941 F.Supp. 1567 (1996)
ANTHONY DISTRIBUTORS, INC., and Anthony Distributing Company, Inc., Plaintiff-counterdefendants,
v.
MILLER BREWING COMPANY, Defendant-counterclaimant.
No. 94-1176-CIV-17C.
United States District Court, M.D. Florida, Tampa Division.
October 2, 1996.
*1568 *1569 *1570 Claude Hines Tison, Jr., Harold D. Oehler, Macfarlane, Ausley, Ferguson & McMullen, Tampa, FL, for Anthony Distributors, Inc. and Anthony Distributing Co., Inc.
A. Broaddus Livingston, Sylvia H. Walbolt, Matthew D. Allen, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, *1571 FL, Dwight J. Davis, King & Spalding, Atlanta, GA, Jill H. Bowman, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., St. Petersburg, FL, Michael W. Youtt, L. Joseph Loveland, Donald L. Harvey, King & Spalding, Houston, TX, for Miller Brewing Co.
Ronald Keith Cacciatore, Ronald K. Cacciatore, P.A., Tampa, FL, for Doug Wood and Terry Burkardt.
William F. Jung, Black & Jung, P.A., Tampa, FL, for Thomas Blair, Mark Anderson, Thomas Rueckl, Rex Johnson, Donald Luchka and James Dunbar.
David Barnett Weinstein, Williams, Reed, Weinstein, Schifino & Mangione, P.A., Tampa, FL, for Kenneth Amato.
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT, PLAINTIFFS' MOTION FOR CLARIFICATION, AND PLAINTIFFS' OBJECTIONS TO DISCOVERY ORDERS
KOVACHEVICH, Chief Judge.
This cause comes before the Court on three (3) motions and two (2) objections, their respective responses, and related documents (not all related documents are listed):
1. Defendant MILLER BREWING COMPANY's (hereinafter Miller) Motion for Summary Judgment (Docket No. 190), Memorandum in Support (Docket No. 214), and Plaintiffs ANTHONY DISTRIBUTORS, INC.'s, and ANTHONY DISTRIBUTING COMPANY, INC.'s (hereinafter and collectively Anthony) Response (Docket No. 238);
2. Anthony's Motion for Partial Summary Judgment (Docket No. 200), Memorandum in Support (Docket No. 201), and Miller's Response (Docket No. 226);
3. Anthony's Motion for Clarification of June 19, 1996, Scheduling Order and Incorporated Memorandum of Law (Docket No. 190), and Miller's Response (Docket No. 220);
4. Anthony's Objections to Magistrate Judge Jenkins' Discovery Orders Entered August 12, 1996 (Docket No. 221), and Miller's Response (Docket No. 240); and
5. Anthony's Objections to Magistrate Judge Jenkins' Discovery Orders Entered August 7, 1996 (Docket No. 218).

FACTS
To provide a factual background for this case, the Court reincorporates one of its prior Orders by specific reference. Anthony Distributors, Inc. v. Miller Brewing Co., 882 F.Supp. 1024 (M.D.Fla.1995). The relevant facts are as follows:
On July 26, 1994, [Anthony] filed a ... complaint against [Miller] alleging ... breach of contract, and tort claims arising out of [Anthony's] status as exclusive directors of [Miller's] products in Pinellas and Hillsborough Counties [of Florida]....
Ill will between the parties began in 1991, when market fluctuations caused consumers in [Anthony's] distribution areas to become more price conscious. [Anthony's] historically satisfactory profit margin was affected as local consumers shifted to below-premium and budget beers. [Miller] did not reduce the retail price of these below-premium and budget beers to match competitors' prices, which resulted in a loss of [Anthony's] market share.
In 1992, [Miller] devised a plan to make it more competitive with its rival [Anheuser-Busch, Inc.] by increasing its distribution areas, which would result in having fewer distributors. [Miller] negotiated with [Anthony] in a failed attempt to buy back [Anthony's] distribution rights. [Miller] then implemented a [marketing] plan known as "Feet on the Street".... [Anthony] alleges that "Feet on the Street" was actually designed to interfere with [Anthony's] relationships with their customers, damage [Anthony's] reputation, and further impair [Anthony's] profit margin. To facilitate the claimed adversarial goal of "Feet on the Street," [Miller] allegedly committed criminal acts. [Anthony] claims that [Miller's] conduct ... was tortious, criminal, and a breach of contract.
Id. at 1028-29 (as altered).

MILLER'S MOTION FOR SUMMARY JUDGMENT
The Court will grant a motion for summary judgment "if the pleadings, depositions, *1572 answers to interrogatories, 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." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A complete discussion of the summary judgment standard can be found in Ali v. City of Clearwater, 915 F.Supp. 1231, 1237-38 (M.D.Fla.1996), which the Court incorporates by specific reference herein.

Count II: Tortious Interference with a Business Relationship.
In this count, Anthony alleges that Miller intentionally and unjustifiably interfered with Anthony's business relationships with their customers. As the Court previously concluded, this allegation validly states a tort claim. 882 F.Supp. at 1030-31. Presently, at the summary judgment stage, the issue is whether Anthony has advanced sufficient record evidence of every element of this tort. The Court concludes that Anthony has not, as discussed below.
As recently stated by the Supreme Court of Florida, "[t]he elements of tortious interference with a business relationship are: (1) the existence of a business relationship; (2) knowledge of the relationship on the part of the defendant; (3) an intentional and unjustified interference with the relationship by the defendant; and (4) damage to the plaintiff as a result of the breach of the relationship." Ethan Allen, Inc., v. Georgetown Manor, Inc., 647 So.2d 812, 814 (Fla.1994) (internal quotations, alterations, and citations omitted). In the instant case, Miller primarily disputes elements three (3), interference, and four (4), damages.
To prove interference, Anthony must show that Miller's actions induced or caused a breach or termination of a business relationship or expectancy. Smith v. Ocean State Bank, 335 So.2d 641, 643 (Fla. 1st DCA 1976). The interference must be both intentional and unjustified. Weight-Rite Golf Corp. v. United States Golf Association, 766 F.Supp. 1104, 1112 (M.D.Fla.1991), aff'd, 953 F.2d 651 (11th Cir.1992). Furthermore, damages to Anthony must "reasonably flow[]" from Miller' interference. Ethan Allen, 647 So.2d at 815.
As to interference, Anthony argues that their relationships need not be terminated to constitute interference. Anthony submits Exhibits K and OOO as record evidence of interference. (Docket No. 238, pp. 24-25). However, even if termination is required, Anthony argues that Exhibits NNN, G, and H support such a finding. (Docket No. 22-24).
Anthony's record evidence does not support their claim. First, based on a review of relevant case law, of which the parties provided little, this Court holds that either "breach" or "termination" of a business relationship or expectancy is necessary to establish "interference." Ocean State, 335 So.2d at 643; discussed supra; see also Ethan Allen, 647 So.2d at 814 (involving a furniture manufacturer that tortiously interfered with a dealer's relationship with its customers, in that the manufacturer's actions caused the dealer's customers "to cancel their orders and demand refunds"); Greenberg, M.D., v. Mount Sinai Medical Center, 629 So.2d 252, 254-55 (Fla. 3d DCA 1993) (involving a chief doctor alleged to have tortiously interfered with a subordinate doctors' patients, in that the chief influenced such patients to see him instead of subordinates); West v. Troelstrup, 367 So.2d 253, 254-55 (Fla. 1st DCA 1979) (involving an executive director alleged to have tortiously interfered with an employee's job, but affirming the claim's dismissal because the employee failed to allege that the executive director "influenced or induced anyone to terminate" the employee). To hold otherwise would unduly burden competition and free enterprise. See Heavener, Ogier Services, Inc. v. R.W. Florida Region, Inc., 418 So.2d 1074, 1076-77 (Fla. 5th DCA 1982) (describing, in the context of a claim for tortious interference, the delicate balance between: (1) safeguarding established and legitimate economic interests and (2) unduly burdening competition and free enterprise).
Neither Exhibits NNN (filed in camera), G, nor H contain sufficient record evidence of breach or termination. The charts, numbers, and opinions in Exhibit NNN fail to support *1573 Anthony's proposition that, after the "Feet on the Street" program disbanded, one of Anthony's customers demanded bribes from Anthony and terminated its relationship with Anthony based upon Anthony's refusal. (Docket No. 238, p. 23). Exhibit G, the deposition of Michael Lee Casselman, apparently an employee of Anthony's,[1] is full of inadmissible hearsay within hearsay, Fed. R.Evid. 805. That defect aside, the deponent clearly states that he does not know of "any customer ... lost as a result of the acts of the Feet on the Street personnel." (pp. 323-24). Finally, like the deponent in Exhibit G, the deponent in Exhibit H fails to assert any personal knowledge of a customer lost due to Miller's actions.
Even if breach or termination is not required to prove interference, Anthony still fails to present sufficient record evidence of interference. Exhibit K, the deposition of Gerald Suarez, another apparent employee of Anthony, fails to support a finding of interference. In fact, the deponent stated that he personally reduced the "ridiculous" amount of beer requested by Miller for displays "[u]sually every time...." (pp. 34, 37-38). Similarly, Exhibit OOO does not contain any evidence of interference. At best, it supports a finding that Miller did not approve of how Anthony handled their accounts. (E.g., p. 32). The Court notes that, not only does the testimony contained in that exhibit fail to support a finding of interference, but it, along with other record evidence, also fails to support a finding of that the interference was "intentional" and "unjustified."
As to damages, Anthony specifically submits Exhibits E, H, and J. None of these exhibits support a finding of any damage flowing from Miller's alleged interference. In Exhibit E, Salvatore Anthony Italiano, half-owner of Anthony, testified that Anthony experienced their "highest profit year" of the 1990's at the same time that the "Feet on the Street" program was in place. (p. 94). Furthermore, Exhibit H only supports a finding that it was Anthony's marketing policy that caused an increase in their old beer returns, not Miller's. (E.g., pp. 478-81). Similarly, Exhibit J corroborates Exhibit H, in that the deponent admits that Miller lacks the authority over Anthony to demand an increase in the amount of beer distributed to certain locations. (E.g., p. 287). It also contains no testimony to support Anthony's assertion that customers stopped buying from Anthony because of Miller's actions. Thus, there is clearly no record evidence of damages, whether quantified or not.
In summary, Anthony has failed to raise a genuine issue of material fact on any of the elements of the cause of action stated in Count II, tortious interference. At best, the record evidence suggests that Miller's actions were "designed to protect or promote [its] own financial and contractual interests," which are "not actionable" under Florida law. Captran Creditors Trust v. North American Title Insurance Agency (In re Captran Creditors Trust), 116 B.R. 845, 853-54 (Bankr. M.D.Fla.1990). Therefore, the Court grants summary judgment in favor of Miller with respect to Count II.

Count III: Breach of Contract.
In this count, Anthony alleges that Miller breached: (1) its obligation of good faith in the performance of the distributorship agreements (Docket No. 205, ¶ 50); (2) promises contained in paragraphs 7, 8, and 18(f) of the distributorship agreement (Docket No. 205, ¶ 51); and (3) a separate, oral agreement to assign Molson Ice beer distribution rights to Anthony in consideration for their financial and other investment in the introduction of Molson products (Docket No. 205, ¶ 52). These allegations were held sufficient to state a claim for breach of contract. 882 F.Supp. at 1029. Presently, however, the Court must decide whether Anthony has advanced sufficient record evidence to support this count. The Court concludes that Anthony has not met this burden, and will discuss Anthony's allegations in reverse order.
*1574 The elements for a breach of contract action are: "the existence of a contract, a breach thereof, and damages." Miller v. Nifakos, 655 So.2d 192, 193 (Fla. 4th DCA 1995) (per curiam). With respect to breach of the Molson agreement, Anthony fails to point to any record evidence of an "agreement." In fact, Salvatore Anthony Italiano testified that Anthony was not entitled to rights to Molson under the distributorship, or any other, agreement. (Exhibit E, p. 440). Even if the evidence somehow supported a finding of an agreement, the Court agrees with Miller that any separate, oral distributorship agreement would be unenforceable under Florida's Statute of Frauds, Fla.Stat. § 725.01 (1995). All Brand Importers, Inc., v. Tampa Crown Distributors, Inc., 864 F.2d 748, 749 (11th Cir.1989) (holding that Section 725.01 "bars enforcement of an oral contract that was intended by [a distributor and its customer] to last longer than a year, even though the contract could have been terminated for cause within a year"). The Court rejects Anthony's bare assertion that they have partially performed. Anthony has failed to point out any record evidence to show that they have provided any consideration to Miller for the rights to Molson, namely "financial and other investment in the introduction of Molson products." (Third Amended Complaint, Docket No. 205, ¶ 52).
Regarding breaches of paragraphs 7, 8, and 18(f) of the distributorship agreement, Anthony also fails to support such allegations with record evidence. Paragraph 7, entitled "Miller's Termination Rights," does not support a cause of action for Anthony. As the evidence indisputably reveals, Miller never initiated termination proceedings until after Anthony commenced this suit. Thus, neither it nor paragraph 8 ("Post-termination Provisions") apply to support Anthony's Count III. Furthermore, Anthony fails to advance any argument to support their allegation that Miller breached paragraph 18(f). As such, the Court agrees with Miller that summary judgment is warranted on Anthony's claim for breach of paragraph 18(f).
In their memorandum, Anthony states that "Count III does not allege any classic breach of contract but a breach of the duty of good faith." (Docket No. 238, p. 28). Thus, a cause of action for "breach of good faith" appears to be the crux of the instant count. As this Court previously noted, "[a] cause of action for a breach of the duty of good faith and fair dealing has been recognized by the courts." 882 F.Supp. at 1031 (citing Scheck v. Burger King Corp., 798 F.Supp. 692 (S.D.Fla.1992)). However, "a claim for breach of the implied covenant of good faith and fair dealing cannot be maintained under Florida law absent an allegation that an express term of the contract has been breached." Barnes v. Burger King Corp., 932 F.Supp. 1420, 1439 (S.D.Fla.1996). The Barnes court also noted that its holding was consistent with the Eleventh Circuit's position in Alan's of Atlanta, Inc., v. Minolta Corp., 903 F.2d 1414, 1429 (11th Cir.1990) (holding that, under Georgia law, the duty of good faith cannot "be breached apart from" an express contractual term). Accordingly, this Court granted Anthony leave to amend their complaint "to include the breaches of specific contract provisions in [Count III]." 882 F.Supp. at 1031.
Because, as discussed supra, Anthony fails to present sufficient record evidence of Miller's breach of any express contractual provision, i.e. paragraphs 7, 8, and 18(f), this Court grants summary judgment in favor of Miller with regard to Count III. The Court adopts the Southern District of Florida's well-reasoned conclusion that "the implied covenant of good faith and fair dealing is not actionable absent a breach of the contract's express terms." Burger King Corp. v. Holder, 844 F.Supp. 1528, 1530 (S.D.Fla.1993).
Even if Anthony is correct in their bare assertion that breach of good faith is independent of breach of contract, they fail to advance any record evidence that "Miller has generated fraudulent evidence to use in support of a termination." (Docket No. 238, p. 29). Indeed, Anthony does not designate any specific facts in any affidavit, deposition, answers to interrogatories, or admissions on file to establish this alleged fabrication. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (detailing the summary judgment burden of *1575 the non-moving party who has the burden of proof at trial).
Nonetheless, after due consideration of all the record evidence, this Court concludes that there is no genuine issue of fabrication. For example, Lawrence Boylan, apparently a Miller employee involved with the "Feet on the Street" marketing program, merely testified that he was instructed by Miller's agents to document everything Anthony was "doing wrong or screwing up." (Exhibit RRR, p. 53). Indeed, there is record evidence that Miller wanted a new distributor in the Tampa Bay area. (E.g., id. at 59, 65). However, an inter-office correspondence at Miller reveals many legitimate business reasons for this desire. (Exhibit SSS, filed in camera). At best, this evidence supports an inference that Miller watched Anthony closely, not fabricated anything. Anthony could not plausibly convince the Court that Miller acted in bad faith by paying close attention to Anthony's performance. Therefore, the Court grants summary judgment in favor of Miller with regard to Count III, regardless of whether breach of good faith is independent of breach of contract.

Count VII: Civil Theft.
As previously determined by this Court, Anthony's civil theft claim is based solely on Miller's alleged intervention of Anthony's sale negotiations with their customers. 882 F.Supp. at 1033. Anthony claims that Miller "pressured" Anthony into selling excessive quantities of beer to their customers, only to result in Anthony's having to buy back old beer that did not sell before its expiration date. (Docket No. 238, pp. 31-32). While this count may validly state a claim for civil theft, 882 F.Supp. at 1033, it is not supported by sufficient record evidence at this, the summary judgment, stage.
In Florida, "[a]ny person who proves by clear and convincing evidence that he has been injured in any fashion by reason of any violation of [the Florida Anti-Fencing Act, Fla.Stat. § 812.012-.037] has a cause of action for threefold the actual damages sustained. ..." Fla.Stat. § 772.11 (1995). This statute provides a civil remedy for theft, which occurs when one "knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) [d]eprive the other person of a right to the property or the benefit therefrom [or] (b) [a]ppropriate the property to his own use or to the use of any person not entitled thereto." Id. § 812.014(1).[2]
Readily apparent from the face of the statute, "felonious intent to steal on the part of the defendant" is a "necessary element of proof." Westinghouse Electric Corp. v. Shuler Brothers, Inc., 590 So.2d 986, 988 (Fla. 1st DCA 1991), rev. denied, 599 So.2d 1279 (Fla.1992). Similarly, it is essential that the victim have "a legally recognized property interest in the items stolen." Balcor Property Management, Inc., v. Ahronovitz, 634 So.2d 277, 279 (Fla. 4th DCA 1994). All the elements of civil theft must be proven by clear and convincing evidence, which is "an intermediate standard, between the preponderance of the evidence standard and the criminal beyond a reasonable doubt standard." Small Business Administration v. Echevarria, 864 F.Supp. 1254, 1264-65 (S.D.Fla.1994). But cf. Bufman Organization v. FDIC, 82 F.3d 1020, 1028 (11th Cir. 1996) (stating that "Florida law creates a civil cause of action for violations of certain criminal theft statutes that are proven by a preponderance of the evidence"). Some Florida courts have described this standard as follows:
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion *1576 as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. ... [The clear and convincing evidence standard] seems to preclude evidence that is ambiguous.
Westinghouse, 590 So.2d at 988 (internal quotations, citations, and alterations omitted).
Given their stringent standard of proof at trial, Anthony must advance record evidence of all the elements of civil theft, and this evidence must be such that a reasonable jury might find that the elements "had been shown with convincing clarity." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 2515, 91 L.Ed.2d 202 (1986) (requiring a defamation plaintiff who had to prove "actual malice" by clear and convincing evidence at trial to oppose a motion for summary judgment with record evidence "such that a reasonable jury might find that actual malice had been shown with convincing clarity"). Anthony fails to meet this burden,[3] in that they have not advanced sufficient record evidence of "stealing" (the act), "felonious intent to steal" (the mens rea), or damages.
First, there is insufficient record evidence that Miller stole any of Anthony's property. Anthony asserts that, by virtue of its power, Miller "attempted to take Anthony's business by fraudulently generating a case for termination." However, as discussed above, the record evidence does not support an inference that Miller fabricated evidence or otherwise committed fraud. (E.g., Exhibit RRR, p. 53, discussed supra). As to Anthony's contention that Miller "pressured" Anthony into selling excessive quantities of beer to their customers, the record evidence fails to support an inference that Miller knew that its requested quantities were grossly excessive. Rather, the evidence indicates that such requests were only made a "couple" of times. (Exhibit K, pp. 37-38). Furthermore, the evidence indicates that Anthony's employees handled this "pressure" by unilaterally adjusting the quantities of beer to a more comfortable level. (Exhibit K, p. 34).
The Court also concludes that Anthony's "pressure" theory lacks evidentiary support. Miller lacks authority to demand any specific quantity of distribution to Anthony's customers. (E.g., Exhibit J, p. 287). Anthony's employees unilaterally lowered Miller's "ridiculous" orders to a "safe" level. (E.g., Exhibit K, p. 34). The consequences to Anthony of ignoring Miller's requests appear to be, at most, "an unsatisfactory rating, which would result in a probation." (Exhibit J, p. 319, lines 20-21). There is no showing that Anthony was ever placed on probation. Even if Anthony was placed on probation, the record evidence indicates that it is "very possible" to do business with Miller, even if a distributor has a bad relationship with Miller. (Exhibit E, p. 640). Thus, the Court cannot find any record evidence of "pressure," the method by which Miller allegedly stole property from Anthony.
Second, Anthony does not point out any evidence that would support a finding of "felonious intent to steal." Indeed, they fail to allege this element in their third amended complaint. (See Docket No. 205, pp. 21-22, ¶¶ 74-77). That defect aside, the record evidence, at best, supports an finding that Miller wanted to replace Anthony with another distributor. (E.g., Exhibit RRR, p. 65, lines 20-21). Indeed, there is evidence that Miller indicated it was "going to force Anthony out." (Id. at p. 59, lines 1-2). However, these facts are too ambiguous and imprecise to prove "felonious intent to steal" by clear and convincing evidence, even circumstantially.
Finally, the record contains no evidence of damages caused by Miller's alleged theft. While Salvatore Anthony Italiano testified that Anthony hired three (3) specialists to audit their accounts for old beer, the record only supports a finding that it was Anthony's marketing policy that caused an increase in their old beer returns, not Miller's. (E.g., Exhibit H, pp. 478-81). Furthermore, damages in the context of civil *1577 theft normally correspond to the value of the property stolen by the defendant. See, e.g., Nova Flight Center, Inc., v. Viega, 554 So.2d 626 (Fla. 5th DCA 1989) (involving a sublessee who rewired a sublessor's building in order to receive electricity at the sublessor's expense). In the instant case, no reasonable jury could be clearly convinced that Miller appropriated the value of hiring Anthony's three (3) old beer specialists for its own use. The Court grants summary judgment in favor of Miller with regard to Count VII, civil theft.

Count VIII: Defamation.
In this count, Anthony alleges that, "pursuant to Miller's express direction or approval," Miller's agents
[M]ade false and defamatory statements concerning [Anthony] to [Anthony's] customers and competitors and to other persons, including statements that [Anthony] performed poorly, for the purpose of impairing the confidence of [Anthony's] customers in [Anthony's] ability to serve them and impairing [Anthony's] ability to compete. Such statements ... includ[e] but [are] not limited to statements made in approximately March 1993 by Miller representatives Doug Wood and Larry Boylan to Kenneth Stoops, manager of Whiskey Joe's, a customer of [Anthony's], that Miller was unhappy with Anthony's handling of its key accounts, and that Miller desired to replace Anthony as a Miller distributor in Anthony's territory.
(Docket No. 205, p. 12, ¶ 34) (capitalization altered). Accordingly, the Court held that this allegation "state[s] a claim for defamation." 882 F.Supp. at 1033. At this juncture, the issues are: (1) whether Anthony has advanced sufficient record evidence of all the elements of defamation and (2) whether Miller is entitled to summary judgment as a matter of law. The Court concludes that Miller is entitled to summary judgment, as discussed below.
Where, as here, the defendant is not a public figure, the elements of defamation are: (1) a false and (2) defamatory (3) statement of fact (4) concerning another, (5) published to a third party (6) negligently. Wagner, Nugent, Johnson, Roth, Romano, Erikson & Kupfer, P.A. v. Flanagan, 629 So.2d 113, 115 (Fla.1993) (Shaw, J., dissenting) (quoting the Restatement (Second) of Torts, § 558 (1977)); Miami Herald Publishing Co. v. Ane, 458 So.2d 239, 242 (Fla. 1984); Smith v. Taylor County Publishing Co., 443 So.2d 1042, 1049 (Fla. 1st DCA 1983). The plaintiff must also prove damages, unless the defendant is liable for slander per se, in which case "at least nominal damages" are presumed. Wagner, 629 So.2d at 116.
In the present case, the only record evidence of the alleged statement and publication is the deposition of Kenneth Stoops, the manager of one of Anthony's customers. (Exhibit OOO). In this deposition, the following pertinent testimony was elicited by counsel for Anthony:
Q. ... Did either [Doug Wood or Larry Boylan, Miller's representatives with regard to its "Feet on the Street" marketing program] ever say anything to indicate how Miller viewed Anthony as a Miller distributor?
[Counsel for Miller]: Objection. Leading.
A. Just as far as a generality, that they were very upset, did not like the way Anthony was handling their accounts, poor sales, whatever range, and it was their desire if they could find another distributor other than Anthony, if that were a possibility.
Q. Now, who was saying this?
A. Larry Boylan.
Q. Okay. And who was he saying it to?
A. Me.
Q. Okay. Did he say where he had learned it from?
A. I'm assuming from Miller Brewing Company because that's who he had his contacts with.
Q. Did you ever hear [Doug Wood] make a statement about Miller wanting to have somebody else as a distributor?
[Counsel for Miller]: Objection. Leading.

*1578 A. Just in confirming the fact that Miller was not happy with the job that Anthony was doing, but no specifics.
*   *   *   *   *   *
Q. Did this kind of conversation happen on one occasion or on more than one occasion?
[Counsel for Miller]: Objection. Leading.
A. Couple occasions.
(Exhibit OOO, p. 32, lines 14-25; p. 33, lines 1-10, 16-19). Thus, the challenged statement before the Court can be reduced to the following oral expressions: (1) Miller was very upset, (2) Miller did not like how Anthony handled accounts, (3) Anthony had poor sales on whatever range, and (4) Miller desired to replace Anthony with another distributor, if possible. The record also reveals that this statement was a "general" one, made a couple of times, by Miller's representatives, namely Larry Boylan,[4] to one of Anthony's customers. Thus, this record evidence, as quoted above, would support a finding that Miller's representatives "published" a statement that "concerned another," and leads this Court to conclude, as a matter of law, that said statement is one of "mixed opinion and fact," which is just as actionable as a pure statement of fact. Florida Medical Center, Inc. v. New York Post Co., 568 So.2d 454, 457 (Fla. 4th DCA 1990) (stating that whether an alleged defamatory statement is a non-actionable expression of pure opinion or an actionable expression of pure fact or mixed opinion and fact is a question of law for the court), rev. denied, 581 So.2d 1309 (Fla.1991).
While these three (3) elements of defamation have factual and/or legal support, the elements of "falsity," and "defamatory" do not. Regarding "falsity," the Court previously determined that the record establishes that Miller, in fact, wanted to replace Anthony. (E.g., Exhibit RRR, p. 65, lines 20-21; discussed supra). Also, Anthony does not present any record evidence that Miller was anything but "upset" with Anthony. Finally, the deposition of the main publisher, Larry Boylan, supports a finding that Miller believed Anthony was "doing things wrong" with their accounts, (Exhibit RRR, p. 71, lines 9-10), and there is no record evidence to the contrary. The Court also notes that, since there is no genuine issue with regard to the truth of this information, then Miller's representatives could not have been negligent in making these expressions.
Therefore, the only portion of the challenged statement that is arguably false pertains to Anthony's "poor sales." The Court concludes, as a matter of law, that this expression is not slanderous per se or otherwise defamatory. First, the "poor sales" expression is not slanderous per se. Slander per se is a question of law for the Court, and exists "[w]here a publication is false and not privileged, and causes injury to a person in his business or trade...." Auld v. Holly, 418 So.2d 1020, 1027 (Fla. 4th DCA 1982), quashed on other grounds, 450 So.2d 217 (Fla.1984). In the present case, Anthony fails to point out any record evidence of an injury caused by this statement. In fact, there is nothing in Kenneth Stoops' deposition to suggest that Anthony suffered an injury to their business or reputation. (Exhibit OOO). Furthermore, when discussing Anthony's tortious interference claim, this Court noted that Anthony experienced their "highest profit year" of the 1990's at the same time that the Feet on the Street program was in place. (Exhibit E, p. 94).
Second, the Court concludes, as a matter of law, that the expression, in context, is not defamatory. "Under Florida law, words are defamatory when they charge a person with an infamous crime or tend to subject one to hatred, distrust, ridicule, contempt or disgrace or tend to injure one in one's business or profession." Seropian v. Forman, 652 So.2d 490, 495 (Fla. 4th DCA 1995); accord Keller v. Miami Herald Publishing Co., 778 F.2d 711, 716 (11th Cir.1985). At the summary judgment stage, the Court must determine whether the challenged statement is reasonably capable of a defamatory meaning. Jones v. American Broadcasting *1579 Co., 694 F.Supp. 1542, 1548 (M.D.Fla. 1988), aff'd, 961 F.2d 1546 (11th Cir.1992), cert. denied, 506 U.S. 1051, 113 S.Ct. 971, 122 L.Ed.2d 126 (1993).
The "poor sales" expression is not reasonably capable of a defamatory meaning, in that it appears to be nothing more than a legitimate business statement. The expression was made by two (2) marketing representatives from Miller. It is only natural for such persons to comment on the performance of a key Miller distributor. Obviously, Miller is in the business of selling beer and has every right to "reasonabl[y] challenge" the performance of its distributors. See Summers v. W.T. Grant Co., 178 F.2d 916, 917 (5th Cir.1950). Furthermore, the adjective "poor" is a mellow one and is certainly not capable of charging Anthony with an infamous crime or subjecting them to hatred, distrust, ridicule, or contempt. Finally, Anthony fails to explain to the Court how the words "poor sales" are any more defamatory than the words "blackmail," "influence peddling," or "fraud." Greenbelt Cooperative Publishing Association v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537, 1541-42, 26 L.Ed.2d 6 (1970) (concluding that the word "blackmail" in context was not defamatory); Seropian v. Forman, 652 So.2d 490, 495 (Fla. 4th DCA 1995) (concluding that the words "influence peddling" in context were not defamatory); Colodny v. Iverson, Yoakum, Papiano & Hatch, 936 F.Supp. 917 (M.D.Fla.1996) (concluding that the word "fraud" in context was not defamatory).
As to damages, another essential element of defamation, Anthony fails to advance sufficient record evidence of them. The Court incorporates by reference its discussion of damages with regard to tortious interference and previous portions of this section regarding slander per se. Therefore, the Court grants summary judgment in favor of Miller with regard to Count VIII, defamation.

Count XIII: Florida RICO.
In the final surviving count of their complaint, Anthony alleges a cause of action under Florida's RICO statute, Fla.Stat. § 772.104 (1995). That statute reads, in pertinent part:
Any person who proves by clear and convincing evidence that he has been injured by reason of any violation of the provisions of [Section] 772.103 shall have a cause of action for threefold the actual damages sustained....
Id. Anthony alleges that Miller violated two (2) of the four (4) provisions listed in the referenced statute, Section 772.103 (1995). These provisions read, in pertinent part:
It is unlawful for any person:
*   *   *   *   *   *
(2) Through a pattern of criminal activity ..., to acquire or maintain, directly or indirectly, any interest in or control of any enterprise....
*   *   *   *   *   *
(4) To conspire or endeavor to violate ... subsection (2)....
Id. Therefore, at trial, Anthony must prove, by clear and convincing evidence, that Miller endeavored, conspired, or actually: (1) acquired or maintained (2) an interest in, or control of, (3) an enterprise through a (4) pattern of (5) criminal activity, which (6) injured Anthony. At this, the summary judgment stage, Anthony must advance record evidence of all these elements such that a reasonable jury might find that the elements "had been shown with convincing clarity." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 2515, 91 L.Ed.2d 202 (1986), discussed supra with the Court's analysis of tortious interference. The Court concludes that Anthony fails to meet their summary judgment burden on one (1) of these six (6) elements.[5]
The Court finds record evidence to support Anthony's allegation that Miller and its "Feet on the Street" program each constitute an "enterprise."[6] Similarly, the Court finds *1580 genuine issue of fact regarding "pattern" and "criminal activity." However, there is no issue of fact with regard to "injury."
Under the state RICO statute, "pattern" is defined, in pertinent part, as "engaging in at least two incidents of criminal activity that ... are interrelated by distinguishing characteristics and are not isolated." Fla.Stat. § 772.102(4) (1995). Thus, the threshold inquiry is whether Miller has engaged in "criminal activity."
For purposes of RICO, Florida law defines "criminal activity" as "to commit, to attempt to commit, to conspire to commit, or to solicit, coerce, or intimidate another person to commit" any of the state crimes enumerated in Section 772.102(1)(a)-(b) of the Florida Statutes. Id. Anthony alleges that Miller committed four (4) of these crimes: (1) theft, in violation of Fla.Stat. § 812; (2) bribery, in violation of the Florida Beverage Law, Fla. Stat. §§ 561-568; (3) fraud, in violation of Fla.Stat. § 817; and (4) witness tampering, in violation of Fla.Stat. § 914 and 18 U.S.C. §§ 1512-1513.
The Court concludes that there is insufficient record evidence of three (3) of these crimes, "theft," "fraud," and "witness tampering." As to theft, Fla.Stat. § 812, the Court reincorporates its analysis with regard to Count VII. As to fraud, Anthony concedes that it is "in essence the same thing" as theft and otherwise fails to distinguish these two (2) crimes. (Docket No. 238, p. 34). Therefore, the Court similarly concludes that there is insufficient evidence to support a finding of fraud, generally, or "gross fraud and cheat," specifically.
As to witness tampering and retaliation, Anthony's allegation regarding 18 U.S.C. §§ 1512-13 is irrelevant to their Florida RICO action, in that said federal statute is not listed in Section 772.102(1)(a)-(b). With regard to Fla.Stat. § 914.22 and .23, there is insufficient record evidence to establish those crimes. Indeed, Anthony's relies on Charles Teal's "repeatedly expressed belief" and Harry Purnell's "plainly expressed opinion" to prove that Miller retaliated against Anthony by revoking its rights to Miller. However, no reasonable jury could be clearly convinced that Miller committed these crimes based upon such speculative, incompetent expressions. See Fed.R.Evid. 602 (rendering inadmissible testimony outside a witness' personal knowledge), 701 (rendering inadmissible unhelpful opinions by lay witness). Furthermore, neither Teal nor Purnell testify in the proper form. See 28 U.S.C. § 1746 (unsworn declarations under penalty of perjury may be submitted in lieu of affidavits); Fed.R.Evid. 56(c) (requiring the non-moving party with the burden of proof at trial to advance "depositions, answers to interrogatories, ... admissions on file" and/or "affidavits" to oppose summary judgment).
The only arguable "criminal activity" is that of bribery under the Florida Beverage Law, Fla.Stat. § 561.42(1), as enforced through Fla.Stat. § 562.45(1) (1995). In their motion for partial summary judgment, Anthony points to sufficient record evidence of not only "criminal activity," but also a "pattern"[7] of it. (See Docket No. 201). The depositions attached to Anthony's motion support these elements of Florida RICO, irrespective of Doug Wood's assertion of his Fifth Amendment privilege against self-incrimination.
Although a reasonable jury could be clearly convinced that Miller engaged in a "pattern" of "criminal activity," this evidence is not so "precise and explicit" as to permit this Court to conclude, as a matter of law, that no reasonable jury could find for Miller on these issues of fact. See Westinghouse Electric Corp. v. Shuler Brothers, Inc., 590 So.2d 986, 988 (Fla. 1st DCA 1991) (defining "clear and convincing evidence"), rev. denied, 599 So.2d 1279 (Fla.1992), discussed supra with tortious *1581 interference. Therefore, the Court denies Anthony's motion for partial summary judgment with respect to Count XIII, their Florida RICO cause of action.
Despite evidence of Miller's bribery, however, Anthony fails to advance sufficient evidence of any "injury" Anthony received "by reason of" Miller's bribery. Fla.Stat. § 772.104. As this Court discussed with respect to tortious interference (Count II), there is no record evidence of any revenues, customers, or profits lost "by reason of" Miller's alleged payments to Anthony's customers. Indeed, as discussed in conjunction with Count II, the evidence points only to the contrary. Additionally, Anthony fails to specifically locate for the Court those portions of affidavits, depositions, answers to interrogatories, or admissions on file that establish their alleged injury, as required by Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53, and Fed.R.Civ.P. 56(c). Even if Anthony could show "injury," they fail to "show a causal connection between [their] injury and" Miller's bribery. Pelletier v. Zweifel, 921 F.2d 1465, 1497 (11th Cir.), cert. denied, 502 U.S. 855, 112 S.Ct. 167, 116 L.Ed.2d 131 (1991).
It is certainly not the Court's intent to reward a party for its alleged criminal behavior. However, this is a civil case. In establishing the essential elements of RICO, Anthony must prove that they suffered a cognizable injury by reason of an enumerated crime. Because they clearly fail to meet this burden, the Court seriously doubts whether Anthony is the type of victim contemplated by the Florida legislature when enacting the RICO statute. Indeed, there is record evidence that Anthony also bribed its customers in violation of the Florida Beverage Law. (E.g., Docket No. 238, Exhibit G, p. 278). The Court grants summary judgment in favor of Miller with respect to Count XIII, Florida RICO.

ANTHONY'S MOTION FOR PARTIAL SUMMARY JUDGMENT
The only unresolved portion of Anthony's motion for partial summary judgment (Docket No. 200) relates to Count VI of Miller's fourth amended counterclaim (Docket No. 243, p. 32-33, ¶¶ 41-47). In said count, Miller seeks declaratory relief, in that it wants to terminate its distributorship agreements with Anthony. The relevant portion of the parties' distributorship agreements provide, in pertinent part:
7. MILLER'S TERMINATION RIGHTS
(a)(i) Except as provided in subparagraph (b) below, Miller may at any time initiate termination in accordance with the procedures specified in this subparagraph if Distributor fails to comply with any commitment or undertaking stated in its application or with any of the obligations set forth in Paragraph 4 [entitled "Operation of Distributor"] of this Agreement. Miller shall initiate such termination by providing written notice to Distributor which shall state the nature of Distributor's non-compliance. Subject to extensions granted at Miller's sole discretion, Distributor shall then have thirty (30) days in which to submit a plan of corrective action and an additional sixty (60) days to cure such noncompliance in accordance with such plan. If the Distributor fails to cure on a timely basis, Miller shall have the right to terminate this Agreement immediately upon written notice.
*   *   *   *   *   *
(b) If any of the following events occur, Miller shall have the right to terminate this Agreement immediately upon giving written notice without any obligation on Miller's part to follow the procedures ...:
*   *   *   *   *   *
(ii) Distributor's fraudulent conduct or substantial misrepresentation in any of its dealings with Miller or with others concerning Miller products.
*   *   *   *   *   *
(viii) Distributor's failure to undertake a good-faith effort to cure noncompliance pursuant to subparagraph (a) of this Paragraph 7.
*1582 (Docket No. 1, Exhibit "A") (emphasis added). Anthony moves for partial summary judgment, arguing that Miller failed to sufficiently notify them of termination pursuant to the Paragraph 7 of the distributorship agreements.[8] Miller contends that its rights to terminate immediately "under section 7(a) were triggered when Miller's counterclaim  constituting notice  was filed. All the remaining acts  acts which might have cut-off Miller's termination rights  were for plaintiffs to perform, not Miller." (Docket No. 226, p. 6).
Thus, this issue is one of contract interpretation, which is a matter of law to be determined by the Court, in that the relevant contract provisions relate to timing and conditions. DEC Electric, Inc. v. Raphael Construction Corp., 558 So.2d 427, 428 (Fla. 1990). Readily apparent from the face of the contract, the obvious intent of the parties behind Paragraph 7 was to avoid litigation. Indeed, this paragraph purports to install an internal problem-solving procedure. If Miller finds a problem with a distributor, it must specifically notify it of such problem in writing. The distributor then has an absolute right to propose curative action on its part. The only relevant exception to this right is under Paragraph 7(b)(ii), if the distributor engages in "fraudulent conduct or substantial misrepresentation." Otherwise, the distributor has thirty (30) days to propose a corrective plan, and sixty (60) days to effectuate it.
The Court concludes, as a matter of law, that Miller's counterclaim does not constitute sufficient "notice of termination" under Paragraph 7(a)(i) of the distributorship agreement. To hold otherwise would violate the intent of the parties and express terms of the contract. For example, both the Federal and Florida Rules of Civil Procedure require an adverse party to serve answers to complaints and counterclaims within twenty (20) days of being served. Fed.R.Civ.P. 12(a); Fla. R.Civ.P. 1.140(a)(1). Thus, if the Court were to adopt Miller's argument, a distributor would have to answer ten (10) days before the expiration of its thirty (30) day period in which to propose a solution. Such a result would be absurd. The Court grants partial summary judgment in favor of Anthony, but only with respect to said issue of law in Count VI of Miller's counterclaim.

OTHER PENDING MATTERS
In light of the Court's rulings on Miller's Motion for Summary Judgment, the Court denies Anthony's Motion for Clarification of Scheduling Order (Docket No. 190) as moot. Similarly, the Court overrules Anthony's (1) Objections to Magistrate Judge Jenkins' Discovery Orders Entered August 12, 1996 (Docket No. 221) and (2) Objections to Magistrate Judge Jenkins' Discovery Order Entered August 7, 1996 (Docket No. 218) as moot. Accordingly, it is
ORDERED that
Defendant's Motion for Summary Judgment (Docket No. 198) be GRANTED with respect to Counts II, III, VII, VIII, and XIII of Plaintiffs' Third Amended Complaint;
The parties be ADVISED that, based on this Order and previous determinations of the Court, there are no surviving counts in said complaint;
Plaintiff's Motion for Partial Summary Judgment (Docket No. 200) be GRANTED IN PART (as to the issue of law in Count VI of Miller's Fourth Amended Counterclaim, discussed herein) and DENIED IN PART (as to Count XIII of Plaintiffs' Third Amended Complaint, discussed herein);
The parties be further ADVISED that the following counts remain for trial in the counterclaim: Count I (breach of contract); Count II (fraud); Count III (breach of duty of good faith and fair dealing); and Count IV (federal trademark infringement pursuant to 15 U.S.C. § 1114(1)); Count V (use of false descriptions and false representations pursuant to 15 U.S.C. § 1125(a)); and Count VI (declaratory relief, to the extent not foreclosed by this Order);
*1583 Plaintiff's Motion for Clarification (Docket No. 190) be DENIED;
Plaintiffs' Objections to Discovery Order Entered August 7, 1996 (Docket No. 218) be OVERRULED; and
Plaintiffs' Objections to Discovery Order Entered August 12, 1996 (Docket No. 221) be OVERRULED.
DONE AND ORDERED.
NOTES
[1]  The only testimony in Exhibit G regarding the deponent's connection with Anthony is at p. 280, lines 8-10 ("Q ... Who at Anthony would have authorized the beer? A. It would be me or the branch manager."). This type of ambiguity is common throughout all of Anthony's exhibits. To better aid the Court, Anthony should have included those portions of depositions that specifically state, on the record, who the deponent is and how he is connected to the parties.
[2]  Anthony's third amended complaint (Docket No. 205, ¶ 75) alleges that Miller violated Fla. Stat. § 812.015(1) instead of Section 812.014(1). This must be a scrivener's error, because Section 812.015(1) merely defines words used in the retail and farm theft statute and provides no civil remedy. Furthermore, Anthony quotes Section 812.014(1) in their civil theft discussion. See Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment at 29. (Docket No. 238). Similarly, this Court's use of the word "conversion" in its prior Order is erroneous to the extent that it differs from "theft." See 882 F.Supp. at 1032-33.
[3]  Even if Anthony were not held to the higher summary judgment standard, they fail to establish genuine issues of material fact with regard to all the elements of civil theft.
[4]  The Court also concludes that Anthony has not advanced sufficient record evidence to establish that Larry Boylan and Doug Wood made the statements "pursuant to Miller's express direction or approval," as alleged in the third amended complaint.
[5]  Even if Anthony were not held to the higher summary judgment standard, they still fail to raise genuine issues of material fact on all the elements.
[6]  On the other hand, the Court concludes, as a matter of law, that the partnership, joint ventures, associations, and other fiduciary relationships alleged in paragraphs 55, 56, 60, 84-87 and 91 of the third amended complaint (Docket No. 205) are not "enterprises," since the counts relating to those paragraphs have been previously dismissed by this Court.
[7]  The Court rejects Miller's argument that there can be no "pattern," in that the alleged criminal activity was directed at only one of the plaintiffs. There is sufficient record evidence to establish "pattern" of "criminal activity" as to both plaintiffs.
[8]  Each plaintiff has a separate, but identical, distributorship agreement with Miller.


866 So.2d 213 (2004)
Varian V. SCOTT, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D03-1044.
District Court of Appeal of Florida, Third District.
February 25, 2004.
Varian V. Scott, in proper person.
*214 Charles J. Crist, Jr., Attorney General, and Jill K. Traina, Assistant Attorney General, for appellee.
Before COPE, SHEVIN and RAMIREZ, JJ.
PER CURIAM.
Varian V. Scott appeals an order denying his motion for discharge under the speedy trial rule. We treat the appeal as a petition for writ of prohibition and deny it on the merits. The subsequent plea bargain entered into by defendant-appellant Scott waived his claim of a violation of the speedy trial rule. Monge v. State, 286 So.2d 34 (Fla. 3d DCA 1973). We need not reach the alternative argument that defense counsel had obtained continuances which waived the speedy trial period in any event.
Affirmed.


102 So.2d 653 (1958)
F. KIRMA, Appellant,
v.
Robert NORTON and Helen Norton et al., Appellees.
No. 289.
District Court of Appeal of Florida. Second District.
May 7, 1958.
*655 Arthur Knudsen, Jr., of Allen & Knudsen, Fort Myers, for appellant.
Thomas Shands, Fort Myers, for appellees.
SHANNON, Judge.
Appellees, plaintiffs below, are the property owners in a certain subdivision in Lee County, Florida, which is known as Russell Park Subdivision. This property lies in front of the appellant's, defendant below, property, separated only by a road, and plaintiffs are connected to a sewer line that runs under defendant's land to the Caloosahatchee River, where it protrudes about eight inches through the defendant's seawall and empties into the river. The plaintiffs brought a bill for permanent injunction restraining the defendant and his successors in title from interfering in any way with the flow of sewage through the sewer line to the river. Thereafter an answer and counterclaim were filed and testimony was taken. By his final decree the Chancellor found the equities with the plaintiffs and granted to them the right to maintain said sewer line and restrained the defendant and his successors in title from interfering with any part of the sewer line or its operation and maintenance. This appeal is from the Chancellor's determination.
It appears from the evidence that this subdivision was put on the market in 1925, at which time the subdivider advertised in the newspapers concerning the lots in said subdivision in part as follows:
"A Paradise For The Homeseeker
"Each lot brings with it the last word in modern improvements; curbs, sidewalks, water, sewers and lights  the most advantageous yet economical investment at the door of the fastest-growing city on the West Coast. Only a short drive from the center of town  on the highest elevation in this vicinity." (Italics ours.)
In evidence is an affidavit by L.F. DeBordenave, who was an engineer and codeveloper of the subdivision, who states that he engineered the project and supervised the installation of all sewer lines in Russell Park including the present ones prior to October 1, 1925, and that the same were in use in 1926. The plaintiffs or their predecessors in title have used the sewer lines ever since they were installed. The defendant purchased his property in the subdivision during April, 1951.
In his deposition Charles W. Russell, the developer, testified that he represented to the purchasers they had a sewer right, that he felt he conveyed such right to them, that he intended to convey such rights. During March of 1951 he executed a quitclaim deed to all the purchasers of the subdivision lots, in which there was spelled out the sewer system which he had intended to convey to the purchasers. He received no consideration for this quitclaim deed.
The grantor to the defendant testified that the sewerage pipe emptied into the Caloosahatchee River and that the defendant asked him about the pipe and was advised by the witnesses that the pipe was a sewerage pipe.
The final order of the Chancellor decreed the plaintiffs' use of the sewer line to be a permanent easement. The defendant has posed four questions but, in deciding the case, it will only be necessary for us to determine two of them, the first of which is the alleged violation by the plaintiffs of Section 387.08, Fla. Stat. 1955, F.S.A., and the second one is whether or not the plaintiffs have a valid easement. Section 387.08 provides:
"Any person, firm, company, corporation or association in this state, or the managing agent of any person, firm, *656 company, corporation or association in this state, or any duly elected, appointed or lawfully created state officer of this state, or any duly elected appointed or lawfully created officer of any county, city, town, municipality, or municipal government in this state, who shall deposit, or who shall permit or allow any person or persons in their employ or under their control, management or direction to deposit in any of the waters of the lakes, rivers, streams and ditches in this state, any rubbish, filth, or poisonous or deleterious substance or substances, liable to affect the health of persons, fish, or live stock, or place or deposit any such deleterious substance or substances in any place where the same may be washed or infiltrated into any of the waters herein named, shall be deemed guilty of a misdemeanor, and, upon conviction thereof in any court of competent jurisdiction, shall be fined in a sum not more than five hundred dollars; provided, further, that the carrying into effect of the provisions of this section shall be under the supervision of the state board of health."
In the testimony, John W. Wakefield, the sanitary engineer for the Florida State Board of Health, said in part:
"Q. Mr. Wakefield, in your opinion as a sanitary engineer, will septic tanks work adequately in Block 5?
"A. In my opinion the general area there including Block 5 could not be expected to give satisfactory operation with septic tanks year around.
"A. * * * The State Board of Health would very much like to see a sewage treatment plant. However, so far we haven't found any legal entity to undertake the construction of such a plant. To install individual septic tanks at each house would in my opinion create more of a sanitary nuisance than the discharge of sewage into the river. So we have taken the lesser of the evils and have not attempted to require the removal of the sewer.
"Q. You speak of it as a nuisance. In your opinion is the existing sewage disposal system safer from a health standpoint than the installation of the septic tanks in all of the homes on those lots?
"A. In my opinion, yes."
In addition to excerpts from Wakefield's testimony, the witness, Wakefield, also testified that the City of Fort Myers empties its sewerage into the river.
Section 387.08 is obviously a criminal statute but, regardless of that, the statute has a clause under which the State Board of Health has the supervision of the provisions of the statute. Just as obviously the statute was not designed to give it injunctive power which would create a more dangerous health problem than had existed. The Chancellor had this statute before him at the time of the final decree, together with the testimony of the various witnesses, and he decided, correctly, from the evidence, that the apparent violation of it could not be the basis for denying the plaintiffs the right of injunctive relief.
The defendant takes the position that the Chancellor, in holding that the plaintiffs were entitled to an easement, could not have correctly found that such easement arose expressly, by implication, or by prescription, the three ways in which it might have arisen.
In order to raise an easement by implication there must have been a unity of title between the dominant and servient estate. Guess v. Azar, Fla. 1952, 57 So.2d 443, and a conveyance, 28 C.J.S. Easements § 30, for the easement is held to be impliedly granted, or more rarely, reserved, in view of circumstances existing at the time of the conveyance which *657 would make such easement necessary for the complete enjoyment of the estate granted or reserved. Frequently, it is held that a use, to be an implied easement, must have been continuous, apparent, permanent, and necessary when the unified title was severed. The word "continuous" has been interpreted to mean apparent or permanent, or adapted to continuous use, or in some jurisdictions capable of being enjoyed without the need of any act of man. Those courts adapting the latter test exclude private roads, but include drains, however, infrequently used. 28 C.J.S. Easements § 33a. In the instant case the easement arose by implication, if at all, when the unified title was severed, i.e., when Russell sold the lots to purchasers while retaining that property next to the river, through which the sewer ran, and it would seem that the use of the sewer line would meet the requirements generally imposed. The requirement of apparency does not mean visible, 28 C.J.S. page 691, but something that might be discovered by reasonable inspection.
It has been held that to establish an easement by implication there must be something on the servient estate that, if not visible, is a permanent artificial structure, Swarzwald v. Cooley, 39 Cal. App.2d 306, 103 P.2d 580.
Under either view the sewer in the instant case meets the requirements; it was expressly built for the use and benefit of the lot owners, and extensively advertised; Mr. Russell testified that he thought he was granting an easement to the use of the sewer when he sold the lots in the subdivision.
Having decided such easements would arise in favor of the lot owners, we are concerned with the effect of such easement on a remote grantee, as a bona fide purchaser without notice of easements, takes the property free of such easements. 28 C.J.S. Easements § 50. This rule has been limited by some courts to where the owner of the dominant estate has failed to do something he should have done. On the other hand a purchaser will be held to such notice where the facts would put a prudent buyer on inquiry, and in the instant case there seems to be substantial evidence upon which the Chancellor could have found that the defendant did know, or should have known, the nature of the pipe protruding through his seawall.
The defendant argues against an easement arising by prescription taking the position that such prescription is based entirely upon a deed in the nature of a quitclaim to the property owners. He argues that Russell was the owner of the sewer line until 1951, and that any use prior to that time was permissive, and hence, could not be adverse so as to count toward the twenty year prescriptive period. He quotes J.C. Vereen and Sons v. Houser, 123 Fla. 641, 167 So. 45, 47, but, in that case, Mr. Justice Buford, in quoting from Thompson on Real Property, vol. 1, p. 487, states:
"`An easement by prescription is created only by adverse use of the privilege with the knowledge of the person against whom it is claimed, or by a use so open, notorious, visible and uninterrupted that knowledge will be presumed, and exercised under a claim of right adverse to the owner and acquiesced in by him; and such adverse user must have existed for a period equal at least to that prescribed by the statute of limitations for acquiring title to land by adverse possession.'"
Upon conflicting testimony the Chancellor necessarily found that the use of the sewer line was continuous, apparent, permanent and necessary and in light of its use for more than twenty years, adverse. In light of this the language in Zetrouer v. Zetrouer, 89 Fla. 253, 103 So. 625, 626, is applicable where it is stated:
"* * * Where the common law obtains, 20 years' continuous and uninterrupted *658 use has always created a prescriptive right as well in the public as private individuals. Such a right once obtained is valid and may be enjoyed to the same extent as if a grant existed, it being the legal intendment that its use was originally founded upon such a right. * * *"
In view of what we have said the final decree of the Chancellor will have to be affirmed.
Affirmed.
KANNER, C.J., and ALLEN, J., concur.


642 F.2d 1214
*Cargill, Inc.v.Sheffield
80-7585
UNITED STATES COURT OF APPEALS Fifth Circuit
4/2/81

1
S.D.Ga.

2
AFFIRMED***


556 N.W.2d 449 (1996)
Jerry BRIDE, Appellant,
v.
Gary HECKART and Bud Heckart & Sons Trucking & Excavating, Inc., Appellees.
UNION MUTUAL INSURANCE CO., Intervenor-Appellant,
v.
Gary HECKART and Bud Heckart & Sons Trucking & Excavating, Inc., Appellees.
No. 95-733.
Supreme Court of Iowa.
November 20, 1996.
Rehearing Denied December 17, 1996.
*450 Stephen D. Lombardi, Des Moines, for appellant Bride.
Joel H. Dorman, Des Moines, for appellant Union Mutual Insurance Co.
Timothy J. McKay of McKay, Moreland & Webber, P.C., Ottumwa, for appellees.
Considered by McGIVERIN, C.J., and HARRIS, NEUMAN, ANDREASEN, and TERNUS, JJ.
*451 ANDREASEN, Justice.
In this negligence action, plaintiff Jerry Bride sued Gary Heckart and Bud Heckart & Sons Trucking & Excavating, Inc. (Heckart & Sons) for injuries sustained in a construction site accident. At trial, the court submitted an instruction on the borrowed servant doctrine. After the jury found Bride was a fellow employee of Gary Heckart, the court entered a judgment for the defendants. We reverse and remand.

I. Background Facts and Proceedings.

In the fall of 1989, a general contractor hired Winger Contracting Co. (Winger) to relocate a storm sewer system and water main at the K-Mart store in Ottumwa, Iowa. Winger then orally contracted with Heckart & Sons, which has done most of Winger's excavation work for over thirty years, to provide the excavation work for the project. Heckart & Sons agreed to supply a track excavator (basically, a large backhoe) and an operator for an hourly rate. With this project, the excavation work consisted of digging, grading, and back-filling the trenches for the sewer pipes. As part of the agreement, the operator was also expected to use the backhoe to assist in lowering the pipes into the trench and connecting them. This customary practice between plumbers and excavators developed because it is virtually impossible to manually move the large pipes into place and connect them in the excavated trenches.
Gary Heckart, employee and also president of Heckart & Sons, was at the job site on November 6, 1989. He was joined by Steve Mesecher, Winger's foreman, and Bride, an employee of Winger. After Gary completed the excavation of one section of the trench, he began using the backhoe to assist Mesecher and Bride in placing the pipe into the trench and connecting it. Mesecher and Bride both worked from inside the trench. While operating the controls on the backhoe, Gary followed the signals and instructions of Mesecher to position the boom and the bucket. This is also a customary practice because a person in the trench has a better vantage point than the operator of the backhoe. Throughout the project, Gary was the only operator of the backhoe.
Once Gary, Mesecher, and Bride got the pipe lowered into the trench, they were ready to use the backhoe's bucket to push the new sewer pipe into place. To protect the new pipe from being damaged by the bucket, a block of wood was inserted between the bucket and the pipe as a cushion. At some point during this process, the block of wood snapped and struck Bride in the leg. As a result of the accident, Bride's leg was eventually amputated. Union Mutual Insurance Co. (Union Mutual), the workers' compensation insurance carrier for Winger, paid benefits to Bride for his injuries.
Bride filed this negligence action against Gary Heckart and Heckart & Sons. Union Mutual filed a notice of its workers' compensation lien and a petition for intervention. Both were resisted by Bride. Following a hearing, the district court held that the lien of Union Mutual was terminated because it was not timely filed, but that the petition for intervention was allowed under Iowa Rule of Civil Procedure 75.
In their answer, defendants denied liability and asserted several defenses. Among other things, they asserted that Gary Heckart was a borrowed servant of Winger at the time of Bride's injury; thus, Gary and Bride were co-employees of Winger. As a result, defendants argued, under Iowa Code section 85.20(2) (1993), Gary could not be liable for damages to Bride unless he was grossly negligent, and Heckart & Sons could not be vicariously liable under basic respondeat superior principles for the conduct of its employee.
The case proceeded to trial, and, over the objections of plaintiffs, the district court gave two instructions concerning the borrowed servant doctrine. On March 23, 1995, the jury returned a special verdict, finding that Bride was a co-employee of Gary Heckart at the time of the accident. Plaintiff's motion for new trial was denied, and judgment was entered for the defendants upon the jury's verdict. Plaintiff filed timely notice of appeal, which was consolidated with Union Mutual's appeal.
Several issues were raised on appeal. First, Bride and Union Mutual argue that *452 the district court erred in instructing the jury on the borrowed servant doctrine. Next, Bride argues that the district court erred in allowing Union Mutual to intervene and participate at trial. Also, Bride argues that the district court judge erred in failing to disclose his prior representation by defense counsel's law firm. Our scope of review is for the correction of errors at law. Iowa R.App. P. 4.

II. Jury Instructions on Borrowed Servant Doctrine.

Bride and Union Mutual's first argument on appeal is that the district court should not have instructed the jury on the borrowed servant doctrine. Their argument is not that the instructions incorrectly state the law, but that there is insufficient evidence to support submission of the instructions to the jury. We agree.
We review jury instructions to decide if they are a correct statement of the law and are supported by substantial evidence. Collister v. City of Council Bluffs, 534 N.W.2d 453, 454 (Iowa 1995). The court is required to instruct the jury as to the law applicable to all material issues in the case. Iowa R. Civ. P. 196. However:
The instructions should not marshal the evidence or give undue prominence to any particular aspect of a case. Requested instructions that are not related to the factual issues to be decided by the jury should not be submitted even though they may set out a correct statement of the law. The submission of instructions upon issues that have no support in the evidence is error.

Vachon v. Broadlawns Med. Found., 490 N.W.2d 820, 822 (Iowa 1992) (citations omitted) (emphasis added). Evidence is substantial enough to support a requested instruction when a reasonable mind would accept it as adequate to reach a conclusion. Coker v. Abell-Howe Co., 491 N.W.2d 143, 150 (Iowa 1992). In weighing the sufficiency of the evidence, we give it the most favorable construction it will bear in favor of the party seeking submission. Id.
At trial, Bride and Union Mutual objected to the submission of two instructions regarding the borrowed servant doctrine. Instruction 19, which is identical to Iowa Civil Jury Instruction 730.4 (1987), stated:
An employee of one employer who has been temporarily loaned to another for a special service does not become the employee of the borrower unless the original employer surrenders full control over the employee. Full control means that the employee is under the control and direction of the borrower in performance of the particular act involved. The control necessary must be something more than the right to point out the work to be done.
Instruction 19a stated:
Under Iowa law, a worker may have more than one employer. In that situation, the worker may be an employee of one employer for the purpose of doing certain activities, but the employee of another employer for other activities.
The borrowed servant doctrine has its origin in the Restatement (Second) of Agency, which states:
A servant directed or permitted by his [or her] master to perform services for another may become the servant of such other in performing the services. He [or she] may become the other's servant as to some acts and not as to others.
Restatement (Second) of Agency § 227 (1958). Our court has recognized this doctrine on numerous occasions. See Parson v. Procter & Gamble Mfg. Co., 514 N.W.2d 891, 895 n. 1 (Iowa 1994); Bethards v. Shivvers, Inc., 355 N.W.2d 39, 45 (Iowa 1984); Burr v. Apex Concrete Co., 242 N.W.2d 272, 275-76 (Iowa 1976). However, in the past we have been reluctant to apply the doctrine. In Parson, we held that "in cases involving the question of whether an employee of a general employer became the employee of a special employer, the presumption is that the general employer continues as the sole employer." Parson, 514 N.W.2d at 894; see also Restatement (Second) of Agency § 227 cmt. b.
The borrowed servant doctrine is significant, in part, because it operates to relieve the general employer from liability. To summarize:
The employer who temporarily borrows and exercises control over another's employee *453 assumes liability in respondeat superior for the activities of the borrowed employee. If an employee was a borrowed servant at the time of the allegedly tortious conduct, the employee's general employer can escape liability for such conduct.
27 Am.Jur.2d Employment Relationship § 462, at 899 (1996).
In determining whether an employee becomes the "borrowed servant" of a special employer, the primary consideration focuses on control. The burden is on the general employer to establish not only that it loaned the servant, but that it surrendered control and direction over the servant to the borrower. Miller v. Woolsey, 240 Iowa 450, 457, 35 N.W.2d 584, 587-88 (1949). In other words, the focus is on which employer had control over the employee at the time of the incident causing injury. 27 Am.Jur.2d Employment Relationship § 462, at 899. Absent evidence to the contrary, the original employer is presumed to retain the right of control. Id. at 900.
Bride contends that at no time did Winger or its employees exercise complete control over Gary's work. He argues that Winger, acting through its foreman, was merely directing the work to be done. Defendants contend, however, that the pipe-seating phase was plumbing work, not excavation work, and that Mesecher, Winger's foreman, had complete control over Gary Heckart.
As is apparent in Iowa Civil Jury Instruction 730.4, we have held that the control necessary to make the special employer the master must be something more than a right to point out the work to be done. Bethards, 355 N.W.2d at 45; see also Restatement (Second) of Agency § 227 cmt. d (the fact that the employee obeys the requests of the temporary employer as to the act does not necessarily cause him to be the servant of such employer); Anderson v. Abramson, 234 Iowa 792, 796, 13 N.W.2d 315, 317 (1944) (control by temporary employer to the extent that they could tell employee where to locate the crane, what work to do, and where to obtain and deposit dirt was insufficient to show full control); Raymond A. Sloan, Jr., Liability of Carriers for Independent Contractors' Negligent Operation of Leased Motor Trucks, 43 Iowa L.Rev. 531, 534 (1958) (borrowed servant question almost invariably arises when a contractor leases a machine to perform a certain job and furnishes his employee to operate the machine. A vast majority of the decisions holds that the operator has continued in his general employment.).
The United States Supreme Court addressed the subject of control in Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480 (1909). In Standard Oil, the Court stated:
when one large general work is undertaken by different persons, doing distinct parts of the same undertaking, there must be cooperation and coordination, or there will be chaos. The giving of the signals under the circumstances of this case was not the giving of orders, but of information; and the obedience to those signals showed cooperation rather than subordination, and is not enough to show that there has been a change of masters.
Standard Oil, 212 U.S. at 226, 29 S.Ct. at 256, 53 L.Ed. at 485. In other words, the Supreme Court held there is a distinction between authoritative direction and control, and mere suggestion as to details or the necessary cooperation. Id. at 222, 29 S.Ct. at 254, 53 L.Ed. at 484.
Here, Winger did nothing more than direct the positioning of the bucket on the backhoe. Gary Heckart never relinquished control of the backhoe. He was merely cooperating, as is the custom and practice in the profession, to help Winger connect the pipes in the trench. Further, it simply does not make sense to hold that, just by assisting Mesecher and Bride in lowering and connecting the pipes, Gary engaged in plumbing work and became a special employee (borrowed servant) of Winger.
Other factors to consider in determining the status of an employee focus on whether an employment relationship exists. This can be accomplished by looking at the intention of the parties. Parson, 514 N.W.2d at 894; Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 505 (Iowa 1981). Another method of determining whether such a relationship exists is application of the five-factor test established in Henderson v. Jennie Edmundson *454 Hospital, 178 N.W.2d 429, 431 (Iowa 1970). These factors include:
(1) the right of selection, or to employ at will;
(2) responsibility for the payment of wages by the employer;
(3) the right to discharge or terminate the relationship;
(4) the right to control the work; and
(5) is the party sought to be held as the employer the responsible authority in charge of the work or for whose benefit the work is performed.
Henderson, 178 N.W.2d at 431.
In considering the intention of the parties, nothing in the record indicates that the employers or Gary Heckart intended to create borrowed servant status. Further, none of the factors in the Henderson test are satisfied. First, Winger had no right to select the operator of the excavation equipment. That decision was clearly left to Heckart & Sons. Second, Winger was not responsible for payment of Gary Heckart's wages. Winger simply paid an hourly rate to Heckart & Sons for the services performed. Third, Winger had no right to terminate Gary Heckart's employment. At best, Winger could have requested a different operator. Fourth, as discussed below, Winger did not have the right to control the work. Finally, the last factor is not determinative because Gary Heckart's activities benefited both Winger and Heckart & Sons.
We conclude there was insufficient evidence to support submission of the instructions on the borrowed servant doctrine to the jury. We reverse on this issue and remand for retrial.

III. Intervention and Participation of Insurance Carrier.

Next, Bride alleges that the court acted erroneously in allowing the workers' compensation carrier to intervene and advise the jury as to the status of the workers' compensation benefits. He also argues that the intervenor was present at trial and actively participated in certain matters, which prejudiced his rights.
Union Mutual clearly had a right to intervene in this case. See Iowa Code § 85.22; Iowa R. Civ. P. 75. In Daniels v. Hi-Way Truck Equipment, Inc., 505 N.W.2d 485 (Iowa 1993), we stated:
Under Iowa's workers' compensation law an employer or employer's insurer has a statutory right to be indemnified and to have a lien on any recovery or judgment entered in an action against a third-party tortfeasor. If the employee fails to bring an action against a third-party tortfeasor, the employer or the employer's insurer has a right of subrogation and may maintain an action against such third-party tortfeasor. An employer or the employer's insurer that has paid workers' compensation benefits ordinarily has a right to intervene in the employee's third-party tort action.
Daniels, 505 N.W.2d at 487-88. However, the right to intervene in a lawsuit and the right to actively participate in a trial are separate issues. The primary right to control litigation always lies with the injured party. See Foveaux v. Smith, 17 Kan.App.2d 685, 843 P.2d 283, 290 (1992). An intervening insurance carrier has no right to active participation at trial. Id.
In Krapfl v. Farm Bureau Mutual Insurance Co., 548 N.W.2d 877 (Iowa 1996), we stated that, absent some inability or unwillingness of the injured party to adequately pursue the entire claim, the role of the intervening insurance carrier should be limited to seeking satisfaction of its subrogation interest from those sums recovered through the efforts of the injured party. Krapfl, 548 N.W.2d at 880. In other words, the injured party remains in full and complete control of the cause of action. To the extent that Krapfl states that intervening insurance carriers have limited participation rights at trial, it modifies our prior decision of Price v. King, 255 Iowa 314, 122 N.W.2d 318 (1963). As the Kansas Court of Appeals stated in Foveaux, "[i]t would be chaotic to grant full participation to the counsel for the insurance carrier who may pursue theories and claims the carrier deems beneficial, but which are detrimental to the primary holder of the cause of action." Foveaux, 843 P.2d at 290.
*455 The extent of participation is a matter of district court discretion. Id. The court can, and should, take any appropriate steps to prevent the intervenor from prejudicing the trial of the action. See Landrum v. National Union Ins. Co., 912 P.2d 324, 328 (Okla.1996). The fact that an intervenor is a real party in interest does not deprive the district court of its right, and obligation, to decide whether the intervenor's participation in plaintiff's jury trial might prejudice the plaintiff. Id. at 328-29. In most cases, insurance coverage under a workers' compensation act has no place in the pleadings or the evidence. See Gorrell v. Kansas Power & Light Co., 189 Kan. 374, 369 P.2d 342, 345 (1962). Usually, an intervenor's only interest is in any recovery made and does not concern the issues between plaintiff and defendant. See Foveaux, 843 P.2d at 289; see generally Ahlers v. EMCASCO Ins. Co., 548 N.W.2d 892 (Iowa 1996).
Bride also argues that the district court should not have advised the jury as to the status of the workers' compensation benefits. In Schonberger v. Roberts, 456 N.W.2d 201 (Iowa 1990), we recognized that even under Iowa's Comparative Fault Act, specifically Iowa Code section 668.14, evidence of payment of medical bills and other workers' compensation benefits is inadmissable provided the indemnification requirements of section 85.22 are satisfied. Schonberger, 456 N.W.2d at 203. The only conceivable purpose of informing the jury of such benefits is to invite the jury to reduce plaintiff's recovery because of them. Id. The Schonberger decision also modifies Price, which stated that the intervenor should be identified to the jury as having paid money to plaintiff under the workers' compensation act. See Price, 255 Iowa at 320, 122 N.W.2d at 322.
On remand, the district court should protect Bride's right to control the litigation. Generally, an intervening workers' compensation carrier should not participate in an action brought by an injured employee against a third-party tortfeasor.

IV. Law Firm's Prior Representation of District Court Judge.

Bride also claims the district court judge violated Canon 3(D)(1) of our Code of Judicial Conduct in failing to disclose his prior representation by a member of defense counsel's law firm. This representation, which Bride did not discover until his trial was completed, occurred less than two years before the trial. Bride argues that, had he known this before the trial, he would have requested a recusal based on a conflict of interest and ethical considerations.
Canon 3(D)(1) provides that "[a] judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." It is a constitutional right to have a neutral and detached judge. State v. Mann, 512 N.W.2d 528, 532 (Iowa 1994). In determining whether to recuse himself or herself, the judge must ask whether a reasonable person would question the judge's impartiality. Id.
The precise issue in this case is not whether the district court judge was obligated to disqualify himself; rather, the issue is whether the judge should have disclosed the information to the parties to give them an opportunity to request that he step aside. See Forsmark v. State, 349 N.W.2d 763, 767-68 (Iowa 1984). Bride never had the opportunity to ask the judge to disqualify himself. The judge should have known that, based on his recent, prior representation by defense counsel's law firm, a party in plaintiff's position might question his impartiality. The judge's failure to disclose the information deprived Bride of the opportunity to make a timely request for disqualification under Canon 3(D)(1).

V. Conclusion.

We hold it was error for the district court to instruct the jury on the borrowed servant doctrine and for the district court judge to fail to disclose his prior representation by defense counsel's law firm. We direct the court to exercise its discretion to protect Bride's right to control participation of the intervenor. We have considered other arguments raised by the parties and find them to be without merit. We reverse and remand.
REVERSED AND REMANDED.


                                                                                on      11/13/2015         2:03:02        PM

                                                                              OFFICE                   OF     STAN              STANART                                            FILED IN
                                                                            COUNTY              CLERK,         HARRIS              COUNTY,                   TEXAS          1st COURT OF APPEALS
                                                                                CIVIL        COURTS            DEPARTMENT                                             HOUSTON, TEXAS
                                                                                11/13/2015 2:06:36 PM
November                13,      2015
                                                                                CHRISTOPHER A. PRINE
                                                                                Clerk
       Court       of Appeals
301      Fannin
Houston,              Texas         77002

                                                                                LETTER
                                                                                OF
Trial     Court            Docket        Number:               1059909
Trial     Court            Number:            Two       (2)

Style:
 ATOM                 NANOELECTRONICS,                                        INC.        AND                     VS.           APPLIED                                                                    LLC

 KRIS
 APPELLANT(S)                                                                                APPELLEE(S)

                 THERESAW. CHANG

 Appellant(s)                    Attorney:                                                                                Appellee(s)               Attorney:
 Brent           C.     Perry,          No.     15799650                                                                                H.    Duskin,             No.     06288700
 700                                 Suite      4545                                                                           4615         Southwest              Freeway,          Suite     600
  Houston,               Texas          77002                                                                                Houston,               Texas        77027
 Phone:               (713)      401-9790                                                                                Phone:           (713)          961-3600
 Fax:          (713)          996-7739                                                                                Fax:         (713)       626-0182
 E-Mail:               bperry@burfordperry.com                                                                                E-Mail:            jay@jaydushkin.com

Atom        Nanoelectronics,                     Inc.         and   Kris     Smolinski,                                filed    an    Accelerated                Notice       of Appeal         on   November        9, 2015
from       the     Order          Overruling             Defendant’s              Special       Appearance             that    was       signed         on     October        20,    2015.

The      Clerk’s            Record          is due      to your          office      on   or before         November            19,   2015.

Deputy           Clerk
P.O.      Box         1525
Houston,              TX        77251-1525
(713)      755-64211>.o.

                                                                                1525   I                TX     77251-1525         I    (713)     755-6421

                                                                                1    1

                                                                                1
·11/9/2015                                                                            11:57:26
                                                                                PM
                                                                                Stanart

                                                                                Harris County

                                   N0. 1059909
APPLIED                                  § INTHE COUNTYCIVILCOURT
NANOFLUORESCENCE,            LLC         §
      Plaintifff,                        §
V.                                       § AT LAW NO. 2
                                         §
                  INC.
ATOMNANOELECTRONICS,
     KRIS SMOLINSKI                      §
      Defendants.                        § HARRIS        COUNTY, TEXAS

                                        APPEAL
                    NOTICEOFINTERLOCUTORY
      Defendants Atom Nanoelectronics, Inc. and Kris Smolinski give notice 0f

     intent to         pursuant t0 Tex. Civ. Prac. & Rem. Code § 51.014(a)(7), the

trial c0urt’s October 20, 2015 order denying their special appearance. This is an

accelerated appeal. Tex. R. App.P. 28.1. This appeal is taken to the First or

             Court of Appeals in Houston, Harris County, Texas.

                                      Respectfully submitted,

                                      BURFORD PERRY, LLP

                                      By:Brent
                                                  C. Perry
                                             Texas Bar N0. 15799650
                                             700 Louisiana, Suite 4545
                                             Houston, Texas 77002

                                                                  __                             -
                                             bperry@burfordperry.c0m

                                                            TS
                                                   FORDEFENDAN

                                                                                2
                        CERTIFICATE OF SERVICE

            I certify that a true and correct copy of Defendants’ Notice of
Interlocutory Appealhas been served on the followingcounsel and         by
electronicserviceon November
                           9,2015.
BYELECTRONIC
Jay H. Dushkin
Law          of Jay H. Dushkin
4615 Southwest Freeway, Suite 600
Houston,   TX 77027
jay@jaydushkin.com'

                                        Brent C. Perry

                                                                              3
                                                 1059909
APPLIED NANOFLUORESCENCE, LLC                    §          IN THE COUNTY CIVIL COURT                ·
                                                 §
                                                 §
v.                                               §
                                                 §          AT LAWNO. TWO

            and
KRISSMOLINSKI
                INC
ATOMNANOELECTRONICS,                             §
       Defendants.                               §          HARRISCOUNTY,TEXAS

                                       SPECIALAPPEARANCE
                              DEFENDANTS’
                     OVERRULING
       On this day came on for consideration,the special appearances          by DefendantsKris

Smolinskiand AtomNanoelectronics,Inc.             consideringthe Defendants' special appearances,

the responseof the Plaintiff,Applied                    LLC,theevidencepresentedbytheparties,

the discoveryon      in this case, the argumentsof counseland the pleadingsand other paperson file

inthiscause,theCourt
       OVERRULESthe special appearanceof DefendantAtom Nanoelectronics,Inc.; and

       OVERRULESthe special appearanceof DefendantKris Smolinski

SIGNED
    on

                                            lofl
                                           Page
                                          F:\Applied                      Ovenuling

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