600 F.Supp. 706 (1985)
Frank ALVAREZ, Jr., Plaintiff,
v.
Almon C. WILSON, etc., et al., Defendants.
No. 75 C 2734.
United States District Court, N.D. Illinois, E.D.
January 11, 1985.
*707 Ronald J. Clark, Chicago, Ill., for plaintiff.
Dan K. Webb, U.S. Atty., James T. Hynes, Nancy K. Needles, Asst. U.S. Attys., Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER
PLUNKETT, District Judge.
Frank Alvarez, Jr. ("Plaintiff"), who was at all relevant times an officer in the United States Navy, brought this action against five individuals ("Defendants"), all of whom were at all relevant times Plaintiff's superior officers in the Navy, seeking compensatory and punitive damages for Defendants' alleged violations of Plaintiff's constitutional and other civil rights. Count I of Plaintiff's complaint is grounded directly on the Due Process Clause of the Fifth Amendment, Count II on 42 U.S.C. § 1985(3) ("§ 1985(3)"), Count III on 42 U.S.C. § 1985(1) ("§ 1985(1)"), and Count IV on 42 U.S.C. § 1986 ("§ 1986");[1]*708 Counts V and VI of the complaint, in which Plaintiff purported to proceed on behalf of a class, were voluntarily dismissed by Plaintiff several years ago. Jurisdiction is based on 28 U.S.C. §§ 1331 and 1343. Presently before the court is Defendants' motion, under Fed.R.Civ.P. Rule 12(b)(6), to dismiss Plaintiff's complaint for failure to state a claim upon which relief can be granted, on the theory that Plaintiff cannot maintain this type of "intramilitary" action. For the reasons set forth below, Defendants' motion is granted.
The gravamen of the complaint is that Plaintiff, who is a black Puerto Rican, was the victim of intentional racial discrimination by Defendants in connection with his service as a "Racial Awareness Facilitator" in the Navy. Plaintiff's specific allegations are well summarized in an earlier opinion in this case by the Honorable Prentice H. Marshall, to whom this case was originally assigned, Alvarez v. Wilson, 431 F.Supp. 136, 138-139 (N.D.Ill.1977), and we will not repeat that discussion here. Nor will we describe the unusual procedural history of this case, except to note that Judge Marshall denied motions to dismiss filed by Defendants on three separate occasions (on March 7, 1977, on March 31, 1980, and on September 15, 1981), in the latter two instances specifically rejecting the arguments which Defendants now press before us. Defendants attempted to appeal from Judge Marshall's September 15, 1981 order, but the Court of Appeals for the Seventh Circuit granted Plaintiff's motion to dismiss the appeal for lack of jurisdiction on February 29, 1984. Alvarez v. Wilson, No. 81-2696 (7th Cir. Feb. 29, 1984). The court of appeals found that Defendants' notice of appeal was not timely filed under Fed.R. App.P. Rule 4(a). On remand, the case was reassigned to us.
At the outset, we reject Defendants' argument that the issues decided by Judge Marshall are the "law of the case," and thus that we cannot reconsider Judge Marshall's rulings in this case. The Court of Appeals for the Seventh Circuit has held that a federal district judge may correct an earlier interlocutory ruling by another district judge which he or she finds to be erroneous. Diaz v. Indian Head, Inc., 686 F.2d 558, 562-563 (7th Cir.1982). Indeed, in dismissing Defendants' appeal in the present case, the court of appeals specifically stated that its decision "does not mean, as ... [Plaintiff] suggests, that the district court's ruling on immunity is the `law of the case.'" Moreover, we are not inclined to find that Defendants have waived the arguments for dismissal on which they now rely, despite the fact that they arguably did not raise those arguments until several years after Plaintiff filed his complaint. See Fed.R.Civ.P. Rule 12(h)(2).
Nevertheless, we would not disturb Judge Marshall's earlier rulings in this case absent very good reason for doing so. See 1B J. Moore, J. Lucas & T. Currier, Moore's Federal Practice ¶ 0.404 [4.-2], at 127-129 (2d ed. 1984). Such reason, however, is provided by the Supreme Court's decision, on June 13, 1983 (while the present case was before the Seventh Circuit and long after it was last before Judge Marshall), in Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). In Chappell, in reversing a decision of the Court of Appeals for the Ninth Circuit, a unanimous Court held that members of the armed services "may not maintain a suit to recover damages from a superior officer for alleged constitutional violations" in the course of military service.[2] 103 S.Ct. at 2368 (footnote omitted).
The plaintiffs in Chappell were enlisted men in the Navy who claimed that the defendants, eight of their superior officers, had discriminated against the plaintiffs in various ways because of their race. Like *709 Plaintiff, the plaintiffs in Chappell attempted to bring a "Bivens action,"[3] grounded on the Due Process Clause of the Fifth Amendment, against the defendants. In finding that the plaintiffs could not maintain a Bivens action in Chappell, the Court primarily relied on the reasoning of its landmark decision in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).
In Feres, the Court held "that the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service," 340 U.S. at 146, 71 S.Ct. at 159, and the "Feres doctrine" has been held to bar tort actions by members of the armed services against other members of the armed services for injuries occurring incident to military service. See, e.g., Jaffee v. United States, 663 F.2d 1226, 1234 (3d Cir.1981) (en banc), cert. denied, 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982). Although several of the arguments advanced by the Feres Court in support of its decision do not apply to actions such as the present one seeking redress for alleged deprivations of constitutional or other federally protected civil rights, see Wallace v. Chappell, 661 F.2d 729, 736 n. 9 (9th Cir.1981), rev'd, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), in Chappell the Supreme Court made clear that it considers the foundation of the Feres decision to be "`the "peculiar and special relationship of the soldier to his superiors, [and] the effects of the maintenance of such suits on discipline...."'" 103 S.Ct. at 2365 (citations omitted).
While recognizing that Feres involved a question of statutory interpretation rather than of whether to create a Bivens remedy, the Court in Chappell largely based its decision on what it took to be the fundamental rationale of Feres: the need to avoid the kind of disruption of "the unique disciplinary structure of the military establishment" which allowing intramilitary suits over service-related matters would threaten to bring about. 103 S.Ct. at 2364-2365, 2367. See West v. United States, 729 F.2d 1120, 1124-1125 (7th Cir.1984), rehearing en banc granted, No. 83-1842 (7th Cir. June 25, 1984). In particular, the Court noted Chief Justice Warren's observation "`that courts are ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have.'" 103 S.Ct. at 2368 (citation omitted). Also of importance to the Court's decision was the fact that the comprehensive system of military justice which Congress has created provides remedies for grievances such as those presented by the plaintiffs in Chappell, and by Plaintiff in the present case. 103 S.Ct. at 2366-2367.
In arguing that Chappell does not mandate the dismissal of Count I of his complaint, Plaintiff primarily relies on Stanley v. United States, 574 F.Supp. 474 (S.D.Fla. 1983), motions for interlocutory appeal granted, Nos. 84-2018, 84-2019 (11th Cir. Apr. 13, 1984). In Stanley, the plaintiff alleged that, while he was a sergeant in the United States Army, Army personnel surreptitiously administered the narcotic drug commonly known as "LSD" to him in the course of a supposedly unrelated experiment in which he had volunteered to participate. 574 F.Supp. at 476. The plaintiff's second amended complaint was in part grounded directly on the Due Process Clause of the Fifth Amendment, seeking to recover damages from various "individual agents and officers of the United States" who were involved in the experiment. 574 F.Supp. at 477. In holding that the Supreme Court's decision in Chappell did not require dismissal of the plaintiff's Bivens action, the district court in Stanley quoted the Court's statement that "[t]his Court has never held, nor do we now hold, that military personnel are barred from all redress in civilian courts for constitutional wrongs suffered in the course of military service," Chappell v. Wallace, 103 S.Ct. at 2367 (citations omitted), concluding that *710 "[t]he obvious import of the Court's qualified holding is to limit the Chappell decision to its facts." Stanley v. United States, 574 F.Supp. at 479.
With all due respect to the Stanley court, we believe that that conclusion is anything but obvious. As the Court of Appeals for the Eleventh Circuit noted in granting the defendants' motions for interlocutory appeal in Stanley, Stanley v. United States, Nos. 84-2018, 84-2019, slip op. at 2-3 (11th Cir. Apr. 13, 1984), courts of appeals in two circuits have rendered decisions which are inconsistent with the district court's decision in Stanley. Gaspard v. United States, 713 F.2d 1097 (5th Cir.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 2354, 80 L.Ed.2d 826 (1984); Jaffee v. United States, 663 F.2d 1226 (3d Cir.1981) (en banc), cert. denied, 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982). See Stanley v. United States, 574 F.Supp. at 480 n. 8. The language of the Supreme Court in Chappell is quite clear: members of the armed services "may not maintain a suit to recover damages from a superior officer for alleged constitutional violations" in the course of military service. 103 S.Ct. at 2368 (footnote omitted). We cannot help but agree with the court in Mollnow v. Carlton, 716 F.2d 627, 628-630 (9th Cir. 1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1595, 80 L.Ed.2d 126 (1984), that the Court in Chappell "imposed a per se prohibition on the filing of Bivens-type actions by servicemen against their superiors." 716 F.2d at 630. See also Benvenuti v. Department of Defense, 587 F.Supp. 348, 353 (D.D.C.1984). As the Mollnow court explained, the Supreme Court's statement in Chappell that its holding did not bar all constitutional actions by military personnel was not intended to apply to damages actions such as that involved in the present case, as is made clear by the fact that none of the three cases which the Court cited as examples of cognizable constitutional actions, 103 S.Ct. at 2367, involved an action for damages by a member of the armed services against a superior officer. Mollnow v. Carlton, 716 F.2d at 629-630 & n. 4. See Gaspard v. United States, 713 F.2d at 1103 & n. 12. Contrary to Plaintiff's suggestion, nothing in Gonzalez v. Department of Army, 718 F.2d 926, 929 (9th Cir.1983), indicates that that court saw anything more in the Supreme Court's qualification of its holding in Chappell than we do.
Even were we to agree with the district court in Stanley that Chappell should be limited to its facts, however, we would find Chappell to be controlling in the present case, since the similarities between the facts of Chappell and the facts of this case deprive us of a valid basis on which to distinguish the two. Nor can Plaintiff any longer find support for his position in the Supreme Court's venerable decisions in Wilkes v. Dinsman, 48 U.S. (7 How.) 89, 12 L.Ed. 618 (1849), and Dinsman v. Wilkes, 53 U.S. (12 How.), 390, 13 L.Ed. 1036 (1851). Chappell v. Wallace, 103 S.Ct. at 2368 n. 2. Accordingly, Count I of Plaintiff's complaint must be dismissed.
Having reached that conclusion, we might simply dismiss Counts II, III, and IV of the complaint without further discussion, since Plaintiff does not contend that he can maintain his statutory civil rights claims if his Bivens claim is dismissed. However, since neither Chappell nor Feres on its face mandates the dismissal of the statutory claims, we believe that those claims merit some consideration. Because Plaintiff's § 1986 claim is derivative of his § 1985 claims, see, e.g., Mollnow v. Carlton, 716 F.2d at 632; Williams v. St. Joseph Hospital, 629 F.2d 448, 452 (7th Cir. 1980), we first address the § 1985 claims.
At the outset, we reject Defendants' argument that they cannot be liable under § 1985 because that statute only applies to those whose conduct constitutes "state action," and thus does not apply to federal officials. Although Judge Marshall thoroughly and thoughtfully considered that issue, Alvarez v. Wilson, 431 F.Supp. at 140-142, Defendants contend that the Supreme Court's subsequent decision in United Brotherhood of Carpenters and Joiners of America, Local 610, AFL-CIO v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 *711 L.Ed.2d 1049 (1983), establishes that Judge Marshall was incorrect in finding that § 1985 applies to "federal action," at least with respect to Plaintiff's claim under § 1985(3). We disagree. In Scott, the Court specifically noted that state action is not a necessary element of a § 1985(3) claim where, for example, as here, the § 1985(3) claim is based on the Thirteenth Amendment. 103 S.Ct. at 3357-3358.
Defendants' primary argument with respect to Plaintiff's § 1985 claims, that the rationales of Feres and Chappell (though not the actual holdings) require that we dismiss those claims, is, however, far more substantial. Interestingly, the plaintiffs' complaint in Chappell included claims under § 1985(3), and the Court of Appeals for the Ninth Circuit reversed the district court's decision dismissing those claims. In so doing, the court of appeals stated, without elaboration, that it saw no distinction, for its purposes, between the plaintiffs' Bivens claims and their § 1985(3) claims, 661 F.2d at 733 n. 5, and the court did not separately discuss the § 1985(3) claims. Finding that the "issue was not adequately addressed either by the Court of Appeals or in the briefs and oral argument before this Court," the Supreme Court in Chappell refused to consider whether the plaintiffs could maintain their § 1985(3) claims, leaving that question for the court of appeals to decide on remand. 103 S.Ct. at 2368 n. 3. See Gonzalez v. Department of Army, 718 F.2d at 929 & n. 2. However, because, on remand, the appeal was dismissed by agreement of the parties, Wallace v. Chappell, No. 79-3172 (9th Cir. Oct. 3, 1983), the court of appeals never reconsidered its ruling with respect to the plaintiffs' § 1985(3) claims. Moreover, no other court of which we are aware has discussed the impact of the "Feres doctrine" (in its broader sense) on intramilitary damages actions under § 1985(3), although the court in Lombard v. United States, 690 F.2d 215, 227 (D.C.Cir.1982), cert. denied, ___ U.S. ___, 103 S.Ct. 3086, 77 L.Ed.2d 1347 (1983), seems to have assumed that § 1985(3) actions and Bivens actions are indistinguishable for these purposes.
One court has, however, discussed the question of whether a member of the armed services can maintain an action under § 1985 against a superior officer, in light of the Supreme Court's decision in Chappell. Mollnow v. Carlton, 716 F.2d at 630-632. As the court in Mollnow pointed out, although the question of whether an intramilitary action can be brought under § 1985 is a question of congressional intent rather than one involving the judicial creation of a remedy, making the problem analytically similar to that in Feres rather than to that in Chappell, the Supreme Court's analysis of the Feres decision in Chappell should guide the resolution of the statutory issues before us. 716 F.2d at 631.
As discussed above, the Chappell Court's discussion of Feres focused on "`the "peculiar and special relationship of the soldier to his superiors, [and] the effects of the maintenance of such suits on discipline...,"'" 103 S.Ct. at 2365 (citations omitted), and the Court admonished that "[c]ivilian courts must, at the very least, hesitate long before entertaining a suit which asks the court to tamper with the established relationship between ... military personnel and their superior officers; that relationship is at the heart of the necessarily unique structure of the military establishment." Id. As the court in Mollnow stated:
A § 1985(1) action would strike directly at that special military relationship, perhaps even more so than an action for negligence. In a negligence action, a spontaneous event has occurred; someone has suffered an accident and another is at fault. Under § 1985(1), however, an action would lie even for calculated decisions made in the judgment and discretion of a superior military officer, so long as the subordinate alleged the superior had interfered with his military "duties." ...
The Chappell case discussed at lenth Congress' plenary authority over the military.... *712 In the exercise of that authority, Congress has enacted "a comprehensive internal system of justice to regulate military life, taking into account the special patterns that define the military structure." ... Section 1985(1) is completely foreign to that system.... [W]e know of no civilian law that would prevent superior officers, in the exercise of their wide discretion, from ordering a subordinate to refrain from performing a specific duty.... If the subordinate felt the order was unjust, he would have his opportunity to attack the decision before military tribunals. Congress established that procedure to address internal military matters. It obviously did not intend to supplement those internal military procedures through the enactment of § 1985(1).
716 F.2d at 631-632 (citations omitted). We find this reasoning to be persuasive, and we agree with the court in Mollnow that § 1985(1) does not authorize intramilitary actions of the type which Plaintiff seeks to bring in the present case.
For similar reasons, we find that Plaintiff cannot maintain an action against Defendants under § 1985(3). We believe that the potential for disruption of "the unique disciplinary structure of the military establishment," Chappell v. Wallace, 103 S.Ct. at 2367, presented by suits under § 1985(3) is as great as in the case of suits under § 1985(1), and perhaps even greater than that perceived in Feres with respect to suits under the Federal Tort Claims Act. See Hillier v. Southern Towing Co., 714 F.2d 714, 723 (7th Cir.1983). Thus, we cannot conclude that Congress intended to allow such intramilitary actions under § 1985(3), and Plaintiff's § 1985(3) claim must be dismissed. See Mollnow v. Carlton, 716 F.2d at 631-632. Since neither Plaintiff's § 1985(3) claim nor his § 1985(1) claim can stand, Plaintiff's § 1986 claim must also be dismissed. See, e.g., Mollnow v. Carlton, 716 F.2d at 632; Williams v. St. Joseph Hospital, 629 F.2d at 452.
For the reasons stated above, Defendants' motion to dismiss Plaintiff's complaint is granted.
NOTES
[1]  Section 1985 provides, in part, as follows:

(1) If two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof; or to induce by like means any officer of the United States to leave any State, district, or place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties; ...
(3) If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
Section 1986 provides as follows:
Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action; and if the death of any party be caused by any such wrongful act and neglect, the legal representatives of the deceased shall have such action therefor, and may recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if there be one, and if there be no widow, then for the benefit of the next of kin of the deceased. But no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued.
[2]  Although the Supreme Court's opinion in Chappell refers to suits by "enlisted military personnel," 103 S.Ct. at 2368, while in the present case Plaintiff was an officer rather than an enlisted man, Plaintiff does not suggest any reason, and we cannot find any, to distinguish the present case from Chappell on that basis. See Benvenuti v. Department of Defense, 587 F.Supp. 348, 353 (D.D.C.1984).
[3]  So called because the Supreme Court first authorized an action for damages against federal officials based directly on the Constitution in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).


799 S.W.2d 360 (1990)
Nick Davis BOYETT, Appellant,
v.
Jo Ann BOYETT, Appellee.
No. B14-89-00953-CV.
Court of Appeals of Texas, Houston (14th Dist).
October 11, 1990.
*361 D. Channing Bradshaw, Pasadena, for appellant.
Bruce A. Baughman, Baytown, for appellee.
Before ROBERTSON, SEARS and DRAUGHN, JJ.

OPINION
DRAUGHN, Justice.
This is an action for reformation of a divorce decree based on an agreed property settlement. The divorce decree, in accordance with the agreement of the parties, awarded the appellee-wife fifty percent of her husband's total retirement benefits commencing on the date of his retirement. The appellant-husband, alleging mutual mistake, argues that the trial court erroneously failed to reform the decree so as to limit the wife's part to one-half of the community interest in the husband's retirement benefits. We affirm.
*362 Appellant brings one point of error claiming that the trial court erred in entering judgment without correcting the value of appellant's retirement benefits in the decree. Appellant argues the evidence established that the parties intended to divide only the community interest in his retirement benefits as of the date of the divorce; and the decree, as signed, resulted in an improper divestment of his separate property benefits which will accrue based on his future employment. The provision of the decree in issue is as follows:
This Decree of Divorce shall be a "qualified domestic relations order" pursuant to section 414(p) of the Internal Revenue Code. In compliance with that provision, the following is ORDERED and specified:
1. This qualified domestic relations order assigns a portion of the benefits payable in the Pension and Retirement Plan ("the Plan") at E.I. duPont de Nemours and Company, Incorporated, to JO ANN BOYETT in recognition of the existence of her marital rights in NICK DAVIS BOYETT's retirement benefits as defined by Texas law in Berry v. Berry, 647 S.W.2d 945 (Tex.1983).
. . . . .
4. On the date of this divorce, Participant's present accrued benefit for retirement at normal retirement age under the Plan with a joint and survivor annuity benefit is:
At age 58$1,721.00 per month;
At age 62$2,618.00 per month;
At age 65$2,859.00 per month.
5. As part of a just and right division of the estate of the parties, the Court awards, assigns, and grants to Alternate Payee [Jo Ann Boyett] fifty percent (50%) of Participant's present accrued benefit.... Alternate Payee shall have the right to elect any form of benefits permitted by the Plan as of the date Alternate Payee elects to begin receiving benefits.
Appellant, who was 41 years old at the time of divorce, argues that the numbers listed in the decree actually represent the total projected value of his retirement plan which will only accrue if appellant continues his employment until he reaches retirement age. He alleges that the correct discounted "present accrued benefit" of his retirement plan would be as follows:
At age 50$256.00 per month;
At age 65$1,022.00 per month.
Generally, agreed judgments, once rendered, are contracts between the parties that excuse error and operate to end all controversy between the parties. Wagner v. Warnasch, 156 Tex. 334, 339, 295 S.W.2d 890, 893 (1956). However, appellant correctly observes that an agreed judgment can be reformed for mutual mistake in the underlying agreement. To be entitled to reformation, a party must prove that there has been "a definite agreement between the parties that has been misstated in the written memorandum because of a mistake common to both contracting parties." Champlin Oil & Refining Co. v. Chastain, 403 S.W.2d 376, 382 (Tex.1965). Marital property agreements, even if incorporated into a final divorce decree, are treated as contracts and the law of contracts then governs interpretation of the decree's legal force and meaning. Allen v. Allen, 717 S.W.2d 311, 313 (Tex.1986).
Appellant contends that the incorporation of the incorrect value of his retirement fund makes the decree unenforceable. Labeling appellant's total future monthly retirement payment as his "present accrued benefit" created a latent ambiguity in the decree. Further, stating that the award was "in recognition of the existence of [appellee's] marital rights in [appellant's] retirement benefits as defined in Berry v. Berry" creates another ambiguity as Berry expressly disallows any award of postdivorce retirement benefits by the court as an improper invasion of separate property. Berry v. Berry, 647 S.W.2d 945, 947 (Tex. 1983). Resolution of the ambiguity turns on the intentions of the parties and the surrounding circumstances. Hutchings v. Bates, 406 S.W.2d 419, 420 (Tex.1966). Extrinsic evidence is admissible to clarify the surrounding circumstances. Johnson v. Johnson, 572 S.W.2d 364, 366 (Tex.Civ. App.Amarillo 1978, no writ).
*363 Appellant's contentions, if true, clearly show a unilateral mistake on his part in providing the specific projected monthly payments, which represent the full future value of his retirement account, to his attorney for negotiation purposes. However, there is no evidence in the record at the hearing on appellant's motion to repudiate that the appellee agreed to receive only her community interest in the plan. Appellee testified that it was the agreement of the parties that she would receive one-half of appellant's monthly retirement payments, as represented to her, whenever he became eligible for them. There is no dispute that she was furnished the specific valuations enumerated in the decree, of which she was to receive one-half when they were paid, and it was on the basis of these specific amounts that she consented to the agreement. The fact that the figures furnished to appellee may have been erroneously referred to as appellant's "present accrued benefit" is of no consequence. There is no evidence to show that she would have consented to the considerably lower monthly amounts represented by the present community value of the payments. To the contrary, we find the wife's testimony reflects that she expected to receive one-half of the husband's total retirement benefits and that her acceptance of the agreement was grounded on receiving one-half of these specific monthly payments furnished by her husband. Supportive of this conclusion is the fact that she would have been entitled to the lesser monthly retirement payments as her portion of the community estate without the necessity of any agreement on her part. Also, her testimony that she never inquired as to the present discounted value of the retirement benefits representing the community interest in the fund buttresses the conclusion that she was persuaded to accept the agreement because of the specific amounts presented to her.
Consequently, appellant's contention that appellee's share of his retirement benefits should be reduced due to a mutual mistake as to their correct value finds no support in the record. What is reflected in the record is ample testimonial evidence of a consensual agreement between the parties to equally divide the specific monthly pension amounts as set out in the final decree signed by the trial judge. Cluck v. Cluck, 699 S.W.2d 246, 249 (Tex.App.San Antonio 1985, writ ref'd n.r.e).
Appellant argues further that it was an impermissible divestment of his separate property to award his wife one-half of his monthly retirement payments which included post-divorce increases to his retirement fund. See Berry v. Berry, 647 S.W.2d 945 (Tex.1983); Cameron v. Cameron, 641 S.W.2d 210 (Tex.1982); Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex. 1977). Appellant's reliance on these cases is misplaced. Divestiture of separate property is not allowed when the parties' community estate is divided by the court. A "judicial divestiture of separate property would essentially disregard the constitutionally mandated distinction" between community and separate property. Cameron, 641 S.W.2d at 213 (emphasis added). Here, however, we have an agreed property settlement.
Appellant's position finds little precedential support in case law. Rather, parties to a divorce are free to bargain away their separate property in settlement agreements. Walker v. Walker, 691 S.W.2d 102, 105 (Tex.App.San Antonio 1985, no writ); Simpson v. Simpson, 387 S.W.2d 717, 720 (Tex.Civ.App.Eastland 1965, no writ). The Texas Family Code authorizes written agreements concerning the division of a couple's property and liabilities and, in the subsequent divorce proceeding, the terms of the agreement are binding on the court unless it finds that the agreement was not just and fair. TEX.FAM. CODE ANN. § 3.631 (Vernon Supp.1990); Patino v. Patino, 687 S.W.2d 799, 802 (Tex.App.San Antonio 1985, no writ). Thus, with a binding settlement agreement before it, the court may divide the estates of the parties by setting forth the property settlement agreement in the decree or incorporating the agreement by reference into the decree. McCaskill v. McCaskill, 761 S.W.2d 470, 473 (Tex.App.Corpus Christi 1988, writ denied). Here the court *364 did the former finding the agreement to be just and fair and we find no abuse of discretion in his decision.
There can be no claims of unconstitutional divestment of separate property when stipulations or agreed settlements are before the trial court. Court approval of such agreements does not operate as a divestiture of a party's separate property. The court's approval and signature merely ratifies and confirms the prior actions of the parties in so dividing their property. Simpson, 387 S.W.2d at 720. In this regard, the Texas Supreme Court has held that court approval of a settlement agreement granting future support payments to the wife should not be invalidated as alimony. Francis v. Francis, 412 S.W.2d 29, 33 (Tex.1967).
There is sufficient evidence in the record to find that the parties intended to enter into a binding settlement agreement and that the divorce decree reflected that agreement. Appellant's belated assertion that his retirement benefits were incorrectly valued, while perhaps true, does not change the final result. He may well have made a mistake, but that does not make the mistake mutual and binding on his wife. The appellant has shown no evidence of mutual mistake that would merit a reformation. We overrule appellant's point of error and affirm the judgment.


897 So.2d 1028 (2004)
Ex parte W.L. HALSEY GROCERY CO.
(In re W.L. Halsey Grocery Co.
v.
The Merchants Company, Inc., et al.).
1030863.
Supreme Court of Alabama.
September 3, 2004.
*1030 Morris J. "Mo" Brooks, Jr., and Joseph D. "Joe" Aiello of Leo & Brooks, LLC, Huntsville, for petitioner.
Walter A. Dodgen, Jr., and William R. Lunsford of Balch & Bingham, LLP, Huntsville; and David M. Ott of Bryan Nelson, P.A., Hattiesburg, Mississippi, for respondents The Merchants Company, Inc.
Kenneth O. Simon, Melissa Boles Horner, and Jennifer Thompson of Christian & Small, LLP, Birmingham, for respondents Harold Henson, Stephen Neeley, Randy Lindsey, and Charles Cornelison.
HOUSTON, Justice.
W.L. Halsey Grocery Co. ("Halsey"), the plaintiff in an action pending in the Madison Circuit Court, seeks a writ of mandamus compelling the trial court to vacate its order of January 30, 2004, which eliminated a protection afforded to Halsey by a confidentiality agreement entered into between Halsey and the defendants, the Merchants Company a/k/a The Merchants Company, Inc. ("Merchants"), and Harold L. Henson, Stephen C. Neeley, Randy H. Lindsey, and Charles Cornelison (the individual defendants are hereinafter collectively referred to as "the employee defendants"). We grant the petition and issue the writ.
Halsey has been in the wholesale food business since 1879, marketing food products in Alabama and Tennessee. The employee defendants are former Halsey employees who were hired by Merchants. The employee defendants had each executed a nonsolicitation agreement when they were employed by Halsey. After Merchants had hired the employee defendants, Halsey sued Merchants and the employee defendants, alleging that the employee defendants had breached their fiduciary duties to Halsey (disclosing or using Halsey's proprietary and confidential information and trade secrets to Halsey's competitive disadvantage) and had breached their nonsolicitation agreements by soliciting Halsey's customers during a one-year nonsolicitation period; that Merchants had tortiously interfered with the nonsolicitation agreements between Halsey and each employee defendant; and that Merchants and the employee defendants had tortiously interfered with Halsey's business relations with Halsey's customers, had misappropriated Halsey's trade secrets, and had conspired to do the foregoing.
Discovery began and the defendants submitted to Halsey extensive interrogatories and requests for production, which included a request that Halsey produce its financial statements; its federal and state income tax returns for the years 1999-2003; any computer files related to Halsey's customers or sales for the years 1999-2003; Halsey's general ledger for the years 2000-2003; Halsey's balance sheet, audited financial statements, and tax returns for its year end for the years 1998 to date; and Halsey's complete customer list with historical sales information for each month from 1999 to date of production, identified by the salesman assigned to that customer.
Because the information sought by the defendants included highly sensitive customer research, the parties negotiated a confidentiality agreement to protect Halsey's *1031 customer information and any trade secrets and to prevent a party from using discovery to gain an unfair competitive advantage. The "Confidentiality Agreement and Protective Order" ("the agreement") permitted the designation of sensitive data as "protected information." This "protected information" was classified as either "confidential" or "restricted confidential." "Confidential" information was defined in the agreement as information a party believed revealed
"business, financial, competitive, proprietary, trade secret or other information otherwise unavailable to the public, the disclosure of which would cause the producing Party competitive harm or is of a sensitive nature about the Party... and which is not generally made publicly available."
(Emphasis added.) The agreement defined "restricted confidential" information as information a party believed revealed "business, financial, competitive, proprietary, trade secret or other information of a highly sensitive nature about the Party." (Emphasis added.) While the agreement allowed "officers, directors, and employees of any Party" access to confidential information, those persons were denied access to restricted confidential information. Only persons such as outside counsel for the parties, independent experts, and consultants had access to both confidential and restricted confidential information. Information not classified as confidential or restricted confidential was not protected from public access.
In addition, paragraph 15 of the agreement stated:
"The designation of Protected Information by the producing Party or Person may be modified or eliminated..., provided that the Parties or Persons must negotiate in good faith regarding any disputes over the designation of Protected Information before presenting the dispute to the Court.

"....
"If the Parties or Persons cannot agree as to the designation of any particular information or material, the receiving party or person may move the Court to downgrade or eliminate the Confidential or Restricted Confidential designation. The burden of proving that the information has been properly designated shall be on the Party or Person who made the original designation."
(Emphasis added.)
The trial court approved the agreement. Halsey then filed its responses to the defendants' requests for production. Although objecting to some requests, Halsey produced 6,340 pages of documents. Halsey designated most of those documents, approximately 5,879 pages, as "highly confidential," a term that all parties agree is the equivalent of "restricted confidential." Halsey designated as "highly confidential" documents such as its customer price volume report, financial statements, tax returns, and sales evaluations of the company as a whole and of individual salesmen. The consumer price volume report is a spreadsheet-style document spanning 4,723 pages, which constitutes approximately 75% of the pages produced and approximately 80% of the pages designated "highly confidential."
On Wednesday, January 7, 2004, counsel for Merchants faxed a letter to Halsey's counsel.[1] The letter charged Halsey's counsel with abusing the "highly confidential" *1032 classification. The penultimate paragraph of the letter states:
"We have a hearing on Friday [January 9, which was continued until January 30] and I fully intend to bring this subject up to the Judge. I will be filing a very short motion tomorrow and serving it by fax. Accordingly, I would appreciate your response if you will voluntarily withdraw these designations prior to noon on Thursday, January 8."
The next day, January 8, Merchants filed a motion requesting that the court "remov[e] the highly confidential designation from all of the documents produced" (emphasis added). The motion further stated, in paragraph 6:
"Also attached as Exhibit B is correspondence sent to counsel for the plaintiff requesting, pursuant to the terms of the [agreement], that the designations be removed. At this point in time, they have refused to remove those designations or to amend any of them."
Attached as Exhibit B to that motion was the letter faxed to Halsey's counsel the previous evening. Halsey responded to Merchants' motion on January 26. In its motion, Halsey argued that Merchants had failed to "negotiate in good faith" as required by the agreement and also argued that many of its designations of highly confidential material were meritorious.[2] On January 29, 2004, counsel for Merchants sent another letter to counsel for Halsey. This letter concerned disputed discovery requests made by Halsey of Merchants. On page 3 of this letter, counsel for Merchants stated, "Merchants retains the right to designate all or a portion of the referenced documents `Confidential' or `Restricted Confidential' in accordance with [the agreement]."
On January 30 a hearing was held concerning, among other issues, Merchants' motion to alter Halsey's designations. According to Merchants' own brief to this Court, it argued at the January 30 hearing that "the two-tiered Protective Order [i.e., the agreement classifying documents as `confidential' and `restricted confidential'] was unworkable in its current form" (emphasis added). That day, the trial court ordered that the agreement be amended "to allow access to parties in this lawsuit to documents designated as highly confidential. This allows [Halsey] to prove damages prospectively and allows the Defendants to participate in the defense of their case."
On February 6, 2004, Halsey filed a motion to reconsider the trial court's order modifying the agreement, which the trial court denied the same day. However, the trial court granted Halsey's motion seeking to extend the time in which the documents designated as "highly confidential" were to be nondisclosable. The trial court ordered that time be extended "until Halsey's petition is ruled on by the Alabama Supreme Court." Halsey timely filed this petition for the writ of mandamus on March 10, 2004.

Standard of Review
Although this Court "cannot afford immediate mandamus review of every discovery order," Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810, 813 (Ala.2003), where a petitioner alleges that a privilege is disregarded, id., or that a discovery order is so broad that the costs of production outweigh the benefits, id., this Court will examine such a petition for mandamus. In determining whether mandamus relief *1033 is appropriate in such cases, we are mindful of the following:
"`Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.'"
Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala.2003) (quoting Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)). In reviewing a petition for a writ of mandamus concerning a trial court's rulings on a discovery matter, the issue is whether in ruling on the discovery matter the trial court exceeded its discretion. Ex parte Ocwen, 872 So.2d at 813.

Analysis
Halsey's first argument is that in amending the agreement to allow the parties access to information designated as restricted confidential the trial court exceeded its discretion. Halsey argues that it negotiated the agreement with Merchants and the employee defendants in good faith and that the parties were entitled to the benefit of their bargain. Moreover, Halsey contends, the trial court acted sua sponte in amending the agreement. The defendants argue that the trial court gave them the exact relief they requested and that the trial court was entirely within its discretion in amending the agreement to allow the defendants access to information classified as restricted confidential.
As noted above, the defendants requested the trial court to "remov[e] the highly confidential designation from all of the documents produced" (emphasis added). The trial court's ruling accomplished just that. The court clearly was not acting sua sponte in issuing its order.
In its motion to reconsider filed in the trial court, Halsey's first argument was that the defendants failed to negotiate with Halsey in good faith before seeking the trial court's intervention in amending the agreement. Given the events detailed above, the stark reality appears to be that the defendants failed to act in good faith and that the trial court abdicated its role in holding the parties to the terms of the agreement. However, because Halsey did not raise this argument on appeal, we are unable to grant the petition on this basis. Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988).
We undertake, then, to evaluate the trial court's ruling independently of the issue of good-faith negotiation. Presuming that the defendants' actions constituted good-faith negotiation with Halsey, we cannot say that the trial court exceeded its discretion. The agreement clearly allows the trial court to "downgrade or eliminate the Confidential or Restricted Confidential designation," and places the burden of proof as to whether the designation of certain documents should be downgraded or eliminated on the producing party, in this case Halsey. Given this, we certainly cannot say that Halsey has demonstrated a "clear legal right" to relief on the basis of the agreement.
In the alternative, Halsey argues that the trial court's order cannot stand because, it says, the order would allow the disclosure of trade secrets, which Halsey argues are protected by the Alabama Trade Secrets Act, Ala.Code 1975, §§ 8-27-1 through 8-27-6 ("the ATSA"), especially following this Court's decision in Ex parte Miltope Corp., 823 So.2d 640 (Ala.2001). In Miltope, the trial court ordered Miltope Corporation to make various documents available to various people, including an adverse party, who had left Miltope *1034 Corporation to work for a competitor. 823 So.2d at 642. We held that even though the plaintiff agreed not to use the information for competitive purposes, much of the information was Miltope Corporation's trade secret and deserved greater protection than what the trial court had afforded. Miltope, 823 So.2d at 644-45.
The ATSA defines a trade secret as information that:
"a. Is used or intended for use in a trade or business;
"b. Is included or embodied in a formula, pattern, compilation, computer software, drawing, device, method, technique, or process;
"c. Is not publicly known and is not generally known in the trade or business of the person asserting that it is a trade secret;
"d. Cannot be readily ascertained or derived from publicly available information;
"e. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; and
"f. Has significant economic value."
Ala.Code 1975, § 8-27-2.
In the case before us, the information Halsey seeks to protect appears to meet the definition of a trade secret. The documents designated as highly confidential are used to forecast sales, to determine what prices should be quoted to certain customers, to create financial statements, to pay taxes, and to conduct other standard business practices. Clearly they are "used or intended for use in a trade or business." Ala.Code 1975, § 8-27-2(a).
The consumer price volume report and Halsey's financial statements, tax returns, and sales evaluations are all created by assembling information from different sources and combining them into one document  be it a report, a statement, or a tax return. This appears to meet the definition of a "compilation" and to fulfill the second element of a trade secret under the ATSA. Ala.Code 1975, § 8-27-2(b).
Halsey refers us to numerous documents and to an affidavit swearing that the information contained in Halsey's files is "not publicly known and is not generally known" by those in the grocery business. Ala.Code 1975, § 8-27-2(c). While a diligent competitor could determine individual figures for certain of Halsey's customers, the average businessman in the grocery trade will not know all the information that Halsey has amassed.
In addition, the information Halsey seeks to protect "[c]annot be readily ascertained or derived from publicly available information." Ala.Code 1975, § 8-27-2(d). As Halsey explains, much of the information that it has gathered is based upon its own transactions with customers, not upon a publicly advertised "price" that Halsey charges or that a customer will pay.
When Halsey hires a new employee, Halsey requires the employee to sign a confidentiality and nonsolicitation agreement. This nonsolicitation agreement explicitly informs the employee that much of the information to which the employee will have access is "trade secret and other confidential information." In the nonsolicitation agreement the employee agrees to keep such information confidential and not to use such information to compete with Halsey. After each of the employee defendants left Halsey's employ to join Merchants, Halsey's president and chief executive officer sent a letter to each employee defendant, reminding him of the terms of the nonsolicitation agreement. Halsey's actions in requiring employees to sign the nonsolicitation agreement informing the employees of the confidential nature of the information to which the employee will be exposed sufficiently reflect "efforts that *1035 are reasonable under the circumstances to maintain [the] secrecy" of Halsey's information. Ala.Code 1975, § 8-27-2(e).
Finally, the efforts to preserve the confidentiality of this information  as embodied in the nonsolicitation agreement, the agreement, and this petition for mandamus  not to mention the sheer utility of Halsey's actual information, make clear that this information "[h]as significant economic value." Ala.Code 1975, § 8-27-2(f).
Because this information appears to meet the definition of a "trade secret" in the ATSA we rely upon Ex parte Miltope for the resolution of this issue. Like Miltope Corporation, Halsey has been ordered by the trial court to produce information that can be disclosed to, among others, adverse parties to the litigation. Like the defendant in Miltope, the employee defendants left Halsey to work for a competitor. In Miltope, we ordered trade-secret protection despite a protective order prohibiting the defendant from using discovered information for competitive purposes. Miltope, 823 So.2d at 642. Here, because the trial court removed the protections from all documents designated as highly confidential, this information is no longer insulated from use by the defendants for competitive purposes.
For these reasons, we conclude that Halsey's information is of similar value to the information at stake in Miltope and that it deserves similar protection. Consequently, we hold that much of Halsey's information is a trade secret and that it is entitled to protection in excess of that provided in the normal discovery process. However, because we do not have the documents before us, we do not hold that all of the documents contain trade-secret information entitled to heightened protection; rather, we order the trial court to conduct a hearing to determine which documents are entitled to trade-secret protection and which documents are not entitled to that protection.
Rule 507, Ala. R. Evid., provides that when a person is ordered to disclose a trade secret, the trial court "shall take such protective measures as the interests of the holder of the privilege and of the parties and the interests of justice require." Of course, the trial court has considerable discretion in how it protects these interests.
Because Halsey has shown that it has a clear legal right to the relief sought, we grant the petition and order the trial court to protect Halsey's trade-secret information to the maximum extent practicable, striking a fair and reasonable balance between Halsey's legitimate interest in confidentiality and the defendants' equally legitimate interest in defending the claims against them with the benefit of discovery.
PETITION GRANTED; WRIT ISSUED.
NABERS, C.J., and SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.
NOTES
[1]  Halsey alleges that this letter was faxed at 5:33 p.m. on January 7. Merchants does not dispute this allegation.
[2]  However, Halsey did remove the highly confidential designation from 320 pages of documents.


Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                FILED
                                                             Feb 01 2013, 9:02 am
any court except for the purpose of
establishing the defense of res judicata,                           CLERK
collateral estoppel, or the law of the case.                      of the supreme court,
                                                                  court of appeals and
                                                                         tax court

ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

ELIZABETH A. BELLIN                               GREGORY F. ZOELLER
Cohen Law Offices                                 Attorney General of Indiana
Elkhart, Indiana
                                                  MICHAEL GENE WORDEN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana

                               IN THE
                     COURT OF APPEALS OF INDIANA

THERESA PRESSINELL,                               )
                                                  )
       Appellant-Defendant,                       )
                                                  )
               vs.                                )       No. 20A03-1206-CR-267
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )

                     APPEAL FROM THE ELKHART CIRCUIT COURT
                         The Honorable Terry C. Shewmaker, Judge
                              Cause No. 20C01-0605-FA-39

                                       February 1, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

SHEPARD, Senior Judge
       Appellant Theresa Pressinell pled guilty to two counts of dealing in

methamphetamine, and the trial court sentenced her to concurrent terms of thirty-five

years. She asks us to review and revise her sentence. We affirm.

                        FACTS AND PROCEDURAL HISTORY

       An individual cooperating with the Elkhart County Interdiction and Covert

Enforcement Unit made two controlled buys from Pressinell during April and May 2006.

This individual had been working with the authorities for some time and had purchased

meth from Pressinell in the past.

       Based on these two purchases, the police obtained a search warrant for Pressinell’s

home. Executing the warrant proved something of a challenge. The occupants would not

open the door, and the police found it necessary to use a ram. Once inside, they found

numerous clear plastic bags containing altogether some twenty-three grams of meth,

which Pressinell acknowledged were hers.         The officers also discovered digital scales

and multiple items of paraphernalia. They arrested Pressinell at the scene.

       The State filed three counts: two class A felony counts alleging dealing in meth

and one class B felony count also alleging dealing in meth. In accordance with an

agreement, Pressinell pled guilty to the two class A charges, in return for dismissal of the

class B charge and the promise that the penalties for the two counts would be concurrent

and capped at thirty-five years.

                                          ISSUE

       Was the penalty of thirty-five-year concurrent sentences inappropriate?

                                             2
                            DISCUSSION AND DECISION

      Pressinell seeks reduction of her sentence, citing this Court’s authority to review

and revise a sentence when an appellant demonstrates that the sentence is inappropriate in

light of the nature of the offense and the character of the offender. Ind. Appellate Rule

7(B). In assessing such a claim, we consider the culpability of the offender, the severity

of the crime, the injury or damage done to others, and anything else that might be

relevant. Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008).

      The trial court’s sentencing order described the circumstances it deemed important

to the ultimate sentence. The court noted the defendant’s previous criminal record: one

failure to appear, two misdemeanors, and one felony. This last conviction was, like the

current ones, for a meth offense, and she had been given a ten-year suspended sentence

with two years of probation.      The court observed that the probation afforded the

defendant had been wholly unsuccessful.

      The court also noted that the defendant had been conducting her meth business in

a home where two juveniles lived (indeed, it was Pressinell’s thirteen-year-old son who

first approached the door when the police came to the home). It observed that the

defendant had an addiction problem and it recognized her acceptance of responsibility,

but the court concluded that all things considered the appropriate sentence was just above

the thirty-year advisory sentence embodied in the Code for class A felonies. Ind. Code §

35-50-2-4 (2005).

      Pressinell contends that the purchaser who was cooperating with the police was

motivated by the chance to mitigate his own legal problems, taking advantage of what he

                                            3
knew to be her addiction. She also says that there was no evidence she was selling to

persons other than the purchaser in this case. Appellant’s Br. p. 10. This contention that

the trial court wrongly omitted mitigating circumstances is analyzed in accordance with

abuse of discretion. Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified on reh’g,

875 N.E.2d 218 (2007). The State replies that there was no evidence presented at the

sentencing hearing on these points, only argument by counsel. See Tr. pp. 37-38. As far

as whether Pressinell was selling only to this purchaser, the evidence indicates she was

supplying meth to a dealer and dealing to numerous individuals in the Goshen area.

Appellant’s App. p. 60. In any event, the trial court could well have regarded the volume

of meth in the home and its existence in a good many packages as contradicting her

claim. We see no abuse of discretion as respects the trial court’s findings on this point.

       Counsel also urges that appellant’s acceptance of responsibility and her relapse

into the world of drugs are grounds for a reduced sentence. The trial court, of course, did

explicitly take these into account in determining the sentence.

       The range of sentencing available for these two class A offenses was twenty to

fifty years, with the advisory sentence at thirty. We are not persuaded that the trial

court’s imposition of thirty-five years was inappropriate.

                                      CONCLUSION

       We affirm the judgment of the trial court.

MAY, J., and BRADFORD, J., concur.

                                             4


404 F.2d 364
CHRIS BERG, INC.v.The UNITED STATES.
No. 15-65.
United States Court of Claims.
December 13, 1968.

Stuart G. Oles, Seattle, Wash., attorney of record, for plaintiff. Allen, DeGarmo & Leedy, Seattle, Wash., of counsel.
Ray Goddard, Washington, D. C., with whom was Asst. Atty. Gen. Edwin L. Weisl, Jr., for defendant.
Before COWEN, Chief Judge, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges.
OPINION
PER CURIAM:

1
This case was referred to Trial Commissioner W. Ney Evans with directions to make findings of fact and recommendations for conclusions of law under the order of reference and Rule 57(a). The commissioner has done so in an opinion and report filed on December 19, 1967. Exceptions to the commissioner's findings of fact were filed by plaintiff and exceptions to the commissioner's findings of fact and recommendation for conclusion of law were filed by defendant. The case has been submitted to the court on oral argument of counsel and the briefs of the parties. Since the court agrees with the commissioner's opinion, findings and recommended conclusion of law, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case. Therefore, plaintiff is entitled to recover and judgment is entered for plaintiff with the amount of recovery to be determined pursuant to Rule 47(c).

OPINION OF COMMISSIONER
EVANS, Commissioner:

2
Plaintiff undertook a contract with the Navy (acting for the Coast Guard) to build a loran (long-range aid to navigation) station on Marcus Island, a remote atoll in the far Pacific. The contract documents represented that Marcus Island was "* * * well outside the normal typhoon zone." One damaging typhoon struck the island 3 weeks before the contract was signed, and four other typhoons occurred within the ensuing 12 months of construction. Plaintiff applied to the contracting officer for relief from its extra costs and appealed his denial of the claim to the Armed Services Board of Contract Appeals, which dismissed the appeal for lack of jurisdiction over a claim founded on alleged misrepresentation. Plaintiff thereupon filed suit in this court.

3
On the basis of the findings of ultimate fact (Findings 8 and 9) it is my opinion that plaintiff is entitled to recover.

FINDINGS OF ULTIMATE FACT

4
8. Plaintiff's reliance upon defendant's representations concerning weather conditions at Marcus Island was warranted,1 and the interpretations drawn therefrom and the assumptions made by plaintiff in reliance thereon were reasonable.2

5
9. Defendant's representation that "Marcus Island is considered to be well outside the normal typhoon zone" was misleading, as the representatives of both the Coast Guard and the Navy reasonably should have known, considering the art of meteorological science and generally known to exist in 1962.3

CONCLUSION OF LAW

6
On the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is entitled to recover and judgment is entered to that effect. Determination of the amount of recovery will be made in further proceedings pursuant to Rule 47(c).

Notes:

1
 All information available was accessible to defendant and only to defendant

2
 Defendant's position in this case concerningaverage conditions and wind velocity of 65 knots or greater is overly technical.

3
 The testimony of plaintiff's expert witness warrants the conclusion that no trained meteorologist would have endorsed so sweeping a statement as late as 1962. The representatives of the Coast Guard and the Navy would have been well advised to seek professional advice before drafting either the site survey or the contract documents. Their failure to do so is dramatized by the fact that only the coincidence of Typhoon Emma in October 1962 may have saved the entire installation from destruction by a typhoon at a later date


                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT

STEPHEN B. RIZOTI; GREGORY H.           
PLEMMONS,
               Plaintiffs-Appellants,
                 v.                               No. 03-1159

HAROLD PLEMMONS,
             Defendant-Appellee.
                                        
           Appeal from the United States District Court
     for the Western District of North Carolina, at Statesville.
              Richard L. Voorhees, District Judge.
                        (CA-01-160-5-V)

                      Argued: September 25, 2003

                      Decided: December 5, 2003

        Before WILKINS, Chief Judge, and WIDENER and
                   LUTTIG, Circuit Judges.

Affirmed by unpublished per curiam opinion.

                             COUNSEL

ARGUED: Christopher D. Lane, MCELWEE LAW FIRM, P.L.L.C.,
North Wilkesboro, North Carolina, for Appellants. Cynthia
Van Horne McNeely, POYNER & SPRUILL, L.L.P., Charlotte,
North Carolina, for Appellee. ON BRIEF: William H. McElwee, III,
MCELWEE LAW FIRM, P.L.L.C., North Wilkesboro, North Caro-
lina, for Appellants. E. Fitzgerald Parnell, III, POYNER & SPRUILL,
L.L.P., Charlotte, North Carolina, for Appellee.
2                          RIZOTI v. PLEMMONS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

                                OPINION

PER CURIAM:

   Stephen B. Rizoti (Rizoti) and Gregory H. Plemmons (Plemmons)
(collectively, "Plaintiffs") appeal a district court order granting sum-
mary judgment against them in their action against Harold Plemmons
("Defendant"), arising from an alleged breach of an agreement to
form a business. Finding no error, we affirm.

                                    I.1

   Defendant is the founder and former president of Golden Needles
Knitting, Inc. (Golden Needles), a North Carolina glove manufactur-
ing company. In April 1997, Defendant sold the company to Ansell
Protective Products, Inc. (Ansell). In conjunction with the sale,
Defendant signed a noncompete agreement, under which he was to
receive $6.8 million plus interest at the expiration of a three-year non-
compete period.

   Rizoti was employed by Golden Needles from 1992 to 1997 and
subsequently by Ansell. Defendant approached Rizoti in early 1998
about founding a new glove business in Wilkes County, North Caro-
lina. Rizoti was receptive to the idea, and Defendant subsequently
asked him to produce a business plan for the new business. In the
months that followed, Defendant advised Rizoti regarding revisions
to the plan and, in June 1999, directed Rizoti to discuss their plan
with Charlie Drum, another Ansell employee. Defendant also encour-
aged Rizoti to invite Plemmons, who is Defendant’s nephew and who
had worked in the glove industry in various capacities since 1989, to
become involved in the new business.
    1
    Because the district court granted summary judgment against Plain-
tiffs, we view the forecasted evidence in the light most favorable to them.
See Figgie Int’l, Inc. v. Destileria Serralles, Inc., 190 F.3d 252, 255 (4th
Cir. 1999).
                         RIZOTI v. PLEMMONS                         3
   In October 1999, at Defendant’s Florida home, Plaintiffs and
Defendant reached an oral agreement to go into business together.
Under the agreement, Rizoti, Plemmons, and Defendant would each
be one-third owners; Rizoti and Plemmons would manage the compa-
ny’s day-to-day business; and Defendant would contribute the $6.8
million plus three years of interest that he expected to receive from
his noncompete agreement. As part of the agreement, Defendant also
promised to serve as company president; "to contribute his skill,
knowledge, experience and contacts in the glove manufacturing busi-
ness to the new business"; "to be involved in all large business mat-
ters, entertain the larger business customers, attend all the national
shows, and participate in negotiating contracts for the new business";
to "be an integral part of the new business’ marketing and manage-
ment team"; and "to use his leverage in the glove industry to help the
success of the new business." J.A. 10-11.

   On November 18, 1999, Plaintiffs incorporated the business as
"Platinum Protective Products, Inc." (Platinum). Soon thereafter, they
left their respective jobs to work for Platinum full-time. Plaintiffs
obtained $1,000,000 in startup financing from Ralph and Mark
Atwood, through the Atwoods’ company, the Red Steer Glove Com-
pany. And, as part of an effort to maintain the appearance that Defen-
dant was not yet involved in the business—and thus, not competing
with Ansell—Plaintiffs entered into a formal shareholder agreement
with the Atwoods stating that the Atwoods owned 40 percent of Plati-
num, and Plaintiffs each owned 30 percent.

   In the months that followed, Defendant continued to advise Plain-
tiffs on many topics relating to Platinum and even personally
recruited some employees. Throughout this time, Defendant repeat-
edly reassured Plaintiffs that he would perform as promised when his
noncompete agreement expired. On April 25, 2000, the day after the
expiration of the noncompete agreement, Drum called Rizoti and told
him that Defendant would soon have the money from the noncompete
agreement. However, Drum also told Rizoti that Defendant would
never become a part of Platinum. Still, when Rizoti called Defendant
the next morning and asked him about Drum’s assertion, Defendant
insisted that Drum did not speak for him.

   By June 2000, although Defendant continued to reassure Plaintiffs
that he would soon be joining them as planned, he still had not pro-
4                           RIZOTI v. PLEMMONS
duced the capital for Platinum. On June 15, Defendant discussed with
the Atwoods the possibility of purchasing their Platinum shares;
although the Atwoods were generally receptive, the parties failed to
reach an agreement. At the conclusion of this meeting, Defendant
asked Rizoti for Platinum’s current financial statements and its sales
and profit projections. And, Defendant again confirmed that he would
soon be involved with the company. Five days later, however, he
informed Plaintiffs that he would neither make the capital contribu-
tion he had promised nor become a part of Platinum. As a result,
Plaintiffs’ shares of Platinum lost all value.

   Plaintiffs subsequently sued Defendant in North Carolina Superior
Court for breach of contract, breach of fiduciary duty, ‘constructive
fraud, and violation of the North Carolina Unfair and Deceptive Trade
Practices Act (UTPA), see N.C. Gen. Stat. § 75-1.1 (2001). Defendant
removed the suit to the Western District of North Carolina, where the
district court granted summary judgment to Defendant on all causes
of action.

                                     II.

   We review the grant of summary judgment de novo, viewing the
facts in the light most favorable to Plaintiffs. See Figgie Int’l, Inc. v.
Destileria Serralles, Inc., 190 F.3d 252, 255 (4th Cir. 1999). Sum-
mary judgment is appropriate "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c).

                                     A.

  Plaintiffs first contend that the district court erred in ruling that the
contract claim was barred by the Florida statute of frauds.2 We dis-
agree.
    2
    Plaintiffs also challenge the alternative ruling that the alleged contract
was unenforceable because there was no meeting of the minds among the
parties on the issue of how and at what price Defendant would obtain a
third of the company. In light of our holding regarding the statute of
frauds, we do not address this issue.
                          RIZOTI v. PLEMMONS                            5
   Plaintiffs begin by arguing that the law of North Carolina, not that
of Florida, applies to the contract claim because the contract was to
be performed in North Carolina. That is incorrect. Under North Caro-
lina choice of law rules, which the parties agree govern this issue, the
validity and interpretation of a contract is generally governed by the
law of the state in which the contract was formed. See Tanglewood
Land Co. v. Byrd, 261 S.E.2d 655, 656 (N.C. 1980). However, the
general rule does not apply when "a contract is to be performed
wholly outside the state in which the contract was made." Cocke v.
Duke Univ., 131 S.E.2d 909, 913 (N.C. 1963) (emphasis added)
(internal quotation marks omitted). In that circumstance, the law of
the place of performance governs. See id. In their complaint and in
their deposition testimony, Plaintiffs assert that Defendant had no
intention of running Platinum’s day-to-day operations in North Caro-
lina, that the first national trade show Defendant was to attend for
Platinum was in Florida, and that Defendant was to entertain Platinum
customers at his Florida home. Thus, the record establishes as a mat-
ter of law that Defendant’s performance was not to take place wholly
outside of the state of formation, Florida. Florida law therefore gov-
erns the contract.

   Plaintiffs also argue that even if Florida law applies, the contract
claim is not barred by the statute of frauds because the contract was
capable of being performed within a year. Under Fla. Stat. Ann.
§ 725.01 (West 2000), "[n]o action shall be brought . . . upon any
agreement that is not to be performed within the space of 1 year from
the making thereof . . . unless the agreement or promise upon which
such action [is] brought . . . [is] in writing and signed by the party to
be charged."

    [W]hen no time is agreed on for the complete performance
    of the contract, if from the object to be accomplished by it
    and the surrounding circumstances, it clearly appears that
    the parties intended that it should extend for a longer period
    than a year, it is within the statute of frauds, though it cannot
    be said that there is any impossibility preventing its perfor-
    mance within a year.

Yates v. Ball, 181 So. 341, 344 (Fla. 1937).
6                         RIZOTI v. PLEMMONS
   Here, Plaintiffs’ argument that the contract claim is not barred by
the Florida statute of frauds might succeed if we focused only on
Defendant’s obligation to contribute financially to the company.
However, Plaintiffs have alleged in their complaint and depositions
that Defendant also agreed to make extensive use of his personal
skills, experience, and contacts. Moreover, in their respective deposi-
tions, Plemmons testified that he had anticipated doing business with
Defendant for "[a] number of years," and Rizoti had anticipated that
Defendant’s participation would last "five years at an absolute mini-
mum." J.A. 92, 117. Thus, it is clear that the parties intended that
Defendant’s performance would extend beyond one year.

   Plaintiffs also argue that the Florida statute of frauds does not bar
their contract claim because the contract was to enter into a joint ven-
ture and "[j]oint venture agreements are not required to be in writing,"
De Ribeaux v. Del Valle, 531 So. 2d 992, 993 (Fla. Dist. Ct. App.
1988). A "joint venture" is defined as "a special combination of two
or more persons, who, in some specific venture, seek a profit jointly
without the existence between them of any actual partnership, corpo-
ration, or other business entity." Fla. Trading & Inv. Co. v. River
Constr. Servs., 537 So. 2d 600, 602 (Fla. Dist. Ct. App. 1988) (inter-
nal quotation marks omitted). A joint venture "is limited to a specific
enterprise or object." Hayes v. H.J.S.B.B. Joint Venture, 595 So. 2d
1000, 1002 (Fla. Dist. Ct. App. 1992).

   Here, the alliance the parties allegedly sought to form was not
merely for some particular enterprise or object. Rather, the agreement
was to form a business that would have continued for an indefinite
duration. See Kislak v. Kreedian, 95 So. 2d 510, 514 (Fla. 1957)
(explaining that the term "joint adventure" refers "to a single transac-
tion" but not "to a general and continuing business of a particular
kind"); Weinsier v. Soffer, 358 So. 2d 61, 63 (Fla. Dist. Ct. App.
1978) (holding that "[a]n oral agreement to enter into a new business
which will continue indefinitely" is unenforceable under the statute of
frauds); see also Bross v. Wallace, 600 So. 2d 1198, 1199 (Fla. Dist.
Ct. App. 1992) (per curiam) (stating that enforcement of an oral
agreement to purchase a restaurant and franchise rights and "establish
an ongoing business" would be barred by the statute of frauds). Thus,
Plaintiffs have failed to create a genuine issue of fact regarding
whether the parties contracted to enter into a joint venture.
                          RIZOTI v. PLEMMONS                           7
   Plaintiffs further maintain that even if the statute of frauds would
otherwise bar their contract claim, Defendant is equitably estopped
from contesting the validity of his agreement by virtue of Defendant’s
repeated confirmations that he would become involved in the business
and infuse it with his capital. In rejecting the estoppel argument, the
district court properly relied upon Tanenbaum v. Biscayne Osteo-
pathic Hosp., Inc., 190 So. 2d 777 (Fla. 1966), in which the Florida
Supreme Court declined to "adopt by judicial action the doctrine of
promissory estoppel as a sort of counteraction to the legislatively cre-
ated Statute of Frauds." Tanenbaum, 190 So. 2d at 779. This reason-
ing controls here, and there is no indication that the Florida Supreme
Court would abandon that analysis were it presented with the facts
before us. In support of their argument that the district court erred,
Plaintiffs rely not on a subsequent Florida Supreme Court case, but
only on a lower court opinion that did not cite Tanenbaum and that
the Florida Supreme Court never reviewed. See Gleason v. Leader-
ship Housing, Inc., 327 So. 2d 101, 104-05 (Fla. Dist. Ct. App. 1976).
The district court therefore properly ruled that the contract claim was
barred by the Florida statute of frauds. See Doe v. Doe, 973 F.2d 237,
240 (4th Cir. 1992) (explaining that the function of this court in a
diversity case is to resolve the state law issues as we predict the high-
est court in the state would).

                                   B.

  Plaintiffs also maintain that the district court erred in granting sum-
mary judgment on their constructive fraud and breach of fiduciary
duty claims. We disagree.

   The parties agree that North Carolina law governs these causes of
action. In order to prove constructive fraud, a plaintiff must prove the
existence of a fiduciary duty. See Keener Lumber Co. v. Perry, 560
S.E.2d 817, 823 (N.C. Ct. App.), review denied, 568 S.E.2d 196 (N.C.
2002). A fiduciary duty arises when "there has been a special confi-
dence reposed in one who in equity and good conscience is bound to
act in good faith and with due regard to the interests of the one repos-
ing confidence." Curl v. Key, 316 S.E.2d 272, 275 (N.C. 1984) (inter-
nal quotation marks omitted). No such duty arises from a mere
contractual relationship. See Branch Banking & Trust Co. v. Thomp-
son, 418 S.E.2d 694, 699 (N.C. Ct. App. 1992).
8                          RIZOTI v. PLEMMONS
   Plaintiffs maintain that a fiduciary duty arises between parties to a
joint venture and that the district court erred in holding as a matter of
law that Plaintiffs and Defendant were not joint venturers. For the rea-
sons we have already discussed, however, we hold that the district
court correctly ruled as a matter of law that Plaintiffs and Defendant
were not joint venturers.

   Plaintiffs also argue that their view of Defendant as "the most
respected person . . . in the glove industry" and Plemmons’ nephew-
uncle relationship with Defendant gave rise to a fiduciary duty. J.A.
395. Although Plaintiffs’ experience was not as extensive as Defen-
dant’s, the gap was certainly not so great as to give rise to a fiduciary
duty. See Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d
331, 348 (4th Cir. 1998) (holding no fiduciary duty arose under North
Carolina law between franchisor and franchisees because franchisees
were "independent, sophisticated, if sometimes small, businessmen
who dealt with [the defendant] at arms’ length and pursued their own
business interests"). Indeed, Plemmons testified that, within the glove
industry, he and Rizoti "were known as folks that knew what [they]
were doing." J.A. 243. Nor was the fact that Defendant was Plem-
mons’ uncle sufficient to create a fiduciary relationship. See Benfield
v. Costner, 313 S.E.2d 203, 205 (N.C. Ct. App. 1984) (holding that
"a ‘mere family relationship’ is not . . . enough to establish a . . . fidu-
ciary relationship"). Thus, the district court properly granted summary
judgment against Plaintiffs on these causes of action.

                                    C.

  Plaintiffs next argue that the district court erred in granting sum-
mary judgment against them on the UTPA claim. We disagree.

   To state a UTPA claim, Plaintiffs must allege and show "(1) that
defendant committed an unfair or deceptive act or practice, or an
unfair method of competition; (2) in or affecting commerce; (3) which
proximately cause[d] actual injury to plaintiff[s]." B & F Slosman v.
Sonopress, Inc., 557 S.E.2d 176, 182 (N.C. Ct. App. 2001), review
denied, 560 S.E.2d 795 (N.C. 2002). "A practice is unfair when it
offends established public policy as well as when the practice is
immoral, unethical, oppressive, unscrupulous, or substantially injuri-
ous to consumers." Marshall v. Miller, 276 S.E.2d 397, 403 (N.C.
                          RIZOTI v. PLEMMONS                          9
1981). In a business context, "[i]t is well established that a mere
breach of contract, even if intentional, is not sufficiently unfair or
deceptive to sustain an action" under § 75-1.1. Computer Decisions,
Inc. v. Rouse Office Mgmt. of N.C., Inc., 477 S.E.2d 262, 266 (N.C.
Ct. App. 1996). To sustain a cause of action, Plaintiffs are required
to allege and prove that "substantial aggravating circumstances"
attended the breach. Id. Indeed, in any context, some kind of "egre-
gious or aggravating circumstances must be alleged and proved
before the Act’s provisions may take effect." Dalton v. Camp, 548
S.E.2d 704, 711 (N.C. 2001) (alterations & internal quotation marks
omitted). Additionally, when a UTPA claim is based on alleged mis-
representations, the plaintiff must show that the misrepresentations
complained of proximately caused them actual injury. See Barto-
lomeo v. S.B. Thomas, Inc., 889 F.2d 530, 535 (4th Cir. 1989) (apply-
ing North Carolina law); Mosley & Mosley Bldrs., Inc. v. Landin Ltd.,
389 S.E.2d 576, 579 (N.C. Ct. App. 1990).

   Plaintiffs contend that Defendant committed unfair or deceptive
acts not simply by intentionally breaching the contract, but rather, by
also repeatedly reassuring them of his continued commitment after
the contract was formed. However, Plaintiffs have failed to forecast
evidence establishing a prima facie UTPA case as to either the initial
assent to the agreement or the subsequent reassurances. With regard
to the initial assent, Plaintiffs have not shown that Defendant intended
to renege on his promises when he made them; thus, they have failed
to show that his formation of the agreement was deceptive. Cf. Pro-
cess Components, Inc. v. Baltimore Aircoil Co., 366 S.E.2d 907, 911
(N.C. Ct. App.) (holding that defendant-manufacturer’s acts were suf-
ficiently deceptive when defendant promised plaintiff an exclusive
distributorship while defendant was still bound to agreement with
another distributor), aff’d, 374 S.E.2d 116 (N.C. 1988) (per curiam).
It might be argued that it could be inferred from Drum’s telephone
call to Rizoti in late April 2000 that Defendant had decided by that
time not to fulfill his obligations. However, even assuming that to be
true, Plaintiffs have failed to forecast evidence that Defendant’s reas-
surance at that late date proximately caused them any injury. The dis-
trict court therefore properly granted summary judgment against
Plaintiffs on the UTPA claim.
10                     RIZOTI v. PLEMMONS
                              III.

  In sum, for the foregoing reasons, the district court properly
granted summary judgment to Defendant on all causes of action.

                                                    AFFIRMED


835 F.2d 873
Barclay Properties, Inc., Locke (James D.), Pleasants(Graydon O.), Shaffner (William F., III)v.FSI Financial Group of Va., Inc., Farnan (Jeanne A.),Thoroughbreds of Va., Inc., Jennings (Linda), Holliday(Carolyn), First Federal Sav. & Laon Assoc. of Wash., Brooks(Douglas), Hartewell (Dewitt), Palmer (Yolando), PiedmontFed. Sav. & Loan Assoc., Owens (Stanley), Beane (Thomas),Gemza (Marion), Ralph D. Kaiser Co., Inc., Farnan (Christian)
NO. 85-1276
United States Court of Appeals,Fourth Circuit.
NOV 03, 1987

1
Appeal From:  E.D.Va.

2
REVERSED.


683 N.W.2d 145 (2004)
SMITH
v.
ELY.
No. 125751.
Supreme Court of Michigan.
July 8, 2004.
SC: 125751. COA: 241587.
On order of the Court, the application for leave to appeal the January 29, 2004 judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REVERSE the judgments of the trial court and the Court of Appeals in part and REINSTATE the jury award of exemplary damages. An award of exemplary damages is justifiable where it is shown that defendant's conduct was malicious, or so willful and wanton as to demonstrate a reckless disregard of the plaintiff's right. Bailey v. Graves, 411 Mich. 510, 515, 309 N.W.2d 166 (1981). Under the circumstances of this case, the trial court clearly erred in concluding that plaintiff had failed to prove that defendant's conduct was malicious or willful and wanton. In all other respects, leave to appeal is DENIED.


760 F.2d 267
*Scottv.Whitley
84-3720
United States Court of Appeals,Fifth Circuit.
4/12/85

1
E.D.La.

AFFIRMED

2
---------------

* Fed.R.App.P. 34(a);  5th Cir.R. 34.2.


687 F.2d 63
UNITED STATES of America, Plaintiff-Appellee,v.Edward R. DRURY, Defendant-Appellant.
No. 82-3054.
United States Court of Appeals,Fifth Circuit.
Sept. 15, 1982.

Michael S. Fawer, Ronda C. Lustman, Clark A. Richard, New Orleans, La., for defendant-appellant.
John Patrick Deveney, Harry W. McSherry, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before CLARK, Chief Judge, GEE and GARZA, Circuit Judges.
PER CURIAM:

1
This is an appeal of mail fraud convictions stemming from a kickback scheme between appellant Drury, a Louisiana attorney representing plaintiffs in personal injury actions, and one Macaluso, a New Orleans physician to whom Drury referred most of his clients.  The financial arrangements between the two, like most of the facts in this case, are undisputed.

2
It was Drury's custom to sign contracts with his clients in which he agreed to accept 40% of any settlement of the claim as his fee.  Macaluso submitted his medical bills to Drury for payment.  On settling with the insurance company, Drury would deduct his 40% fee and 100% of the face amount of the doctor's bill, forwarding the balance to the client.  Pursuant to an agreement with Macaluso, however, Drury then remitted to the doctor only 85% of the doctor's medical bill, pocketing the remaining 15% himself. Drury never disclosed to any client that he was skimming Macaluso's fees.  Macaluso was the only physician with whom Drury had this arrangement; and, after 1974 or 1975 when a uniform 15% was always taken by Drury off the doctor's collections, two-thirds of Drury's referrals were to Macaluso.

3
Drury was indicted by a grand jury on 21 counts of mail fraud and one count of conspiracy to commit mail fraud.  After a two-day bench trial, the court found Drury not guilty of conspiracy but guilty of the 21 counts of mail fraud.  He was sentenced to five years in prison (all but fours months suspended, with three years probation) and fined $1,000 on each count.

Sufficiency of the evidence

4
As we stated in United States v. Yanes, 628 F.2d 294, 295 (5th Cir. 1980), we must

5
examine the evidence in the light most favorable to the government, making reasonable inferences and credibility choices in favor of the verdict of the trier of fact .... The verdict must stand if the trial judge is justified in finding the evidence inconsistent with any reasonable hypothesis of the defendant's innocence .... The test is the same whether the evidence is direct or circumstantial.

6
(citations omitted).

7
Drury was charged in counts 2-22 with operating a scheme "to cause insurance carriers to pay inflated settlements based on false medical statements, as well as to cause the clients of Mr. Drury to pay expenses in excess of that which were incurred."  The district court in effect bifurcated each count, as if Drury had been charged with two schemes to defraud-one directed against the particular insurance company and one against his client.  The court first properly set out the two-part proof for a mail fraud conviction: existence of a scheme to defraud and use of the mails in executing the scheme.  The court then noted that the second element was essentially undisputed and pointed out that the first is demonstrated by a scheme that deprives the victim of valuable and tangible rights or opportunities, as in, for example, United States v. Goss, 650 F.2d 1336 (5th Cir. 1981) (proof that intended victim actually suffered a loss is unnecessary; proof of potential loss suffices).  The district court held that because the referral fee arrangement "did not deprive the insurance companies of any valuable tangible or intangible rights," Drury was not guilty of any violation "with respect to the insurance companies."  The court reasoned that:

8
Dr. Macaluso charged the defendant's clients the same that he would have charged them if they had retained his services on their own initiative, and he treated these patients at the same level of care that he provided his other patients.  None of the medical reports were false in the sense that they described treatments that did not occur or injuries that the patient had not, in fact, suffered.  Whatever the nature of the arrangement between the doctor and Drury, the client was out-of-pocket to the extent of the doctor's bill.  That the doctor chose to pay a portion of his fee to Drury does not lessen in any way the insurance company's obligation to make the client whole.

9
The only loss the insurance company suffered as a result of the 15% referral fee arrangement was the opportunity to conduct an independent probe of the arrangement.  Drury owed no financial duty to the insurance companies.  His relationship was that of an adversary.

10
As we have noted, the court also acquitted Drury of count one-conspiracy with Macaluso and an unnamed third person to defraud insurance companies and Drury's clients-because

11
no proof was ever introduced that Dr. Macaluso or the unnamed third person knew whether the 15% went completely into Drury's pocket or was shared, in whole or in part, with the client.  The government also failed to introduce any evidence as to whether Dr. Macaluso or the unnamed third person knew anything about what Drury did or did not tell his clients.

12
With regard to the scheme to defraud Drury's clients, however, the court noted that under general Louisiana law and under the Louisiana Code of Professional Responsibility Rule 5-107 (duty to disclose compensation from a third party) he owed a fiduciary duty to his clients and held that Drury had breached this duty by failing to reveal his 15% fee arrangement, in the process depriving his clients of "the opportunity to negotiate with Drury on fair terms regarding the conditions and fee arrangements of their employment with him."  The court noted that the opportunity to bargain with full knowledge of all material information is a protected interest, citing United States v. George, 477 F.2d 508 (7th Cir.), cert. denied, 414 U.S. 827, 94 S.Ct. 155, 38 L.Ed.2d 61 (1973).  The court further stated that

13
Drury allowed his financial interests in Dr. Macaluso to affect the professional services that he rendered to his clients.  The nondisclosure of the existence of the arrangement and the consequent breaches of Drury's financial duty were not made innocently but with the specific intent to defraud the clients of their rights arising out of the relationship between themselves and Drury.  Thus I conclude that Drury was engaged in a scheme to defraud for purposes of (18 U.S.C.) § 1341.

14
Appellant argues that these holdings by the court are impermissibly inconsistent, emphasizing that Drury's conviction was predicated upon a single set of facts: his nondisclosure to clients of his financial arrangement with Macaluso.  According to Drury, his nondisclosures were impermissibly elevated from breaches of the Louisiana Code of Professional Responsibility to the sole evidentiary basis for a finding by the court of that specific intent to defraud requisite to a criminal conviction of mail fraud.

15
The district court was aware, however, that

16
mere breach of a fiduciary duty does not by itself constitute a scheme to defraud in violation of the mail fraud statute .... A breach of a fiduciary duty only becomes a violation of § 1341, when it is coupled with concealment or misrepresentations of material facts in a plan to deceive.

17
Our review of the record reveals evidence suggestive of just such concealment, such as the fact that Drury employed a two-check policy in his fee arrangement and abandoned the 15% arrangement once Macaluso retained a third-party attorney to make his collections, as well as evidence that the only reason Drury referred his patients to Macaluso was the existence of the fee arrangement, Macaluso being both dilatory and a poor keeper of records.  Appellant argues that his 15% commission was an administrative fee he charged because Macaluso was, by his own admission, a terrible record keeper.  The government, however, takes a different view of Macaluso's carelessness.  Citing testimony that Macaluso's delays in finishing patients' medical records would delay his patients' settlements, sometimes by as much as six months, the government argues with considerable force that Drury, as a diligent lawyer, had every incentive to find a more expeditious doctor.  Seen in the light most favorable to the government, this evidence permitted the court's inference that Drury allowed his financial interest to affect the professional services he rendered his clients, concealed his kickback arrangement with Macaluso, and consequently and surreptitiously pocketed a larger fee than that he had agreed on with the client.

Variance between charge and proof

18
Drury argues that since the government failed to establish or the court to hold that Macaluso's bills were inflated, a critical element of the charges stated in counts 2-22 was not met by the government's proof.  Having found Drury innocent of fraud as to the insurance companies, the court was, in appellant's view, bound to find him innocent of fraud as to his clients as well.

19
The problem with this contention is that the court's statement that Macaluso charged all his patients equally is not the equivalent of a finding that his bills were not inflated.  Indeed, in light of Macaluso's own past convictions for mail fraud involving billing for substandard or nonexistent medical services, the court might equally have inferred that Macaluso merely cheated everyone equally-regardless of whether he had a 15% arrangement with the referring lawyer.

20
More serious, however, is Drury's suggestion that once the court bifurcated Drury's fraud-treating his acts with reference to the insurance companies separately from those toward his clients-the court created an indictment in which each substantive count impermissibly charged two separate crimes, leaving defense counsel somehow unprepared to defend against the court's ultimate theory of fiduciary fraud based on the Louisiana Code of Professional Responsibility and therefore prejudiced.  Technical pleading duplicity is, however, not always prejudicial.  The prohibition against duplicity

21
protects a defendant's right under the sixth amendment and Rule 7(c) to notice of the "nature and cause of the accusation" against him so that he may prepare his defense.  It also insures that if defendant is convicted, the offense upon which he is convicted will clearly appear from the verdict, so that appropriate punishment may be imposed.  Finally, duplicity is prohibited because confusion as to the basis of the verdict may subject defendant to double jeopardy in the event of a subsequent prosecution.

22
8 J. Moore, Moore's Federal Practice P 8.03(1) (1981) (footnotes omitted).  Here appellant's brief admits that "appellant did anticipate that the prosecution might attempt to prove a violation of a provision of the Code of Professional Responsibility ...." Given that the court's fiduciary theory for the conviction was grounded only in part on Rule 5-107, we find it hard to believe that counts 2-22 did not give the defense sufficient notice of the nature of the charges against him.  We therefore conclude that even if the indictment was technically duplicitous, it was not prejudicially so.  See, e.g., United States v. Bush, 522 F.2d 641, 649 (7th Cir. 1975).  Drury's other assertions of improper variance do not merit discussion; none is significant.

23
His convictions were not erroneously arrived at.1 They are

24
AFFIRMED.

1
 At oral argument, the possible applicability to Drury's appeal of Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960), was suggested.  There the Court held that mail fraud convictions could not be predicated on mailings of school district tax statements, checks and receipts, even when some of those doing the mailing meant to steal some of the resulting revenues, where "the Board was both legally authorized and compelled to cause the mailing ...." Id. at 385, 80 S.Ct. at 1180 (emphasis added).  Responses by the parties to the suggestion were invited
"Appellant has responded to our invitation, suggesting that Parr does indeed apply.  We have carefully considered his contention and assuming that the Court would hold today as it did in Parr-a case where it remarked that "the factual situation is unique" (id. at 391, 80 S.Ct. at 1183)-we conclude that the circumstance that the mailings there were mandated by state law, one on which the Court's opinion lays great stress, suffices to distinguish it from that at bar, where they were a matter of Drury's choice.