moorman, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
*827 Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Asst. Atty. Gen., Tampa, for appellee.
SCHOONOVER, Acting Chief Judge.
By this appeal, appellant, G.J.P., a child, challenges a trial court order denying a motion to suppress certain evidence seized from him. Upon the denial of his motion, appellant pled nolo contendere to a misdemeanor charge of possession of a controlled substance and reserved his right to appeal the court's order. The court accepted appellant's plea, withheld adjudication of guilt, and placed appellant into the juvenile alternative services program. We find the trial court erred in denying appellant's motion to suppress and, accordingly, reverse.
At approximately 7:00 p.m. on Friday, June 8, 1984, two police officers on routine patrol observed an automobile with two occupants parked in an alley leading into an open field. A bicycle was parked next to the automobile. Although the automobile was parked in what was known as a high crime area, the officers had not received any reports that a vehicle had been stolen or that any crime had been committed in the area.
The police officers left their cruiser and, while approaching the vehicle, saw appellant, who was sitting in the passenger's side of the car, make a quick movement. Appellant's head went down and it also appeared that his hand went down. Appellant and his companion were ordered out of the vehicle and a pat-down search, producing no weapons, was conducted. One of the officers then proceeded to the passenger's side of the vehicle, looked in, and observed a partially concealed baggie containing a brown substance. The officers seized the baggie and arrested appellant and his companion.
Appellant contends that the baggie containing a controlled substance and the statements he made immediately after his arrest should have been suppressed. We agree.
A law enforcement officer may temporarily detain a person for purposes of investigation under circumstances reasonably indicating that the person has committed, is committing, or is about to commit a crime. § 901.151, Fla. Stat. (1983). Although the de tension may be based upon something less than probable cause, it cannot be based upon mere or bare suspicion of criminal activity. Coladonato v. State, 348 So.2d 326 (Fla. 1977); Carter v. State, 454 So.2d 739 (Fla. 2d DCA 1984); Wilson v. State, 433 So.2d 1301 (Fla. 2d DCA 1983).
To justify temporary detention of a person, there must be a "founded" suspicion in the mind of the police officer that the person has committed, is committing, or is about to commit a crime. Wilson; Carter; Kearse v. State, 384 So.2d 272 (Fla. 4th DCA 1980); State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978). A "founded" suspicion is one which has some factual foundation in the circumstances observed by the officer when those circumstances are interpreted in light of the officer's knowledge. Stevens; Wilson. Mere suspicion, on the other hand, is no better than random selection, sheer guesswork, or hunch; it has no objective justification. Stevens.
The police officers in this case had nothing more than a bare suspicion upon which to base their detention of appellant by ordering him out of the car. They did not articulate facts to support the initial suspicion that led them to park the police cruiser and approach appellant. Nothing indicated that it was unusual for people to park their cars in the alley, especially before dark. The fact that appellant was in a car in a high crime area is not, standing alone, sufficient basis upon which to conclude that he was engaged in, or about to become engaged in, criminal conduct. See Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979).
The officers' suspicion was not raised to the level of a "founded" suspicion when appellant made a quick movement *828 upon the officers' approach of the vehicle. Currens v. State, 363 So.2d 1116 (Fla. 4th DCA 1978). An officer who observes a car parked in a high crime area and then sees one of the occupants make a quick movement may have his suspicions aroused, but he does not have the "founded" suspicion necessary to legally detain the person for the purpose of further investigation. Currens.
Because appellant was not detained lawfully, the police officers were not lawfully entitled to be in the place where they observed the controlled substance. The state's reliance on the plain view doctrine to uphold the trial court's action is therefore misplaced. Neary v. State, 384 So.2d 881 (Fla. 1980).
We, accordingly, reverse and remand with instructions to discharge appellant for this offense.
Reversed and remanded with instructions.
FRANK and HALL, JJ., concur.


895 F.2d 424
UNITED STATES of America, Plaintiff-Appellee,v.Patrick ASUBONTENG, also known as Patrick Rivers, Defendant-Appellant.
No. 89-1512.
United States Court of Appeals,Seventh Circuit.
Argued Sept. 25, 1989.Decided Feb. 15, 1990.Certiorari Denied April 16, 1990. See 110 S.Ct. 1830.

Daniel P. Bach (argued), John W. Vaudreuil, Asst. U.S. Atty., Madison, Wis., for plaintiff-appellee.
Richard L. Zaffiro (argued), Appleton, Wis., for defendant-appellant.
Before BAUER, Chief Judge, and RIPPLE and MANION, Circuit Judges.
MANION, Circuit Judge.

1
Patrick Rivers, a/k/a Patrick Asubonteng, a/k/a James Patton, pleaded guilty to making false statements in a credit card application and to mail fraud in violation of 18 U.S.C. Secs. 1014 and 1341.  Rivers reserved for appeal the court's denial of his motion to dismiss due to a violation of the Speedy Trial Act.  We affirm.

I. BACKGROUND

2
On August 4, 1988, a complaint was filed in the United States District Court for the Western District of Wisconsin, charging Patrick Rivers with one count of making false statements in a credit card application in violation of 18 U.S.C. Sec. 1014.  Rivers made his initial appearance on August 23, at which time counsel was appointed to represent him.  Rivers pleaded not guilty at his arraignment and detention hearing on August 25.  The magistrate, noting Rivers had employed five or more aliases and had changed his address in an attempt to elude authorities, determined Rivers to be a flight risk and ordered him detained pending trial.  The trial date was subsequently set for November 7, 1988.

3
On October 5, 1988, the grand jury returned a superseding indictment charging Rivers with seven counts.  Count I essentially duplicated the count charged in the original indictment.  Counts II through V charged further violations of 18 U.S.C. Sec. 1014.  Count VI charged Rivers with mail fraud in violation of 18 U.S.C. Sec. 1341.  Count VII charged Rivers with using a false Social Security number with intent to deceive in violation of 42 U.S.C. Sec. 408(g)(2).  The court granted the government's motion to dismiss the original indictment.

4
On October 13, 1988, Rivers was arraigned on the superseding indictment.  He pleaded not guilty to all charges.  The magistrate asked defense counsel if she could be prepared to try all counts on November 7, or whether she would prefer to try all the counts at a later date.  A third option would be to have two trials trying the first count on November 7 and the remaining six counts at a later date.  Defense counsel indicated she would like to review the discovery before making a decision.  The magistrate scheduled a new pretrial conference for October 26, and gave Rivers until October 24 to file additional motions.

5
Rivers' counsel filed seven discovery motions on October 24.  The magistrate ruled on these motions at the October 26 pretrial conference.  During the conference, Rivers' counsel agreed to a consolidated trial on all counts on January 3, 1989.  The magistrate subsequently entered an order excluding the period from November 7 through January 3 from the Speedy Trial Act computation for Count I.

6
On December 29, 1988, the defendant filed a motion to dismiss the entire superseding indictment due to an alleged violation of the Speedy Trial Act, 18 U.S.C. Sec. 3161.  The district court denied the motion.  Rivers then pleaded guilty to Counts I and VI and agreed to pay restitution in accordance with a plea agreement.  Rivers reserved his right to appeal the district court's ruling on the Speedy Trial Act motion.

7
Rivers now appeals the district court's Speedy Trial Act ruling.  He also alleges for the first time that his case was prejudiced by ineffective assistance of counsel.

II. SPEEDY TRIAL ACT
A. Count I

8
The Speedy Trial Act provides that the government must bring a criminal defendant to trial no more than seventy days after the defendant's indictment or initial appearance before a judicial officer, whichever is later.  18 U.S.C. Sec. 3161(c)(1);  United States v. Piontek, 861 F.2d 152 (7th Cir.1988).  Thus the Speedy Trial Act clock began to run on the original count (later Count I of the superseding indictment) on August 23, the date of Rivers' initial appearance.  Rivers contends that the January 3 trial date was too late under the Act.

9
Subsection (h)(8)(A) of the Speedy Trial Act provides that the court may exclude from the Speedy Trial Act computation

10
[a]ny period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.  No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.

11
The Act further specifies the factors which may be considered in granting a continuance:

12
The factors, among others, which a judge shall consider in determining whether to grant a continuance under subparagraph (A) of this paragraph in any case are as follows:

13
* * * * * *

14
Whether the failure to grant such a continuance in a case which, taken as a whole ... would deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence....

15
No continuance ... shall be granted because of general congestion of the court's calendar, or lack of diligent preparation or failure to obtain available witnesses on the part of the attorney for the Government.

16
18 U.S.C. Sec. 3161(h)(8)(B) and (C).

17
In his "Order Excluding Time Under Speedy Trial Act," the magistrate stated:

18
As to the original count of the indictment, I conclude that the period from November 7, 1988 to January 3, 1989, should be excluded for purposes of the speedy trial calculation on the basis of 18 U.S.C. Sec. 3161(h)(8)(A).  I find that the ends of justice served by such exclusion outweigh the interest of the public and the defendant in a speedy trial, as the trial of all of the counts in the superseding indictment in a single trial will permit the more efficient and effective use of judicial time, and avoid the unnecessary and duplicative expenditure of effort, expense, witness and juror time, and the like which would result from two trials.

19
The magistrate noted that Rivers, through his counsel, agreed to the consolidation of the two trial dates on January 3. Rivers asserts that he did not knowingly waive his Speedy Trial Act rights.  However, the record shows neither Rivers nor his counsel objected to the continuance of the trial on Count I;  neither did they object to the magistrate's "Order Excluding Time Under Speedy Trial Act."    Since Rivers did not raise this issue at the district court level, he cannot raise it on appeal unless the continuance or "Order Excluding Time" constitutes plain error.  United States v. Samples, 713 F.2d 298, 302 (7th Cir.1983);  United States v. Andrus, 775 F.2d 825, 852 (7th Cir.1985).  "Plain error occurs when, in light of the entire record, [the trial court's order] had a probable impact upon the finding of guilty."    Id.  The continuance in this case simply resulted in Rivers' trial on Count I being moved from November 7 to January 3.  We fail to see how this caused Rivers to plead guilty on December 29.  Rivers does not specify any evidence, testimonial or otherwise, or any tactical advantage he lost by having his trial set at the later date.  There was no plain error which would require us to review the magistrate's decision to exclude the period from November 7 to January 3 as to Count I.

20
Moreover, Sec. 3161(h)(8)(A) allows the magistrate to grant the continuance and exclude it from the Speedy Trial Act computation on his own motion, provided that he places in the record his reasons for doing so.  United States v. Rivera Construction Co., 863 F.2d 293, 296 (3d Cir.1988).  The Act does not require the consent of the defendant or his counsel.  In granting the continuance the magistrate noted that "a single trial will permit the more efficient and effective use of judicial time, and avoid the unnecessary and duplicative expenditure of effort, expense, witness and juror time, and the like which would result from two trials."    These are permissible considerations under Sec. 3161(h)(8)(C).  Therefore we will not disturb the magistrate's decision absent an abuse of discretion and a showing of prejudice.  United States v. Vega, 860 F.2d 779, 787 (7th Cir.1988).  As we have already noted, Rivers was not prejudiced by the grant of additional time with which to prepare for trial on Count I.  If anything, this was to his advantage.  Not only did the defense counsel have almost two additional months with which to prepare, she also would not have to duplicate her efforts in two trials involving common factual backgrounds.  These tactical considerations probably contributed to defense counsel's consent to consolidating the trials on January 3.  Therefore we find that the magistrate was well within his discretion in deciding to continue the trial from November 7 to January 3, and to exclude the intervening period from the Speedy Trial Act computation.

21
Rivers has stipulated November 7 was "well within the 70 days provided by the Speedy Trial Act."    Defendant-Appellant's Brief at 7.  Since the period from November 7 until the trial date was properly excluded, we find there was no Speedy Trial Act violation as to Count I.

22
B. Counts II through VII.

23
The Speedy Trial Act clock began running on October 13 as to Counts II through VII of the superseding indictment.  The trial was to be held on January 3.  This is a period of eighty-two days.  At least twelve days must be excluded to bring the trial date within the Speedy Trial Act's seventy days.

24
Subsection (h)(1)(F) of the Speedy Trial Act allows the exclusion of "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion...."  The magistrate set aside eleven days, from October 13 to October 24, for the filing of pretrial motions as to the superseding indictment.  The magistrate took two days, until October 26, before he ruled on the motions.  Thus thirteen of the eighty-two days are excludable, leaving sixty-nine days.  The thirteen days are excludable even though the magistrate granted the time for filing motions sua sponte.  United States v. Piontek, 861 F.2d 152, 154 (7th Cir.1988);  United States v. Montoya, 827 F.2d 143, 153 (7th Cir.1987).  Therefore there was no violation of the Speedy Trial Act's seventy-day time limit with respect to Counts II through VII.  We affirm the district court's denial of Rivers' Speedy Trial Act motion.

25
Rivers' brief also alludes to an alleged deprivation of Rivers' constitutional speedy trial rights.  However, Rivers did not raise this issue in district court and therefore cannot raise it on appeal absent plain error.  United States v. Andrus, 775 F.2d at 852.1   For the reasons stated above with respect to Rivers' Speedy Trial Act claims, the setting of the trial date had no "probable impact upon the finding of guilt";  therefore there was no plain error as to Rivers' speedy trial rights.  Id.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

26
In addition to his claim for violations of the Speedy Trial Act, Rivers alleges the following four instances of ineffective assistance of counsel:

27
1.   Failure to advise him at the arraignment on the superseding indictment of the possible waiver of otherwise valid speedy trial rights by entering new pleas and setting a new trial date, without ensuring that the waiver was knowing and intelligent;

28
2.   Failure to avail herself of court-appointed investigative services under 18 U.S.C. sec. 3006A, the Criminal Justice Act, in order to locate witnesses material and necessary to the presentation of Rivers' defense at a trial;

29
3.   Failure to move the court for a reconsideration of the bail which had earlier been set, to seek a bail which he could reach in order to better assist in finding witnesses and evidence material to the presentation of his defense at trial;  and

30
4.   Failure to present favorable witnesses and witness statements on Rivers' behalf at the time of his sentencing.

31
Defendant-Appellant's Brief at 2-3.

32
To prove ineffective assistance of counsel, "[t]he defendant must show that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome."    Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984).

33
But Rivers claims ineffective assistance of counsel for the first time on appeal.  In United States v. Ray, 828 F.2d 399 (7th Cir.1987), cert. denied, 485 U.S. 964, 108 S.Ct. 1233, 99 L.Ed.2d 432 (1988), this court faced a similar situation.

34
[The defendant] did not raise the argument of ineffective assistance of counsel in district court.  In this type of situation, although defendants may appeal directly from a judgment after a guilty plea, appellate courts do not as a general rule consider the defendant's claims of ineffective assistance of counsel.  United States v. Fisher, 772 F.2d 371, 373 (7th Cir.1985) (collecting cases).  The reason is that usually "there has been no opportunity to develop and include in the record" evidence relating to the ineffectiveness issue.  United States v. Ellison, 798 F.2d 1102, 1106 (7th Cir.1986), cert. denied,  U.S.  [1038], 107 S.Ct. 893, 93 L.Ed.2d 845 (1987);  see Fisher, 772 F.2d at 373.

35
If the record is sufficiently developed to consider the issue of ineffective assistance of counsel, we may consider the issue.  See United States v. Nero, 733 F.2d 1197, 1207 (7th Cir.1984);  United States v. Costa, 691 F.2d 1358, 1363 (11th Cir.1982);  United States v. Phillips, 664 F.2d 971, 1040 (5th Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982).  If not, we will not reach the merits and will instead remand to the district court, "which is better equipped for such an inquiry."    Fisher, 772 F.2d at 373.    Even if the record is insufficiently developed, we need not remand to the district court if we determine that the defendant cannot establish that he or she suffered some prejudice.  Id.;  Costa, 691 F.2d at 1363.

36
Id. at 420.

37
Rivers' first allegation of ineffective assistance challenges the propriety of his counsel's acquiescence to a single January 3 trial date.  Rivers claims his counsel wrongly waived his statutory and constitutional speedy trial rights.

38
As we have noted, the decision to consolidate the trials on January 3 was reasonable from the standpoint of defense preparation.  Rivers was arraigned on the superseding indictment less than a month before the originally scheduled November 7 trial date.  Counsel would have had great difficulty preparing for the additional counts (Counts II through VII) by November 7.  Since Count I was factually similar to Counts II through VII, a later consolidated trial was desirable.  Under the circumstances, we cannot say defense counsel was unreasonable in requesting a single trial on all counts on January 3.

39
Moreover, Rivers was not prejudiced by any waiver of his speedy trial rights.  The magistrate had authority under the Speedy Trial Act to set the trial on January 3, with or without Rivers' consent.  Rivera Construction, 863 F.2d at 296.    Finally, Rivers offers no explanation of how delaying the trial until January 3 could have influenced the case's ultimate conclusion.  If anything, Rivers should have been more prepared to try the case on January 3 than at an earlier date.  Rivers fails to satisfy either Strickland prong on this issue.

40
The record contains no evidence to support Rivers' claims of prejudice with respect to the remaining allegations of ineffective assistance.  Rivers asserts witnesses existed who would have exonerated him, but does not specifically state what these witnesses would have said.  Rivers also contends his counsel should have presented "additional favorable testimony at sentencing," but does not specify what the testimony would have been.  Furthermore, these witnesses were apparently difficult to locate.  Rivers asserts, given the chance, he could have found them, but we have only his word to support this.  This court has consistently held that such conclusory allegations do not satisfy Strickland's prejudice component.  See United States v. Hattermann, 853 F.2d 555, 559 n. 9 (7th Cir.1988);  United States v. Otero, 848 F.2d 835, 838 (7th Cir.1988);  United States v. Giangrosso, 779 F.2d 376, 382 (7th Cir.1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1237, 89 L.Ed.2d 345 (1986);  United States v. Metcalfe, 698 F.2d 877, 883 (7th Cir.), cert. denied, 461 U.S. 910, 103 S.Ct. 1886, 76 L.Ed.2d 814 (1983).  Consequently, Rivers has failed to meet his burden under Strickland with respect to all of his allegations of ineffective assistance of counsel.

The decision of the district court is

41
AFFIRMED.

1
 Although the government's appellate brief addresses the merits of this issue, a search of the record reveals that Rivers did not raise the constitutional speedy trial issue below


    12-2068-cv
    Reed v. Friedman Mgmt. Corp.

                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals for the Second
    Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
    Square, in the City of New York, on the 10th day of October, two thousand
    thirteen.

    PRESENT:
               JOHN M. WALKER, Jr.,
               PIERRE N. LEVAL,
               RICHARD C. WESLEY,
                     Circuit Judges.
    _____________________________________________

    Sharon Reed,

                            Plaintiff-Appellant,

    Marques S. Reed
                                                             12-2068-cv
                            Plaintiff,
                    v.

    Friedman Mgt. Corp., David DaSilva,
Agent, Viclar Realty Corp.,

                 Defendants-Appellees.
_____________________________________________

FOR APPELLANT:              Sharon Reed, pro se, Detroit, MI.

FOR APPELLEES:              Keith A. Brady, Rubin Fiorella & Friedman LLP, New
                            York, NY.

      Appeal from a judgment of the United States District Court for the

Southern District of New York (J. Paul Oetken, Judge).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment is VACATED and the case is

REMANDED for further proceedings consistent with this order.

      Appellant Sharon Reed, proceeding pro se, appeals from the district court’s

judgment dismissing her complaint alleging that defendants Friedman

Management Corporation (“Friedman”), David DaSilva, and Viclar Realty

Corporation (“Viclar”) wrongfully deprived her of appropriate conditions in and

sought to expel her from the apartment in which she lived for failure to state a

claim pursuant to Federal Rule of Civil Procedure 12(b)(6). We assume the

parties’ familiarity with the underlying facts, the procedural history of the case,

and the issues on appeal.

                                           2
       We review de novo a district court decision dismissing a complaint

pursuant to Rule 12(b)(6). See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d

Cir. 2002). To survive a motion to dismiss under Rule 12(b)(6), the complaint

must plead “enough facts to state a claim to relief that is plausible on its face.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although all allegations

contained in the complaint are assumed to be true, this tenet is “inapplicable to

legal conclusions.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim will

have “facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id.

       Even after Twombly, we remain obligated to construe pro se complaints

liberally. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). We read pro se

complaints with “special solicitude,” interpreting them to raise the “strongest

[claims] that they suggest.” Triestman v. Federal Bureau of Prisons, 470 F.3d 471,

475 (2d Cir. 2006) (per curiam). District courts should frequently provide leave to

amend before dismissing a pro se complaint. See Cuoco v. Moritsugu, 222 F.3d 99,

112 (2d Cir. 2000). However, leave to amend is not necessary when it would be

futile. See id.

                                           3
      The district court erred in dismissing Reed’s claim pursuant to the Fair

Housing Act, 42 U.S.C. §§ 3601-19 (“FHA”), as precluded by res judicata. “To

prove that a claim is precluded [by res judicata], a party must show that (1) the

previous action involved an adjudication on the merits; (2) the previous action

involved the [same] parties or those in privity with them; and (3) the claims

asserted in the subsequent action were, or could have been, raised in the prior

action.” Pike v. Freeman, 266 F.3d 78, 91 (2d Cir. 2001) (alterations and internal

quotation marks omitted). In New York, the general rule against relitigation of a

claim does not apply where “‘the initial forum did not have the power to award

the full measure of relief sought in the later litigation.’” Burgos v. Hopkins, 14 F.3d

787, 790 (2d Cir. 1994) (quoting Davidson v. Capuano, 792 F.2d 275, 278 (2d Cir.

1986)). In this case, the Civil Court in which Reed litigated her eviction action

could not have granted her the relief that she now seeks under the FHA. See N.Y.

City Civ. Ct. Act § 202.

      “‘A pro se complaint should not be dismissed without the Court’s granting

leave to amend at least once when a liberal reading of the complaint gives any

indication that a valid claim might be stated.’” Grullon v. City of New Haven, 720

F.3d 133, 139 (2d Cir. 2013) (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir.

                                          4
2010) (alterations and some internal quotation marks omitted)). We are mindful

that in this case many of the factual allegations in the complaint are (1) not

actionable under any circumstances; (2) irrelevant to the defendants actually

sued; and (3) of questionable value to a lawsuit under the FHA. Nevertheless,

because there is a plausible nucleus indicating that the pro se plaintiff might be

able to state an actionable claim given another opportunity, the district court

erred in denying her leave to amend her complaint.

      For the foregoing reasons, the judgment of the district court is hereby

VACATED and the case is REMANDED for further proceedings consistent with

this order.

                                       FOR THE COURT:
                                       Catherine O’Hagan Wolfe, Clerk

                                          5


50 P.3d 987 (2002)
137 Idaho 492
Michael G. COX and Jennifer Cox, husband and wife, Terry Maupin and Mindy Maupin, husband and wife, Plaintiffs-Counterdefendants-Appellants,
v.
Peggy CLANTON, Thelma Anderson, and Teresa Krusell, married women dealing with their sole and separate property, Defendants-Counterclaimants-Third Party Complainants-Respondents.
v.
Deelane Maupin, and Justin Maupin and Jane Doe Maupin, husband and wife, Third Party Defendants-Appellants.
No. 27020.
Supreme Court of Idaho, Boise, May 2002 Term.
July 2, 2002.
*988 Just Law Office, Idaho Falls, for appellants. Charles C. Just argued.
Hopkins, Roden, Crockett, Hansen & Hoopes PLLC, Idaho Falls, for respondents. Teresa L. Sturm argued.
KIDWELL, Justice.
The Coxes and the Maupins purchased property and made improvements upon land they believed they owned. A subsequent survey of the property revealed that the appellants did not own the land; the respondents held title to the disputed property. The appellants filed a quiet title action, and the district court quieted title in the respondents. The appellants appeal.

I.

FACTS AND PROCEDURAL BACKGROUND
The plaintiffs bought parcels of land in separate purchases from Merlin Sharp (Sharp). Terry and Mindy Maupin purchased land from Sharp in December of 1998; the Coxes' purchase occurred in February of 1999. Sharp had acquired the land from his parents in 1996, and his parents apparently had acquired it from Julius Carsten who owned it for approximately thirteen years. The plaintiffs were given recorded deeds to the property.
The defendants received their property by a recorded deed on May 11, 1999, from their mother, Nina Anderson. Nina and her husband Warren owned the land since 1956, acquiring it from Martin Anderson. In 1967, Warren hastily erected a fence on their property to contain cattle. It is in substantially the same condition as it was then, consisting of evenly-spaced steel fence posts with three or four strands of barbed wire connecting them, and is still used to contain cattle. After observing the property, the district court determined that the land on either side of the fence was "indistinguishable."
The plaintiffs believed that the fence represented the boundary between the properties. Acting under that belief, they graded and graveled a road, bridged a canal, removed trees, and dug a trench in which power and cable lines were placed. These improvements were made in conjunction with the construction of two homes, one for Terry's brother, DeeLane Maupin, and one for DeeLane's son, Justin Maupin. Only after having the land surveyed did the plaintiffs realize that the fence did not represent the boundary line contained in the recorded deeds, and that the improvements had been made on land they did not own.
The plaintiffs notified the defendants of the problem; prior to that, the defendants were unaware of any improvements on the land because they rented the land to ranchers. The parties were unable to reach a compromise on the approximately one-acre strip of land in dispute, and plaintiffs filed an *989 action to quiet title. The defendants counterclaimed and filed a third party complaint against DeeLane, Justin, and his family for trespass, conversion, and to quiet title. Both sides filed cross motions for summary judgment supported by briefs and affidavits. Plaintiffs argued that the boundary line should be the fence line, based on the theories of boundary by acquiescence, boundary by agreement, adverse possession, or estoppel. Defendants argued that the boundary lines in all of the recorded deeds should stand, and that the elements required for the above-mentioned theories were not established. Nina testified as to the circumstances surrounding the erection of the fence, stating that the fence was put up hastily to contain cattle. She stated that she and her family had used the land outside the fenced land and had not treated it as a boundary to the property. She further stated that there was never an agreement or acquiescence on her part with former neighboring predecessors in interest to change the boundary lines provided in the recorded deeds.
On August 8, 2000, the district court granted the defendants' motion for summary judgment. The court found no evidence in the record of an agreement or acquiescence between the parties or their predecessors in interest to treat the fence as a common boundary. The court found that the plaintiffs had not established the required elements of the theory of boundary by agreement or boundary by acquiescence. Appellants filed this timely appeal on October 20, 2000.

II.

STANDARD OF REVIEW
Summary judgment is proper "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." I.R.C.P. 56(c). "When reviewing an appeal from a grant of summary judgment, this Court employs the same standard used by the district court originally ruling on the motion." Northwest Bec-Corp v. Home Living Serv., 136 Idaho 835, 838, 41 P.3d 263, 266 (2002) (citing S. Griffin Constr., Inc. v. City of Lewiston, 135 Idaho 181, 185, 16 P.3d 278, 282 (2000)). Where the facts are undisputed and the district court rather than a jury will be the trier of fact, "summary judgment is appropriate, despite the possibility of conflicting inferences because the court alone will be responsible for resolving the conflict between those inferences." Id.

III.

ANALYSIS

A. The District Court Did Not Err By Finding That Appellants Had Not Established Boundary By Agreement Or Boundary By Acquiescence.
Appellants contend that the district court erred by quieting title in the respondents. Their position is based on the premise that the theories of boundary by agreement and boundary by acquiescence are different, but related theories. Although Idaho case law treats the two theories interchangeably, appellants respectfully assert that the two theories should be separate, as they each have different necessary elements. The appellants cite to treatises and cases from other jurisdictions to support their position that acquiescence should not be considered an element of boundary by agreement. The appellants urge this Court to recognize boundary by acquiescence as a separate theory because public policy has caused a shift away from the necessity of an agreement and towards more equitable concepts such as good faith and fair dealing. Appellants argue they have established boundary by acquiescence based on the facts that the fence had been erected in 1967 and had not been moved since that time, and that the appellants and their predecessors in interest had all believed the fence to be the boundary. Additionally, appellants contend that they have also met the requirements for boundary by agreement under current Idaho case law.
"In Idaho, the phrase `boundary by acquiescence' is often used interchangeably with `boundary by agreement,' although the *990 latter more accurately describes the doctrine." Griffel v. Reynolds, 136 Idaho 397, 400, 34 P.3d 1080, 1083 (2001) (citing Cameron v. Neal, 130 Idaho 898, 950 P.2d 1237 (1997)). "To prove boundary by agreement, there must be an uncertain or disputed boundary and a subsequent agreement fixing the boundary. The agreement need not be express, but may be implied by the surrounding circumstances and conduct of the parties." Id. (citing Wells v. Williamson, 118 Idaho 37, 41, 794 P.2d 626, 630 (1990); Edgeller v. Johnston, 74 Idaho 359, 262 P.2d 1006 (1953)). "[T]he long existence and recognition of a fence as a boundary, in the absence of any evidence as to the manner or circumstances of its original location, strongly suggests that the fence was located as a boundary by agreement." Cameron, 130 Idaho at 901, 950 P.2d at 1240 (citing Beneficial Life Ins. Co. v. Wakamatsu, 75 Idaho 232, 241, 270 P.2d 830, 835 (1954)). "Acquiescence is merely regarded as competent evidence of the agreement." Griffel, 136 Idaho at 400, 34 P.3d at 1083 (citing Paurley v. Harris, 75 Idaho 112, 117, 268 P.2d 351 (1954)). "[A]n agreement fixing the boundary line, whether express or implied, is essential to a claim of boundary by acquiescence." Id. at 401, 34 P.3d at 1084 (citation omitted).
In the present case, the district court found that, prior to the survey, none of the parties or their predecessors in interest knew the exact location of the boundary lines. Although the first element necessary to prove boundary by agreement was met, the district court found that there was no evidence in the record to support the appellants' contention that the fence line constituted a subsequent agreement or acquiescence by the parties or that there was an absence of evidence regarding the circumstances of the fence's original location. In fact, the opposite was truea previous owner, Nina, provided evidence of the circumstances surrounding the erection of the fence, which demonstrated that the fence was hastily put up to contain cattle. Her testimony showed that the purpose of the fence was not to establish a boundary between the properties. She stated that no agreement existed between the Anderson family and the neighboring landowners to treat the fence line as the boundary.
Appellants urge this Court to adopt the theory of boundary by acquiescence as a separate theory that does not require the element of an agreement. However, Idaho case law demonstrates that an agreement, either express or implied, must exist to establish a boundary by agreement or acquiescence. Although the actual boundary was uncertain, appellants are unable to establish the existence of an express or implied agreement to treat the fence as the boundary. Appellants' testimony shows that, even during the time they were making the improvements, the fence was still being used to contain cattle; appellants knew this because they damaged the fence while working, allowing cattle to escape. Nina testified that her family used the land outside the fence to access recreation areas and that her family never treated the fence as the boundary to the property. Affidavits from predecessors in interest submitted by the appellants also do not reveal any express or implied agreement to treat the fence as a boundary.
The district court found that the appellants had not established that an express or implied agreement existed or that the parties or their predecessors in interest had acquiesced to the fence representing the boundary between the properties. We affirm the district court's decision.

B. The Parties Are Not Entitled To Attorney Fees On Appeal Pursuant To I.C. §§ 12-120(3) or 12-121.
All of the parties have requested attorney fees on appeal. The appellants have requested attorney fees on appeal pursuant to I.C. § 12-121. The respondents have requested attorney fees on appeal pursuant to I.C. §§ 12-120(3) or 12-121.
An award under I.C. § 12-120(3) is justified only if a "commercial transaction comprises the gravamen of the lawsuit." Brower v. E.I. DuPont De Nemours and Co., 117 Idaho 780, 784, 792 P.2d 345, 349 (1990). In Sun Valley Hot Springs Ranch, Inc. v. Kelsey, 131 Idaho 657, 663, 962 P.2d 1041, 1047 (1998), this Court declined to award *991 attorney fees under I.C. § 12-120(3). Sun Valley Hot Springs Ranch, Inc. involved a dispute over ownership of real property, and this Court held that it did not "fall within the meaning of a commercial transaction...." Id. This case mirrors Sun Valley Hot Springs Ranch, Inc. Therefore, attorney fees on appeal are not awarded to the respondents under § 12-120(3).
An award of attorney fees under I.C. § 12-121 is proper only when the case was brought frivolously, unreasonably, or without foundation. Northwest Bec-Corp. v. Home Living Serv., 136 Idaho 835, 842, 41 P.3d 263, 270 (2002) (citing Kelly v. Silverwood Estates, 127 Idaho 624, 630, 903 P.2d 1321, 1327 (1995)). The appellants' argument was based on their good-faith belief that the fence line represented the boundary line between the properties. Their position that boundary by agreement and by acquiescence are two separate, yet related, doctrines was supported by case law and treatises. This Court is not left with the abiding belief that the appellants pursued their claim frivolously or without foundation. Therefore, attorney fees on appeal are not awarded to the respondents under I.C. § 12-121.

IV.

CONCLUSION
The appellants have not established the required elements of boundary by agreement. This Court affirms the decision of the district court quieting title in the respondents. No attorney fees on appeal are awarded. Costs to respondents.
Chief Justice TROUT, Justices SCHROEDER, WALTERS and EISMANN concur.


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________          FILED
                                                  U.S. COURT OF APPEALS
                               No. 11-15040         ELEVENTH CIRCUIT
                                                        JUNE 6, 2012
                           Non-Argument Calendar
                         ________________________        JOHN LEY
                                                          CLERK

         D.C. Docket Nos. 8:10-cv-02216-VMC ; 8:08-bk-04348-MGW

In Re: Michael Davis,

                                                 Debtor.

__________________________________________________________________

STATE OF FLORIDA, DEPARTMENT OF REVENUE,
Child Support Enforcement,

                                                  Plaintiff - Appellee,

                                    versus

MICHAEL DAVIS,

                                                 Defendant - Appellant.

                        __________________________

                  Appeal from the United States District Court
                       for the Middle District of Florida
                       _________________________

                                (June 6, 2012)
Before HULL, MARTIN and JORDAN, Circuit Judges.

PER CURIAM:

      Michael Davis appeals the district court’s reversal of an order entered by the

bankruptcy court. The bankruptcy court had enjoined the Florida Department of

Revenue from attempting to collect from Mr. Davis past due child support that had

been disallowed in the bankruptcy proceeding. The district court reversed the

bankruptcy court, holding that, in light of this court’s intervening decision in In re

Diaz, 647 F.3d 1073 (11th Cir. 2011), the Department of Revenue could not be barred

from pursuing post-confirmation collection of Mr. Davis’ non-dischargeable child

support obligations. Mr. Davis contends that In re Diaz does not control, and

maintains that the issue of liability for the child support obligation has been decided

by the bankruptcy court. Any further enforcement, he says, is precluded by collateral

estoppel and res judicata. We disagree, and concur with the district court that In re

Diaz is dispositive.

                                          I

      Mr. Davis and Maryanne Davis were divorced in Illinois in February of 1997.

Pursuant to the terms of the divorce, Mr. Davis was obligated to make child support

payments to Ms. Davis. In October of 2003, the Illinois court transferred venue of the

                                          2
divorce case, along with the obligation to pay child support, to Florida. As a result,

the Florida Department of Revenue became the agency responsible for recovery of

any unpaid child support.

      On March 17, 2008, an involuntary Chapter 11 bankruptcy case was filed

against Mr. Davis in the Middle District of Florida. The bankruptcy court established

September 29, 2008, as the claims bar date. Section 6.2 of the bankruptcy plan

provided that the failure to submit a claim by the claims bar date would constitute an

adjudication, on the merits, of the debtor’s liability.

      Both Ms. Davis and the Department of Revenue were notified of the

bankruptcy proceeding and the deadline for filing claims. Even though she did not

sign the petition, Ms. Davis was initially listed as a petitioning creditor, and therefore

received notice of all documents filed in the case. In his bankruptcy schedules and

statement of financial affairs, Mr. Davis listed the Department as creditor for a

disputed claim in the amount of $180,000.00 for child support.

      Mr. Davis filed his Chapter 11 plan on October 3, 2008, and submitted an

amended Chapter 11 plan on March 24, 2009. The bankruptcy court confirmed the

plan and issued a discharge on May 20, 2009. Neither Ms. Davis nor the Department

participated in the bankruptcy case or filed proofs of claim with the bankruptcy court

prior to the claims bar date or the confirmation of the plan.

                                            3
         On June 1, 2009, after the plan was confirmed, the Department filed a proof of

claim in the bankruptcy court against Mr. Davis in the amount of $180,000.00 for past

due child support payments.1 Mr. Davis objected to the claim. After briefing by the

parties and oral argument, the bankruptcy court disallowed the claim under the

confirmed plan as untimely and concluded that Mr. Davis had no liability for the

claim.

         Despite the bankruptcy court’s ruling, the Department again attempted to

collect Mr. Davis’ past due child support, this time in state court. Mr. Davis filed a

motion for injunctive relief with the bankruptcy court, seeking to enjoin the

Department from enforcing the child support obligations in light of the bankruptcy

court’s ruling that he had no liability.

         After again having the parties brief the issues and hearing oral argument, the

bankruptcy court determined that, even though child support obligations were non-

dischargeable under the Bankruptcy Code, its prior determination that Mr. Davis had

no liability for the past due child support was “res judicata as to any other court.” The

bankruptcy court determined that it was a violation of the confirmation order and the

discharge injunction for the Department to enforce the debt and essentially relitigate

         1
              It appears that the Department filed the proof of claim because, when it attempted to
collect on past due support obligations after the bankruptcy, Mr. Davis asserted that the
Department’s actions were improper. See Bankruptcy Court Record, D.E. 317, at 17:10-14.

                                                4
the issue of liability for the debt.   The bankruptcy court therefore enjoined the

Department from seeking to recover the child support obligations in any future action.

      The Department appealed the bankruptcy court’s order to the district court.

While that appeal was pending, we issued our decision in In re Diaz, 647 F.3d 1073

(11th Cir. 2011). In light of In re Diaz, the district court reversed the decision of the

bankruptcy court. Mr. Davis filed this appeal.

                                           II

      We review the legal determinations made by either the bankruptcy court or the

district court de novo. See In re Club Assoc., 956 F.2d 1065, 1069 (11th Cir. 1992).

The bankruptcy court’s factual determinations are subject to review under the clearly

erroneous standard. See In re Thomas, 883 F.2d 991, 994 (11th Cir. 1989). The

issues raised in this appeal are largely of a legal nature.

                                          III

      Mr. Davis argues that the district court’s decision should be reversed, and that

the bankruptcy court’s decision enjoining the Department from pursuing any past due

child support obligations should be reinstated. In his view, the bankruptcy court

correctly ruled that res judicata and collateral estoppel barred the Department from

relitigating the issue of his liability for past due child support because the bankruptcy

                                           5
court had already decided that he had no liability for the child support obligations that

accrued prior to the petition date.

      The Department, in turn, contends that the district court correctly followed this

court’s precedent by applying In re Diaz and holding that collateral estoppel and res

judicata cannot bar its post-bankruptcy collection of non-dischargeable child support

obligations.

      For the reasons which follow, we affirm the district court’s order. The holding

and rationale of In re Diaz, we conclude, apply squarely here.

      In In re Diaz, the bankruptcy court found that the debtor was liable for the

principal on a child support obligation but disallowed the pre-petition interest that

was owed. See In re Diaz, 647 F.3d at 1080. When, post-bankruptcy, the Department

of Revenue sought to recover the disallowed pre-petition interest and accrued post-

petition interest, the bankruptcy court held the Department in contempt for violating

the discharge injunction and numerous other orders, including the order confirming

the bankruptcy plan. Id. at 1081–82. The district court affirmed the bankruptcy

court’s judgment, reasoning that, even though a child support obligation could not be

discharged in bankruptcy, res judicata and collateral estoppel barred the Department

from relitigating the debtor’s liability for the interest on the child support obligation.

We reversed the district court’s decision. We held that, because domestic support

                                            6
obligations cannot be discharged in bankruptcy and because the discharge injunction

only applied to dischargeable debts, it was not a violation of the bankruptcy court’s

discharge injunction for the Department to pursue a debt owed for a child support

obligation in state court after the bankruptcy plan was confirmed. Id. at 1090. We

also held that “res judicata and collateral estoppel do not preclude [the Department]

from arguing the extent of [the debtor’s] personal liability for child support post-

bankruptcy” because “[t]he code . . . makes clear that a . . . discharge does not fix

child support liabilities made non-dischargeable under 11 U.S.C. § 523.” Id. at 1092.

To rule otherwise, we noted, would allow the bankruptcy court to effectively modify

a state child-support order, embroiling the bankruptcy court in state domestic

relations. See id. at 1092 n.16.

      In re Diaz applies with equal force here. In the context of non-dischargeable

obligations, the bankruptcy court’s decision as to “liability” for a debt is really only

a decision about whether the non-dischargeable debt will be paid by the bankruptcy

estate as part of the bankruptcy plan. See id. at 1091 (“[T]he only issue before the

bankruptcy court . . . was the amount of child support debt that would be paid by the

bankruptcy estate through [the] . . . plan, not the total amount of the child-support

debt.”) (emphasis in original). The bankruptcy court’s decision, therefore, can only

                                           7
preclude the Department or other domestic support creditors from relitigating whether

a non-dischargeable obligation should be paid as part of the plan.

      There is a minor difference between the Department’s posture in In re Diaz and

its posture in this case. Here the bankruptcy court did not actually decide whether

Mr. Davis in fact had a pre-existing child support obligation or the amount of the

obligation. The bankruptcy court simply determined that, regardless of whether any

amount was owed, Mr. Davis was not liable for the obligation because no timely

claim had been filed. The scope of the bankruptcy court’s review of the issue of

liability for non-dischargeable obligations is limited to liability in the context of a

bankruptcy plan. See In re Bell, 236 B.R. 426, 429 (N.D. Ala. 1999). As such, the

bankruptcy court may disallow a claim during the proceeding, but neither the

discharge injunction nor principles of preclusion bar the Department or another child

support creditor from pursuing the debt post-bankruptcy.

      Mr. Davis argues that In re Diaz can be distinguished in two ways. First, In re

Diaz involved a proceeding under Chapter 13, while this case involved a discharge

under Chapter 11. Second, In re Diaz concerned a violation of a discharge injunction,

while here the violation of the discharge injunction was completely irrelevant to the

ruling because the bankruptcy court’s decision was based on violation of Section 6.2

the confirmed bankruptcy plan. Neither of these arguments is persuasive.

                                           8
      As an initial matter, we see no reason to apply a different rule to Chapter 11

cases than we do to Chapter 13 cases. Both Chapter 11 and Chapter 13 prohibit the

discharge of domestic support obligations, see 11 U.S.C. § 523, and our decision in

In re Diaz did not hinge on any procedural difference between Chapter 11 and

Chapter 13. The issue before the In re Diaz panel, as here, was whether the

bankruptcy court’s decision as to liability on a non-dischargeable child support debt

can preclude a creditor from pursuing any unpaid amount of that claim post-

bankruptcy.

      Nor do we find persuasive the argument that this case is different from In re

Diaz because the supplemental injunction was issued due to a violation of the plan.

Even if Mr. Davis had always asserted that the Department’s actions constituted a

violation of the plan, and not of the discharge injunction, the ultimate legal issue

before us would be the same, because the bankruptcy court based its ruling on its

determination that the Department was precluded from enforcing the child support

obligation due to collateral estoppel and res judicata.

                                         IV

      In re Diaz controls, and therefore collateral estoppel and res judicata do not

preclude the Department from pursuing, post-bankruptcy, a claim for non-

                                          9
dischargeable child support obligations.2 We therefore affirm the decision of the

district court.

               AFFIRMED.

       2
                As we did in In re Diaz, 647 F.3d at 1093, we again caution that our holding should
not be read as a determination as to how much child support (if any) Mr. Davis owes. Mr. Davis is
free to dispute the amount of the claim for child support in a state court with jurisdiction. See In re
Harell, 754 F.2d 902, 907 n. 9 (11th Cir. 1985).

                                                  10