136 So.2d 819 (1962)
Numa H. ROGE, Plaintiff-Appellant,
v.
Rex KUHLMAN et al., Defendants-Appellees.
No. 420.
Court of Appeal of Louisiana, Third Circuit.
January 15, 1962.
Rehearing Denied February 7, 1962.
Certiorari Denied March 16, 1962.
*820 Watson, Williams & Brittain, by Jack O. Brittain, Natchitoches, for plaintiff-appellant.
Gahagan & Gahagan, by Russell E. Gahagan, Natchitoches, for defendants-appellees.
Before TATE, SAVOY and HOOD, JJ.
TATE, Judge.
This is a possessory action. The plaintiff appeals from the dismissal of his suit. The issue essentially is whether the plaintiff correctly or with sufficient particularity described the land upon which the disturbance took place.
In the allegations of his petition, the plaintiff describes himself as the owner of land in "Section 26, Township 7 North, Range 5 West, Natchitoches Parish, Louisiana," and as having acquired same by a 1943 warranty deed. The plaintiff's petition, filed August 29,1960, further alleges that on approximately June 1, 1960 the defendant Rex Kuhlman had disturbed his possession of "a portion of the above described property" by tearing down the plaintiff's old fence and erecting a new one enclosing part of the land formerly possessed by the plaintiff. (By amended petition the plaintiff joined Dr. M. L. Kuhlman as co-defendant because, subsequent to suit, the latter had acquired a one-half interest in indivision in defendant Rex Kuhlman's tract.)
In dismissing the plaintiff's suit, the trial court held: "Inasmuch as the plaintiff chose to describe the disturbance as having taken place in Section 26 Township 7 North, Range 5 West, he has the burden of proving that the disturbance did occur in Section 26. The Court believes that he has not discharged this burden of proof."
The defendant's disturbance of the possession of about five acres of a tract formerly enclosed by the plaintiff's fences is essentially admitted and proved. The sole defense raised is that the land upon which this disturbance took place was not truly located within Section 26 but, rather, just across the section line. The defendants' able counsel in brief succinctly summarizes his *821 clients' position as follows: "The essence of the defense of the defendant is that he at no time disturbed the plaintiff in his possession of any portion or part of property located in Section 26, Township 7 North, Range 5 West. In other words, he does not deny that he did disturb the plaintiff in his possession, if you could say he had it in his possession, of a piece of ground, but he denies that it was the ground described in plaintiff's petition. * * * The question in the case is not whether the defendant committed a trespass on any land in the possession of the plaintiff, but whether he committed the trespass on the land specifically described in plaintiff's petition."
The evidence shows that in 1955 the plaintiff had erected a fence along the northern and western lines of his property in accordance with a survey made by one Hyams and that this fence was in existence in 1957 when the defendant Kuhlman acquired the adjacent tract northerly of the plaintiff's land. Plaintiff's north boundary was by his title located on the north section line of Section 26.
In late 1959, Kuhlman hired a surveyor to establish his own lines. This surveyor made a written report to the defendant that it was certain that there were some errors in his property lines and that it would take at least a thousand dollars to establish his corners to fit the government calls. See P-2. By his title, the defendant Kuhlman's southern boundary was the north section line of Section 26.
Without consulting the surveyor further, the defendant Kuhlman in the summer of 1960, several months before the present suit, built a new fence along a line which he established as his own southern boundary with the aid of a compass and by following blazed and painted tree-lines between certain trees which the defendant Kuhlman believed to be the northwest and northeast corners of the plaintiff's land. He admitted that he ran this line without the assistance of a surveyor. (The plaintiff had previously objected to introduction of any evidence in this possessory action to show that his old fence was not correctly located on the north section line of Section 26 per his title. Tr. 67-68.)
The defendant Kuhlman essentially admits, as the proof without contradiction shows, that the new fence erected by him was approximately three hundred feet south of the plaintiff's northern fence and that the plaintiff's old 4-strand barb-wire fence line was clearly visible, although (as photographs show) trees had fallen across it in several places. (The plaintiff's witnesses testified that the fence had not had these gaps in it prior to the defendant's trespass.) The new Kuhlman fence enclosed about five acres off the northwestern corner of the tract previously fenced by the plaintiff.
In our opinion, our learned trial brother was in error in dismissing the plaintiff's suit. It is true that the plaintiff alleges that he possessed as owner certain land located in Section 26, but he further specifically indicated the location and identity of the land on which his possession had been disturbed by further describing it as bounded, north and west by the remains of his old fence, and south and east by the defendant Kuhlman's new fence.[4] There is no substantial doubt from the pleadings as to the identity or location of the land upon which the trespass took place, and this is all that is necessary for a possessory action.
As stated in Riseman "The Possessory Action in Louisiana" 20 Tulane Law Review 524 (1946), the function of the possessory action "is to give the possessor of immovable property * * * a legal remedy *822 to aid in maintaining his possession. If the possessor fulfills certain requisites, his right of possession is protected regardless of whether he is the legal owner in possession, or a possessor who is not the true and lawful owner". 20 Tul.Law Rev. 524. "The plaintiff in a possessory action need not describe the land in any particular way, but he must describe it sufficiently to give the defendant reasonable notice as to what land is in dispute. Furthermore, where the locus in quo is so uncertain that it is impossible to determine whether or not the defendant's dominion extends over, and interferes with, any part of the tract claimed by the plaintiff, recovery will not be granted. "20 T.Law Review 528-529. See also Comment, "Real Actions to Determine Ownership or Possession * * *." 20 La.Law Rev. 92 (1959), 98-100.
"It is well settled that, even against the lawful owner, one who has been in possession of property for over one year has a cause of action to prevent an illegal disturbance of that possession and to recover damages resulting from such disturbance, and that, consequently, in such actions title is not at issue when (as here) timely objection is made by plaintiffs to evidence concerning title, [citations omitted]," Loeblich v. Garnier, La.App. 1 Cir., 113 So.2d 95, 98.
The Loeblich decision concerned a suit by possessors arising out of the disturbance of their peaceable possession of a tract enclosed by fences. The defendant sought to excuse his trespass by introducing evidence that the violated fence line was not correctly located, so that allegedly the trespasses did not take place on property within the limits of the plaintiffs' title. The court refused to consider such evidence, holding that, 113 So.2d 98, "in such actions by possessors, the trespasser may not excuse his violation of an apparent and generally recognized boundary by attempting to establish another and theoretically correct boundary. Hill v. Richey, 221 La. 402, 59 So.2d 434; Wright v. Holder, La.App. 2 Cir., 72 So.2d 529, certiorari denied; De Graauw v. Eleazar, La.App. 1 Cir., 24 So.2d 180; Guidry v. Matherne, La.App. 1 Cir., 12 So.2d 19."
We have reservations as to whether the evidence in the present suit indeed supports a finding that the disputed tract is not located in Section 26 and thus within the limits of the plaintiff's recorded title; but, even if so-26 however relevant such finding might be in a petitory (title) or boundary action, such circumstance is not of controlling significance in this possessory action, which has as its aim the protection of recognized possession of property, without entailing the necessity of exhaustive and detailed investigation of title.
Here, without contradiction the evidence shows that the plaintiff had had possession for far more than a year of the disputed tract, which was within the clearly-marked limits of a four-strand barb-wire fence built by the plaintiff in 1955. The plaintiff's continued possession of the property up to the time that the defendant Kuhlman built the new fence and cleared the land within the limits of the plaintiff's clearly visible fence line, is not lessened by the circumstance that in several places there were gaps in the fence along such clearly visible fence line caused by the fall of trees across the fence. See Hill v. Richey, 221 La. 402, 59 So.2d 434.
The courts rejected almost identical defenses raised by other defendants in possessory actions in Ducote v. Barras, La. App. 1 Cir., 77 So.2d 115; Wright v. Holder, La.App. 2 Cir., 72 So.2d 529, certiorari denied; and De Graauw v. Eleazar, La. App. 1 Cir., 24 So.2d 180. In so doing, the courts held that, since only the possession and the disturbance are at issue in possessory actions and not title, evidence was inadmissible that the boundary across which the trespass took place was not correctly located according to the title of the parties, despite the allegations in the possessory actions describing the trespasses as disturbing the possession of land described according to the plaintiff's title. See Ducote case: "Lot 12"; Wright case: "Lot 7 of the NE. *823 ¼ of SE ¼, Section 9, Township 21, North, Range 11 East", involving the disputed location of a half-section line forming part of the description; De Graauw case: a strip "measuring 21 feet north and south and taken from the northern end of Lot 35." See also Rhodes v. Collier, 215 La. 754, 41 So.2d 669.
The defendants-appellees cite and rely upon Bossier Enterprises, Inc. v. Carbone, La.App. 2 Cir., 66 So.2d 521 and Loper v. White, 2 Cir., 1 La.App. 695.
In the former case, the plaintiff brought a possessory suit against the disturbance of his possession of "Lot 7", to which he held title; the defendant had torn down a gate erected just prior to suit by the plaintiff across a passageway used for many years by the defendant and others. The question at issue concerned whether the passageway was on the plaintiff's property or in the public street, and the holding of the court was simply that the plaintiff had not borne his burden of proving possession of the disputed property, which in such instance in view of the concurrent use of it by the defendant and othersrequired a finding that it lay within the limits of the plaintiff's title. The court remarked that "possession is a fact and each case must rest upon its own peculiar circumstances", 66 So.2d 521. Unlike the circumstances in the cited decision, of course, the facts before us plainly show that the plaintiff had possession of the land upon which the disturbance of possession took place.
Likewise, the holding in the second case relied upon, Loper v. White, is not clearly inconsistent with the result reached herein. Here, the court of appeal simply reversed the trial court for refusing to admit into evidence the plaintiff's deed of title, holding that the deed was "necessary to show what land the plaintiff alleges himself to be in possession of; and we are clear that the proof must be restricted to trespasses upon the land described," 1 La.App. 696, and remanded the case for further proceedings. Although the language is indeed somewhat favorable to the defendant's contention, at the same time the appellate court affirmed the trial court's refusal to order a survey to determine the ideal boundary between the tracts and further stated: "The plaintiff in a possessory action need not describe the land in any particular way, whether by section, township or range, natural boundaries or otherwise; it is sufficient if he describes it in such way as will give defendant reasonable notice," 1 La. App. 696. This, we hold, was done in the case before us now.
The evidence shows that the plaintiff's old fence line is as shown by the survey dated February 10, 1944 by Surveyor Gaienne Hyams and introduced into evidence as P-3. The plaintiff is entitled to be restored to possession of the property up to this fence line; without prejudice, of course, to the defendants' right by appropriate suit to contest the correctness of the location by the Hyams survey of the north line of Section 26, which is also the north line of the property to which the plaintiff has title.
Having found that the plaintiff is entitled to be restored to possession of the property up to his former fence line, we must next consider his claim for the damages caused by this trespass.
Plaintiff seeks: (a) an award for certain pecuniary damages, being injury to his fence, the grass, and the trees on the land upon which the trespass took place; (b) "the mental anguish and humiliation of being dispossessed" of the property described; and (c) attorney's fees.
As to the first item, other than the plaintiff's unsubstantiated and somewhat vague estimates of the monetary value of the grass, trees, and fence, the record is bare of any evidence justifying an award for such damages. Camus v. Bienvenue, La. App. 1 Cir., 91 So.2d 99; Wright v. Holder, La.App. 2 Cir., 72 So.2d 529. Also, as to the third item, it is now well settled that attorney's fees are not awarded as damages *824 for the successful prosecution or defense of a possessory action resulting from a trespass, despite some earlier jurisprudence to the contrary. Elliott v. Mowad, La.App. 3 Cir., 125 So.2d 461; Loeblich v. Garnier, La.App. 1 Cir, 113 So.2d 95.
But, under the jurisprudence, the plaintiff is entitled to recover for the mental anguish and humiliation caused by being wrongfully dispossessed of his property. Herandez v. Harson, 237 La. 389, 111 So. 2d 320; Loeblich v. Garnier, above-cited. As the latter decision indicates after full discussion, this is regarded as an award of compensatory damages for violation of a recognized property right; even though, as stated in the former decision, 111 So.2d 324, "Such an item is not confined to proof of actual pecuniary loss". The plaintiff did testify that the trespass occasioned him "considerable bother."
Considering the circumstances of this case as well as the awards made in the cases cited in the Loeblich decision, we think that an award of $500.00 should be made for this item of damages. It is conceded that defendant Rex Kuhlman alone is liable for these damages and that co-defendant, Dr. M. L. Kuhlman, who purchased an interest in the property after the trespass, is not liable therefor.
For the foregoing reasons, the judgment of the District Court dismissing the plaintiff's suit is reversed. It is ordered, adjudged, and decreed that there be judgment in favor of the plaintiff, Numa Roge, and against the defendants, Rex Kuhlman and Dr. M. L. Kuhlman, ordering them to restore to the plaintiff possession of the tract possessed by the plaintiff prior to the disturbance of his possession by the defendant Kuhlman up to his the plaintiff's former fence line, and allowing the defendants sixty (60) days from and after the date this judgment becomes final within which to remove the new fence from within the limits of such former fence line. Judgment is further rendered in favor of the plaintiff and against the defendant Rex Kuhlman in the amount of Five Hundred Dollars, together with legal interest from date of judicial demand until paid; the latter defendant to pay all costs of these proceedings and of this appeal.
Reversed and rendered.

On Application for Rehearing.
En Banc. Rehearing denied.
NOTES
[4]  By article 11 of his petition he alleges: "That a sufficient amount of the old fence of your petitioner still remains on the above described property to mark the Northern and Western boundry of the above described property [of which the plaintiff was wrongfully dispossed] and that defendant's new fence on the above described property marks the Southern and Eastern boundry of the above described property."


                  IN THE SUPREME COURT OF PENNSYLVANIA
                              MIDDLE DISTRICT

PA DOC INMATE ID NO. MK9513, PARIS          : No. 164 MM 2018
LAVAR GANTZ,                                :
                                            :
                    Petitioner              :
                                            :
                                            :
             v.                             :
                                            :
                                            :
PA DOC SECRETARY, JOHN E.                   :
WETZEL, ET AL,                              :
                                            :
                    Respondent              :

                                      ORDER

PER CURIAM

      AND NOW, this 14th day of December, 2018, the Application for Leave to File

Original Process is GRANTED, and the Petition for Writ of Habeas Corpus is DENIED.


312 F.3d 220
Nathaniel CRAIGMILES; Tommy Wilson; Craigmiles Wilson Casket Supply; Angela Brent; Jerry Harwood; Naenia Enterprises, LLC, Plaintiffs-Appellees,v.Arthur GILES; Larry Meriwether, Sr.; Fred S. Wheeler; Lori Keen; Edward Larson; Charles B. Manes, Jr.; Karen House; Mack Wood; Paul G. Summers; John Hopkins, each in their official capacities as State Officials, Defendants-Appellants.
No. 00-6281.
United States Court of Appeals, Sixth Circuit.
Argued: April 24, 2002.
Decided and Filed: December 6, 2002.

Harold L. North, Jr. (briefed), Schumaker & Thompson, Chattanooga, TN, Matthew Berry (briefed), William H. Mellor (argued and briefed), Institute for Justice, Washington, DC, for Plaintiff-Appellee.
Steven A. Hart (argued and briefed), Janet M. Kleinfelter (briefed), Financial Division, Office of Attorney General, Nashville, TN, for Defendants-Appellants.
T. Scott Gilligan (briefed), Statman, Harris, Siegel & Eyrich, Cincinnati, OH, John C. Eastman (briefed), Chapman University School of Law, Orange, CA, for Amici Curiae.
Before KRUPANSKY and BOGGS, Circuit Judges; and LAWSON, District Judge.*
OPINION
BOGGS, Circuit Judge.

1
Nathaniel Craigmiles and several other plaintiffs challenge a provision of the Tennessee Funeral Directors and Embalmers Act (FDEA) that forbids anyone from selling caskets without being licensed by the state as a "funeral director." Licensing requires an applicant to undergo two years of education and training, very little of which, Craigmiles argues, pertains to casket design or selection. The district court held that the FDEA, insofar as it bars non-licensed funeral directors from the retail sale of caskets, violates both the Due Process and Equal Protection clauses of the Fourteenth Amendment. Recognizing that the limitation neither affected any fundamental right nor discriminated against any protected class, the district court nevertheless determined that the restriction lacked a rational basis and therefore did not pass even slight constitutional scrutiny. Tennessee appeals the district court order, arguing that the FDEA at least advances several legitimate governmental purposes. We consider the state's arguments below, and affirm the district court's judgment.

2
* The FDEA requires all those engaged in "funeral directing" to be licensed by the Board of Funeral Directors and Embalmers, established by the FDEA. See Tenn. Code Ann. § 62-5-201. When the licensing legislation was originally enacted in 1951, the definition of "funeral directing" did not include the sale of caskets and other funeral merchandise, but was limited to the arranging of funeral ceremonies, burial, cremation, and embalming. In 1972, the Tennessee General Assembly amended the definition of "funeral directing" to include the "making of arrangements to provide for funeral services and/or the selling of funeral merchandise, and/or the making of financial arrangements for the rendering of the services, and/or the sale of such merchandise." Tenn.Code Ann. § 62-5-101(a)(3)(A)(ii) (emphasis added).

3
The requirements for licensure as a funeral director are more than administrative. Applicants may choose one of two paths of study. They may complete either one year of course work at an accredited mortuary school and then a one-year apprenticeship with a licensed funeral director or a two-year apprenticeship. There is no specified curriculum for the apprenticeship, although the funeral director under whom the candidate is training must file a quarterly report with the Board regarding the apprentice's activity. After the completion of either of the two-year tracks, the candidate must take and pass the Tennessee Funeral Arts Examination.

4
For the candidate on the mortuary school track, there is only one accredited school in Tennessee, Gupton College. To complete the required year at Gupton, the candidate must take eight credit hours in embalming, three in "restorative art," and twenty-one in "funeral service." Although there was testimony at trial that portions of sixteen of the twenty-one hours in "funeral service" classes pertain to caskets and urns, students testified that casket and urn issues constituted no more than five percent of the Gupton curriculum. Only 37 of the 250 questions on the Tennessee Funeral Arts Exam concern funeral merchandising, including various casket options, FTC regulations regarding the sale of funeral merchandise, and merchandise display.

5
Craigmiles and his fellow plaintiffs operate two independent casket stores: "Wilson-Craigmiles Casket Supply" in Chattanooga and "The Casket Store" in Knoxville. The stores offer caskets, urns, gravemarkers, monuments, flower holders, and other merchandise items. The stores engage in no embalming or arranging of funeral services, cremations, or burials. Neither of the stores has sought to sell caskets "pre-need," and each, at least so far, sells caskets only after the death of the intended occupant.

6
The Board issued a cease and desist order to both businesses, which barred them from continuing to sell caskets and other funeral merchandise. In the orders, the Board declared that the businesses were engaged in "funeral directing" and employed no licensed "funeral directors," thus violating the FDEA. Both businesses ceased operations on issuance of the orders.

7
Craigmiles and the other proprietors affected by the cease and desist orders filed this action in the United States District Court for the Eastern District of Tennessee. Bringing the action under 42 U.S.C. § 1983, Craigmiles alleged that the FDEA, insofar as it restricted the sale of caskets, urns, and other funeral merchandise to licensed funeral directors, violates the Due Process, Equal Protection, and Privileges and Immunities clauses of the Fourteenth Amendment. Craigmiles requested that the court enjoin the enforcement of the FDEA against businesses engaging only in the retailing of funeral merchandise.

8
The district court held that the application of the FDEA to the plaintiffs' businesses violates their due process and equal protection rights, but rejected the plaintiffs' Privileges and Immunities Clause argument. Accordingly, the district court enjoined the Board from enforcing the FDEA against the plaintiffs' businesses, with respect to the way they operated before the Board's cease and desist order. The district court did not, however, enjoin the operation of the entire Act, its application to other parties, or even to the plaintiffs if their business activities changed. See Craigmiles v. Giles, 110 F.Supp.2d 658, 667 (E.D.Tenn.2000).

9
After the issuance of the injunction, the plaintiffs resumed operations. The State of Tennessee now appeals and argues that the district court's injunction should be dissolved.

II

10
The Supreme Court has established a tripartite rubric for analyzing challenges under the Equal Protection and Due Process clauses. When a statute regulates certain "fundamental rights" (e.g. voting or abortion) or distinguishes between people on the basis of certain "suspect characteristics" (e.g. race or national origin), the statute is subject to "strict scrutiny." Zablocki v. Redhail, 434 U.S. 374, 388, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978). To survive strict scrutiny, the regulation must serve a compelling state purpose and be narrowly tailored to achieving that purpose. Ibid. The Supreme Court has identified other classifications, such as gender and illegitimacy, which are less "suspect," and are therefore subject only to intermediate scrutiny, under which the regulation need only serve an "important" state interest and the means employed need only be "substantially related" to that interest. See J.E.B. v. Alabama, 511 U.S. 127, 136, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 725, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982).

11
All other regulations are subject to "rational basis" review, requiring only that the regulation bear some rational relation to a legitimate state interest. Romer v. Evans, 517 U.S. 620, 632, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). Even foolish and misdirected provisions are generally valid if subject only to rational basis review. As we have said, a statute is subject to a "strong presumption of validity" under rational basis review, and we will uphold it "if there is any reasonably conceivable state of facts that could provide a rational basis." Walker v. Bain, 257 F.3d 660, 668 (6th Cir.2001). See also Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). Those seeking to invalidate a statute using rational basis review must "negative every conceivable basis that might support it." Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973). Our standards for accepting a justification for the regulatory scheme are far from daunting. A profferred explanation for the statute need not be supported by an exquisite evidentiary record; rather we will be satisfied with the government's "rational speculation" linking the regulation to a legitimate purpose, even "unsupported by evidence or empirical data." FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). Under rational basis review, it is "`constitutionally irrelevant [what] reasoning in fact underlay the legislative decision.'" Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980) (quoting Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960)).

12
All of the parties concede that rational basis review is the proper standard for evaluating the FDEA. While feared by many, morticians and casket retailers have not achieved the protected status that requires a higher level of scrutiny under our Equal Protection jurisprudence. Although the licensing requirement has disrupted the plaintiffs' businesses, the regulations do not affect any right now considered fundamental and thus requiring more significant justification. Nevertheless, the district court determined that the 1972 amendment to the FDEA, to the extent that it required licensure as funeral directors for casket retailers, was not even rationally related to a legitimate governmental purpose. According to the district court, the amendment was designed only for the economic protection of funeral home operators.

13
Courts have repeatedly recognized that protecting a discrete interest group from economic competition is not a legitimate governmental purpose. See City of Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978) ("Thus, where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected."). See also H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 537-38, 69 S.Ct. 657, 93 L.Ed. 865 (1949); Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 411, 103 S.Ct. 697, 74 L.Ed.2d 569 (1983) (distinguishing between legitimate state purposes and "providing a benefit to special interests"). At trial, the plaintiffs adduced evidence that funeral home operators sell caskets at prices substantially over total costs. The FDEA has the effect, at least, of preventing individuals who are not licensed funeral directors from selling caskets, potentially at a lower price. In this case, the district court found that funeral home operators generally mark up the price of caskets 250 to 600 percent, whereas casket retailers sell caskets at much smaller margins. See Craigmiles, 110 F.Supp.2d at 664.

14
Of course, nothing in the FDEA prevents casket retailers from becoming licensed funeral directors. However, dedicating two years and thousands of dollars to the education and training required for licensure is undoubtedly a significant barrier to entering the Tennessee casket market. The question before this court is whether requiring those who sell funeral merchandise to be licensed funeral directors bears a rational relationship to any legitimate purpose other than protecting the economic interests of licensed funeral directors.

15
The weakness of Tennessee's proffered explanations indicates that the 1972 amendment adding the retail sale of funeral merchandise to the definition of funeral directing was nothing more than an attempt to prevent economic competition. Indeed, Tennessee's justifications for the 1972 amendment come close to striking us with "the force of a five-week-old, unrefrigerated dead fish," United States v. Searan, 259 F.3d 434, 447 (6th Cir.2001); United States v. Perry, 908 F.2d 56, 58 (6th Cir.1990), a level of pungence almost required to invalidate a statute under rational basis review. Only a handful of provisions have been invalidated for failing rational basis review. See Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996); City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522 (6th Cir.1998). We hold that this case should be among this handful.

16
Tennessee claims that subjecting funeral merchandise retailers to the licensure requirement promotes both public health and safety and consumer protection. With regard to public health and safety, the state contends that the education and training required for licensure insures that those who handle dead bodies may dispose of them safely and prevent the spread of communicable diseases. The district court, however, was unable to find any way in which the application of the FDEA to the plaintiffs promoted public health or safety. The plaintiffs, of course, would not handle the bodies, much less engage in any embalming services. As the plaintiffs' businesses operated at the time of the Board's order, consumers after a relative's death would simply purchase a casket from the plaintiffs. The plaintiffs would then deliver the purchased casket to the funeral home that would be handling the body. The district court did not enjoin the enforcement of the FDEA to anything other than the retailing of funeral merchandise.

17
The quality of the caskets used potentially threatens public health. If the contents of a casket were to leak, visitors to funeral services and perhaps even ground water could be exposed to bacteria emanating from the corpse. At trial, funeral directors testified that such leakage was of particular concern when the decedent died from a communicable disease, or when the body was not embalmed. Tennessee law, however, does not require that any particular type of casket, or any casket at all, be used at burial. It is perfectly legal in Tennessee for loved-ones to provide a homemade casket, for friends to give (but not to sell) a casket for use in burial, or for a body to be buried in no container at all. This lack of regulation of body disposal is no different for those who have died from contagious diseases.

18
The General Assembly could have decided against direct regulation of corpse containers, choosing instead the placement of experts in the field to advise family members of the decedent in the selection of a casket. However, the requirements for licensure would not seem to make it more likely that the corpse would be placed in the "safest" possible casket. Neither the Board nor the General Assembly has established standards for casket selection to which licensed funeral directors are held accountable. There is no evidence in the record that licensed funeral directors were selling caskets that were systematically more protective than those sold by independent casket retailers. See Craigmiles, 110 F.Supp.2d at 663. Indeed, the only difference between the caskets is that those sold by licensed funeral directors were systematically more expensive. Ibid.

19
In fact, restricting sales of caskets to licensed funeral directors would seem to have an adverse effect on the quality of caskets. The licensing requirement does not require consumers to choose more protective caskets or funeral directors to recommend them. Generally, however, the cost of more protective caskets is higher. If casket retailers were to increase competition on casket prices and bring those prices closer to marginal costs, then more protective caskets would become more affordable for consumers with limited funds and their use would likely increase. If a consumer were able to spend, for example, $2000 on a casket, a more competitive casket market would likely lead to that consumer procuring a higher quality casket. Because nothing prevents licensed funeral directors from selling shoddy caskets at high prices, the licensing requirement bears no rational relationship to increasing the quality of burial containers.

20
Tennessee also argues that the funeral directors' education and training would increase their ability to advise consumers on which casket would be most protective in particular cases. However, the availability of casket retailers will not prevent funeral directors from continuing to dispense this advice. Only the price of the caskets that the funeral directors may recommend might be affected.

21
The district court determined that there was no evidence of any public safety risk from a leaky casket, or a mere "box" for human remains. Craigmiles, 110 F.Supp.2d at 662-63. The district court might be correct, but we need not take a position in this debate. Even if casket selection has an effect on public health and safety, restricting the retailing of caskets to licensed funeral directors bears no rational relationship to managing that effect.

22
The district court also held that the licensing requirement was not rationally related to the state's interest in consumer protection. The State of Tennessee argues that the FDEA closely regulates the conduct of funeral directors, preventing them from making fraudulent misrepresentations, making solicitations after death or when death is imminent, or selling a previously used casket. See Tenn.Code Ann. § 62-5-317(a)(2). The penalties for violation of these provisions include the suspension or termination of the funeral director's license. The state contends that if casket retailers need not be funeral directors, then the retailers would not be subject to these regulations and consumers would be at risk.

23
There are a few problems with this argument. First, some of the regulations in Section 317(b) of the Act are generally applicable to retailers already, enforced by civil and criminal sanctions. For example, it is not as if casket retailers would be free to "engage in misrepresentation or fraud" if not covered by the FDEA. See Tenn. Code Ann. 62-5-317(b)(1). Second, to the extent casket retailers would not be covered by the conduct requirements, it would be a symptom of the structure of the Act, not the unconstitutionality of requiring licensure for casket retailers. The legislature could develop similar standards for casket retailers, or even make Section 317 directly applicable to casket retailers also, without requiring the licensure that is the subject of complaint.

24
These arguments about how the legislature could have developed a more carefully calibrated act foreshadow another argument for the Act's constitutionality. The overinclusiveness of the statute may simply be a byproduct of legislative efficiency. The state could have passed a more nuanced piece of legislation to subject casket retailers to the consumer protection features of the FDEA without imposing licensure requirements that have very little relation to casket retailing. Rational basis review, however, does not require the best or most finely honed legislation to be passed. The state could argue that the Act as a whole applied to the plaintiffs actually provides some legitimate protection for consumers from casket retailers. The history of the legislation, however, reveals a different story than one of mere oversight in drafting. By specifically amending the Act in 1972 to cover the sale of funeral merchandise, the legislature specifically brought casket retailers under the coverage of the licensing scheme, and could have applied Section 317 directly to retailers. This specific action of requiring licensure, which had the byproduct of making Section 317 applicable, appears directed at protecting licensed funeral directors from retail price competition.

25
The Supreme Court, employing rational basis review, has been suspicious of a legislature's circuitous path to legitimate ends when a direct path is available. In City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), the Supreme Court invalidated under rational basis review a local zoning ordinance barring the construction of a home for the mentally disabled in a certain neighborhood. The Court successively discounted the city's offered justifications, noting in several cases that if the city were really concerned about the ills that they claimed (overcrowded dwellings), they could have passed better-tailored regulations without the suspicious side-effect of keeping the mentally disabled out of neighborhoods (zoning regulations regarding the number of residents that were generally applicable). Id. at 439, 105 S.Ct. 3249.

26
Also in terms of consumer protection, the state argues that the Act's coverage of casket retailers provides for application of the Federal Trade Commission's "funeral rule" to casket retailers. The FTC "funeral rule" requires "funeral providers" to provide itemized price lists for parts of the funeral services and merchandise, like the burial container, use of the funeral home facilities, use of funeral home transportation, and the casket. 16 C.F.R. § 453. The Rule was designed to prevent package pricing by funeral homes, thereby forcing consumers to buy services that they did not want or need. By requiring itemization, the FTC intended to "lower existing barriers to price competition in the funeral market and to facilitate informed consumer choice." 47 Fed.Reg. 42260, 42260 (Sept. 24, 1982). The state contends that the Rule only applies to "funeral providers" and would exclude casket retailers from its coverage. According to this argument, the FDEA, by covering casket retailers and requiring compliance with the FTC funeral rule, ensures that casket retailers will also comply with this "important" rule protecting funeral consumers.

27
There are at least three problems with this FTC argument. First, the state's statement of the coverage of the FTC funeral rule ignores the definition of "funeral providers" in the FTC rule itself. The FTC defines a "funeral provider" as "any person, partnership, or corporation that sells or offers to sell funeral goods or funeral service to the public." 16 C.F.R. § 453.1(i) (emphasis added). The definition appears, on its face, to apply to casket retailers, and we cannot find an agency or judicial decision limiting construction elsewhere. Therefore, to the extent that the FTC rule is important for consumer protection, even with regard to casket retailers, the Rule would apply of its own force, without the FDEA.

28
Second, the FTC funeral rule would seem to have little if any relevance for casket retailers. Perhaps the best antidote for the evil of funeral goods and services bundling by funeral homes is to have third-party competitors on individual items like caskets. Licensure is a barrier to that solution. More relevantly, casket retailers cannot merge goods and services, and make consumers pay for items they do not want, because they only sell caskets and other smaller items, not funeral arranging and embalming services. Applying the whole FDEA in order to cover casket retailers by the FTC funeral rule is both inapposite and counterproductive.

29
Third, even if the FTC "funeral rule" were not to apply of its own force, the legislature could have directly required casket retailers to comply with the FTC funeral rule without imposing the licensure requirements.

30
The state also contends that the FDEA was designed to protect consumers with regard to pre-need sales agreements, under which people buy funeral goods and services before their death. The Act placed several restrictions on such pre-need transactions, such as that pre-paid funds be held in trust accounts until the death of the beneficiary. See Tenn.Code Ann. § 62-5-401. Of course, casket retailers could also sell caskets pre-need, and if they were not covered by the FDEA generally, Section 401 would also not be immediately applicable.1 But any lack of coverage is a remediable design flaw of the legislation and does not justify the joinder of the pre-need trust and licensure requirements. Moreover, the plaintiffs here do not engage in pre-need sales. The injunction prevents application of the FDEA to their business as it had been conducted at the time of the cease and desist order. As we read the district court's order, the Board would not be enjoined from applying the Act to the plaintiffs if they began to engage in pre-need sales.

31
Finally, the state argues that the course of study required for licensure trains directors in the best ways to treat individuals who have suffered profound loss. Unlicensed casket retailers, without this psychological training, we are told, may aggravate the grief of the decedent's survivors who are shopping for a casket. However, even those who purchase from casket retailers will still need a licensed funeral director for arranging services and handling the body, at which time the survivors may still receive the benefit of the funeral director's psychological training. Moreover, survivors must deal with a panoply of vendors in order to make funeral arrangements, from churches to food vendors for a wake, none of whom is required to have this psychological training. This justification is very weak, indeed.

32
Finding no rational relationship to any of the articulated purposes of the state, we are left with the more obvious illegitimate purpose to which licensure provision is very well tailored. The licensure requirement imposes a significant barrier to competition in the casket market. By protecting licensed funeral directors from competition on caskets, the FDEA harms consumers in their pocketbooks. If consumer protection were the aim of the 1972 amendment, the General Assembly had several direct means of achieving that end. None of the justifications offered by the state satisfies the slight review required by rational basis review under the Due Process and Equal Protection clauses of the Fourteenth Amendment. As this court has said, "rational basis review, while deferential, is not toothless." Peoples Rights, 152 F.3d at 532 (citing Mathews v. Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976)).

33
Judicial invalidation of economic regulation under the Fourteenth Amendment has been rare in the modern era. See West Coast Hotel v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937). Our decision today is not a return to Lochner, by which this court would elevate its economic theory over that of legislative bodies. See Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905). No sophisticated economic analysis is required to see the pretextual nature of the state's proffered explanations for the 1972 amendment. We are not imposing our view of a well-functioning market on the people of Tennessee. Instead, we invalidate only the General Assembly's naked attempt to raise a fortress protecting the monopoly rents that funeral directors extract from consumers. This measure to privilege certain businessmen over others at the expense of consumers is not animated by a legitimate governmental purpose and cannot survive even rational basis review.

34
The plaintiffs also argue that the FDEA's application to funeral merchandise retailers is unconstitutional under the Privileges and Immunities Clause of the Fourteenth Amendment. Because the plaintiffs' Equal Protection and Due Process arguments are sufficient to support the district court's injunction, we do not reach this argument. The Privileges and Immunities Clause has been largely dormant since the Slaughter-House Cases, 83 U.S. (16 Wall) 36, 21 L.Ed. 394 (1872), restricted its coverage to "very limited rights of national citizenship" and held that clause did not protect an individual's right to pursue an economic livelihood against his own state. There has been some recent speculation that the Privileges and Immunities Clause should have a broader meaning. See Saenz v. Roe, 526 U.S. 489, 521-23, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999) (Thomas, joined by Rehnquist, dissenting) (speculating that the development of the Privileges and Immunities Clause was prematurely stifled by the Slaughter-House Cases). Nevertheless, we need not break new ground today to hold that the application of the FDEA to funeral merchandise retailers is unconstitutional under the Fourteenth Amendment.

III

35
For all of the foregoing reasons, we AFFIRM the district court's order enjoining the application of the FDEA to the plaintiffs' businesses as they operated before the Board's cease and desist order.

Notes:

*
 The Honorable David M. Lawson, United States District Judge for the Eastern District of Michigan, sitting by designation

1
 The risks would not be so profound when it came to purchasing a casket in advance. While a consumer might not want to keep a casket in his garage until he needed it, the consumer would undoubtedly have a lien on the casket purchased, a luxury that consumers purchasing embalming and arranging services in advance would not enjoy


97 Wn.2d 801 (1982)
650 P.2d 201
THE STATE OF WASHINGTON, Respondent,
v.
LEAH H. SMITH, Petitioner.
No. 48252-7.
The Supreme Court of Washington, En Banc.
August 26, 1982.
*802 Alan Corner, for petitioner.
Norm Maleng, Prosecuting Attorney, and James Lobsenz, Deputy, for respondent.
PER CURIAM:
In justice court, the petitioner was found guilty of having assaulted one Sharon, a 38-year-old retarded person under the petitioner's care at Fircrest School in Seattle. A trial de novo in the Superior Court resulted in a guilty verdict, which was affirmed by the Court of Appeals. The facts of the case are set forth in the opinion of the Court of Appeals, Division One, State v. Smith, 30 Wn. App. 251, 633 P.2d 137 (1981), and need not be repeated here.
[1] The petitioner challenges the holding of the Court of Appeals that Sharon was competent to testify. She maintains that Sharon, having an intelligence quotient of about 23 (100 being the average) was, as a matter of law, incompetent to testify. According to her theory the patient was, in law, a child within the meaning of CrR 6.12(c). We recently held in State v. Froehlich, 96 Wn.2d 301, 635 P.2d 127 (1981) that RCW 5.60.050(2), which is couched in the same language as CrR 6.12(c), except that the rule applies to all children while the statute applies only to children under 10 years of age, cannot be read to apply to persons over 10 years old. It was contended there, as it is here, that an adult should be regarded as a child, in law, if his mental development is comparable. The rule, like the statute, applies only to those who fall within its terms.
[2] The petitioner also argues that Sharon was a person of unsound mind. Under RCW 5.60.050, the following persons are not competent to testify: those who are of unsound mind, or intoxicated at the time of their production for examination, and children under 10 years of age who *803 appear incapable of receiving just impression of the facts respecting which they are examined, or of relating them truly. CrR 6.12(c) is virtually identical. This court has said that "unsound mind", as used here, means total lack of comprehension or the inability to distinguish between right and wrong. State v. Wyse, 71 Wn.2d 434, 429 P.2d 121 (1967); State v. Hardung, 161 Wash. 379, 297 P. 167 (1931). We said in State v. Moorison, 43 Wn.2d 23, 259 P.2d 1105 (1953) that where a person has been adjudicated insane, a presumption of incompetency arises, rebuttable by the person offering the witness. Where there has been no such adjudication, the burden is on the party opposing the witness to prove incompetence.
In 1949 Sharon was adjudicated mentally deficient. This is not the equivalent of insanity. It meant that she was not capable of self-direction, self-support and social participation. The medical witness said: "But beyond that, there is no indication of the person being out of contact with reality or having severe emotional problems". Report of Proceedings, at 11. In other words, a retarded mind is not the same as a sick mind.
The Court of Appeals correctly held that the determination of the witness' competency and the allowance of leading questions rested primarily with the trial judge who saw the witness, noticed her manner, and considered her capacity and intelligence. Such discretion will not be disturbed on appeal in the absence of manifest abuse. The court justifiably found that Sharon understood the obligation to tell the truth and was capable of recalling and recounting the event in question. We agree with that court that no abuse was shown here.
The petitioner assigned error to the admission of testimony concerning prior consistent statements made by the victim. This testimony was admissible to rebut an inference of recent fabrication or improper motive (ER 801(d)(1)(ii)), which could have been drawn by the jury based upon defense testimony that the victim had made a number of accusations against the petitioner, which had not been substantiated.
*804 Error was also assigned to the refusal of a motion for mistrial which was made when reputation evidence was prematurely introduced by the State, and to the refusal of extrinsic evidence offered by the petitioner to prove misconduct of Sharon reflecting on her credibility. The Court of Appeals disposition of these issues was likewise correct.
The decision of that court is affirmed.


19 P.3d 1229 (2001)
Linda S. and David A. GARRISON, and All Alaska Realestate Investments, Inc., Appellants and Cross-Appellees,
v.
Dixie DIXON, Mark Korting and Re/Max Properties, Appellees and Cross-Appellants.
Nos. S-8916, S-8975, S-9075.
Supreme Court of Alaska.
March 30, 2001.
*1230 Julia B. Bockmon, Robertson, Monagle & Eastaugh, Anchorage, for Appellants/Cross-Appellees.
Jon T. Givens, Bankston & McCollum, Anchorage, for Appellees/Cross-Appellants.
Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

OPINION
CARPENETI, Justice.

I. INTRODUCTION

Advertising placed by real estate agent Dixie Dixon led Linda and David Garrison and their corporation to file suit against Dixon and her employer, Re/Max.[1] [Exc. 1-24] Dixon and Re/Max ultimately prevailed in all respects, and the superior court awarded full attorney's fees and costs to them because it found that the Garrisons and their firm prosecuted the case in bad faith and to gain an advantage over a business competitor. Because we conclude that certain of the Garrisons' claims are moot and the superior court did not abuse its discretion with regard to the others, we affirm the decisions of the superior court.

II. FACTS AND PROCEEDINGS

Dixie Dixon, a Re/Max real estate agent in Anchorage, ran two advertisements in 1995 in which she held herself out as a "buyer's agent." David and Linda Garrison, shareholders and officers of All Alaska Realestate Investments (AARI), a business competitor of Re/Max, took issue with those ads.
AARI was the only exclusive real estate buyer's agency in Alaska. Re/Max, by contrast, represented both buyers and sellers of real estate in its real estate brokerage business. Re/Max was the seller's agent for approximately twenty-two percent of the real estate listed in Anchorage in 1995. However, since Re/Max agents like Dixon also routinely represented real estate buyers, the two corporations were business competitors.
Shortly after Dixon ran the October 1995 ad that the Garrisons thought was improper, Linda Garrison sent a memorandum to Dixon claiming that Dixon's ads were misleading and in violation of the ethical standards of a professional real estate agent. Several days later the Garrisons' attorney sent a follow-up letter to Dixon advising her that her ad might be a violation of the Alaska Unfair Trade Practices and Consumer Protection *1231 Act.[2] Specifically, the Garrisons objected to Dixon's ads referring to herself as a "buyer's agent" because they contended she could not be a buyer's agent in transactions in which Re/Max also represented the seller. The Garrisons noted that when they contacted other real estate agents with the same concern, those agents had changed their ads as the Garrisons requested or placed small disclaimers regarding in-house listings in the ads. Dixon did not.
Dixon changed her advertisements, but not in the way the Garrisons wanted. Her next ad, entitled "Beware of Buyers Agency," warned readers of the "difference between a buyers agent and a buyers agency," and criticized the latter. The following ad run by Dixon was titled "Be Aware of Buyers Agency" and again contained language favorably comparing buyer's agents to buyer's agencies.
These ads prompted the Garrisons to file suit against Dixon, Re/Max, and several other Re/Max agents and supervisors under the Alaska Unfair Trade Practices and Consumer Protection Act.[3]
After more than two and one-half years of pretrial motion practice, the Garrisons moved to dismiss with prejudice their claims as individuals because AARI was the real party in interest. In their motion to dismiss, the Garrisons admitted that they "were never real parties in interest." The trial court dismissed the Garrisons' individual claims, and then granted Dixon's motion for a Civil Rule 54(b) entry of final judgment against the Garrisons. The court awarded attorney's fees against the Garrisons in the amount of $17,625.00fifty percent of the actual attorney's fees incurred by Dixon to that point.
About three months later, the court granted summary judgment to Dixon and against AARI on the remaining issues in the case. Then, finding that the case was litigated in bad faith for the purpose of harassing a business competitor, the court awarded full, actual attorney's fees against AARI.
The Garrisons and AARI now appeal.

III. STANDARDS OF REVIEW

We review for abuse of discretion both a grant of final judgment under Rule 54(b)[4] and an award of attorney's fees and costs.[5] We will find an abuse of discretion upon a showing that an award is "arbitrary, capricious, or manifestly unreasonable, or that it stemmed from an improper motive."[6] We review factual findings under the clearly erroneous standard.[7]

IV. DISCUSSION

A. Whether the Superior Court Erred in Entering Civil Rule 54(b) Final Judgment Against the Garrisons Is Moot.

The Garrisons argue that the superior court abused its discretion by entering final judgment against them under Civil Rule 54(b)[8] about three months before the final *1232 resolution of the claims brought by AARI. In particular, the Garrisons note that the trial court did not follow Rule 54(b)'s explicit requirement that it make "an express determination that there is no just reason for delay" before it directed entry of final judgment and awarded attorney's fees.
The Garrisons' argument is moot because the superior court entered a true final judgment in the case long before the Garrisons filed their brief in this court. A claim is moot "if the party bringing the action would not be entitled to any relief even if [it] prevail[s]."[9] Even if we were to agree that the form of the certification lacked the required factual finding, remanding for a correction of the order would be pointless because the superior court has already ruled on all of the issues and entered what is indisputably a final judgment.
In addition, the Garrisons have not even argued, nor do we perceive, that they have been prejudiced by this possible error. The superior court entered the true final judgment only about three months after the Rule 54(b) judgment against the Garrisons and, as noted, long before they filed their appellate brief. No issue bearing on the underlying merits of the original controversy is before us on appeal; the Garrisons voluntarily sought and obtained dismissal of their individual claims with prejudice, and no appeal has been taken from the superior court's grant of summary judgment on the claims brought by AARI.
Given the lack of substantive issues on appeal, the only consequence of a possibly erroneous Rule 54(b) final judgment is a premature appeal. But even this is not prejudicial because "if a notice of appeal is filed after the announcement of a decision but before the date shown in the clerk's certificate of distribution on the judgment, the notice of appeal shall be treated as filed on the date shown in the clerk's certificate of distribution on the judgment."[10] A premature appeal "should be held in abeyance until it is timely, or it should be dismissed with notice that it may be refiled when it becomes timely."[11] Because the superior court entered the true final judgment just three months after it entered the Rule 54(b) final judgment, the Garrisons' appeal was completely unaffected.
Accordingly, even if the trial court's entry of judgment pursuant to Rule 54(b) was procedurally flawed, there is no harm to be undone. The matter is moot, and we decline to reach it for that reason.

B. The Superior Court Did Not Err in Awarding Full Attorney's Fees.

The trial court awarded attorney's fees against the Garrisons, when their individual claims were dismissed, and against AARI, when its case was finally dismissed. Although we conclude that the theory advanced by Dixon for the first award, a theory apparently adopted by the court, was flawed, we nonetheless affirm because any error was harmless. We also conclude that the superior court did not err in awarding fees against AARI.

1. Although Civil Rule 82 does not allow for awards of "several" attorney's fees against multiple non-prevailing parties, as Dixon suggested, the award itself was not an abuse of discretion.

When the Garrisons successfully moved for dismissal of their individual claims after two and one-half years of litigation, Dixon sought an award of enhanced attorney's fees based *1233 on several factors: the complexity of the case, the fact that it had been prepared for trial, and the claim that the Garrisons' case was not reasonable and was brought in bad faith. Dixon also reasoned that because two of the plaintiffs were severally liable for twenty percent of her fees each, an award of fifty percent of the fees incurred to that point was only a slight enhancement. Dixon asked for $17,625half of the total fees she had incurred. By signing Dixon's proposed order, which cross-referenced Dixon's memorandum supporting the Motion for Attorney's Fees, the court adopted all of the arguments put forth by Dixon. But some of those arguments are flawed.
At one point in the memorandum, Dixon argued:
Pursuant to Rule 82(b)(2), defendants would be entitled to an award of 20 percent of actual attorneys' fees necessarily incurred against David Garrison and 20 percent of its fees from Linda Garrison. Thus, under Rule 82(b)(2), defendants would be entitled to a, several, total judgment of 40 percent of its fees.
This argument is wrong. The text of Rule 82(b)(2) makes no mention of a "several" liability scheme that is dependent upon the number of non-prevailing parties.[12] Instead, a Rule 82(b)(2) award is based on the amount of the prevailing party's (or parties') actual reasonable attorney's fees.[13] Under the rule, the number of non-prevailing parties is inconsequential. Yet under Dixon's approach, a defendant who before trial defeated a claim brought by five plaintiffs would be entitled to recover 100 percent of its attorney's fees under Rule 82(b)(2). Accordingly, we reject this interpretation of Rule 82(b)(2) as a basis for the enhancement of attorney's fees.
Our rejection of Dixon's theory of "several" liability for attorney's fees is not determinative of this matter, however, for Dixon sought and the court awarded enhanced fees under the separate rationales of Civil Rule 82(b)(3)[14] and the Unfair Trade Practices Act.[15] While Dixon made several arguments to justify the award of enhanced fees, which were explicitly adopted by the trial court, we find sufficient the arguments (1) that the Garrisons had no individual claims but nonetheless filed in bad faith; (2) that the Garrisons persevered for over two *1234 and one-half years before seeking dismissal as plaintiffs, causing Dixon to undertake the additional expense of preparing for a trial set for January 1998, before the Garrisons filed their motion to dismiss; and (3) that an award of full reasonable fees to Dixon was appropriate under the Unfair Trade Practices Act.[16] These factors are sufficient to justify the trial court's decision to enhance the attorney's fees awarded against the Garrisons.

2. The Superior Court Did Not Err in Awarding Attorney's Fees Against AARI.

The superior court ordered AARI to fully compensate Dixon for the portion of the attorney's fees that remained after the partial award against the Garrisons, and for those fees and costs incurred after the Garrisons were dismissed as plaintiffs. The court relied on both the Alaska Unfair Trade Practices Act and Civil Rule 82(b), noting that part of the action was brought under the former and part was brought through "counts for which attorney fees would be determined pursuant to Civil Rule 82(b)." AARI now argues that this award of full fees and costs was an abuse of discretion because it was excessive and unjustified. AARI's primary argument, based on Civil Rule 82, is that full, actual attorney's fees may not be properly awarded absent an explicit and record-supported finding of bad faith or vexatious conduct.
The Garrisons and AARI based four of their claims on the common law and eleven on the Unfair Trade Practices Act. In cases involving mixed causes of action like these, the superior court has discretion to look to both Rule 82(b) and the Unfair Trade Practices Act in deciding attorney's fees.[17]

a. Attorney's fees under Civil Rule 82

We will affirm an award of full, actual attorney's fees under Rule 82 where the superior court finds that the losing party has engaged in vexatious or bad faith litigation.[18] The superior court here made such a finding when it stated that "vexatious bad conduct has been found." Indeed, the trial court concluded that "[o]ne cannot look at the record before the court and conclude that this action was brought for any purpose but to harass the defendants." Accordingly, we must affirm the award of full attorney's fees unless the trial court's finding of bad faith is clearly erroneous.
We consider this issue both as to the filing of the case and the prosecution of it. Looking first to the filing of the case, we consider both the form of the action and the support for it. As to the form of the action, the claims themselvesas distinguished from the evidence ultimately adduced in support of themmet the minimum standards of the statute under which they were brought. Alaska Statute 45.50.471(b) defines practices that constitute unfair methods of competition and unfair or deceptive trade practices; the Garrisons relied upon five provisions of subsection.471(b) in their complaint.[19]
The Garrisons' allegations met the minimum standard for stating a claim that *1235 we recently set out in Odom v. Fairbanks Memorial Hospital.[20] In Odom, we held that "[a]n act or practice is deceptive or unfair if it has the capacity or tendency to deceive."[21] The Garrisons' allegations theoretically met this threshold. For example, the Garrisons alleged that Dixon had engaged in misleading and deceptive advertising as prohibited by AS 45.50.471(b)(11), that Dixon's "conduct has created a likelihood of confusion and misunderstanding, and has mislead, deceived and damaged prospective buyers and the plaintiffs, in connection with the advertisement of defendants' services," and that Dixon's "ads were ... misleading and deceptive ... because the exact opposite of what was claimed in the ads was true." In alleging that Dixon's ads had the capacity to deceive or confuse a buyer in connection with the advertisement of services, as prohibited by AS 45.50.471(b)(11), the complaint was sufficient to defeat a motion to dismiss for failure to state a claim.
But a review of the factual support for these claims provides a strong basis for the superior court's finding that the action was "frivolous and brought to harass the defendants." The Garrisons and AARI never produced credible evidence that the central theme of the adsthat dual agency brokers were superior to buyer's agency brokerswas unfair or deceptive. They did not produce even one person who had read the ads and could testify to any confusion. They did not show that the adswhich did not mention either the Garrisons or AARIwould be read by anyone as referring to them. They produced no evidence that they had suffered any monetary damage.
Moreover, consideration of the second issuehow the Garrisons and AARI prosecuted their actionstrongly supports the trial court's factual findings that the case was litigated in bad faith. The Garrisons litigated vigorously for two and one-half years before attempting to leave the lawsuit as individual plaintiffs, ultimately conceding that they had no individual claims. Then AARI's remaining claims were all dismissed, on summary judgment, because plaintiffs could not even show that material facts were in dispute.[22] We have previously upheld an award of full attorney's fees against plaintiffs whose claim was found to be brought "merely to harass and delay,"[23] and the record supports a similar conclusion here. Moreover, as we found above, the superior court noted correctly that the parties were business competitors, found that "the purpose of the action was to harass a competitor," and concluded that "less than full attorney's fees would encourage the use of civil prosecution to chill active competition in various industries." We cannot say that these findings are clearly erroneous. Accordingly, the superior court did not abuse its discretion in awarding full, actual attorney's fees under Rule 82.

b. Attorney's fees under AS 45.50.531(g).

At the time of trial, AS 45.50.531(g) provided, in relevant part, that "the court *1236 may award the prevailing party all or a portion of the actual costs and attorney fees incurred by the party." "[T]he term `may' generally denotes permissive or discretionary authority...."[24] Thus, under AS 45.50.531(g), the superior court had discretion to award full costs and attorney's fees.
Looking at the same facts analyzed above under Rule 82, we conclude that the superior court did not abuse its discretion in awarding full, actual attorney's fees under the Unfair Trade Practices Act. Accordingly, we affirm the trial court's award of attorney's fees against AARI.

C. The Superior Court Did Not Abuse Its Discretion in Awarding Actual Costs.

The superior court issued several orders with regard to the taxation of costs at the end of the proceedings of this case. The Garrisons and AARI now argue that these orders are inconsistent and arbitrary and that the amount of costs is at times duplicatively assessed. We address each of these arguments in turn.
First, AARI argues that it was improper to assess joint and several liability against it for costs that were previously taxed against, and fully satisfied by, the Garrisons. This was apparently done in anticipation that the costs assessed against the Garrisons might be overturned on appeal. We need not address this matter further, beyond a direction to the superior court to strike that portion of the judgment holding AARI liable for costs previously taxed against the Garrisons, because the costs have been paid in full by the Garrisons and have not been appealed.
Second, the Garrisons and AARI argue that the trial court's order that added AARI to the order of final judgment entered against the Garrisons under Rule 54(b) was improper. They argue that this is inconsistent with the entry of a Rule 54(b) judgment. Also, they note that it would make AARI jointly and severally liable for the attorney's fees award against the Garrisons. Again, apart from a direction that AARI be stricken from the judgment against the Garrisons, we need not address the matter because the Garrisons satisfied the Rule 54(b) judgment and the Garrisons have not challenged the propriety of the trial court dismissing their voluntarily dismissed claims.
Finally, the parties dispute whether under former AS 45.50.531(g), in effect at the time of trial, full costs could be assessed for expert witnesses who did not testify at trial.[25] As noted previously, the trial court had discretion to award "the prevailing party all or a portion of the actual costs."[26] Given our acceptance of the superior court's finding that this action was frivolous, the trial court did not abuse its discretion by awarding actual costs.

V. CONCLUSION

The form of the Civil Rule 54(b) judgment is moot because the superior court entered the true final judgment only three months later and the Garrisons were not prejudiced by any possible error. The superior court did not abuse its discretion in awarding full, actual attorney's fees and actual costs given its well-supported finding that the action was frivolous. Accordingly, we AFFIRM.[27]
NOTES
[1]  For simplicity, we will at times refer to the defendants collectively as "Dixon" throughout this opinion.
[2]  AS 45.50.471-.561.
[3]  Id.
[4]  See Dinsmore-Poff v. Alford, 972 P.2d 978, 980 (Alaska 1999); see also Adkinson v. Rossi Arms Co., 659 P.2d 1236, 1238 n. 6 (Alaska 1983).
[5]  See Aloha Lumber Corp. v. University of Alaska, 994 P.2d 991, 1003 (Alaska 1999).
[6]  Id. (quoting Alyeska Pipeline Serv. Co. v. Beadles, 731 P.2d 572, 575 (Alaska 1987)).
[7]  See Fairbanks Fire Fighters Ass'n, Local 1324, Int'l Ass'n of Fire Fighters v. City of Fairbanks, 934 P.2d 759, 761 (Alaska 1997).
[8]  Civil Rule 54(b) provides:

(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, ... or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
(Emphasis added.)
[9]  Gerstein v. Axtell, 960 P.2d 599, 601 (Alaska 1998) (quoting O'Callaghan v. State, 920 P.2d 1387, 1388 (Alaska 1996)).
[10]  Alaska R.App. P. 204(a)(6).
[11]  Egemo v. Egemo Constr. Co., 998 P.2d 434, 441 (Alaska 2000).
[12]  Alaska R. Civ. P. 82(b)(2) provides:

(2) In cases in which the prevailing party recovers no money judgment, the court shall award the prevailing party in a case which goes to trial 30 percent of the prevailing party's reasonable actual attorney's fees which were necessarily incurred, and shall award the prevailing party in a case resolved without trial 20 percent of its actual attorney's fees which were necessarily incurred. The actual fees shall include fees for legal work customarily performed by an attorney but which was delegated to and performed by an investigator, paralegal or law clerk.
(Emphasis added.)
[13]  See id.
[14]  Alaska R. Civ. P. 82(b)(3) provides:

The court may vary an attorney's fee award calculated under subparagraph (b)(1) or (2) of this rule if, upon consideration of the factors listed below, the court determines a variation is warranted:
(A) the complexity of the litigation;
(B) the length of trial;
(C) the reasonableness of the attorneys' hourly rates and the number of hours expended;
(D) the reasonableness of the number of attorneys used;
(E) the attorneys' efforts to minimize fees;
(F) the reasonableness of the claims and defenses pursued by each side;
(G) vexatious or bad faith conduct;
(H) the relationship between the amount of work performed and the significance of the matters at stake;
(I) the extent to which a given fee award may be so onerous to the non-prevailing party that it would deter similarly situated litigants from the voluntary use of the courts;
(J) the extent to which the fees incurred by the prevailing party suggest that they had been influenced by considerations apart from the case at bar, such as a desire to discourage claims by others against the prevailing party or its insurer; and
(K) other equitable factors deemed relevant.
If the court varies an award, the court shall explain the reasons for the variation.
[15]  Dixon actually argued that she was entitled to fees under the 1996 version of the statute, which allowed for "all or a portion of actual ... attorney fees." Former AS 45.50.531(g).
[16]  See infra Part IV.B.2.b.
[17]  Cf. Bliss v. Bobich, 971 P.2d 141, 148 (Alaska 1998) (holding that "cases involving mixed causes of action, some governed by Rule 82's attorney's fees provisions and some by [statute]" fall under trial court's discretion for purposes of determining prevailing party).
[18]  See Marathon Oil Co. v. ARCO Alaska, Inc., 972 P.2d 595, 605 (Alaska 1999) (holding that award of "substantially `full attorney's fees is manifestly unreasonable in the absence of bad faith or vexatious conduct by the non-prevailing party.'" (quoting Alaska R. Civ. P. 82, note to Supreme Court Order 1118am)); Keen v. Ruddy, 784 P.2d 653, 657 (Alaska 1989) (holding that full attorney's fees were properly awarded when losing party acted in bad faith by filing meritless claims to harass defendant).
[19]  AS 45.50.471(b) provides, in relevant part, that

[t]he terms "unfair methods of competition" and "unfair or deceptive acts or practices" include, but are not limited to, the following acts:
....
(4) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that the person does not have;
...
(6) representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;
(7) disparaging the goods, services, or business of another by false or misleading representation of fact;
(8) advertising goods or services with intent not to sell them as advertised;
....
(11) engaging in any other conduct creating a likelihood of confusion or of misunderstanding and which misleads, deceives or damages a buyer or a competitor in connection with the sale or advertisement of goods or services.
[20]  999 P.2d 123 (Alaska 2000).
[21]  Id. at 132 (internal quotation marks omitted) (quoting State v. O'Neill Investigations, Inc., 609 P.2d 520, 534-35 (Alaska 1980)).
[22]  Specifically, the claims ultimately failed on summary judgment because plaintiffs could show no monetary losses, as required for a private action under AS 45.50.531(a). That statute provides, in relevant part:

A person who suffers an ascertainable loss of money or property as a result of another person's act or practice declared unlawful by AS 45.50.471 may bring a civil action.
[23]  See Keen, 784 P.2d at 657.
[24]  Gerber v. Juneau Bartlett Memorial Hosp., 2 P.3d 74, 76 (Alaska 2000); see also Rutter v. State, 963 P.2d 1007, 1008 (Alaska 1998); State, Dep't of Transp. & Pub. Facilities v. Sanders, 944 P.2d 453, 457-58 (Alaska 1997).
[25]  In 1998 the legislature superceded former AS 45.50.531(g) with AS 45.50.537. Neither party argues that the new section .537 might apply retroactively in this case.
[26]  Former AS 45.50.531(g).
[27]  As noted in Part IV.C., the superior court is directed to strike AARI from the Rule 54(b) judgment against the Garrisons, for both costs and attorney's fees.


709 F.2d 1500
Chvostav.Parrino
81-3205
UNITED STATES COURT OF APPEALS Sixth Circuit
3/18/83
N.D.Ohio
AFFIRMED


507 S.W.2d 711 (1974)
David MOORE, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR73-165.
Supreme Court of Arkansas.
April 8, 1974.
*712 Harold L. Hall, Public Defender, Little Rock, for appellant.
Jim Guy Tucker, Atty. Gen., by Richard Mattison, Asst. Atty. Gen., Little Rock, for appellee.
HOLT, Justice.
Appellant was convicted by a jury of assault with intent to kill and his punishment was assessed at 31½ years in the Department of Correction, pursuant to our Habitual Criminal Act, Ark.Stat.Ann. §§ 43-2328 to 43-2330 (Supp. 1973). Present appellate counsel was then appointed. For reversal, appellant asserts that the lower court erred in allowing the prosecutor to ask appellant "[W]ould you lie to stay out of the Arkansas State Penitentiary?"
The appellant testified in his own behalf, against the advice of his trial counsel, and the following occurred on cross-examination:
[Deputy prosecuting attorney]
Q. All right. Mr. Moore, did you and Eddie Gilliam and Leon Gilliam and another person on March 23rd, 1973, rob Phillip Marlow out here on the interstate?
A. Whereabouts?
[Appellant's attorney]
Your Honor, may I approach the bench?
[Appellant's attorney]
That is a pending case coming up on Friday, which we object to the testimony and we move for a mistrial.
THE COURT:
Overruled.
Q. [Deputy prosecuting attorney continuing] Mr. Moore, I ask you again the same question: Are you guilty of robbing Phillip Marlow in the presence of Eddie and Leon Gilliam and another party on March the 23rd of this year in Pulaski County out here on the interstate?
A. No, sir.
Q. You're not? Are you, and Eddie Gilliam and Leon Gilliam and another party guilty of robbing on March the 23rd of this year Tony Martinez in Pulaski County out here on the interstate?
A. No, sir.

*713 Q. Mr. Moore, would [you] lie to stay out of the Arkansas State Penitentiary?
A. I pleaded guilty of
[Appellant's attorney]
Your Honor, I renew my objection made to the second question, also.
THE COURT:
Overruled.
Q. [Deputy prosecuting attorney continuing] Now, you'd like to stay out of the pen, wouldn't you?
A. I pleaded guilty to the first charge that I ever went to the pen for, rape and robbery, and I don't see why I should lie now.
Obviously, appellant's trial counsel was renewing his objection to the inquiry concerning robberies and was not objecting to the question now before us. If a proper objection had been made, it would have called the matter to the court's attention and allowed the court the opportunity to rule upon it. Therefore, we do not reverse since a proper objection was not made to the question now challenged on appeal.
It is well established that when a defendant testifies, like any other witness, he is subject to certain questions on cross-examination, when asked in good faith, to test the witness' credibility, the state being bound by the answer. Butler v. State, 255 Ark. ___, 504 S.W.2d 747 (1974), and Turner v. State, 100 Ark. 199, 139 S.W. 1124 (1911). For instance, in Butler we again recognized our long standing rule that it is permissible to ask, in good faith, a defendant on cross-examination if he is guilty of committing a named criminal offense. At the same time it is equally well established that a defendant cannot be asked on cross-examination if he was ever indicted, charged or accused of a crime. Polk v. State, 252 Ark. 320, 478 S.W.2d 738 (1972), and Black v. State, 250 Ark. 604, 466 S.W.2d 463 (1971).
Even though objection was not made to the question propounded in the case at bar, we take this opportunity to firmly state our view that the inquiry is not deemed within the proper scope of cross-examination. It amounted to a supposition and was argumentative. If this conjectural approach is permissible on cross-examination, then there would be no limit to speculative and argumentative inquiries of witnesses on cross-examination in every case. In view of the absence of an objection and the appellant's answer to the question, the asserted error was rendered harmless.
Affirmed.


470 S.E.2d 431 (1996)
266 Ga. 694
DINNING
v.
The STATE.
No. S96A0356.
Supreme Court of Georgia.
May 20, 1996.
*432 Brian Steel, Wolfe & Steel, P.C., Atlanta, Michael Duponte, Atlanta, for Dinning.
Michael H. Crawford, Dist. Atty., Clarkesville, Michael J. Bowers, Atty. Gen., Department *433 of Law, Atlanta, Christopher S. Brasher, Asst. Atty. Gen., Department of Law, Atlanta, for State.
HUNSTEIN, Justice.
Jack Douglas Dinning was found guilty of two counts of murder in the shooting deaths of Eric Rider and his mother, Dorothy Rider, two counts of armed robbery involving the Riders, and one count of burglary, as to the Riders' home. He was sentenced to four consecutive life sentences for the murders and armed robberies and twenty years to run concurrent on the burglary. He appeals the denial of his motion for a new trial.[1] Because the State's failure to disclose evidence of agreements of immunity it had made with material witnesses violated Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) and constituted harmful error in this case, we reverse.
1. The jury was authorized from the evidence adduced at trial to make the following findings of fact: Eric Rider, who was confined to a wheelchair, lived with his 91-year-old mother at a remote residence near Lake Rabun. Mr. Rider kept at his home items such as rare gold and silver coins, numerous firearms, and stacks of old, mostly uncirculated fifty dollar bills (many of which were 1934 fifty dollar gold certificates), which Mr. Rider banded together in amounts of $1,000 per stack. Witnesses testified they spoke with Mr. Rider on January 21, 1989 but could not contact him thereafter, even for scheduled deliveries. On February 15, 1989, the Riders' bodies were found inside the residence, which had been thoroughly ransacked. Investigation revealed that coins, bills, and weapons were missing from the home. Expert testimony established that both victims had been killed by multiple gun shots to the head with a .22 caliber firearm and that the bullets could have been fired from a High Standard .22 caliber pistol.
At the time of the Riders' murders, Dinning had $2.34 in his checking account, less than $250 in two savings accounts, and was earning between $5 and $5.25 an hour at his handyman job. On January 22, 1989, the day after the murders likely occurred, Dinning telephoned Dennis Coton in Tampa, Florida and asked for Coton's help in purchasing a pound of marijuana, which Dinning estimated would cost $1,600. Dinning went to Florida on January 24 or 25 where he gave Coton several weapons including a High Standard.22 caliber pistol and a 1922 silver dollar. Dinning also purchased one pound of marijuana from Charles Piccirillo and Fred Venable for which he paid $1,500 in neatly stacked fifty dollar bills, some of which were 1934 fifty dollar gold certificates which looked like they had never been in circulation. Dinning made two other purchases of marijuana from Piccirillo and Venable, one for five pounds in February and another for ten pounds in April, paying the $7,500 and $15,000 purchase prices with stacks of $50's banded in $1,000 amounts. In May and July of 1989, Dinning sold rare gold and silver coins which had belonged to Mr. Rider, telling the purchaser the coins belonged to his wife. Dinning also sold several guns identified as belonging to Mr. Rider to various individuals in late 1990.
Police learned of the existence of one of the guns in early 1991 and traced the weapon back to Dinning, who, in three conversations in March 1991, told police he had purchased the weapon at a flea market. Police investigation subsequently revealed the coin sales and marijuana purchases. Dinning was arrested on May 19, 1992. Dinning's father, upon learning of his son's arrest, telephoned Coton, retrieved the High Standard .22 caliber pistol Dinning had given Coton, and discussed with Coton his plan to dispose of the weapon by throwing it off the Howard Franklin Bridge in Tampa. Witnesses from the Florida Department of Transportation identified a High Standard .22 caliber pistol *434 recovered from the emergency lane on the Howard Franklin Bridge in Tampa on May 28, 1992. That weapon was identified as belonging to Mr. Rider.
When arrested in May 1992, the statement Dinning gave police was consistent with his testimony at trial: that Mr. Rider had given Dinning money and guns as payment for buying other guns for Mr. Rider and that Mr. Rider had given Dinning the coins to use for a gun sale but when that deal fell through Mr. Rider told Dinning to hold the coins until the next sale (which never occurred). Dinning testified that he went to Tampa and purchased one ounce of marijuana in January and one pound in February 1989, paying with money he had received from various jobs as well as from Mr. Rider for his gun-running activities.
We find the evidence adduced at trial sufficient to enable a rational trier of fact to find Dinning guilty of the charged crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. The record supports the trial court's finding[2] that Georgia law enforcement officers promised immunity against prosecution for drug-related charges to Coton, Piccirillo, and Venable, the three Florida witnesses involved in Dinning's marijuana purchases. The record also supports the trial court's finding that under the unique facts in this case, the officers who investigated the murders must be considered a part of the prosecution team so as to render the district attorney responsible for the promises made by members of the prosecution team to these witnesses. Zant v. Moon, 264 Ga. 93, 100, 440 S.E.2d 657 (1994). Accordingly, we agree with the trial court that the State's failure to provide Dinning with information concerning promises made regarding prosecutions against the three Florida witnesses violated Giglio v. United States, supra.
The trial court correctly recognized that a Giglio violation does not automatically result in a new trial. See Owen v. State, 265 Ga. 67, 69(2), 453 S.E.2d 728 (1995). The trial court rejected Dinning's argument that because the Giglio violation was intentional, the evidence at trial should be reviewed under a standard of review of whether the undisclosed information could have affected the outcome, United States v. Alzate, 47 F.3d 1103, 1110 (11th Cir.1995), and instead found that the information was withheld as a result of negligence. Applying the "reasonable probability" standard of review, Owen v. State, supra at 70(2), 453 S.E.2d 728, the trial court then concluded that even had the evidence been disclosed to the defense, the result of the proceeding would not have been different. Id. It is not necessary to address Dinning's argument that the trial court applied an incorrect standard of review because we find that, even under the standard of review used by the trial court, reversal is required.
The trial court's ruling that there was no reasonable probability the proceedings would have been different is based on its conclusions that the three Florida witnesses were not key prosecution witnesses (in that the subject matter of their testimony was corroborated by Dinning and the other evidence adduced by the State was sufficient to support the jury's verdict) and that the impeachment evidence showing bias or interest was marginal (in that the offers of immunity were not compelling and the witnesses were not implicated in the crimes for which Dinning was charged). We disagree with both conclusions.
Coton, Piccirillo, and Venable were clearly key prosecution witnesses. Their testimonies were crucial in that they established that within days of the murder Dinning possessed large amounts of Mr. Rider's money, as well as his coins and guns. No other evidence established Dinning's possession of large amounts of the stacked and banded fifty dollar gold certificates. Dinning's testimony cannot be considered as corroboration of these witnesses' testimonies, given the conflicts over such significant matters as the number of purchases, the amount of marijuana purchased, and the money used for the *435 payments. As to the other evidence adduced by the State, that evidence consisted of Dinning's sales of coins and guns that occurred at least four months, but most over a year, after the crimes. This evidence lacks the immediacy of the transactions testified to by the Florida witnesses and does not raise a comparably sharp inconsistency with Dinning's explanation for his possession of the guns and coins.
We also disagree with the trial court's conclusion that the offers of immunity were not "compelling." The videotape of Coton's interview with the police contains a protracted discussion of Coton's immunity under Georgia and Florida law in exchange for his testimony against Dinning. While the offers to Piccirillo and Venable were less specific and detailed than the offer made to Coton, they nevertheless clearly showed that these witnesses knew, in exchange for their testimony, that they would not be at risk of being prosecuted for their involvement in illegal drug deals. These offers were not of "such a marginal benefit ... that it is doubtful it would motivate a reluctant witness." McCleskey v. Kemp, 753 F.2d 877, 884 (11th Cir.1985). See also Patillo v. State, 258 Ga. 255, 260(4)(c), 368 S.E.2d 493 (1988). Finally, the fact that none of these three witnesses was implicated in the Riders' murders is not the relevant consideration. Rather, "[w]hat counts is whether the witness may be shading his testimony in an effort to please the prosecution. [Cit.]" (Punctuation and emphasis omitted.) Owens v. State, 251 Ga. 313, 316, 305 S.E.2d 102 (1983).
Reversal is required
"if the [undisclosed] evidence is material in the sense that its suppression undermines confidence in the outcome of the trial," i.e., `only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" [Cit.]
Patillo v. State, supra at 261, 368 S.E.2d 493. While we recognize that materiality is not established by the "mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial," United States v. Agurs, 427 U.S. 97, 109-110(III), 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976), we conclude from the circumstantial nature of the evidence against Dinning and the critical importance of the testimony of Coton, Piccirillo, and Venable to the State's case against Dinning, that the State's failure to disclose the challenged evidence violated Dinning's due process rights to a fundamentally fair trial and has undermined confidence in the outcome of the trial. We therefore hold that the trial court erred by denying Dinning's motion for a new trial.
3. Dinning also contends error in the State's failure to disclose exculpatory and impeachment evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, because a new trial is required, see Division Two, supra, any Brady violation is moot given the defense's current knowledge of the evidence the State allegedly failed to disclose.
4. Likewise, the reversal of this case renders it unnecessary for this Court to address Dinning's claims involving ineffective assistance of counsel, jury selection, and remarks made by the prosecutor in closing argument.
5. We turn now to those enumerated errors which may arise upon retrial: (i) Contrary to Dinning's contention, we find no error in the trial court's ruling that he was not entitled to a hearing pursuant to Uniform Superior Court Rule 31.3(B) (evidence of similar transactions) as to the State's evidence regarding the manner in which Dinning used the money taken from the Rider residence. (ii) The record does not support Dinning's contention that the Sheriff of Rabun County personally received reward money from a trust fund set up by Mr. Rider and we find no error in the trial court's conclusion that the receipt of the money by the Rabun County Board of Commissioners raised no sense of impropriety so as to call into question the fairness of the criminal justice system. Compare Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787(III)(B), 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987). (iii) We find no error in the trial court's admission of the State's only photo that depicted a full frontal pre-autopsy view of Ms. Rider's body. Williams v. State, 265 Ga. 681(5), 461 *436 S.E.2d 530 (1995). (iv) The record establishes that probable cause existed for the issuance of a search warrant of Dinning's residence and thus the trial court did not err by denying Dinning's motion to suppress evidence seized during that search. (v) Evidence adduced at the hearing conducted pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) supports the trial court's rulings that Dinning was not in custody when he made statements to the police in March 1991 and that his post-arrest statement in May 1992 was voluntarily and intelligently made and was not the product of coercion. Therefore, the trial court did not err by denying Dinning's motion to suppress these statements.
6. Dinning failed to raise his final enumerated error in the trial court. Thus, it will not be addressed.
Judgment reversed.
All the Justices concur.
NOTES
[1]  The crimes were committed on or about January 21, 1989; the victims' bodies were discovered February 15, 1989. Dinning was indicted on May 21, 1992 in Rabun County. He was found guilty on May 13, 1993 and was sentenced the same day. His motion for new trial, filed on June 4, 1993 and amended on February 17, 1995, was denied on September 15, 1995. A notice of appeal was filed on October 10, 1995. The appeal was docketed in this Court on November 28, 1995 and was orally argued on February 19, 1996.
[2]  Evidence was adduced during the hearing on Dinning's motion for a new trial and the trial court's findings are set forth in its order denying that motion.