792 F.Supp. 1397 (1992)
The COLONIAL WILLIAMSBURG FOUNDATION, Plaintiff,
v.
The KITTINGER COMPANY, Defendant.
Civ. A. No. 3:91CV00055.
United States District Court, E.D. Virginia, Richmond Division.
May 20, 1992.
*1398 Douglas Wayne Kenyon, Hunton & Williams, Raleigh, N.C., Ray Vinton Hartwell, Jr., George H. Gromel, Jr., Hunton & Williams, Richmond, Va., for plaintiff.
*1399 J. William Boland, Alexander H. Slaughter, McGuire, Woods, Battle & Boothe, Richmond, Va., Robert F. Wagner, Steven B. Larchuk, Dickie, McCamey & Chilcote, Pittsburgh, Pa., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
RICHARD L. WILLIAMS, Senior District Judge.
This matter is before the Court on the motions of the plaintiff, The Colonial Williamsburg Foundation ("Colonial Williamsburg"), for a finding of civil contempt against The Kittinger Company ("Kittinger"), Michael P. Carlow ("Carlow"), and Nicholas J. DeFino ("DeFino"), and for sanctions for violations of the Consent Judgment entered by this Court on February 25, 1991, and the Court's February 19, 1992, Discovery Order. Following a hearing on these issues on May 4 and 5, 1992, the Court now makes the following Findings of Fact and Conclusions of Law, pursuant to Fed.R.Civ.P. 52.

I. FINDINGS OF FACT
1. Colonial Williamsburg is a non-stock corporation organized and existing under the laws of the Commonwealth of Virginia, with its principal place of business in Williamsburg, Virginia. Plaintiff's Exhibit 2, February 25, 1991, Consent Judgment, § III (hereinafter Consent Judgment).
2. Among its various functions, Colonial Williamsburg operates a museum reproductions program ("the Reproductions Program"), pursuant to which Colonial Williamsburg licenses selected manufacturers to make and sell, under the trademarks and trade names of Colonial Williamsburg, reproductions and adaptations of certain antiques within Colonial Williamsburg's collection. The Reproductions Program includes among its items certain designated pieces of furniture.
3. Colonial Williamsburg has adopted and has continuously used, both in the United States and many other parts of the world, certain trademarks and service marks to identify and distinguish its goods and services, which marks, through their use, have become well-known. Colonial Williamsburg's marks include: the words WILLIAMSBURG and COLONIAL WILLIAMSBURG; the letters CW and WF (as designations for furniture reproductions and adaptations, respectively); and the design, known as the "Hallmark," consisting of the words WILLIAMSBURG REPRODUCTIONS, the letters CW, and an elongated "4" ending in a double "XX," all enclosed in an oval. Colonial Williamsburg also has adopted and continuously used in the United States and many other parts of the world the trade name WILLIAMSBURG and COLONIAL WILLIAMSBURG. Colonial Williamsburg is the sole owner of all right, title, and interest in and to these marks and names, and of the goodwill that accompanies them. See Consent Judgment, §§ III-IV.
4. Kittinger is a corporation organized and existing under the laws of the State of North Carolina. Its principal place of business is Buffalo, New York. Kittinger is qualified to do, and is doing, business in Virginia. Consent Judgment, § III.
5. Carlow is Chairman of the Board of Kittinger, having been elected to that office on February 28, 1992. Plaintiff's Exhibit 38. As reflected in Kittinger's By-Laws, Carlow's duties and responsibilities as chairman include serving as the company's chief executive officer. Plaintiff's Exhibit 37.
6. From June 22, 1990, until February 28, 1992, Carlow served as president of Kittinger. Plaintiff's Exhibit 38. Carlow's duties and responsibilities as president included serving as the company's chief operating officer and supervising and controlling the management of the company. Plaintiff's Exhibit 37.
7. Because Kittinger had no chairman until Carlow's election in February of 1992, Carlow has at all relevant times been Kittinger's highest ranking officer. Plaintiff's Exhibits 37 & 38.
8. DeFino is president of Kittinger, having been elected to that office on February 28, 1992. Plaintiff's Exhibit 38. From *1400 July 1990 until his election as president, DeFino was Vice-President of Operations. Plaintiff's Exhibit 39.

Background and Procedural History
9. For a period of more than fifty years Colonial Williamsburg and Kittinger maintained a licensing and business arrangement involving the collaborative design, manufacture, and sale of reproductions and adaptations of certain pieces of antique 18th century furniture, specimens of which are a part of Colonial Williamsburg's collection.
10. In early 1990, after frequent changes of ownership at Kittinger, Colonial Williamsburg became increasingly concerned that continued financial hard times would necessitate Kittinger's closing. Accordingly, the Licensing Agreement[1] with Kittinger was terminated on or about February 26, 1990, see Consent Judgment, § III, and Colonial Williamsburg negotiated a licensing agreement with Baker Furniture Company.
11. In June of 1990, 100% of Kittinger's common stock was acquired by USC Industries, Inc., a holding company that is majority owned by a second, Carlow controlled company. See Carlow Deposition, at 3-6, 15-16.
12. During the summer of 1990, Carlow and others met in Williamsburg to negotiate the termination of the Licensing Agreement between Kittinger and Colonial Williamsburg.
13. In late 1990, Kittinger filed suit in the Western District of New York, Buffalo Division,[2] seeking a declaratory judgment that certain provisions of the License Agreement were unenforceable under the patent and copyright laws of the United States and that certain of Colonial Williamsburg's trademarks were also unenforceable. See Plaintiff's Exhibit 1, Settlement Agreement, at 1-2 (hereinafter Settlement Agreement).
14. On January 25, 1991, Colonial Williamsburg filed the instant action alleging breach of contract, federal trademark infringement and false designation of origin, and related Virginia statutory and common law violations. See Consent Judgment, § II.
15. On February 19, 1991, Colonial Williamsburg and Kittinger entered into a Settlement Agreement that provided for the dismissal of the New York action and the entry of a Consent Judgment in the instant action. Settlement Agreement, at 2.
16. The Settlement Agreement also provides that "[a]ny party seeking to enforce its rights pursuant to this Settlement Agreement or the attached Consent Judgment and who substantially prevails in enforcing those rights shall be paid by the party against whom such enforcement is sought any fees or costs incurred, including reasonable attorneys' fees, as a result of such enforcement." Settlement Agreement, at 4-5.
17. This Court entered the Consent Judgment, in accordance with the Settlement Agreement, on February 25, 1991. The Court's jurisdiction, however, was expressly retained to allow "the parties to apply to this Court for such further orders as may be necessary or appropriate for the construction, implementation, modification, or enforcement of this Consent Judgment, and for punishment of any violation of this Consent Judgment." Consent Judgment, § XVII.
18. Section VI of the Consent Judgment enjoins Kittinger, as of April 1, 1991, from using Colonial Williamsburg's various marks and names or any marks or names "likely to cause confusion, or to cause mistake, or to deceive." Additionally, section VI prohibits Kittinger from,
[i]n connection with the sale of its products, referring directly or indirectly to Colonial Williamsburg, to Kittinger's former status as a licensee of Colonial Williamsburg, to specific items in the collections of Colonial Williamsburg, or to the restoration of Virginia's Colonial capital in Williamsburg, Virginia; and

*1401 3. Disseminating, publishing, distributing, or otherwise using information or materials of any kind whatsoever containing a false designation of origin, or false description, or false representation, or likely to deceive the relevant consuming public into thinking that any goods or services offered by Kittinger, are in any manner associated or connected with, or licensed, authorized, sponsored, endorsed or approved by Colonial Williamsburg.
19. Section VII, in turn, enjoins Kittinger, as of April 1, 1991, from:
manufacturing and/or selling the Licensed Products or any products so similar in appearance to the Licensed Products as to be likely to cause confusion, or to cause mistake, or to deceive the relevant consuming public into thinking that such products are the Licensed Products or are in any manner associated or connected with, or licensed, authorized, or approved by Colonial Williamsburg.
20. Section VIII of the Consent Judgment provided that Kittinger was to give Colonial Williamsburg access to its books to allow the determination of additional royalties and the number and status of licensed pieces ordered but not yet completed.
21. Section IX generally enjoined Kittinger from "commencing the manufacture of any Licensed Products whose assembly was not already in progress as of February 15, 1991," with the clarification that through March 31, 1991, Kittinger could "(1) sell Licensed Products through its showrooms, (2) complete the manufacture into finished pieces of work-in-progress pieces whose assembly was already in process as of February 15, 1991," and (3) ship finished pieces in order to fill orders accepted by the close of business on March 15, 1991, "provided, that all such manufacture shall be completed and all sales and shipments of Licensed Products made no later than March 31, 1991, except that shipments of Licensed Products sold through Kittinger showrooms may be made through April 5, 1991."
22. Sections IX and X provide a schedule for the calculation and payment of royalties. Additionally, section X provided for the audit of Kittinger's books "with respect to such payments and the transactions related thereto."
23. Section XI of the Consent Judgment required Kittinger to "deliver up to Colonial Williamsburg or its designee, or destroy in the presence of Colonial Williamsburg or its designee, all Licensed Products, whether finished pieces or work-in-progress pieces, remaining within its possession, custody, or control" on April 1, 1991.
24. Section XII provides that
[o]n or before April 15, 1991, Kittinger shall deliver ... or destroy ... all of the following specialized materials, including all copies or duplicates thereof, used by Kittinger to manufacture the Licensed Products:
1. Plans, including "shop drawings" in both original and tag formats;
2. Castings and molds;
3. Hardwood carving models;
4. Development files; and
5. Photographs, provided by Colonial Williamsburg, of Licensed Products or any antiques in its collection.
Kittinger shall otherwise be permitted to retain and use its present inventory of parts and the various devices used in the manufacture of its products generally, provided that the use by Kittinger of such parts and devices does not place Kittinger in violation of the terms of this Consent Judgment, and provided further that Kittinger undertakes the affirmative obligation to modify such parts and devices to the extent necessary to ensure their use in compliance with this Consent Judgment.
25. Section XIV of the Consent Judgment provides:
On or before April 15, 1991, Kittinger shall deliver ... or destroy ... all advertisements, brochures, stationery, and other promotional materials of any type bearing any of the marks and names referred to in the Agreement or in this Consent Judgment, provided that Kittinger may retain product catalogues for archival purposes and to facilitate its *1402 compliance with the terms of this Consent Judgment, and provided further that Kittinger may continue to use its current product catalogues through July 31, 1991 if those catalogues bear, or any entries therein pertaining to Licensed Products, stickers approved by Colonial Williamsburg indicating that Kittinger is no longer licensed to used [sic] the Licensed Products.
26. Section XV required Kittinger, on or before April 30, 1991, to certify by affidavit to the Court that it had complied with the terms of the Consent Judgment, specifying the time and manner of such compliance.
27. Section XVI makes the terms of the Consent Judgment applicable, not just to Kittinger, but to all its employees, agents, servants, successors, assigns, and all persons in active concert or participation with any of the aforementioned.
28. On April 30, 1991, DeFino filed an Affidavit of Compliance with the Consent Judgment with the Court. See Plaintiff's Exhibit 3, Affidavit of Compliance with the Consent Judgment (hereinafter Affidavit of Compliance).
29. On February 5, 1992, Colonial Williamsburg filed a motion requesting an order to show cause why Kittinger, Carlow, and DeFino should not be held in contempt and requesting discovery.
30. On February 19, 1992, the Court entered an Order directing the defendants to appear on March 24, 1992, to show cause why they should not be held in contempt for violating the terms of the Consent Judgment. See Plaintiff's Exhibit 4, Order of February 19, 1992.
31. The same day, the Court ordered Kittinger to appear, and to cause Carlow and DeFino to appear, for deposition in Buffalo starting on March 5, 1992. Additionally, Kittinger was ordered to produce certain documents and tangible things at Kittinger's Buffalo, New York, plant for inspection and copying on March 4, 1992. Among the items to be produced were (a) all Colonial Williamsburg Licensed Products and the parts thereof in Kittinger's possession, custody, or control, (b) all materials and equipment used in the manufacture or production of the Licensed Products, including plans, shop drawings, and other specialized materials and equipment, (c) all furniture products and parts thereof similar in design and appearance to the Licensed Products, and (d) all materials and equipment used in the manufacture or production of such similar furniture products and parts. See Plaintiff's Exhibit 4, Order of February 19, 1992 (hereinafter Discovery Order).
32. On March 4, 1992, Colonial Williamsburg was advised through an anonymous telephone call that evidence had been removed from the Buffalo plant and transported to Kittinger's Castile, New York factory and warehouse. In addition, the caller advised Colonial Williamsburg that other relevant materials had been hidden in a third floor woman's bathroom in the Buffalo plant.
33. On March 5, 1992, Colonial Williamsburg filed an ex parte motion with the Court requesting the seizure and impounding of the concealed evidence. In a March 5, 1992 Order, the Court directed the United States Marshall's Service to effectuate the seizure of the listed categories of items. See Order of March 5, 1992 (hereinafter Seizure Order).
34. On March 9, 1992, the United States Marshall's Service executed the Seizure Order and seized or impounded a variety of materials. Among the materials seized or impounded were finished and unfinished pieces of furniture, plans and drawings used in the manufacture of Licensed Products, and development files. See Plaintiff's Exhibits 5-7, Marshall's Inventories of Seized and Impounded Property; Testimony of Driscoll.
35. On March 10, 1992, Kittinger and DeFino refused to continue their depositions.
36. The Court, on March 12, 1992, ordered the resumption of those depositions and ordered that they be conducted in Richmond, Virginia.
37. On March 12, 1992, Colonial Williamsburg moved for sanctions against *1403 Kittinger, Carlow, and DeFino for violating the Discovery Order.
38. On March 16, 1992, the Court denied a motion by the defendants to stay the proceedings. The Court did, however, continue the show cause hearing until May 4, 1992, and consolidated it with a hearing on the motion for sanctions.

Summary of Contemptuous Conduct
39. Kittinger has deliberately and systematically violated the Consent Judgment in a number of material respects. These violations include, but are not limited to:
(a) Kittinger's unlawful retention of blueprints, ozalids, CAD drawings, tag drawing, development files, and photographs, see, e.g., Plaintiff's Exhibits 5-7; Testimony of Driscoll;
(b) Kittinger's concealment of furniture, parts, and other materials that were to have been delivered up or destroyed by April 15, 1991, see, e.g., Collopy Deposition; Lehning Deposition, at 95-97;
(c) Kittinger's shipping of Licensed Products during the period from April 8 through August 14, 1991, see Plaintiff's Exhibit 40;
(d) Kittinger's sale of a C8160/CW160 table to Kraft General Foods, Inc., in October of 1991, that was so similar in appearance to prior Licensed Product as to be likely to cause confusion, see, e.g., Plaintiff's Exhibit 27; Testimony of Philben and Scalia; Murray Deposition, at 51;
(f) Additional sales of confusingly similar products by Kittinger through at least March 12, 1992, Testimony of Kaumeyer; Lehning Deposition, at 107-11, 114-16;
(g) Kittinger's unlawful retention and use of enjoined promotional materials in the marketing of those products offered in lieu of Licensed Products, see, e.g., Watson Deposition, at 8-12, 27-30;
(h) Kittinger's conscious effort to create a confusingly similar line of products (the HK line) through the use of unlawfully retained blueprints and drawings, see Testimony of Driscoll (concluding that all of the HK line is confusingly similar except the Secretary Desk, HK5502 (old CW1)); Lehning Deposition, at 83, 107-11, 166-68, 179, 180-82, et seq.; Marshall's Seized Item 12 (Kittinger green notebook with Lehning's proposed HK designs);
(i) Kittinger's failure to pay royalties, DeFino Deposition, at III-29;[3] and
(j) Kittinger's filing, through DeFino, of a materially false affidavit with the Court swearing to its compliance with the Consent Judgment.
40. More egregious than any of the specific breaches was the defendants' utter lack of respect for their obligations under the Consent Judgment. The evidence is clear that no responsible person in the hierarchy of Kittinger made any effort to see that the terms and requirements of the Consent Judgment were disseminated to the employees of Kittinger in a manner that would alert them to their legal obligations thereunder. See, e.g., DeFino Deposition, at I-124 (could not specifically recall any conversations with Carlow concerning the Consent Judgment); Carlow Deposition, at 59-60 (never read the Consent Judgment); Coffey Deposition, at 102-05 (never saw the Consent Judgment until approximately two weeks before his deposition); Murray Deposition, at 43-44, 103-05 (only speculative knowledge of the Consent Judgment).
41. The defendants also deliberately and systematically violated the Discovery Order by moving and concealing furniture, parts, plans, drawings, and other documents and materials required to be produced. Documents detailing these items were not discovered until a deposition after the seizure. Further, it was more than a month after the seizure before Kittinger produced the shipping list for the items concealed to avoid the April 1991 inspection called for in the Consent Judgment. See, e.g., Plaintiff's Exhibits 46 & 54; Lehning Deposition, at 57-73; Pugliese Deposition; Wyant Deposition.

*1404 Detail of Contemptuous Conduct

42. In late 1990 or early 1991, Kittinger embarked on a concerted program of copying the plans, drawings, and related papers for the Licensed Products as a hedge against having to turn the originals over to Colonial Williamsburg. Lehning Deposition, at 235-36.
43. These copies were intended to be used, and were used, as the basis for the development of a new product line. Indeed, the blueprints of the Licensed Products were simply modified in creating the new line. DeFino Deposition, II-63; Lehning Deposition, at 166-68, 179; Kittinger Deposition Exhibit 12.
44. On or about March 26, 1991, Kittinger removed numerous materials from its Buffalo plant to prevent their being delivered to Colonial Williamsburg or destroyed as required by the Consent Judgment. These included approximately 85 pieces of "white stock" and "carcasses" for CW, WF, and WA pieces. Plaintiff's Exhibit 46; Collopy Deposition, at 16, 19-20. Plans, drawings, and related materials for the Licensed Products were also shipped out to prevent their discovery. Collopy Deposition, at 20; Lehning Deposition, at 95-97.
45. Beginning on April 8, 1991, and continuing through August 14, 1992, Kittinger sold and/or shipped 121 Licensed Products, each bearing the trademark of Colonial Williamsburg. See Plaintiff's Exhibit 40.
46. This was contrary to Kittinger's assurances that it had tendered all remaining Licensed Products to Colonial Williamsburg on April 15, 1991, and that it had destroyed the plans, drawings, and other materials as called for in the Consent Judgment. See Affidavit of Compliance, paras. 9 & 11.
47. On May 1, 1991, a letter published under what was purported to be Carlow's signature and directed to Kittinger's customers made direct reference to Kittinger's past relationship with Colonial Williamsburg. Testimony of Carlow.
48. Beginning on May 8, 1991, and continuing at least through March 12, 1992, Kittinger sold and/or shipped approximately 324 furniture pieces bearing the C8, W8, or HK designations. Each of these pieces was manufactured from plans and drawings originally used to manufacture Licensed Products. See Plaintiff's Exhibit 41; Lehning Deposition, at 166-68, 175-79.
49. Despite repeated demands, Kittinger has not paid royalties on the sale of Licensed Products since December 1990, including the royalties for the Licensed Products shipped between April 8 and August 15, 1991. Kittinger presently admits that Colonial Williamsburg is entitled to $105,063.00 in royalties. DeFino Deposition, at III-29.
50. Throughout the Spring and Summer of 1991, Kittinger used tear sheets for Licensed Products in the sale of its "new" products. Watson Deposition, at 10.
51. Unless customers specifically asked, they were not advised that they would not be getting Colonial Williamsburg licensed furniture. When they did ask, Watson told them that they would be getting basically the same product, only "slightly changed" and without Colonial Williamsburg's insignia or burn mark. Watson Deposition, at 11, 29.
52. On October 10, 1991, Kittinger accepted an order from International Business Interiors, Inc. ("IBI") for a "CW160" Colonial Williamsburg reproduction drop leaf table. See Plaintiff's Exhibit 28. Kittinger responded by confirming that it would ship such a table to the client, Kraft General Foods, under stock number C8160. Plaintiff's Exhibit 29. No one at Kittinger informed the interior designer at Perkins & Will, who had originally consulted with the sales personnel at the Chicago showroom, that Kittinger could not deliver a CW160 table or that Kraft would be getting a materially different item. Testimony of Scalia. Further, Philip L. Philben ("Philben"), who received Kittinger's bid, saw the table referred to as a "C-8160 (CW-160)." He understood the designation to mean that Kraft would receive a CW-160, the "C-8160" being just an internal number used at Kittinger. He so concluded because the Colonial Williamsburg product *1405 was what had been ordered and they had never been informed that they would not receive that product. See Plaintiff's Exhibit 27, Proffered Testimony of Philben.
53. On December 3, 1991, Colonial Williamsburg's counsel received a copy of the plans for Kittinger's C-8160 table. Plaintiff's Exhibit 47. On December 4, 1991, Colonial Williamsburg advised Kittinger that the table was so similar in design to the old CW-160 that it was likely to cause confusion, mistake, or otherwise deceive the relevant consuming public. See Defendant's Exhibit U. Colonial Williamsburg demanded "that Kittinger `immediately suspend all manufacturing, sales, and shipments' of the C8160 table as required by Section VII of the Order" and emphasized that "[b]ased on this provision, Kittinger is precluded from offering C8160 tables for sale either at the warehouse sale ... or the factory sale ..., and is further precluded from filling any orders for tables now in progress." Id.
54. On December 5, 1991, Kittinger's counsel assured Colonial Williamsburg that Kittinger had been advised to suspend all sales of the C8160 table as required by the Consent Judgment. Defendant's Exhibit U. Notwithstanding these assurances, Kittinger offered the C8160 tables for sale at the warehouse sale on December 5 and 6, 1991. Testimony of Kaumeyer.
55. Additionally, Kittinger shipped a C8160 table to Kraft General Foods on January 29, 1992. Plaintiff's Exhibit 30.
56. On February 27 and 28, 1992, and on March 2, 1992, Kittinger removed and secreted numerous items which were required to be have been delivered to Colonial Williamsburg or destroyed by April 15, 1991 under the terms of the Consent Judgment and which were required to have been produced under the terms of the Discovery Order. Plaintiff's Exhibits 5-7, 46, 52.
57. While DeFino denied knowledge of the concealment of the evidence, this testimony is incredible given other testimony and DeFino's day-to-day control of Kittinger. See, e.g., Lehning Deposition, at 57-59, 70-71, 75-78; Prieur Deposition, at 111-15.
58. Additionally, the evidence is clear that DeFino had a direct hand in orchestrating violations of the Consent Judgment. See Lehning Deposition, at 95-96.
59. The actions of each of the defendants, Kittinger, Carlow, and DeFino, in the instant case were deliberate, willful, and in bad faith.
60. Kittinger's unauthorized use of Colonial Williamsburg's trademarks, including WILLIAMSBURG, CW, WF, and the Hallmark, as well as Kittinger's promotion and sale of products bearing the designators C8, W8, and HK enabled Kittinger to trade on the reputation and goodwill of Colonial Williamsburg by offering nearly identical products to consumers who inquired about Colonial Williamsburg products. Further, these pieces are likely to cause confusion among the consuming public and to cause that public to believe, mistakenly, that Kittinger's products are approved by, authorized by, sanctioned by, affiliated with, or otherwise associated with Colonial Williamsburg. Testimony of Driscoll.

II. CONCLUSIONS OF LAW

A. Contempt
1. The Court's jurisdiction in the instant case is based on section XVII of the Consent Judgment and "the long recognized, inherent jurisdiction of federal courts to protect and enforce their orders and judgments." Omega World Travel, Inc. v. Omega Travel, Inc., 710 F.Supp. 169, 170 (E.D.Va.1989) (citing Riggs v. Johnson County, 73 U.S. (6 Wall.) 166, 187, 18 L.Ed. 768 (1867)), aff'd by unpubl. op., 905 F.2d 1530 (4th Cir.1990).
2. To establish civil contempt, Colonial Williamsburg must prove:
(1) the existence of a valid decree of which the alleged contemnor had actual or constructive knowledge; (2) a showing that the decree was in the movant's `favor'; (3) a showing that the alleged contemnor by its conduct violated the terms of the decree, and had knowledge (at least constructive knowledge) of such violations; *1406 and (4) a showing that movant suffered harm as a result.
Id.
3. Each of these elements must be shown by clear and convincing evidence. See, e.g., Stotler and Co. v. Able, 870 F.2d 1158, 1163 (7th Cir.1989).

Knowledge of a Valid Decree
4. There is no debate as to the validity of the Consent Judgment or the Discovery Order. It is similarly clear that all three defendants had actual or constructive knowledge of both the Consent Judgment and the Discovery Order.

Decree in Movant's "Favor"
5. The Consent Judgment was clearly in Colonial Williamsburg's "favor." It was explicitly directed at affecting Kittinger's behavior in regards to the Licensed Products, and, accordingly, inured to the benefit of Colonial Williamsburg. Cf. Rhodes v. Stewart, 488 U.S. 1, 3-4, 109 S.Ct. 202, 203-04, 102 L.Ed.2d 1 (1988).
6. The Discovery Order was likewise in Colonial Williamsburg's "favor." The Discovery Order commanded Kittinger to provide certain documents and things to Colonial Williamsburg, to produce certain witnesses for depositions, and ordered Kittinger to reimburse Colonial Williamsburg for certain expenses associated with the discovery. Discovery Order, at paras. 2-4.

Violation of the Order
7. As specified in the Findings of Fact, the defendants have deliberately, systematically, and repeatedly violated the Consent Judgment and the Discovery Order.

Injury
8. There is also no question but that Colonial Williamsburg has been injured by the defendants' violations of the Consent Judgment. At a minimum, Kittinger admits that it owes Colonial Williamsburg $105,063.00 in royalties. In addition to this very concrete monetary injury, Kittinger's sale of Licensed Products and of confusingly similar furniture has injured the goodwill Colonial Williamsburg has in its name and products. With regard to the Discovery Order, it is clear that Colonial Williamsburg was forced to incur additional costs because of the defendants having hidden responsive materials. While these do not constitute the sum of all of the injuries suffered by Colonial Williamsburg, they are more than adequate to establish civil contempt. See Church of Scientology Int'l v. Elmira Mission of Church of Scientology, 794 F.2d 38, 43 (2d Cir.1986); Omega World Travel, 710 F.Supp. at 171.
9. Accordingly, Kittinger, Carlow, and DeFino are found to be in contempt for their violations of the Consent Judgment and the Discovery Order. Further, each will be jointly and severally liable for the sanctions imposed as a result of the finding of contempt.
10. The imposition of joint and several liability on Carlow is justified under the facts of the instant case. Section XVI of the Consent Judgment, by its terms, makes the Consent Judgment applicable to Kittinger, its employees, agents, servants, successors, assigns, and all persons in active concert or participation with Kittinger or the aforementioned. Further, the case law establishes that an individual who is responsible for ensuring that a corporation complies with a court order cannot escape liability merely by removing himself from the day-to-day operations of the corporation and washing his hands of responsibility. In the instant case, the evidence is clear that Carlow took none of the affirmative steps necessary to ensure Kittinger's compliance with the Consent Judgment. See Wilson v. United States, 221 U.S. 361, 376, 31 S.Ct. 538, 542, 55 L.Ed. 771 (1911) ("A command to the corporation is in effect a command to those who are officially responsible for the conduct of its affairs. If they, apprised of the writ directed to the corporation, prevent compliance or fail to take appropriate action within their power for the performance of the corporate duty, they, no less than the corporation itself, are guilty of disobedience, and may be punished for contempt."); Connolly v. J.T. Ventures, 851 F.2d 930, 934-35 (7th Cir. *1407 1988); NLRB v. Maine Caterers, Inc., 732 F.2d 689, 691 (1st Cir.1984). Carlow's total dereliction of responsibility cannot be countenanced by this Court.
11. The propriety of imposing joint and several liability on DeFino is even clearer. Not only was he directly responsible for Kittinger's compliance with the Consent Judgment and the Discovery Order, but the evidence demonstrates that he willfully participated in and directed the hiding of items that should have been destroyed under the terms of the Consent Judgment, filed an admittedly false affidavit of compliance, and participated in and directed the hiding of documents and items that were to be produced under the Discovery Order.

B. Relief
12. "[A] sanction imposed on a party held to be in civil contempt generally may serve either or both of two purposes: to coerce the contemnor into complying in the future with the court's order, or to compensate the complainant for losses resulting from the contemnor's past noncompliance." Perfect Fit Industries, Inc. v. Acme Quilting Co., 673 F.2d 53, 56 (2d Cir.), cert. denied, 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 71 (1982); see also Connolly, 851 F.2d at 932; Omega World Travel, 710 F.Supp. at 171.
13. Moreover, "a court has broad discretion to fashion a remedy based on the nature of the harm and the probable effect of alternative sanctions." Connolly, 851 F.2d at 933 (citing U.S. v. United Mine Workers, 330 U.S. 258, 303-04, 67 S.Ct. 677, 701-02, 91 L.Ed. 884 (1947)).

Disgorging of Profits
14. A civil contempt fine, even when compensatory in nature, need "not always [be] dependant on a demonstration of `actual pecuniary loss.'" Manhattan Indus., Inc. v. Sweater Bee By Banff, Ltd., 885 F.2d 1, 5 (2d Cir.1989) (citing Leman v. Krentler-Arnold Hinge Last Co., 284 U.S. 448, 455-56, 52 S.Ct. 238, 241-42, 76 L.Ed. 389 (1932)), cert. denied, 494 U.S. 1029, 110 S.Ct. 1477, 108 L.Ed.2d 614 (1990); see also Howard Johnson Co., Inc. v. Khimani, 892 F.2d 1512, 1521 (11th Cir.1990); Connolly, 851 F.2d at 933-34.
15. A useful analogy in determining what would constitute compensation for violations such as the defendants' is provided by section 35(a) of the Lanham Act, 15 U.S.C. § 1117(a). See Howard Johnson, 892 F.2d at 1519. Section 35(a) provides:
When a violation of any right of the registrant of a mark registered in the Patent and Trademark Office, or a violation under section 43(a), shall have been established ... the plaintiff shall be entitled ... to recover (1) defendant's profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action. ... In assessing profits the plaintiff shall be required to prove defendant's sales only; defendant must prove all elements of cost or deduction claimed.
15 U.S.C. § 1117(a).[4]See also Leman v. Krentler-Arnold Hinge Last Co., 284 U.S. 448, 455-57, 52 S.Ct. 238, 241-42, 76 L.Ed. 389 (1932) (approving of "[p]rofits ... as an equitable measure of compensation" in a civil contempt proceeding for a violation of a permanent injunction in a patent infringement suit); Sweater Bee By Banff, 885 F.2d at 5-6 (violation of a consent judgment in a trademark infringement suit); Connolly, 851 F.2d at 933-34 (violation of a consent judgment in a copyright infringement suit).
16. Additionally, a disgorging of profits is warranted as a means of deterring future violations. See Oral-B Labs., Inc. v. Mi-Lor Corp., 810 F.2d 20, 25-26 (2d Cir.1987). Requiring Kittinger to pay royalties would merely place it in the position it would have been in had the licensing agreement remained in effect; i.e., a better position than it would have been in had it obeyed the Consent Judgment.
*1408 17. Subsequent to April 15, 1991, the date on which Kittinger was to have destroyed or tendered delivery of all remaining Licensed Products, Kittinger sold and/or delivered 121 pieces of the Licensed Products for gross sales of $159,295.99. See Plaintiff's Exhibit 40.
18. The burden of proof rests on the defendants "to prove any deductions for its costs from the gross revenues attributable to its contempt." Oral-B, 810 F.2d at 26; 15 U.S.C. § 1117(a). Nevertheless, the Court concludes that it would be inequitable and unnecessarily excessive to force the defendants to repay all revenues derived from the sale of Licensed Products. Kittinger certainly incurred substantial overhead in the production of the Licensed Products. Further, the quality of workmanship added value to the finished product. Accordingly, the Court has determined that the defendants will be required to pay Colonial Williamsburg a third of the revenue derived from the sale of Licensed Products in violation of the Consent Judgment as general compensation and as a deterrent against future violations. Therefore, the defendants will be required to pay Colonial Williamsburg $53,098.66 as a disgorging of profits. See Plaintiff's Exhibit 40.
19. In addition, Kittinger sold 324 pieces of furniture bearing the C8, W8, or HK designations in the period after April 15, 1991. The proceeds from these sales totaled $344,997.31. Plaintiff's Exhibit 41.
20. With the exception of seven pieces, these lines both were designed and manufactured from plans and drawings unlawfully copied and retained by Kittinger and were so similar to the Licensed Products that they were apt to mislead and confuse consumers as to their origin and/or connection with Colonial Williamsburg. See Testimony of Coffey; Testimony of Driscoll; Plaintiff's Supplemental Proposed Findings of Fact and Conclusions of Law, at para. 1. This conduct constituted a clear and deliberate attempt to trade on Colonial Williamsburg's goodwill and is, therefore, roughly equivalent to a suit for unfair competition under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
21. Accordingly, the disgorging of profits for the sale of the offending pieces is appropriate as both a compensatory and a coercive sanction. See 15 U.S.C. §§ 1117(a) and 1125(a); Howard Johnson, 892 F.2d at 1519; Oral-B, 810 F.2d at 25-26.
22. The total revenues from the sale of these offending pieces was $296,310.81. Plaintiff's Exhibit 41; Testimony of Coffey; Plaintiff's Supplemental Proposed Findings of Fact and Conclusions of Law, at para. 1.
23. Again, an award of full revenues would be inequitable and unnecessary to compensate Colonial Williamsburg or to deter future violations by the defendants. An award of one-third of the revenues is adequate to achieve these goals. Thus, the defendants will be required to pay Colonial Williamsburg $98,770.27.

Unpaid Royalties
24. It is uncontroverted that $105,063 in royalties are due and owing to Colonial Williamsburg for Kittinger's sale of Licensed Products.
25. $9,904.40 of these royalties, however, relate to Licensed Products sold and/or delivered after April 15, 1991. Since this portion of the royalties has already been accounted for through the disgorging of profits, this amount will be deducted from the royalties that Kittinger has admitted it owes. Accordingly, the defendants will be required to pay Colonial Williamsburg $95,158.60 in royalties plus interest at a rate of 12% calculated from April 15, 1991.[5]

Attorney's Fees and Costs
26. On a number of different bases, Colonial Williamsburg is entitled to its reasonable attorney's fees and costs.
27. First, the Settlement Agreement entered into by the parties expressly provides *1409 for the award of attorney's fees. Settlement Agreement, at 4-5. The defendants, citing NBA Properties, Inc. v. Gold, 895 F.2d 30 (1st Cir.1990), argue that because the Consent Judgment does not expressly incorporate the Settlement Agreement this provision is void and unenforceable. The defendants, however, misconstrue the import of NBA Properties. NBA Properties merely holds that something not incorporated in the consent judgment cannot be a basis for a finding of contempt; the enforceability of the Settlement Agreement as a contract, however, remains unaffected. Id. at 34 ("The nonbreaching party may be able to obtain an order enforcing the private agreement, but without such an order, a court cannot hold the breaching party in contempt." (citation omitted)).
28. Additionally, with regard to both the Consent Judgment and the Discovery Order, the defendants violations were continuous and willful. As such, Colonial Williamsburg is entitled to fees and costs as an appropriate sanction for the defendants' contumacy. Cf. Alyeska Pipeline Service Co. v. Wilderness Soc'y, 421 U.S. 240, 258, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141 (1975) (citing the award of "attorneys' fees for the `willful disobedience of a court order ... as part of the fine to be levied on the defendant'" as one of the traditional exceptions to the American Rule (citation omitted)).
29. Finally, Colonial Williamsburg is entitled to the fees and costs associated with the defendants' violation of the Discovery Order. See Fed.R.Civ.P. 37(b)(2) ("In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.").
30. If the parties are unable to reach a settlement on reasonable attorneys' fees and costs, Colonial Williamsburg shall file its request for attorneys' fees and costs, accompanied by the requisite supporting documentation, within seven working days from the entry of the accompanying Final Order. The defendants will then have five working days to file their objections. Colonial Williamsburg will have three working days to file a reply to those objections.
31. Colonial Williamsburg is also entitled to $5,319.89 in travelling and lodging costs incurred during the discovery in Buffalo.[6]See Discovery Order, at para. 4; Plaintiff's Exhibit 55.

Additional Relief
32. Kittinger is to surrender to Colonial Williamsburg, at Williamsburg, Virginia, within forty-five days from the entry of the accompanying Final Order, all CW, WF, and WA products in any stage of production. Kittinger shall, at the same time and place, surrender to Colonial Williamsburg all C8, W8, and HK products that were in any way directly derived from any preceding CW, WF, or WA products. All such products were designed from plans and drawings Kittinger had no right to retain or use under the Consent Judgment. As such, all products derived from those plans and drawings constitute fruits of Kittinger's disobedience and must be forfeited.
33. Additionally, again at the same time and place, Kittinger is to surrender all the following materials, including all copies and duplicates thereof, used in whole or in part, at any time, to manufacture any of the six above listed lines of furniture:
(a) Plans, including "shop drawings," in both original and tag formats;
(b) Any plans or designs that have been reduced to computer or any other similar format;
(c) Jigs and fixtures;
(d) Castings and molds;
(e) Hardwood carving models and any other specialized devices or models *1410 used in carving, shaping, cutting, or finishing;
(f) Design and engineering files;
(g) Development files; and
(h) Photographs.
34. Kittinger is enjoined from marketing or selling any of the C8, W8, or HK products that were in any way directly derived from the preceding CW, WF, or WA products, drawings, plans, molds, or models.
35. Kittinger shall, as many as four times per year for the next four years, at the discretion of Colonial Williamsburg, make its premises, books, and records available for inspection and copying by Colonial Williamsburg. The inspections may be unannounced and conducted at the discretion of Colonial Williamsburg. They shall, however, be conducted during Kittinger's regular working hours.
36. Within ten working days after entry of the accompanying Final Order, Kittinger shall distribute copies of the Consent Judgment and the accompanying Final Order to each of its directors, officers, shareholders, employees, and agents, including contract representatives. Copies of the same shall be provided to any director, officer, shareholder, employee, or agent, including a contract representative, who becomes associated with Kittinger within the next three years.
37. Finally, the terms of the Consent Judgment shall remain in effect to the extent they do not conflict with the accompanying Final Order. If there is a conflict, the terms of the accompanying Final Order shall govern.
NOTES
[1]  A copy of the Licensing Agreement is attached as Exhibit A to the Consent Judgment.
[2]  See Kittinger Co. v. Colonial Williamsburg Foundation, No. CIV-90-1313-A.
[3]  DeFino's deposition was taken on two separate occasions, the last covering two days. Each day of the deposition is designated as a separate volume. The relevant volume number will proceed the page number.
[4]  It should be noted that section 35(a) is being used merely as an analogy; Colonial Williamsburg need not have established all the elements of a cause of action under the Lanham Act to be entitled to a disgorging of profits. See Howard Johnson, 892 F.2d at 1521. Similarly, the Court will not hold the defendants to the standard of proof set out in section 35(a) for the deduction of costs. See infra, para. 18.
[5]  The interest rate is that agreed upon by the parties for overdue royalties. See Consent Judgment, § VIII. This agreement between the parties will be carried forward in this judgment.
[6]  To the extent any portion of the $5,319.89 in cost would duplicate Colonial Williamsburg's request for reasonable attorneys' fees and costs, they should be excluded from Colonial Williamsburg's request.


245 F.2d 707
57-2 USTC  P 9761
David H. MITCHELL, Appellant,v.UNITED STATES of America, Appellee.
No. 15731.
United States Court of Appeals Eighth Circuit.
June 14, 1957.

Phineas Rosenberg, Kansas City, Mo.  (Norman M. Arnell, Harlow B. King, and Morelock, Hoskins, King, Springer & McGannon, Kansas City, Mo., on the brief), for appellant.
Joseph L. Flynn, Asst. U.S. Atty., Kansas City, Mo.  (Edward L. Scheufler, U.S. Atty., Kansas City, Mo., on the brief), for appellee.
Before GARDNER Chief Judge, and VOGEL and VAN OOSTERHOUT, Circuit judges.
PER CURIAM.

1
This is an appeal from final order overruling defendant Mitchell's motion, made pursuant to 28 U.S.C. § 2255, and Rule 35 of the Federal Rules of Criminal Procedure, 18 U.S.C. to correct sentence imposed upon him, based upon his conviction for income tax evasion in violation of section § 145(b) of the Internal Revenue Code of 1939, 26 U.S.C. 145(b).  It is defendant's contention that the sentence imposed was excessive and illegal in that he should have been sentenced under section 3616(a), 26 U.S.C. § 3616(a) rather than section 145(b).  The Supreme Court has rejected this identical contention in Achilli v. United States, 77 S.Ct. 995, holding that 3616(a) does not apply to income tax evasion.

2
Defendant was indicted and convicted of the offense proscribed by 145(b), and sentence was properly imposed upon defendant under such statute.  Defendant's conviction of violating 145(b) has been twice affirmed by this court.  Mitchell v. United States, 8 Cir., 208 F.2d 854 and Id., 8 Cir., 221 F.2d 554.

3
The trial court properly overruled defendant's motion to correct sentence.

4
The Clerk is hereby directed to issue mandate in this case on June 25, 1957, and our previous order admitting defendant to bail pending disposition of this appeal will be and hereby is terminated on that date, with direction hereby to defendant to surrender himself on or before that date to the warden of the prison from which he was released under our bail order, at such prison, to continue the serving of his sentence.  A certified copy of the mandate in the case shall be sent by the Clerk to the United States Attorney for the Western District of Missouri for any necessary transmittal to the warden of the prison and as an incident in having the United States Attorney make report to the Clerk as to whether defendant has duly surrendered himself in accordance with this order.

5
Affirmed.


599 F.2d 249
UNITED STATES of America, Appellee,v.Orland Eugene MILLER, Appellant.
No. 78-1707.
United States Court of Appeals,Eighth Circuit.
Submitted May 3, 1979.Decided May 16, 1979.

Orland Eugene Miller, pro se.
Andrew W. Danielson, U. S. Atty., Ann D. Montgomery, Asst. U. S. Atty. and Thomas Wieser, Legal Intern, Minneapolis, Minn., for appellee.
Before HEANEY, STEPHENSON and McMILLIAN, Circuit Judges.
PER CURIAM.

1
Orland Eugene Miller appeals from a decision of the District Court dismissing his petition for a writ of habeas corpus.  Miller argues that the Parole Commission's guidelines, 28 C.F.R. § 2.20, violate the Ex post facto clause of the Constitution and their application in his case frustrated the intent of the sentencing judge.  He also argues that he was not given meaningful parole consideration.  We affirm.

2
Miller entered a plea of guilty for making false statements in the purchase of a firearm in violation of 18 U.S.C. §§ 922(a)(6) and 924(a).  He was sentenced in February, 1978, to a three-year term pursuant to 18 U.S.C. § 4205(b)(2).  In July of 1978, an initial hearing for Miller's parole was held; and pursuant to the guidelines, a presumptive parole date of January, 1980, was recommended.  Miller then filed this petition.  The District Court dismissed the petition on the ground that an appeal of the initial parole decision was pending before the Regional Commissioner, and that further appeal to the National Appeals Board was possible.  See 28 C.F.R. §§ 2.24 and 2.26.  The Regional Commissioner has now modified the initial decision and this decision has been affirmed by the National Appeals Board.  Miller's presumptive parole date is presently set for August, 1979.  Since all possible Parole Commission appeals have been completed, we consider the merits of Miller's petition.

3
Miller initially argues that the parole guidelines violate the Ex post facto clause of the Constitution.  The Ex post facto clause prohibits laws "aggravat(ing) a crime, or mak(ing) it greater than it was, when committed" and laws "chang(ing) the punishment, and inflict(ing) a greater punishment, than the law annexed to the crime, when committed."  Calder v. Bull, 3 U.S.  (3 Dall.) 385, 390, 1 L.Ed. 648 (1798).  The constitutionality of the parole guidelines under the Ex post facto clause was questioned in Geraghty v. United States Parole Commission, 579 F.2d 238 (3d Cir. 1978), Cert. granted, --- U.S. ----, 99 S.Ct. 1420, 59 L.Ed.2d 632 (1979).  We are not, however, confronted with the same situation as in Geraghty.  The appellant in Geraghty was sentenced prior to the adoption of the guidelines, whereas Miller was sentenced in February, 1978, more than four years after the guidelines were promulgated.  At the time of Miller's sentencing, the sentencing judge was aware of the effect of the guidelines on the sentence.  Moreover, there has been no substantial change in the guidelines since Miller's sentencing that would affect his parole eligibility.  Under these circumstances, we conclude that the Ex post facto clause was not violated.

4
Miller next argues that the Commission's application of the guidelines frustrated the intent of the sentencing judge.  He claims that the judge's intent was to place him on a work release program and that this recommendation was ignored by the Commission.  We find the claim to be unsupported by the record.  Neither the statements of the court at the time of sentencing nor the commitment order contain any recommendation or reference to a work release program for Miller.  Moreover, the responses by the court to Miller's letters requesting a work release because of hardship do not imply or recommend any type of release.1

5
Miller finally argues that he was not given meaningful parole consideration because his initial hearing was held more than 160 days after sentencing and not within the 120-day period prescribed by 28 C.F.R. § 2.12(a).  That section provides that a hearing shall be held within 120 days of arrival, or "as soon thereafter as practicable."  Id. Miller's initial hearing was scheduled within 120 days after his arrival at the Federal Correctional Institution in Englewood, Colorado.  One week before this hearing date, however, Miller was transferred to the Federal Correctional Institution in Sandstone, Minnesota.  Miller received a hearing eight days after arriving in Sandstone.  When an inmate has not been afforded a timely hearing, the proper course is to grant him a hearing at the earliest possible date, as was done here.  Cf. Calvin DeShields v. United States Parole Commission, 593 F.2d 354, 356 (8th Cir. 1979); Burton v. Ciccone, 484 F.2d 1322, 1323 (8th Cir. 1973).  Moreover, the record does not disclose that Miller suffered any prejudice because of the delay.  We conclude that Miller was not deprived of meaningful parole consideration.

6
Affirmed.

1
 We do not decide what impact, if any, this type of recommendation would have on the parole decision


645 F.2d 73
U. S. ex rel. Salernov.Greer
80-1343
UNITED STATES COURT OF APPEALS Seventh Circuit
12/2/80

1
N.D.Ill.

AFFIRMED


984 P.2d 660 (1998)
Howard R. BOWLAND, Petitioner,
v.
The INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO; United Airlines, Inc.; and The Subsequent Injury Fund, Respondents.
No. 97CA1740.
Colorado Court of Appeals, Division II.
August 20, 1998.
Rehearing Denied September 24, 1998.
Certiorari Granted May 24, 1999.
Timothy Quinn, Denver, Colorado, for Petitioner.
No Appearance for Respondent Industrial Claim Appeals Office.
Clifton, Hook & Bovarnick, P.C., Clyde E. Hook, Harvey D. Flewelling, Denver, Colorado, for Respondent United Airlines, Inc.
Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Andrew M. Katarikawe, Assistant Attorney General, Denver, Colorado, for Respondent Subsequent Injury Fund.
Gordon & Macdonald, P.C., William J. Macdonald, Denver, Colorado, for Amicus Curiae Workers' Compensation Education Association
Opinion by Judge BRIGGS.
In this workers' compensation proceeding, Howard R. Bowland (claimant) seeks review of a final order of the Industrial Claim Appeals Office (Panel). In that order, the Panel affirmed the decision by the Administrative Law Judge (ALJ) to apportion to claimant financial responsibility for part of his permanent total disability benefits, leaving him with less than a full award of benefits. We set the Panel's order aside.
Claimant worked as a baggage-handler for United Airlines, Inc. (employer). He sustained successive work-related injuries to his *661 left hand and was later diagnosed with an occupational disease. His claims were consolidated and he received a 9% permanent partial disability rating.
Some time later, claimant suffered an industrial injury to his back. Since then, he has been unable to return to work.
It was undisputed that claimant is permanently and totally disabled as a result of the combined effect of his injuries. However, employer and the Subsequent Injury Fund (SIF) contested their respective responsibilities for payment of permanent total disability benefits.
After an evidentiary hearing, the ALJ apportioned 91% of claimant's permanent total disability to the back injury and 9% to the earlier injuries. The ALJ determined that, because the back injury occurred after the SIF had stopped accepting cases, claimant was precluded from recovering any portion of the award from it. The ALJ ordered employer to pay 91% of claimant's benefits but, relying on the apportionment statute, § 8-42-104(2), C.R.S.1997, refused to hold it liable for the balance. Hence, claimant was denied a full award of permanent total disability benefits.
The Panel affirmed the ALJ's order. It specifically rejected claimant's argument that, pursuant to recent amendments to the SIF statutes, including § 8-46-105(1), C.R.S. 1997, last employers and their insurers are financially responsible for a full award of permanent total disability benefits in those cases in which funding had previously been available from the SIF. The Panel concluded that while some legislative history supported the argument, it could not assume the General Assembly intended implicitly to repeal § 8-42-104(2), which requires that responsibility for benefits be apportioned.
On appeal, claimant argues the SIF amendments, including § 8-46-105(1), have replaced SIF funding with a modified form of the "full responsibility" rule. The rule, which was in effect in Colorado before the creation of the SIF, provides that, if an employer hires an employee previously partially disabled by an industrial injury, the employer must pay the entire disability award if the employee suffers another industrial injury and is declared permanently and totally disabled as a result. Subsequent Injury Fund v. Thompson, 793 P.2d 576 (Colo.1990); Waddell v. Industrial Claim Appeals Office, 964 P.2d 552 (Colo.App.1998). According to claimant, § 8-46-105(1) ameliorates the financial impact on last employers and their insurers of full responsibility, while protecting the right claimants have always had to a full award of benefits for permanent total disability benefits resulting from successive work injuries.
In contrast, employer argues that, by not repealing § 8-42-104(2) when the SIF statutory scheme was amended, the General Assembly chose not to return to the full responsibility rule, long ago abandoned. Hence, § 8-42-104(2) still requires apportionment of permanent total disability benefits.
The question raised is the intent of the General Assembly in amending the SIF statutes, including the addition of § 8-46-105(1), without repealing § 8-42-104(2). Specifically, we must determine whether financial responsibility for that portion of a permanent total disability award previously paid by the SIF has been shifted to the claimant or, instead, back to the last employer and its insurer. To answer that question, we must initially consider the applicable statutes and their recent amendments.

I.
Apportionment of disability awards is governed by § 8-42-104(2). It provides that:
In case there is a previous disability, the percentage of disability for a subsequent injury shall be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury. In such cases awards shall be based on said computed percentage. Such computation, when applicable, shall be made in the following types of awards under articles 40 to 47 of this title: Permanent total, permanent partial, including scheduled, working unit, and lump sum; except that, in the event the provisions of section 8-46-101 are applicable, *662 such apportionment shall not be made. (emphasis supplied)
Section 8-46-101, C.R.S.1997, creates a different form of apportionment under which a permanently and totally disabled worker still recovers full compensation for permanent and total disabilities:
(1)(a) In a case where an employee has previously sustained permanent partial industrial disability and in a subsequent injury sustains additional permanent partial industrial disability and it is shown that the combined industrial disabilities render the employee permanently and totally incapable of steady gainful employment and incapable of rehabilitation to steady gainful employment, then the employer in whose employ the employee sustained such subsequent injury shall be liable only for that portion of the employee's industrial disability attributable to said subsequent injury, and the balance of compensation due such employee on account of permanent total disability shall be paid from the subsequent injury fund as is provided in this section.
(b)(I) In addition to such compensation and after the completion of the payments therefor, the employee shall continue to receive compensation at said employee's established compensation rate for permanent total disability until death out of a special fund to be known as the subsequent injury fund, hereby created for such purpose....
In 1992, the General Assembly substantially amended the SIF statutes, including the addition of § 8-46-104, C.R.S.1997. Under the new statute, the SIF is precluded from accepting new cases after July 1, 1993:
No cases shall be accepted into the subsequent injury fund for injuries occurring on or after July 1, 1993, or for occupational diseases occurring on or after April 1, 1994. When all payments have been made for all cases accepted into the fund, any remaining balance shall revert to the general fund.
See Colo. Sess. Laws 1992, ch. 238, § 8-46-104 at 1830.
The purpose of this latter enactment was to address the escalating cost of the SIF, which had run out of funds. See Hearing on H.B. 1280 Before the House Labor and Industry Committee, 58th General Assembly, Second Regular Session (Tape of February 19, 1992, at 9:59 a.m.); Hearing on H.B. 1280 Before the Senate Committee on Business Affairs and Labor, 58th General Assembly, Second Regular Session (Tape of April 1, 1992, at 3:36 p.m.).
In the same session, the General Assembly added another new provision, now codified at § 8-46-105(1). The new statute establishes a method for limiting an employer's financial responsibility for a full award of permanent total disability benefits, while at the same time permitting the employer's insurer to spread the cost of paying a full award:
Effective July 1, 1993 in any case in which an employee previously has sustained permanent partial disability and, in a subsequent injury, sustains additional permanent partial disability and it is shown that the combined industrial disabilities render the employee permanently and totally disabled, then the premiums of the employer in whose employ the employee sustained such subsequent injury shall be determined only on the basis of such subsequent injury and not on the basis of the employee's permanent total disability. The total cost of the employee's permanent total disability shall not be considered in determining the employer's premiums, but shall be considered by the commissioner of insurance in setting rates. The insurance carrier or self-insured employer may seek indemnification from any previous employer of the injured employee for a share of benefits proportional to their liability.
See Colo. Sess. Laws 1992, ch. 238, § 8-46-105 at 1831.
This provision was amended again in 1993 when the General Assembly deleted the last sentence permitting the liable employer to seek indemnification from previous employers. See Colo. Sess. Laws 1993, ch. 351, § 8-46-105 at 2142. The sentence was deleted because it created difficulties with settling claims, given an employer's ongoing and unknown liability to subsequent employers. *663 Deletion of the sentence also negated the risk that carriers for prior employers would be precluded from recouping the cost of benefits through increased premiums where the prior employer had changed carriers or had gone out of business by the time the subsequent injury occurred. See Hearing on H.B. 1356 Before the House Committee on Labor and Industry, 59th General Assembly, First Regular Session (Tape of May 6, 1993, at 2:30 p.m.); see also Waddell v. Industrial Claim Appeals Office, supra (Briggs, J., concurring).
The amendment also included language clarifying that the basis for adjusting an employer's premiums is the impairment rating for the last injury, rather than the amount of disability attributed to that injury, and it provided a procedure for the employer to dispute that rating:
[T]he premiums of the employer in whose employ the employee sustained such subsequent injury shall be determined only on the basis of the impairment rating for such subsequent injury and not on the basis of the employee's permanent total disability. If such employer disputes the impairment rating for the subsequent injury, the employer shall request an independent medical examination pursuant to the procedures set forth in section 8-42-107. The finding of the independent medical examiner regarding the impairment rating may be overcome only by clear and convincing evidence.
See Colo. Sess. Laws 1993, ch. 351, § 8-46-105 at 2142 (now codified at § 8-46-105(1), C.R.S.1997).
In sum, before the amendments, the SIF statutes permitted the last employer to avoid the entire financial impact of full responsibility, while the permanently and totally disabled worker received a full award of benefits. While the apportionment statute, § 8-42-104(2) has not been recently amended, the SIF statutes have been substantially amended.
To determine whether the amendments to the SIF statutes have shifted financial responsibility for that portion of benefits previously paid by the SIF to the claimant or, instead, to the last employer and its insurer, we apply traditional rules of statutory construction.

II.
The primary task in interpreting a statutory scheme is to ascertain and give effect to the legislative intent. To accomplish this task, we turn first to the words of the statute. However, when a plain reading of a statute does not reveal that intent, it may be discerned through consideration of various indicators, including the balance of the enactments related to the same subject matter, the object sought to be obtained, and the consequences of a particular construction. State Engineer v. Castle Meadows, Inc., 856 P.2d 496 (Colo.1993); Gianetto Oil Co. v. Industrial Claim Appeals Office, 931 P.2d 570 (Colo.App.1996); see also Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996).
Further, in construing a statutory scheme, courts must attempt to give consistent, harmonious, and sensible effect to all of its parts. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App.1991). A construction that would render any clause or provision unnecessary, contradictory, or insignificant should be avoided. Karlin v. Conard, 876 P.2d 64 (Colo.App.1993).
Finally, a statute is presumed to be just and reasonable. Hence, a construction that produces absurd results must be avoided. McKinley v. Bronco Billy's, 903 P.2d 1239 (Colo.App.1995).
Here, if the apportionment statute, § 8-42-104(2) is read in isolation, it would appear that claimant's benefits are to be apportioned, with claimant apparently denied that portion of benefits previously paid by the SIF. However, the plain language of § 8-46-105(1) limits the financial impact on the last employer of paying a full award of benefits to an employee permanently and totally disabled through successive work injuries. The limitation necessarily assumes that, with the closure of the SIF, the last employer is responsible for paying the benefits previously paid by the SIF. Hence, the plain language *664 of the statutes does not reveal the General Assembly's intent.
Turning to other considerations, if we were to accept employer's argument that the General Assembly has shifted responsibility to claimants for benefits previously paid by the SIF, we would render meaningless that portion of § 8-46-105(1) which prohibits the insurer from calculating the last employer's premiums on the basis of a full award of permanent total disability. The prohibition would be unnecessary because the last employer could not be held liable for a full award.
Conversely, construing the amendments to the SIF to shift full responsibility to the last employer and its insurer does not render § 8-42-104(2) meaningless. It remains applicable under current law in those cases in which successive work injuries do not result in permanent total disability and those in which total disability is not entirely attributable to successive work injuries. See Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo.1996); City & County of Denver v. Industrial Commission, 690 P.2d 199 (Colo. 1984).
Resolving the tension between the apportionment and funding statutes by placing full responsibility on the last employer and its insurer also avoids unjust, if not absurd, results. For example, if the evidence in this case had justified apportioning 91% of claimant's disability to his earlier injuries instead of his more recent back injury, the apportionment would result in his receiving only 9% of a permanent total disability benefit award. The impact on permanently and totally disabled workers of reducing benefits in this manner can only be described as disastrous. See Waddell v. Industrial Claim Appeals Office, supra (Briggs, J., concurring).
Most states have come to recognize the unfair impact of similar apportionment schemes and have abandoned them. See generally 5 Larson's Workers' Compensation Law § 59.21 at 10-492.340 and 10.492.359 (1997). Construing our statutes to avoid the possibility of such a disastrous financial impact is consistent with the modern approach.
Furthermore, our construction of the statutes is consistent with the goal of the General Assembly in creating the SIF. The purpose was to ameliorate the harsh result of the full responsibility rule on last employers and, in turn, to increase the employment opportunities for partially disabled workers. Sears Roebuck and Co. v. Baca, 682 P.2d 11 (Colo.1984). Even with full responsibility returned to the last employer, § 8-42-105(1) still accomplishes that goal by limiting the amount the employer's premiums can be increased based on a claim for permanent total disability benefits, while permitting the insurer to spread the cost of the balance of the award across the insurer's entire premium base.
We recognize that the General Assembly did not expressly repeal § 8-42-104(2) at the time it enacted § 8-46-105. And, it is understandable that the Panel was reluctant to assume that in enacting one statute the General Assembly intended to abrogate another. See Arkansas Valley Seeds v. Industrial Claim Appeals Office, 972 P.2d 695 (Colo. App.1998).
However, our construction of § 8-46-105(2) does not require us to assume the General Assembly intended to repeal § 8-42-104(2), implicitly or otherwise. As already noted, the General Assembly had to retain § 8-42-104(2) because it still applies in cases other than those involving permanent total disability resulting exclusively from successive work injuries.
Furthermore, the Panel's concern about implicitly impacting § 8-42-104(2) rests on the assumption that, before the SIF statutes were amended, last employers were not fully responsible for permanent total disability benefits even if no recovery was available from the SIF. While this assumption may be consistent with the wording of § 8-42-104(2), the argument ignores the supreme court's holding in City & County of Denver v. Industrial Commission, supra. The court in that case affirmed the Panel's conclusion that the SIF was available only when the claimant's permanent total disability was caused exclusively by industrial injuries. More importantly, *665 it also affirmed, without discussion, the Panel's separate conclusion that the last employer was fully responsible for the total award.
It was not until Askew v. Industrial Claim Appeals Office, supra, was announced, after the General Assembly had enacted § 8-46-105(1), that the import of § 8-42-104(2) was recognized. Hence, it appears that when it was enacting § 8-46-105, the General Assembly would have been under the impression, based on existing case law, that the last employer remained fully responsible whenever the SIF was not liable for a portion of a permanent total disability award.
That impression is in fact reflected in the various committee hearings addressing § 8-46-105. The reason for enacting § 8-46-105 was to modify the full responsibility rule in order to reduce the financial impact on the last employer. This was to be accomplished by shifting those costs formerly paid by the SIF to the insurance carriers, for adjustment over the general premium base. See Hearing on H.B. 1280 Before the House and Senate Conference Committee, 58th General Assembly, Second Regular Session (Tape of May 5, 1992 at 6:10 p.m.); Hearing on H.B. 1280 Before the Senate Committee on Business Affairs and Labor, supra (Tape of April 1, 1992, at 3:43 p.m.). Thus, our construction of § 8-46-105(1) does not require us to assume the General Assembly intended to change in any way the legal effect of § 8-42-104(2), as it had been construed at the time the General Assembly enacted § 8-46-105(1). See City & County of Denver v. Industrial Commission, supra; cf. Subsequent Injury Fund v. Thompson, supra; Seifried v. Industrial Commission, 736 P.2d 1262 (Colo. App.1986); State Compensation Insurance Fund v. Industrial Commission, 697 P.2d 807 (Colo.App.1985).
In affirming the ALJ in this case, the Panel separately found problematic the fact that the impairment-based premium adjustments provided in § 8-46-105(1) do not necessarily bear a direct correlation to the apportionment of disability. It reasoned that § 8-42-104(2) more directly addresses the problem of apportionment.
However, the General Assembly could have rationally concluded that such an impairment rating was an acceptable, though not perfect, basis for apportioning premiums to ameliorate the impact on the last employer of full responsibility. This is because its use would further the goal of decreasing litigation. See § 8-40-102(1), C.R.S.1997; Duran v. Industrial Claim Appeals Office, 883 P.2d 477 (Colo.1994); see generally W. Macdonald, Apportionment of Permanent Total Disability and the Impact of the Premium Statute, CBA Workers' Compensation Newsletter 1 (Summer 1997). Hence, we do not view the mechanism for adjusting premiums contained in the current version of § 8-46-105(1) as inconsistent with our statutory construction.
As a final note, we reject employer's contention that our interpretation of the interplay between § 8-42-104(2) and § 8-46-105(1) results in an improper double recovery to claimants. The argument is that, because claimant has already received permanent partial disability benefits for the earlier injuries, he should not be entitled to recover permanent total disability benefits based in part on those same injuries. However, the argument ignores that permanent partial and permanent total benefits compensate for different degrees of disability during different periods of time and, thus, are not considered duplicative. National Fruit Product v. Crespin, 952 P.2d 1207 (Colo.App.1997); see also Kehm v. Continental Grain, 756 P.2d 381 (Colo.App.1987).
In light of our statutory construction, it is unnecessary to consider claimant's other arguments.
The Panel's order is set aside. The cause is remanded for entry of an order requiring employer to pay claimant the balance owing on a full award of permanent total disability benefits from past partial payments, with interest as provided by statute, and from that date forward to continue paying claimant a full award of permanent total disability benefits.
*666 Judge STERNBERG,[*] and Judge TURSI,[*] concur.
NOTES
[*]  Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, Sec. 5(3), and § 24-51-1105, C.R.S.1997.


112 F.3d 516
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Stevens Lawrence HART, Plaintiff-Appellant,v.JEFFERSON COUNTY;  Jefferson County Fair Board;  City ofMadras;  Mike Troop, Sheriff;  Gary A. Weathers;  BobBeatty, Deputy;  Peco Courtney, Officer;  Tom Adams,Officer;  Teddi Waldorf, Officer;  David Jon Allison,Officer;  David A. Nilles, Officer;  David Allen;  WilliamHanlon;  Floyd C. Bauer;  Lowell Patterson;  Pete McCabe;Ham Perkins;  Patti Bender;  Peggy Boyle, Defendants-Appellees.
No. 96-35381.
United States Court of Appeals, Ninth Circuit.
Submitted April 21, 1997.*Decided April 24, 1997.

Before BROWNING, THOMPSON, and HAWKINS, Circuit Judges.

1
MEMORANDUM**

2
Stevens Lawrence Hart appeals pro se the district court's decisions (1) granting defendants' partial summary judgment motions relating to Hart's claims of false arrest, a civil rights conspiracy, and deprivation of property;  and (2) ruling that defendants Allen and Hanlon are entitled to absolute prosecutorial immunity for all actions.  We have jurisdiction pursuant to 28 U.S.C. § 1291.  We review de novo a district court's grant of summary judgment.  See Jesinger v. Nevada Fed.  Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994).  We affirm.1

1. False Arrest
A. September 12, 1992

3
Hart contends that the district court erred by granting defendants Hanlon and Allen summary judgment on Hart's false arrest claims arising from the September 12, 1992 incident.  Hart alleged that defendant Hanlon, a district attorney, and defendant Allen, a deputy district attorney, ordered Hart's arrest after the September 12, 1992 incident of domestic violence.  After a de novo review of the record, we conclude that probable cause for Hart's arrest existed in this incident.  See Or.Rev.Stat. § 131.005(11).  Accordingly, the district court did not err by granting Hanlon and Allen summary judgment on Hart's false arrest claims arising from the September 12, 1992 incident.  See Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir.1981).2

B. September 14, 1992

4
Hart contends that the district court erred by granting defendant Davis summary judgment on Hart's claim of false arrest arising from the September 14, 1992 citation.  We determine whether an arrest has occurred by an examination of all the circumstances surrounding the arrest.  See United States v. Beck, 598 F.2d 497, 500 (9th Cir.1979).

5
Hart stated that Davis simply handed Hart the citation in Hart's shop.  The circumstances of Davis's issuance of a citation to Hart simply do not constitute an arrest for purposes of Hart's claim of false arrest.  See Johnson v. Barker, 799 F.2d 1396, 1399 (9th Cir.1986).  Accordingly, the district court did not err by granting Davis summary judgment on Hart's false arrest claim arising from the September 14, 1992 incident.

C. October 12, 1992 and August 9, 1993

6
Hart contends that the district court erred by granting summary judgment to defendants on Hart's claims of false arrest arising from the October 12, 1992 and the August 9, 1993 incidents.  As to all defendants but Hanlon and Allen, we affirm the summary judgment for the reasons stated in the district court's opinion filed on February 24, 1995.  As to defendants Hanlon and Allen, we conclude after de novo review of the record that probable cause for Hart's arrest existed in both incidents.  See Or.Rev.Stat. § 131.005(11).  Accordingly, the district court did not err by granting defendants summary judgment on Hart's false arrest claims arising from the October 12, 1992, and August 9, 1993, incidents.  See Smiddy, 665 F.2d at 266.

2. Civil Rights Conspiracy

7
Hart contends that the district court erred by granting defendants summary judgment on Hart's claim of a civil rights conspiracy.  In his complaint, Hart claimed that certain defendants conspired to force Hart to terminate a contract.  On appeal, Hart contends instead that certain defendants conspired to deprive Hart of his rights under the Constitution by arranging Hart's arrest and prosecution on false charges.  We see no reason to depart from the general rule that we will not consider claims not raised in the plaintiff's complaint.  See Brogan v. San Mateo County, 901 F.2d 762, 765 (9th Cir.1990).

3. Deprivation of Property

8
Hart contends that the district court erred by denying him summary judgment on the issue of deprivation of property.  We affirm for the reasons set out in the district court's opinion of February 24, 1995.

4. Prosecutorial Immunity

9
Hart contends that the district court erred by ruling that defendants Allen and Hanlon were entitled to prosecutorial immunity from Hart's false arrest claims.  Although this contention has merit, we conclude that probable cause supported Hart's arrests.  See Or.Rev.Stat. § 131.005(11).  Accordingly, the district court did not err by granting summary judgment to defendants Hanlon and Allen on Hart's false arrest claims.  See Smiddy, 665 F.2d at 266;  See Reynolds, 84 F.3d at 1166.

10
AFFIRMED.

*
 The panel unanimously finds this case suitable for decision without oral argument.  See Fed.R.App.P. 34(a);  9th Cir.R. 34-4

**
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1
 We may affirm the district court's holding for any reason supported by the record.  See Reynolds v. County of San Diego, 84 F.3d 1162, 1166 (9th Cir.1996)

2
 We decline to review Hart's false arrest contentions against defendants Courtney and Beatty arising from the September 9, 1992 incident.  Hart's claims against these defendants were dismissed without prejudice on Hart's motion on March 6, 1996.  See Coursen v. A.H. Robbins Co., Inc., 764 F.2d 1329, 1342, corrected, 773 F.2d 1049 (9th Cir.1985)


J-S61014-17

                                  2017 PA Super 348

    COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellee

                        v.

    JOHN MICHAEL ROTOLA,

                             Appellant                  No. 3678 EDA 2016

          Appeal from the Judgment of Sentence September 20, 2016
               in the Court of Common Pleas of Monroe County
              Criminal Division at No.: CP-45-CR-0000282-2016

BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

DISSENTING STATEMENT BY PLATT, J.:                 FILED NOVEMBER 06, 2017

        Because I believe that the trial court did not abuse its discretion with

respect to its order of restitution, I respectfully dissent. I would affirm the

judgment of sentence.

        Appellant pleaded guilty to a one count of theft of property lost, mislaid,

or delivered, and was ordered to pay restitution to the victim in the amount

of $25,934.44, and to her insurance company in the amount of $120.27.

Appellant filed a motion to reconsider sentence concerning only the amount

of restitution.    After a reconsideration of sentence hearing, the trial court

granted his motion and modified the restitution amount to $25,000.00, to be

paid jointly and severally with his co-defendant.
____________________________________________

*   Retired Senior Judge assigned to the Superior Court.
J-S61014-17

       “An order of restitution is a sentence, and thus, the amount awarded is

within the sound discretion of the trial court and must be supported by the

record.” Commonwealth v. Boone, 862 A.2d 639, 643 (Pa. Super. 2004)

(citation omitted).

       I believe that the trial court’s order of restitution, imposed after the

restitution hearing, was within its discretion and supported by the record.

Therefore, I would affirm the judgment of sentence.1

       Accordingly, I respectfully dissent.

____________________________________________

1 Furthermore, I do not believe that this Court has the authority to consider
the validity of Appellant’s plea sua sponte where he did not raise the issue,
and therefore has waived any challenge to the validity of his plea. See
Commonwealth v. Archer, 722 A.2d 203, 209-10 (Pa. Super. 2006) (en
banc) (“An appellate court can only pass upon the legal questions which come
before it.”) (citations omitted); Commonwealth v. Tareila, 895 A.2d 1266,
1270 n.3 (Pa. Super. 2006) (“Where an appellant fails to challenge his guilty
plea in the trial court, he may not do so on appeal. In order to preserve an
issue related to the guilty plea, an appellant must either object[] at the
sentence colloquy or otherwise rais[e] the issue at the sentencing hearing or
through a post-sentence motion.”) (citations and internal quotation marks
omitted). Therefore, I disagree with the Majority’s consideration of the
validity of Appellant’s plea.

                                           -2-


732 F.2d 161
Hazelwinkelv.C.I.R.
83-2687
United States Court of Appeals,Eighth Circuit.
2/17/84

1
D.Minn.

DISMISSED


811 F.2d 1505Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.TODD TRANSPORT CO., INC., Plaintiff-Appellant,v.PROVIDENT STATE BANK OF PRESTON, MARYLAND, Defendant-Appellee.
No. 86-3069.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 11, 1986.Decided Feb. 4, 1987.

Before SPROUSE, Circuit Judge, HAYNSWORTH, Senior Circuit Judge, and MAXWELL, United States District Judge for the Northern District of West Virginia, sitting by designation.
John Polanin, Jr.  (David Freishtat;  W. Michael Mullen;  Freishtat & Sandler, on brief), for appellant.
Franklin T. Caudill (David F. Albright;  John F. Kaufman;  Semmes, Bowen & Semmes, on brief), for appellee.
PER CURIAM:

1
Following entry of Summary Judgment by the District Court against Todd Transport Company, Inc.  (Todd) in favor of Provident State Bank of Preston, Maryland (Provident), this appeal was filed.  Finding that the District Court's action is in keeping with established rules of substantive and procedural law, as related to the facts and issues presented, we affirm.

2
This litigation commenced as an adversary proceeding before the United States Bankruptcy Court for the District of Maryland.  Upon Todd's request for a jury trial of the issues raised and suggested in its Complaint, the action was transferred to the United States District Court for the District of Maryland.

3
Todd's cause of action alleges fraud, interference with prospective economic advantage, negligent misrepresentation, negligence, and restraint of trade.  According to Todd, its severe cash flow problems, business losses, massive obligations, bankruptcy court petition, and otherwise undefined "great financial damage in business losses" were the result of Provident's refusal to provide comprehensive refinancing of Todd's accumulated obligations and debts.

4
Upon the prompt assignment of this civil action to the docket of a trial judge for the District of Maryland, a scheduling order was entered directing that the parties complete all discovery by October 1, 1983.  Provident thereafter commenced its discovery effort.  After Todd failed to respond to the initial discovery requests, Provident filed a Motion to Compel Answers to Interrogatories and Responses to Document Requests.  Todd subsequently responded with its Answers to Interrogatories and Supplemental Answers to Interrogatories, containing Certificates of Service dated respectively September 7, 1983 and October 4, 1983.  It is noted that Todd's first answers were filed within the scheduling order deadline while the supplemental answers were not timely.  Answer 27 on each of Plaintiff's Answers to Interrogatories claim an offer by or on behalf of Provident to purchase 60% of the stock in Todd for $200,000.00, with the remaining 40% of the stock to be acquired at actual value following a corporate audit.  Todd at the time was in default on the Provident loan and according to Todd the bank was indicating that action was to be taken to collect Todd's debt.

5
Provident contended before the District Court that the discovery requests were evasive and grossly inadequate;  that Todd provided no dollar amounts, or even estimates, but simply referred Provident to damage itemizations to be given at some unspecified future date.  Also, no experts were identified and no expert opinions were disclosed.  In response to Provident's second Motion to Compel, filed October 14, 1983, the District Court issued a letter order dated October 19, 1983 finding:

6
The Plaintiff [Todd] has not requested an extension of the time within which to respond to the interrogatories or to produce documents.

7
Accordingly, the Plaintiff will be restricted in the presentation of evidence to the answers filed as of this time.  With that provision, the [Provident] defendant's motion to compel has been denied.

8
Todd did not move to vacate or modify this preclusionary order.  On February 15, 1984 Todd furnished to Provident an expert's report drafted by one Emery White.  The report attempted to establish valuation of Todd for the purpose of proving damages allegedly caused by Provident.  One valuation method was reliance upon an alleged offer by Provident to purchase Todd's stock.

9
In response to Todd's expert report, Provident filed a timely Motion In Limine to exclude the expert's reports for several reasons, the principal one of which being that the same is not admissible pursuant to the District Court's preclusionary order of October 19, 1983.  Provident further urged that in any event the expert report failed to provide any probative evidence of damages.  Together with the Motion In Limine, Provident moved for Summary Judgment urging several grounds in support thereof, including the grounds urged to advance its Motion In Limine.

10
The district judge to whom the case had been reassigned granted both the Motion In Limine and the Motion for Summary Judgment, holding that the October 19, 1983 preclusionary order prohibited the admissibility of the types of damage evidence submitted by Todd.   Eastern Auto Distributors, Inc. v. Peugeot Motors of America, Inc., 795 F.2d 329 (4th Cir.1986).  Alternatively, the District Court found that the evidence offered by Todd "... simply does not provide the basis (in fact) for a finding of damages."

11
On this appeal, Todd has raised no challenge to the District Court's granting of Provident's Motion In Limine, which excluded the expert's report, and Todd does not question the enforceability or validity of the District Court's preclusionary order of October 19, 1983.

12
This Court is satisfied that the District Court's two decisions correctly removed any and all theories upon which Todd could introduce facts to establish its alleged damages, including the expert report of Emory White.

13
The function of a Summary Judgment motion is to avoid unnecessary trials by providing a speedy and efficient disposition where, as here, the civil action is determined to be one in which there is an absence of a genuine and material factual dispute.  10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure Sec. 2712 (1983).

14
In conclusion, we find that the District Court carefully considered every aspect of Todd's cause of action.  As earlier noted this Court finds that the District Court acted correctly, first in the October 19, 1983 letter preclusionary order, next in granting Provident's Motion In Limine and finally in granting Provident's Motion for Summary Judgment.

15
AFFIRMED.

HAYNSWORTH, Senior Circuit Judge, dissenting:

16
Being of the view that there is a triable issue so long as possibly recoverable damages were limited to $200,000, I would reverse and remand.