41 Cal.App.3d 767 (1974)
116 Cal. Rptr. 299
In re BOB LOKEY on Habeas Corpus.
Docket No. 12255.
Court of Appeals of California, First District, Division Two.
September 16, 1974.
*768 COUNSEL
Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chief Assistant Attorney General, William E. James, Assistant Attorney General, Gloria F. DeHart, Alvin J. Knudson and Ronald E. Niver, Deputy Attorneys General, for Appellant.
Robert Y. Bell, under appointment by the Court of Appeal, for Respondent.
OPINION
BRAY, J.[*]
Appellant appeals from order of the Marin County Superior Court granting respondent's application for writ of habeas corpus and ordering the Adult Authority to strike from its records respondent's sentence *769 for violation of section 209 of the Penal Code (kidnaping for the purpose of robbery).

QUESTION PRESENTED
Is the trial court's determination that respondent's conduct fell outside the reach of section 209 of the Penal Code legally erroneous?

RECORD
Respondent was convicted of violation of section 189 of the Penal Code (murder of the first degree) and section 209 of the Penal Code (kidnaping for the purpose of robbery). He was sentenced to state prison for the terms prescribed by law, sentences to run concurrently with respect to each other. The Marin County Superior Court, on respondent's application for writ of habeas corpus, granted the writ and ordered the Adult Authority to strike from its records his conviction for violation of section 209 of the Penal Code. The court also denied appellant's application for rehearing or modification of that order, but granted stay of execution of the order. Appellant appeals.

FACTS
On August 14, 1962, Ian Shuttleton, his wife, and their young child parked near Sacramento to spend the night in their trailer while on vacation. About midnight they were awakened by a knock, and at the command, "Open up. This is the law," Mr. Shuttleton opened the trailer door. Respondent entered with a gun in his hand; his brother, Galen Lokey, stood near the door. After Mr. Shuttleton handed over the keys to his car at respondent's demand, respondent forced him into a closet. Galen Lokey began driving the car with the trailer attached while respondent remained in the trailer with the Shuttletons. Galen Lokey testified that the reason for moving the vehicles was that "they was pretty close to the highway so we was going to pull down about to Franklin Boulevard, that's across the highway, and then take their money, throw their keys away or something, and then leave." Galen Lokey testified that he drove the car and attached trailer "a mile or a mile and a quarter."
As the vehicles began to move, respondent demanded money from Mrs. Shuttleton. When she advised respondent that they had no money, he replied "Well then, you'll die ... I'm not afraid to use this gun. I've used it before." Shortly thereafter, the car stopped and Galen Lokey opened the trailer door. Respondent advised Galen to "Drive in the country." Following a brief conversation, Galen returned to the car and began to *770 drive again, stopping at a location where there were no houses nearby. Meanwhile, respondent forced Mrs. Shuttleton to get onto the bed. He then stuck the gun in her ribs and began to sexually molest her. When Mrs. Shuttleton screamed, Mr. Shutleton broke out of the closet. During an ensuing struggle between respondent and Mr. Shuttleton, respondent's gun was fired. The bullet went through respondent's shoulder and into Mr. Shuttleton. A few hours later Mr. Shuttleton died from the wound.

Respondent Is Guilty of Violation of Section 209 of the Penal Code
(1) Respondent contends that his conviction for violation of section 209 of the Penal Code was improper, claiming that the asportation of the victim was merely incidental to the robbery and did not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself.
The trial judge in his memorandum and minute order stated, inter alia, "The trailer in this case was very much the `moving situs' of the robbery." The court applied People v. Daniels (1969) 71 Cal.2d 1119 [80 Cal. Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677], stating "the tragic outcome of this robbery could just as easily have occurred if the trailer had been standing still." As will hereinafter appear, the court erred in applying Daniels and People v. Timmons (1971) 4 Cal.3d 411 [93 Cal. Rptr. 736, 482 P.2d 648], and in holding that the asportation was not more than incidental to the robbery and did not enhance the danger to the victims.
In People v. Daniels, three of the victims were robbed in their respective homes or apartments, one being moved only 6 feet, another 18 feet, and the third 30 feet. The court held that "the brief movements which defendants ... compelled their victims to perform in furtherance of robbery were merely incidental to that crime and did not substantially increase the risk of harm otherwise present." (P. 1140.) The court emphasized that merely moving a victim around inside his premises generally will not be deemed to constitute the offense we are considering. However, moving the victims a short distance and then, after deciding to take them "to the country," taking them a total distance of a mile and a quarter, all the time menacing one of the victims with a gun, cannot be compared to merely moving victims around in their own premises and cannot be said not to be increasing the danger of other harm to them besides robbing them. Movements of substantial distances, such as here, cannot be considered incidental to another crime, and are easily distinguishable from the brief movement referred to in Daniels. (See People v. Lynch (1971) 14 Cal. App.3d 602 [92 Cal. Rptr. 411], victim driven several miles; People v. Thomas (1970) 3 Cal. App.3d 859, 866 [83 Cal. Rptr. 879], victims forced to move *771 from a well lit public street to a dimly lighted alley, where in addition to finding that the asportation increased the risk of harm to the victims the court stated that the asportation of the victims enabled the robber to "accomplish his purpose of robbery with much less probability of apprehension," just as in the instant case.)
The California courts have held that section 209 applies if the asportation is substantial in terms of time and space (People v. Rocco (1971) 21 Cal. App.3d 96, 105 [98 Cal. Rptr. 365]; People v. Beaumaster (1971) 17 Cal. App.3d 996, 1006-1007 [95 Cal. Rptr. 360], where the court stated "The robbery could well have been completed in the laundromat had defendants so desired," but applied section 209 to the asportation of the victim which followed).
The trial court in the instant case seemed to place importance on the fact that the robbery could have been completed the instant the robbers entered the camper. While this is true, the robbers did not rob then.
A kidnaping conviction usually will not be reversed if the defendant moved the victim (as here where they took the victims "to the country") from an area of relative safety to a location where it was easier for the robber to inflict substantial bodily harm upon his victim (People v. Iverson (1972) 26 Cal. App.3d 598, 606 [102 Cal. Rptr. 913]; People v. Curtis (1971) 21 Cal. App.3d 704, 708 [98 Cal. Rptr. 775], where the victims were asported only approximately five blocks; People v. Hill (1971) 20 Cal. App.3d 1049, 1053 [98 Cal. Rptr. 214]). The statement of the court in People v. Hill (p. 1053) "There is no question that the movement involved substantial increase in the risk of harm that might, and in fact did, come to the victims" is clearly applicable to the case at bench (People v. Mays (1971) 17 Cal. App.3d 641, 644 [95 Cal. Rptr. 190]; People v. Ellis (1971) 15 Cal. App.3d 66, 73 [92 Cal. Rptr. 907], where the asportation was only from the street to an upstairs apartment; People v. Miller (1970) 12 Cal. App.3d 922, 932-934 [91 Cal. Rptr. 97]).
The rule of Daniels does not apply where the movements "substantially increase the risk of harm over and above that necessarily present" in the other crime. Thus, conviction for kidnaping will be affirmed if the method of transportation was so fraught with danger that it increased the risk of harm (People v. Cleveland (1972) 27 Cal. App.3d 820, 826 [104 Cal. Rptr. 161] (defendant's possession of weapons and threats of violence); People v. Milan (1973) 9 Cal.3d 185, 193 [107 Cal. Rptr. 68, 507 P.2d 956] (defendant's possession of a gun during automobile ride accompanied by threats); People v. Iverson, supra (defendant drove car with knife at victim's neck); People v. Apo (1972) 25 Cal. App.3d 790, 796 [102 Cal. *772 Rptr. 242] (victim forcibly pushed and shoved, accompanied by threats)). In the instant case the asportation was substantial, during which respondent held a gun over Mrs. Shuttleton, thereby increasing the risk of harm to her beyond that inherently attendant upon the crime of robbery. Moreover, it is extremely doubtful if respondent would have attacked the wife if the trailer had remained where her screams could be overheard.
In People v. Timmons, supra, the circumstances were completley dissimilar to those in the instant case. The victims were forced to drive the defendant only about five blocks as he robbed them of the money they carried in the auto. He then stepped out of the car. Nothing occurred which was not incidental to the robbery, "the moving situs" of the robbery. Holding that the short drive did not increase the risk of harm to the victims, the court explained what it meant in Daniels, supra, "when we spoke of movements which `substantially increase the risk of harm' beyond that inherent in the underlying crime ..., we intended to refer to an increase in the risk that the victim may suffer significant physical injuries over and above those to which a victim of the underlying crime is normally exposed." (P. 414.) What more "significant physical injuries" can there be than the death of the husband and the physical attack on the wife? This definition of the phrase "substantially increase the risk of harm" clearly applies in the instant case. Moreover, the court in Timmons set forth the following footnote (p. 416): "To avoid misunderstanding, we reiterate that in a different set of circumstances a movement of five city blocks might well `substantially' increase the risk and thereby expose the robber to a prosecution for kidnaping"  as in this case.
Moreover, the Supreme Court made specific note that the trial court found that Timmons was not armed during the commission of the offense. The court concluded that, due to this, plus the fact that the five-block movement occurred in broad daylight, and that it was in the interest of the defendant that the automobile be driven as innocuously as possible, the situation offered little risk of harm beyond that inherent in the crime of robbery itself. Accordingly, the Supreme Court determined that the conviction for kidnaping should be set aside. It is unquestioned in the case at bar that throughout the entire course of events respondent was armed with a pistol. Indeed, respondent made threats during the course of the asportation to kill the victims if they did not surrender their money to him. In at least three cases decided subsequent to Timmons, the Court of Appeal determined that the use of a gun by the defendant was to be regarded as a meaningful distinguishable characteristic from the Timmons case (People v. Hill, supra, p. 1052; People v. Cleveland, supra, p. 826; In re Bryant (1971) 19 Cal. App.3d 933, 936 [97 Cal. Rptr. 40]).
*773 Any substantial asportation which involves forcible control of the robbery victim exposes him to grave risks of harm to which he would not have been subject had the robbery occurred at the point of initial contact (People v. Thornton (1974) 11 Cal.3d 738, 768 [114 Cal. Rptr. 467, 523 P.2d 267]).
The trial court commented upon the fact that "Being armed and threats to use a weapon are usually always part of the offense of armed robbery." While this is true, the longer the victim is held and the further he is transported the more the danger is that the robber will use the gun. In People v. Beamon (1973) 8 Cal.3d 625, 636 [105 Cal. Rptr. 681, 504 P.2d 905], the victim was driven through city traffic while forced to lie at gunpoint on the floor of the truck cab. The court stated "There was present here by reason of the abduction a material increase in the risk that the victim would suffer significant physical injuries, as in fact he did." In the instant case, Mrs. Shuttleton was driven through traffic while forced to lie on the bed at gunpoint.
In People v. Milan, supra, 9 Cal.3d at page 193, the court pointed out that unlike in Timmons a gun was used, and stated "The asportation gave risk to dangers not inherent in robbery, that a traffic collision would occur and that as a result of the motion of the car the gun would accidentally discharge." In the instant case the gun did discharge.
The order granting the writ of habeas corpus is reversed.
Taylor, P.J., and Kane, J., concurred.
Respondent's petition for a hearing by the Supreme Court was denied November 13, 1974. Tobriner, J., and Mosk, J., were of the opinion that the petition should be granted.
NOTES
[*]   Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairman of the Judicial Council.


                        IN THE
                TENTH COURT OF APPEALS

                      No. 10-16-00165-CR

ALBERT DAWSON, JR.,
                                           Appellant
v.

THE STATE OF TEXAS,
                                           Appellee

                 From the 77th District Court
                  Limestone County, Texas
                   Trial Court No. 13561-A
                        _____________

                      No. 10-16-00172-CR

ALBERT DAWSON, JR.,
                                           Appellant
v.

THE STATE OF TEXAS,
                                           Appellee

               From the 2nd 25th District Court
                  Colorado County, Texas
                  Trial Court No. CR15-067
                                MEMORANDUM OPINION

        Albert Dawson Jr. seeks to appeal the trial court’s denial of his pro se post-

conviction motion to reduce his illegal sentences in these two cases. Dawson’s letter,

which is being treated as a notice of appeal,1 states that the trial court denied Dawson’s

motion to reduce his illegal sentence in both cases.

        Cause No. 13561-A: This case is from the 77th District Court in Limestone County.

We do not have jurisdiction of a direct appeal of the trial court’s denial of a post-

conviction motion to reduce an illegal sentence. See Abbott v. State, 271 S.W.3d 694 (Tex.

Crim. App. 2008) (stating that standard for determining jurisdiction is not whether appeal

is precluded by law, but whether appeal is authorized by law); Everett v. State, 91 S.W.3d

386, 386 (Tex. App.—Waco 2002, no pet.) (stating that court has jurisdiction over criminal

appeals only when expressly granted by law). No law authorizes such a direct appeal.

Cf. Ex parte Rich, 194 S.W.3d 508, 512-13 (Tex. Crim. App. 2006) (defendant may raise

challenge to illegal sentence for first time on habeas corpus review). Accordingly, the

appeal of the trial court’s denial of Dawson’s motion to reduce his illegal sentence in

Cause No. 13561-A is dismissed for lack of jurisdiction.

        Cause No. CR-15-067: This case is from the 2nd 25th District Court in Colorado

County. We do not have territorial jurisdiction of an appeal from Colorado County,

which is within the territorial jurisdiction of the First Court of Appeals. See TEX. GOV’T.

1
 A defendant’s letter that demonstrates a desire to appeal is sufficient to serve as a notice of appeal. See
Palma v. State, 76 S.W.3d 638, 641-42 (Tex. App.—Corpus Christi 2002, pet. ref’d); see also Pharris v. State,
196 S.W.3d 369, 372 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Dawson v. State                                                                                Page 2
CODE ANN. §§ 22.220(a), 22.201(b, k) (West Supp. 2015). Accordingly, the appeal of the

trial court’s denial of Dawson’s motion to reduce his illegal sentence in Cause No. CR-15-

067 is dismissed for lack of jurisdiction.

                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Dismissed
Opinion delivered and filed June 2, 2016
Do not publish
[CR25]

Dawson v. State                                                                     Page 3


216 S.W.3d 413 (2006)
Edward J. NICHOLS, D.V.M., Individually and d/b/a Crestway Animal Clinic, Appellant,
v.
Julie CATALANO, Appellee.
No. 04-06-00070-CV.
Court of Appeals of Texas, San Antonio.
September 13, 2006.
D. Ann Comerio, Karen R. Vowell, Law Office of Ann Comerio, San Antonio, for appellant.
David S. Denton, Ricardo G. Cedillo, Davis, Cedillo & Mendoza, Inc., Mark R. Stein, Allen, Stein & Durbin, P.C., San Antonio, for appellee.
Sitting: SARAH B. DUNCAN, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.

OPINION
Opinion by SARAH B. DUNCAN, Justice.
Edward J. Nichols, D.V.M., individually and doing business as the Crestway Animal Clinic, appeals the trial court's order denying his application for a temporary injunction to require Julie Catalano to remove from her website all content referring to Nichols or his business. We affirm the trial court's order.
1. In his first issue Nichols contends the "trial court abused its discretion in denying Nichols'[s] application for temporary injunction without providing an adequate opportunity to be heard." Specifically, Nichols contends "the trial court interrupted the presentation of evidence [at the temporary injunction hearing] and asked counsel for both parties to step into chambers"; "verbally ordered the parties to mediate all issues"; and "stopped the hearing . . ., preventing Nichols from presenting all of his evidence." This may be true, but it is nowhere reflected in the record. Rather, the record reflects that Nichols obtained a temporary restraining order on July 14, 2005, and a hearing on the application for a temporary injunction was set for and held on July 28, 2005. During the direct examination of Nichols, the trial court sustained an evidentiary objection by Catalano's lawyer and directed Nichols's lawyer to continue the questioning. The reporter's record then notes that "[a] brief recess was had at this point in the proceedings." After the recess, Catalano's attorney submitted two briefs to the court on the issues raised by the application for temporary injunction; Nichols's attorney asked for leave to respond; and there was a brief discussion about an exhibit. The judge then indicated that *415 there was "a lot" of material for him to go through and that he would read it all. Catalano's attorney reminded the court that the temporary restraining order expired that day and thus "there is nothing against [his] client until we hear from you again." The judge said "Okay" and asked the parties if they had anything else. Neither party expressed a desire to offer further evidence, either at that time or in the future. After going off the record again, Nichols's attorney returned and made the following statement:
This is Ann Comerio on behalf of Doctor Nichols, and Judge Peden stated that we had to agree to a mediator. All parties have agreed to Judge Boone, and he also stated that we had to get this done as quickly as possible, and that would depend on Judge Boone. So, we've all agreed to call him and see what his first available dates would be.
The proceeding then concluded.
In the succeeding months, Catalano filed her answer and a counterclaim; Nichols answered the counterclaim and made a request for disclosure; and some written discovery was provided. On December 6, 2005, the trial court signed an order denying the application for a temporary injunction. On December 7, over four months after the temporary injunction hearing and after the trial court's ruling, Nichols's attorney filed a "post-submission letter brief" in which Nichols complained for the first time that he was "not permitted to complete [his] evidentiary presentation."
The record does not support Nichols's assertion that the trial court "interrupted the presentation of the evidence," "stopped the hearing," or "prevented" Nichols from presenting all his evidence at the temporary injunction hearing. And, if the trial court's off-the-record actions had this effect, Nichols had ample opportunity after the parties were back on the record to offer more evidence, reserve the right to present more evidence in the future, object to any action by the trial court that Nichols perceived prevented him from presenting his evidence, or make a bill of exception if needed. Nichols did none of these. Rather, by his silence, Nichols implied he had no further evidence to present. Accordingly, we hold that Nichols has not shown that the trial court denied him a full and fair opportunity to present his evidence and Nichols did not preserve any right to present further evidence or reopen the hearing at a later date.
2. In his second issue Nichols contends "the trial court abused its discretion by failing to detail the specific reasons it relied upon in denying the application for temporary injunction." We again disagree.
Rule 683 of the Texas Rule of Civil Procedure requires that an "order granting an injunction . . . shall set forth the reasons for its issuance." TEX.R. CIV. P. 683 (emphasis added). The Texas Supreme Court "interpret[s] the Rule to require in this respect only that the order set forth the reasons why the court deems it proper to issue the writ to prevent injury to the applicant in the interim; that is, the reasons why the court believes the applicant's probable right will be endangered if the writ does not issue." Transp. Co. of Tex. v. Robertson Transps., Inc., 152 Tex. 551, 261 S.W.2d 549, 552-53 (Tex. 1953) (emphasis added); see also State v. Cook United, Inc., 464 S.W.2d 105, 106 (Tex.1971) ("Under Rule 683 . . . it is necessary to give the reasons why injury will be suffered if the interlocutory relief is not ordered."). Nothing in the Texas Rules of Civil Procedure or in the Texas Supreme Court interpretative opinions suggests that a trial court must state its reasons for denying an injunction. Nevertheless, Nichols contends that a trial court is required *416 to do so. In support of his contention, Nichols relies on six court of appeals opinions, each of which contains a statement similar to the following: "The reasons given by the trial court for granting or denying a temporary injunction must be specific and legally sufficient, and must not be mere conclusory statements." See Byrd Ranch, Inc. v. Interwest Sav. Ass'n, 717 S.W.2d 452, 454 (Tex.App.-Fort Worth 1986, no writ) (citing Univ. Interscholastic League v. Torres, 616 S.W.2d 355, 358 (Tex.Civ.App.-San Antonio 1981, no writ)); Arrechea v. Plantowsky, 705 S.W.2d 186, 189 (Tex.App.-Houston [14th Dist.] 1985, no writ) (citing UIL, 616 S.W.2d at 358); Martin v. Linen Sys. for Hosps., Inc., 671 S.W.2d 706, 710 (Tex.App.-Houston [1st Dist.] 1984, no writ) (citing Smith v. Hamby, 609 S.W.2d 866 (Tex.Civ.App.-Fort Worth 1980, no writ) and Charter Med. Corp. v. Miller, 547 S.W.2d 77 (Tex.Civ. App.-Dallas 1977, no writ)); UIL, 616 S.W.2d at 358 (citing Smith, 609 S.W.2d 866 and Charter Med., 547 S.W.2d 77); Seib v. Am. Sav. & Loan Ass'n of Brazoria County, No. 05-89-01231-CV, 1991 WL 218642, at *4 (Tex.App.-Dallas, Oct.25, 1991, no writ) (not designated for publication) (citing Charter Med., 547 S.W.2d 77); Peterson v. Emory, No. C14-88-00633-CV, 1989 WL 37548, at *2 (Tex.App.-Houston [14th Dist.] Apr. 20, 1989, no writ) (not designated for publication) (citing UIL, 616 S.W.2d at 358).
Nichols argues "that [b]y holding that a trial court's stated reasons for granting or denying a temporary injunction must be specific and legally sufficient and not merely conclusory, these courts . . . have implicitly held that a trial court must STATE its reasons for denying a temporary injunction." See W. Wendell Hall, Standards of Review in Texas, 34 ST. MARY'S L.J. 1, 45 (2002) ("[T]he trial court must detail the specific reasons it relied upon in ruling on whether a temporary injunction should be granted or denied."). We decline to so hold for two reasons.
First, none of the cases Nichols cites "held" anything with respect to an order denying a temporary injunction. Each of the cited cases was an appeal from an order granting an injunction. None of the cases involved an order denying injunctive relief; nor did the courts' disposition in those cases necessitate a determination of what is required if an order denies injunctive relief. Accordingly, the language in the opinions that Nichols relies on is obiter dicta and neither binding nor persuasive authority. See Edwards v. Kaye, 9 S.W.3d 310, 314 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) ("Dictum is an observation or remark made concerning some rule, principle, or application of law suggested in a particular case, which observation or remark is not necessary to the determination of the case.").[1] Second, neither the cited cases nor the authorities upon which they rely contain any reasoning or authority that would support applying the requirements of Rule 683 to an order that denies injunctive relief.[2] Nichols does not *417 provide any such reasoning in his brief; and we know of no reason to impose such a requirement.
The trial court's order denying Nichols's application for a temporary injunction is affirmed.
NOTES
[1]  Nichols has not cited any cases, nor have we found any, in which the requirement of specific and legally sufficient reasons was applied to an order denying a temporary injunction.
[2]  The language Nichols relies on appears to have had its genesis in Univ. Interscholastic League v. Torres, 616 S.W.2d 355 (Tex.Civ. App.-San Antonio 1981, no writ). The order granting the temporary injunction in UIL merely recited the trial court's finding "that the Plaintiffs have no adequate remedy at law and that the Plaintiff . . . would suffer irreparable harm if the Defendants . . . are not restrained and enjoined pending the final disposition of the . . . cause. . . ." Id. at 357. The court of appeals vacated the injunction, holding that the recitals in "the order lack[] the specificity required by Rule 683." Id. at 358. The court stated and applied the rule that "[t]he reasons given by the trial court for granting . . . a temporary injunction must be specific and legally sufficient, and must not be mere conclusionary [sic] statements." Id. Unfortunately, however, the court gratuitously added the words "or denying" to its statement of the rule of law. Id. The cases cited by the UIL Court support the proposition that an order granting a temporary injunction must contain the trial court's reasons but have no bearing on an order that denies an injunction. See Smith v. Hamby, 609 S.W.2d 866 (Tex.Civ.App.1980-Fort Worth, no writ) (relying on Rule 683 and Cook United to vacate temporary injunction because recital in order that plaintiff testified he has no adequate remedy at law is not a legally sufficient reason for granting a temporary injunction); Charter Med. Corp. v. Miller, 547 S.W.2d 77 (Tex.Civ.App.-Dallas 1977, no writ) (dissolving temporary injunction because order reciting only that "[p]laintiffs have established . . . irreparable damage herein and injury" does not meet the specificity requirements of Rule 683). Unfortunately, subsequent opinions have perpetuated the dicta by simply mimicking it.


548 U.S. 923 (2006)
FORREST
v.
NORTH CAROLINA.
No. 05-6102.
Supreme Court of United States.
June 30, 2006.
Motion of petitioners for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Davis v. Washington, 547 U. S. 813 (2006).


377 P.2d 391 (1962)
Thomas K. HUDSON, Plaintiff in Error,
v.
The AMERICAN FOUNDERS LIFE INSURANCE COMPANY OF DENVER, Colorado, Defendant in Error.
No. 19581.
Supreme Court of Colorado. In Department.
November 5, 1962.
Rehearing Denied January 14, 1963.
*392 Clarence W. Button, Alice Loveland, Denver, for plaintiff in error.
Yegge, Hall & Shulenburg, Denver, for defendant in error.
DAY, Chief Justice.
In the trial court plaintiff, The American Founders Life Insurance Company, of Denver, Colorado, obtained a judgment against defendants Thomas K. Hudson and Robert E. Holland jointly and severally for $37,400.00 and costs. This judgment is questioned by separate writs of error filed each by Hudson and Holland. As to the judgment against Holland, that decision is announced this date. See Holland v. American Founders, Colo., 376 P.2d 162.
We shall refer to the parties as they appeared in the trial court or by name.
The complaint states four separate claims against Hudson, Forrest C. Roan and Robert E. Holland. We are concerned here only with the first claim as it relates to Hudson. The second and third claims were voluntarily dismissed by plaintiff before trial, and the fourth claim was dismissed on trial.
Plaintiff alleged that in February and March, 1956, Hudson was president of plaintiff corporation, a member of its board of directors, and, therefore, sustained a fiduciary relationship to the plaintiff. These allegations were admitted in Hudson's answer.
The complaint alleges that during February and March, 1956, Hudson was a director of Texas Adams Oil Company, Inc. and was fully familiar and conversant with the affairs, assets and business of said corporation; that in violation of his fiduciary relationship to plaintiff, Hudson unlawfully procured and caused the issuance of and delivery to Clarence W. Button of 15,000 shares of the common stock of plaintiff in exchange for shares of the Texas Adams Oil Company, Inc.; also that about said time he unlawfully procured and caused the issuance and delivery of 9,000 shares of the common stock of plaintiff to Alice Loveland and Charlotte Brown in a similar transaction involving exchange for shares of stock of Texas Adams Oil Company, Inc.; that at the time of the exchanges of stock the value of plaintiff's stock was $2.00 per share and that the Texas Adams Oil Company, Inc. stock was of doubtful value; at the time the complaint was filed the Texas Adams Oil Company stock was worthless and that said company was adjudged a bankrupt in March, 1957, and was defunct. The complaint stated that plaintiff had received only $1,000.00 for the Texas Adams Oil Company stock. Plaintiff prayed for damages in the sum of $47,000.00.
Hudson by his answer, in addition to an allegation that the complaint fails to state a claim, admitted the issuance and delivery to Button of 15,000 shares of the common stock of plaintiff and denied the material allegations of the complaint other than those above mentioned. As affirmative defenses he asserted: That there was contributed to plaintiff 8,000 shares of the common capital stock of plaintiff corporation as a donation in said transaction and that said stock was accepted and retained by plaintiff corporation in full accord and satisfaction; that plaintiff holds and retains as its property all stock of Texas Adams Oil Company received by it in the transaction and therefore is estopped to make any claim based upon such transaction; that all of Hudson's acts as an officer and director *393 of plaintiff, and especially the so-called Texas Adams transaction, were ratified and confirmed by the stockholders of plaintiff at an annual meeting in March, 1956, and again at the annual meetings of plaintiff stockholders in 1957 and 1958.
Following trial to the court judgment was entered in favor of plaintiff and against defendants Hudson and Holland jointly and severally in the sum of $37,400.00. To the findings and conclusions of the court and to the judgment entered thereon Hudson assigns error under three categories:
1. That the evidence does not support the findings of fact or conclusions of law of the trial court nor the amount awarded as damages;
2. That the court erred in ruling out the defenses of accord and satisfaction and ratification;
3. That the court erred in failing to grant a new trial on the ground of newly discovered evidence.

1. ON THE QUESTION OF THE SUFFICIENCY OF THE EVIDENCE.
Under this point Hudson has grouped his contentions that there was no showing that he breached his fiduciary obligation to American Founders, and that even if the court should hold against him on that issue, the amount of damages is excessive and unsupported by the record. We deal with these points in that order.
The duties and obligations of executive officers and directors of corporations under Colorado law are stated in Kullgren v. Navy, etc. Co., 110 Colo. 454, 135 P.2d 1007:
"The relation which directors bear to the stockholders of a corporation, and the corporation itself, as `universally conceded * * * is a fiduciary one;' and `The law governing the obligations of fiduciaries is applicable to them.' Mackey v. Burns, 16 Colo. App. 6, 64 P. 485. `A director of a corporation is in the position of a fiduciary; that is a principle deeply rooted in our law. He owes loyalty and allegiance to his corporation, a loyalty that is undivided and an allegiance that is influenced in action by no consideration other than the welfare of his corporation. He is held "in official action, to the extreme measure of candor, unselfishness and good faith. Those principles are rigid, essential and salutary."' Turner v. American Metal Co., Sup., 36 N.Y.S.2d 356, 369. `The directors of a corporation act in a strictly fiduciary capacity. Their office is one of trust and they are held to the high standard of duty required of trustees. * * *'"
To the same effect see Sprague v. Stratton-Massachusetts Gold Mines Co., 53 Colo. 315, 125 P. 490. Also see 13 Am.Jur., Corp. 939, § 985.
That Hudson was so bound is admitted and was fully established by the evidence. We, therefore, look to whether he violated the duties and obligations of such relationship.
The evidence is that Hudson procured or caused the issuance of the stock certificates to Clarence W. Button, Alice Loveland, and Charlotte M. Brown, and signed the certificates. When he signed the five stock certificates he knew they were being issued in exchange for Texas Adams stock as the only consideration and as "payment in full" for stock of plaintiff corporation.
Button testified that his discussions regarding the issuance of the stock of plaintiff corporation in exchange for Texas Adams stock were solely with Hudson, and that he delivered the Texas Adams stock certificates to Hudson.
Hudson admitted full responsibility for the Texas Adams transaction. The minutes of the shareholders meeting of March 12, 1957, contained the following statement by Hudson: "Mr. Hudson replied that this was not a cash transaction but rather an exchange of stock in The American Founders Life Insurance Company of Denver, *394 Colorado, for the stock in the Texas Adams Oil Company. At this point Mr. Hudson advised that as President of the company, he was assuming the responsibility for the investment and further stated that the President of many companies should not attempt to avoid responsibilities for those things which might occur and that he was not going to attempt to pass any blame onto any one else for anything which occurred in the company, * * *." (Emphasis ours)
Issuance of The American Founders stock to Button, Loveland and Brown involved a breach of the so-called "underwriting agreement" between plaintiff corporation and Colorado Management Corporation. Under that agreement Colorado Management Corporation was the sole and exclusive agent of plaintiff for the sale to the public of one million shares of stock in plaintiff corporation. The contract provided that the stock was to be sold at "$2.00 per share to the public;" and that the underwriter agreed "to remit to the Company the sum of $1.60 per share on any share sold by it hereunder, the same being the sales price of $2.00 per share, less the commission of forty cents per share or 20% of the sale price of the stock to the public at $2.00 per share, and the Company agrees to issue such shares upon receipt of payment therefor as directed by the underwriter." (Emphasis ours) The so-called "underwriting" agreement therefore provided that the shares of the plaintiff corporation should not be issued until "payment therefor" was received in cash at $1.60 per share. The prospectus of plaintiff corporation filed with the Colorado Securities Commission on October 20, 1955 stated that none of its securities would be used directly or indirectly to purchase any property, real or personal, tangible or intangible.
Other facts supporting the court's finding that Hudson violated his fiduciary obligations and duties to the plaintiff corporation were that Hudson did not consult with or discuss the Button transaction at any regular or special board meeting at which there was a quorum prior to the date of the transaction. The record on this point is that at an informal meeting in the offices of the Colorado Management Corporation on February 9, 1956, Hudson discussed the transaction with Forrest Roan and J. R. Holt, both officials of Colorado Management Corporation. Franklin Stewart and Robert E. Holland, interlocking directors of the plaintiff corporation and also of Colorado Management Corporation, were present at this meeting. After discussing the proposed exchange of Founders stock for Texas Adams stock, Hudson asked if those present would favor a waiver of the provisions of the subscription agreement and underwriting agreement, which, in effect, limited sales to the public to 5,000 shares to any individual stockholder. Those present, including Holland, indicated that they would favor such waiver in the Button transaction. However, Holland stated that he was opposed to the transaction unless and until a market was obtained for the Texas Adams stock and said stock was sold and converted into cash before issuance of the stock in plaintiff corporation to Button. E. V. Holland, another director of both plaintiff corporation and Colorado Management Corporation, was consulted by telephone. He expressed his willingness to waive the 5,000 share limitation, but also objected to the transaction unless and until a market for the Texas Adams stock was established and the said stock was converted into cash before issuance of stock in the plaintiff corporation. This meeting was not a special or regular meeting of the board of plaintiff corporation, but was rather an informal discussion among the Colorado Management officials.
After this meeting, Hudson completed the Button transaction. The Loveland-Brown transaction was never discussed with the directors of plaintiff corporation. Although there were at least nine regular or special meetings of the board of plaintiff corporation prior to January 17, 1957, Hudson did not disclose to all directors that either of the questioned transactions *395 had been completed, nor request formal approval thereof. The first time Hudson discussed the Texas Adams stock with the board of directors and requested formal action was at a special meeting of said board held pursuant to notice on January 17, 1957, when after discussion the board adopted a resolution directing that the Texas Adams Oil Company stock held by the corporation be sold immediately "at present market". Thus there is sufficient competent evidence to establish that Hudson personally caused the issuance of stock certificates for 24,000 shares of stock of plaintiff corporation, not only without authority from the board of directors but without any information being imparted to the board of directors until eleven months after the Texas Adams transactions had been completed. Suffice it to say that such evidence is sufficient to establish violation of the duties and obligations of the presidency which also carried with it management of the company.
As to the evidence being sufficient in law and in fact to support the amount of the judgment in the sum of $37,400.00, a good statement of the rule on the measure of damages in an action against a fiduciary is set forth in American Law Institute, Restatement of the Law (2d) Trusts, § 205, p. 458, as follows:
"Liability in Case of Breach of Trust.
"If the trustee commits a breach of trust, he is chargeable with
"(a) any loss or depreciation in value of the trust estate resulting from the breach of trust; or
"(b) any profit made by him through the breach of trust; or
"(c) any profit which would have accrued to the trust estate if there had been no breach of trust."

* * * * * *
"If as a result of his breach of trust property depreciates in value, the trustee is chargeable with the amount of such depreciation."
See also: Hutchings v. Louisville Trust Company, 303 Ky. 147, 197 S.W.2d 83; 54 Am.Jur., Trusts, § 377, p. 296
The trial court determined the amount of damages by computing the value of 24,000 shares of plaintiff's stock at $1.60 per share (the amount in cash which should have been received) or $38,400.00 less $1,000.00 received from Colorado Management Corporation from the sale of the Texas Adams stock, a total sum of $37,400.00.
Against that simple mathematical computation by the court, Hudson claims off-set in the amount of $47,000.00  claimed value of the Texas Adams stock. Testimony to support this claim was offered to the effect that there was an over the counter bid figure of eighty cents per share for the Texas Adams Oil Company stock in February and March, 1956. But other evidence showed this not to be the true value because the market for said stock was "extremely thin" and could not absorb a large block of shares without a drastic drop in the price. On this a witness said, "Like a lot of similar stocks you could buy all you wanted but couldn't sell it." In October, 1956, the record reveals the bid price for Texas Adams stock was down to two cents per share. Another witness testified that even by persistent effort he was unable to establish any market for the Texas Adams shares in October, 1956. In December, 1956, upon advice of the auditor of plaintiff corporation, the Texas Adams Oil Company shares were written off as worthless. On February 25, 1957, Texas Adams Oil Company, Inc. was adjudged bankrupt. Early in 1957, following the resolution of the board of directors on January 17, 1957, to sell the Texas Adams stock "at the present market" the 58,750 shares of Texas Adams Oil Company stock were sold to Colorado Management Corporation for $1,000.00, although the shares were never delivered nor was delivery requested.
Hudson further contends that to repay American Founders he and two other directors *396 plus Roan "each contributed to plaintiff 2,000 shares of their option stock." There is no question but that 2,000 shares were transferred from the record holdings of each of the above mentioned persons in May, 1957. However, Hudson and all other contributors of the donated stock had obtained their shares by signing notes secured by this same stock. The notes were never paid and at the time said stock was "donated" to plaintiff corporation the notes given in payment therefor were cancelled. The entire transaction was a "wash-out" and could not and did not mitigate the damage to American Founders.

2. THE QUESTION OF ACCORD AND SATISFACTION.
On the defense of accord and satisfaction based on the same "donation" of 8,000 shares of American Founders stock, the evidence does not support this contention. Elements necessary to establish accord and satisfaction may be found in Western Air Lines, Inc. v. Hollenbeck, 124 Colo. 130, 235 P.2d 792, quoting from Pitts v. National Independent Fisheries Co., 71 Colo. 316, 206 P. 571, 34 A.L.R. 1033, as follows:
"In order to constitute an accord and satisfaction, it is necessary that the money should be offered in full satisfaction of the demand, and be accompanied by such acts and declarations as amount to a condition that the money, if accepted, is accepted in satisfaction; and it must be such that the party to whom it is offered is bound to understand therefrom that, if he takes it, he takes it subject to such conditions."
See also: 1 Am.Jur. 222, Accord and Satisfaction, § 21; 1 C.J.S. Accord and Satisfaction, § 33, p. 522.
The minutes of plaintiff corporation indicate that at a special meeting of the board of directors, held on November 4, 1957, E. V. Holland, as apparent spokesman for the so-called donors, stated that, "four of the directors had donated 2,000 shares each of their stock to recoup the losses incurred in this transaction and that they had no legal duty to do so. However, they felt that this would be the proper thing to do due to the loss incurred." The only action noted upon the minutes of such meeting was a withdrawal of the Texas Adams Oil Company item from further discussion. At the meeting no formal resolution was presented or adopted indicating that the donated shares were accepted as accord and satisfaction of the loss sustained by the corporation in the Texas Adams transactions. The minutes stand uncontradicted.
Another affirmative defense argued is that American Founders through its board ratified and confirmed the so-called Texas Adams transaction at the annual meetings held March 13, 1956, March 12, 1957, and March 11, 1958. The record does not support this contention.
At the first annual meeting of the stockholders on March 13, 1956, a so-called "balance sheet" as of March 10, 1956, was distributed to the stockholders in attendance. In the assets set forth therein is an item "Stock owned $47,600.00." The record indicates that there was some testimony to the effect that the stock owned item was discussed and explained, at least to the extent that the stock owned was Texas Adams Oil Company stock. Several witnesses testified that the stock owned item was not discussed in any particularity at all. Other witnesses testified that they did not recall any mention of Texas Adams stock at said meeting. Prior to such discussion, either of stock owned, or of the Texas Adams Oil Company stock, as may have occurred at such meeting, the stockholders voted favorably on a motion to approve all lawful acts and deeds of the officers of plaintiff corporation. The minutes of the annual meeting of March 12, 1957, indicate that the stockholders again approved all lawful acts and deeds of the officers of said corporation. Significantly this action by the stockholders was again taken prior to discussion of the Texas Adams stock transaction. These minutes indicate *397 that in response to a question by one of the stockholders concerning the investment of company funds in Texas Adams Oil Company, Mr. Hudson replied, "This is not a cash transaction but rather an exchange of stock in The American Founders Life Insurance Company of Denver, Colorado, for stock in the Texas Adams Oil Company." Hudson also stated that "As President of the Company he was assuming the responsibility for the investment. * * *" The minutes indicate that after Hudson's statement concerning the Texas Adams transactions there was a considerable discussion from the floor concerning said transaction. The minutes do not indicate any discussion of the specific or exact details of the transaction or that all of the material facts concerning said transaction were presented or explained to the stockholders. The call for the meeting did not indicate that any formal action was to be taken concerning the Texas Adams transaction. Said notice indicated that the meeting was called for the purpose of "electing directors and for the transaction of any other business that may properly come before the meeting." The minute book of plaintiff corporation does not contain any minutes of the annual stockholders meeting of March 11, 1958.
In a recent decision this court held that the stockholders' approval of all lawful actions of corporation officers and directors for the preceding year in the same or similar manner as indicated by the foregoing evidence does not constitute or establish ratification by the stockholders of acts or transactions which the law regards as unlawful or invalid. In Colorado Management Corporation v. The American Founders Life Insurance Company, 145 Colo. 413, 359 P.2d 665, is the following comment on this exact point:
"The approval of minutes of a preceding meeting is nothing more than an acknowledgment that the secretary has properly recorded the acts of the board and is not a legalization of invalid acts recorded therein. See In re Chelsea Exchange Corporation, 18 Del.Ch. 287, 159 A. 432 and Belle Isle Corporation v. Mac Bean, 29 Del.Ch. 261, 49 A.2d 5. And this same line of reasoning tends to refute the contention that the corporation ratified the contracts when the stockholders in their meetings of 1956 and 1957 approved all lawful acts of the board for the preceding year. Additionally, ratification can never exist unless it is clearly shown that the party charged with ratification has full knowledge of all material facts, and thereafter knowingly accepts and approves the contract. * * *"

3. THE QUESTION OF NEWLY DISCOVERED EVIDENCE.
Hudson argues that his motion for a new trial on the ground of newly discovered evidence should have been granted. In the affidavit filed in support of his motion Hudson stated that he had discovered evidence that would establish acceptance of the 8,000 shares of stock donated by four officers and directors in full accord and satisfaction of any claim arising out of the Texas Adams Oil Company stock transaction. In support of this claim the affidavit stated that such evidence consisted of entries on a bookkeeping sheet entitled "American Founders Life Insurance Co. Adjusting Journal Entries 4/30/57" which allegedly was produced by the chief accountant of plaintiff corporation in the trial of another case. No copy of this allegedly important document was attached to the motion for new trial nor to the affidavit. Plaintiff corporation filed a counter affidavit which, as an exhibit, set forth a copy of the alleged bookkeeping sheet referred to in Hudson's affidavit and alleged that such entries were merely corroborative of the testimony and evidence produced at the trial of the cause, and did not establish nor in any way tend to establish the alleged defense of accord and satisfaction. A review of the document itself as set forth in the second supplemental record merely discloses adjusting journal entries "to record relinquishment of stock options." Said *398 document obviously has no relevancy to any acceptance of the so-called "donation" of 8,000 shares in full satisfaction of any claim against Hudson or the other donors. It is merely corroborative and cumulative of the fact that there was a paper transaction of record by which 8,000 shares of unpaid-for stock was transferred to plaintiff corporation and a proper proportionate amount of the donors' notes were cancelled.
In Howard v. International Trust Company, 139 Colo. 314, at page 324, 338 P.2d 689, at page 694 of the official report, this court said:
"* * * The granting or denial of a motion for a new trial on the ground of newly discovered evidence rests largely in the sound discretion of the trial court, and in the absence of an abuse of that discretion will not be disturbed. * * *"
To the same effect see Buchanan v. Burgess, 99 Colo. 307, 62 P.2d 465; Andrews v. Costilla Ditch Company, 114 Colo. 317, 165 P.2d 188; Barsch v. Hammond, 110 Colo. 441, 135 P.2d 519.
We also have held that a trial court should deny a motion for new trial on the ground of newly discovered evidence when such alleged evidence would be only cumulative and would not change the result. Andrews v. Costilla Ditch Company, supra; Schlessman v. Brainard, 104 Colo. 514, 92 P.2d 749; Colorado Springs and Interurban Railway Company v. Fogelsong, 42 Colo. 341, 94 P. 356.
One other point on which we briefly comment is the assertion that the record before this court is uncertain and inadequate. This was asserted to be the result of the death of the reporter and because of the difficulties of transcription encountered by those who sought to decipher his notes. We are cited no authority, and we know of none supporting the assertion that a plaintiff in error is entitled to reversal and a new trial on the ground that the record in the case is "uncertain".
The record indicates that the trial court, after lengthy and prolonged hearings and objections filed by Hudson and by plaintiff corporation, executed its written order providing for certain changes in the reporter's transcript, and thereafter ordered that the transcript as corrected be allowed, approved, settled, signed and sealed as the reporter's transcript in the action. Under rule 112(f) R.C.P., which provides that the transcript be certified by the judge, such certification to the transcript of the proceedings is final, particularly where the objectors during the hearing on their objections produced no evidence or sworn testimony contradicting any portion of the transcript as finally certified and approved by the trial judge.
The law regarding the effect of the certification of the transcript by a trial judge is adequately set forth in Gildehaus v. Jones, 356 Mo. 8, 200 S.W.2d 523, wherein the Supreme Court of Missouri said:
"We hold the transcript of the record as originally prepared by the reporter which is authenticated by a certificate signed by the trial judge, and transmitted to this court under the seal of the clerk of the trial court, is to be considered true and quite as if the parties had agreed to it. * * * The trial judge's authentication of the full transcript of the record, like a trial judge's settlement of the former bill of exceptions, which settlement was tantamount to the approval of the bill, should be considered the act of the trial judge as a judge and in the exercise of a judicial power, his action to be dependent on his memory and existing aids. In the authentication of the full transcript, the trial judge acts under the solemnity of his official oath, and we will presume he has faithfully and honestly performed his duty."
To the same effect see Madison v. Montgomery, 206 Ga. 199, 56 S.E.2d 292; New Bay Shore Corporation v. Lewis, 193 Va. 400, 69 S.E.2d 320.
*399 We have carefully considered other contentions and arguments advanced and find them without merit. The judgment is affirmed.
MOORE and FRANTZ, JJ., concur.


650 N.W.2d 760 (2002)
264 Neb. 605
Steven J. HAUSER, Appellee and Cross-Appellant,
v.
The NEBRASKA POLICE STANDARDS ADVISORY COUNCIL and The Nebraska Commission on Law Enforcement and Criminal Justice, Appellants and Cross-Appellees.
No. S-01-467.
Supreme Court of Nebraska.
September 6, 2002.
*761 Don Stenberg, Attorney General, and Mark D. Starr for appellants.
Vincent Valentino, of Angle, Murphy, Valentino & Campbell, P.C., York, and R. Bradley Dawson, of Clough, Dawson, Piccolo & Jones, North Platte, for appellee.
*762 HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
McCORMACK, J.

NATURE OF CASE
This case involves an Administrative Procedure Act (APA) appeal by the State from a decision of the Hall County District Court. An administrative hearing was originally held before the Nebraska Police Standards Advisory Council (Council) in regard to State Trooper Steven J. Hauser's certification as a Nebraska law enforcement officer. The Council ordered the revocation of Hauser's certification, subject to the review and approval of the Nebraska Commission on Law Enforcement and Criminal Justice (Commission). The Commission ordered that Hauser's certification be revoked. Hauser appealed to the district court, which reversed the order of the Commission.

BACKGROUND
Hauser received his certification as a law enforcement officer from the Nebraska Law Enforcement Training Center (Training Center) on November 3, 1978. He was appointed a Nebraska state trooper and deputy state sheriff on that same date.
In 1999, Allen L. Curtis, executive director of the Commission, received a petition signed by numerous residents of North Platte and vicinity requesting the revocation of Hauser's law enforcement certification. Curtis notified Hauser of the complaint by letter dated September 8, 1999, and requested that Hauser respond to the allegations of the petition. In his response letter, Hauser stated that the allegations against him were outside the scope of the rules and regulations regarding the revocation of certificates and that the allegations did not fit into the statutory definition of revocable actions.
Curtis requested that an investigation be conducted pursuant to title 79, chapter 9, of the Training Center's rules and regulations. The investigation was to review the allegations brought against Hauser and to determine if the allegations were within the purview of Neb.Rev.Stat. § 81-1403(5) (Reissue 1999) (now found at § 81-1403(6) (Cum.Supp.2000)). Curtis notified Hauser that the investigation was being requested pursuant to 79 Neb. Admin. Code, ch. 9, § 006.02 (1998). After reviewing the results of the investigation, David A. Stolz, staff attorney for the Training Center, was appointed to commence formal revocation proceedings against Hauser.
The Training Center, acting as a relator on behalf of the State, filed an administrative complaint against Hauser. The second amended complaint alleged that Hauser had abused his wife throughout 1998; provided false information to a law enforcement officer; and violated his duties and responsibilities as set forth in his oath of office and various policies, codes, and canons of ethics of the Nebraska State Patrol. According to the complaint, Hauser's alleged actions represented incompetence; neglect of duty; and/or physical, mental, or emotional incapacity, and warranted revocation. Hauser was sent a letter from Curtis providing him with a copy of the complaint and a copy of title 79, chapter 9.
In Hauser's amended answer, he challenged the substance of the complaint and the procedure employed by the State. He alleged that requests to have him decertified by certain citizens of North Platte did not conform to Commission rules. He also argued that the Commission and Council lacked the requisite jurisdiction to consider the matters alleged in the complaint and, further, that the allegations did not state *763 sufficient facts to bring or maintain a revocation proceeding.
The matter was heard by the Council in August 2000. At Hauser's request, the hearing was bifurcated. The first stage addressed claims relating to the Council's authority to hear the matter, and the second addressed the merits. The evidence at the first stage demonstrated that there were no rules or regulations filed by the Council under the APA. In fact, it was the Commission who filed title 79, chapter 9, with the Secretary of State's office. There was also evidence that the Council originally reviewed the regulations in title 79, chapter 9, passed on the rules, and relayed them to the Commission. The Commission then approved and formally promulgated the rules pursuant to the APA. There was no evidence adduced at the hearing that the Nebraska State Patrol's code of ethics or the Nebraska State Patrol's disciplinary procedures and code of conduct had been promulgated under the APA or filed with the Secretary of State. In spite of these findings, the Council determined that it had jurisdiction over the matter and proceeded to the fact allegations against Hauser.
In the second phase of the bifurcated hearing, the Council heard evidence regarding the alleged misconduct of Hauser. After deliberation, the Council ordered the revocation of Hauser's certification. The Council concluded that Hauser physically abused his wife several times in 1998 and lied to an investigating officer regarding one of those occasions. The Council also concluded that the State had proved the existence of one or more statutory grounds for revocation, which have been incorporated by reference into title 79, chapter 9. Based on the State Patrol's code of ethics, the Council determined that Hauser's actions amounted to a neglect of his duties and emotional incapacity.
The matter was then forwarded to the Commission. The Commission began hearing deliberations in closed session. It later returned to open session, and by unanimous vote of the present and participating members, it decided to revoke Hauser's certification. The Commission held that the Council had jurisdiction to hear the matter and that the hearing was properly conducted. In concluding that Hauser exhibited neglect of duty and emotional incapacity, the Commission held that Hauser's violent behaviors were violations of various State Patrol codes of ethics, canons of police ethics, and general rules of conduct.
Hauser appealed to the district court under the APA. The trial court reversed the Commission's decision, concluding that it was made in excess of the Commission's statutory authority or jurisdiction. The trial court also concluded that the Commission's decision was made upon unlawful procedure in that it had no power to revoke Hauser's certification and, further, that there were no rules and regulations governing the revocation of certificates passed by the Council. However, the trial court did not award attorney fees to Hauser.

ASSIGNMENTS OF ERROR
The Council and Commission argue that the trial court erred in (1) concluding that the regulations promulgated concerning the revocation of certificates were invalid; (2) concluding that the process used in reaching final revocation was unlawful; (3) concluding that violating the rules set by the State Patrol could not constitute grounds for certification revocation if, in fact, the trial court was indicating that those standards must be promulgated under the APA; and (4) reversing the Commission's approval of the Council's decision *764 to revoke Hauser's law enforcement certification.
On cross-appeal, Hauser argues that the trial court erred in not awarding attorney fees to him because the Council and Commission's position was not substantially justified.

STANDARD OF REVIEW
A judgment or final order rendered by the district court in a judicial review pursuant to the APA may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Honda Cars of Bellevue v. American Honda Motor Co., 261 Neb. 923, 628 N.W.2d 661 (2001).
When reviewing an order of a district court under the APA for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id.
In instances where an appellate court is required to review cases for errors appearing on the record, questions of law are nonetheless reviewed de novo on the record. Lancaster Cty. Sch. Dist. No. 0001 v. State, 260 Neb. 108, 615 N.W.2d 441 (2000).
Statutory interpretation presents a question of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. Heathman v. Kenney, 263 Neb. 966, 644 N.W.2d 558 (2002).
Administrative bodies have only that authority specifically conferred upon them by statute or by construction necessary to achieve the purpose of the relevant act. Honda Cars of Bellevue v. American Honda Motor Co., supra.

ANALYSIS
The district court found that it was the Council which had the sole power as delegated by the Legislature to adopt rules and regulations concerning the revocation of law enforcement certificates.
In this case, the Council conducted a hearing of the complaints against Hauser. The Council then ordered the revocation of Hauser's law enforcement certificate. The matter was then forwarded to the Commission which, after a hearing and vote of the Commission, revoked Hauser's certificate.
The first question we address is which entity, the Commission or the Council, is empowered to revoke law enforcement certificates. According to § 81-1403 (Cum. Supp.2000):
Subject to review and approval by the commission, the council shall:

....
(6) Revoke or suspend such certificates or diplomas according to rules and regulations established by the council for reasons which shall include, but not be limited to, (a) incompetence, (b) neglect of duty, and (c) physical, mental, or emotional incapacity. Such rules and regulations shall include a procedure for hearing appeals of any person who feels that the revocation or suspension of his or her certificate or diploma was in error.
Neb.Rev.Stat. § 81-1406 (Cum.Supp. 2000) states:
There is hereby created the Nebraska Police Standards Advisory Council. The council shall be a special standing committee of the commission with the express purpose of overseeing all training schools and training academies and the operation of the training center and ensuring that all rules, regulations, and *765 policies with respect to pre-certification, certification, continuing education, and training requirements are implemented. The council shall act for the commission in all matters relating to law enforcement training and the training center but shall not have any other powers and duties with respect to the commission or any of its duties. The council shall conduct regular meetings in order to carry out its statutory duties.
(Emphasis supplied.)
Statutory interpretation presents a question of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. Heathman v. Kenney, supra. However, in the absence of anything to the contrary, statutory language is to be given its plain and ordinary meaning. An appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. See Spradlin v. Dairyland Ins. Co., 263 Neb. 688, 641 N.W.2d 634 (2002).
The trial court found that there were no rules or regulations adopted, promulgated, and filed with the Secretary of State by the Council. The trial court held that the Commission is a separate agency from the Council. We disagree. Both the Council and the Commission's duties are set out under Neb.Rev.Stat. § 81-1401 et seq. (Reissue 1999 & Cum.Supp.2000). As previously stated, § 81-1406 states very specifically that "[t]he council shall be a special standing committee of the commission." According to the plain and unambiguous language of § 81-1406, the Council is a committee of the Commission. As such, it is the Commission, not the Council, which is charged with the promulgation, adoption, and filing with the Secretary of State of the rules and regulations. The Commission performed these functions in this case.
Because statutory interpretation is a question of law, our review is de novo. We conclude, therefore, that the Council and Commission's first assignment of error is correct in that the trial court erred in concluding that the regulations promulgated concerning the revocation of certificates was invalid. Since our conclusion requires that we reverse and remand this matter to the trial court for further proceedings consistent with this opinion, it is not necessary that we address the Council and Commission's remaining assignments of error in this case, nor is it necessary that we address the cross-appeal by Hauser.
The trial court did not make a finding with regard to the code of ethics, the canons of police ethics, and the general rules of conduct. In this case, we conclude that the better course would be to remand this entire case to the trial court rather than try to decide, piecemeal, parts of it.

CONCLUSION
For the reasons set out above, we hereby reverse the decision of the trial court and remand the cause to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.


[Cite as State v. Bryant, 2016-Ohio-7336.]

                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY

State of Ohio/City of Toledo                     Court of Appeals No. L-15-1167
                                                                      L-15-1168
        Appellee
                                                 Trial Court No. CRB-14-17926
v.                                                               CRB-14-17413

Dionca M. Bryant                                 DECISION AND JUDGMENT

        Appellant                                Decided: October 14, 2016

                                             *****

        David Toska, City of Toledo Chief Prosecutor, and
        Henry Schaefer, Assistant Prosecutor, for appellee.

        Frank J. Simmons, II, for appellant.

                                             *****

        PIETRYKOWSKI, J.

        {¶ 1} In this consolidated appeal, appellant, Dionca Bryant, appeals the judgments

of the Toledo Municipal Court, following a bench trial, convicting her of one count of

domestic violence in violation of R.C. 2919.25(A), a misdemeanor of the first degree, in

case No. CRB-14-17413, and one count of domestic violence in violation of R.C.
2919.25(C), a misdemeanor of the fourth degree, in case No. CRB-14-17926. For the

reasons that follow, we affirm.

                           Facts and Procedural Background

       {¶ 2} The facts from the bench trial1 reveal that the first count of domestic

violence stems from an incident on October 25, 2014, wherein appellant got into an

argument with the victim, who is the father of appellant’s child. The victim and another

witness who was there at the time, R.B., testified that appellant picked up a rock or brick

and threw it at the victim’s face, striking him below the eye. Pictures of the damage to

the victim’s face were entered into evidence. Appellant, as well as her mother, who was

watching the events through the window of the house, testified that there was a

conversation between appellant and the victim, but that appellant did not yell at the

victim, and did not throw a rock at the victim.

       {¶ 3} The second count of domestic violence stemmed from an incident on

November 5, 2014, where appellant went to the car dealership where the victim worked

and threatened him.

       {¶ 4} Following the presentation of evidence, the trial court found appellant guilty

of the two charges of domestic violence.2 The trial court sentenced appellant to

1
  No transcript of the bench trial was available. Thus, in accordance with App.R. 9(C),
the facts are taken from the parties’ affidavits, which the trial court settled and approved.
2
 Appellant was also charged with and found guilty of one count of assault in case No.
CRB-14-17413. However, that count merged with the count of domestic violence for
purposes of sentencing.

2.
suspended sentences of 180 days in case No. CRB-14-17413, and 30 days in case No.

CRB-14-17926.

       {¶ 5} Appellant has timely appealed her judgments of conviction, asserting one

assignment of error for our review:

              1. The trial court abused its discretion by allowing testimony into

       evidence of the defendant’s character in the form of prior bad acts.

                                          Analysis

       {¶ 6} Evid.R. 404(B) provides that “Evidence of other crimes, wrongs, or acts is

not admissible to prove the character of a person in order to show action in conformity

therewith.” In his brief, appellant argues that the trial court erred in allowing the victim

and appellant’s mother to testify regarding prior times that appellant had attacked the

victim. Appellant also raises the state’s failure to provide reasonable notice of its intent

to use the prior-bad-acts evidence. The state, in its response, argues that the prior-bad-

acts testimony was elicited to show that the victim was reasonably fearful of imminent

physical harm based on the victim’s threats at his workplace. Additionally, the state

argues that even if admitting the statements was error, such error was harmless because

there was overwhelming evidence of appellant’s guilt.

       {¶ 7} “The admission of [prior-bad-acts] evidence lies within the broad discretion

of the trial court, and a reviewing court should not disturb evidentiary decisions in the

absence of an abuse of discretion that has created material prejudice.” State v. Diar, 120

Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 66. In this case, we conclude that

3.
appellant has failed to establish that the admission of the statements caused material

prejudice.

       {¶ 8} In reaching our conclusion, we are mindful of “the usual presumption that in

a bench trial in a criminal case the court considered only the relevant, material, and

competent evidence in arriving at its judgment unless it affirmatively appears to the

contrary.” State v. Arnold, --- Ohio St.3d ---, 2016-Ohio-1595, --- N.E.3d ---, ¶ 39,

quoting State v. White, 15 Ohio St.2d 146, 151, 239 N.E.2d 65 (1968). Here, appellant’s

convictions are amply supported by the testimony of the victim and R.B., which is

corroborated by the evidence of physical injury to the victim’s face. Further, it does not

affirmatively appear that the trial court based its finding of guilt on appellant’s history of

violence towards the victim. Therefore, we hold that the trial court did not commit

reversible error in admitting the statements regarding appellant’s prior bad acts.

       {¶ 9} Accordingly, appellant’s assignment of error is not well-taken.

                                         Conclusion

       {¶ 10} For the foregoing reasons, we find that substantial justice has been done the

party complaining, and the judgments of the Toledo Municipal Court are affirmed.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

                                                                         Judgment affirmed.

4.
                                                               L-15-1167 and L-15-1168
                                                               State v. Bryant

       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Stephen A. Yarbrough, J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE

           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.

5.


770 F.2d 180
Gaymanv.Department of Army
85-521
United States Court of Appeals,Federal Circuit.
5/20/85
MSPB, 21 M.S.P.R. 776
Affirmed


                                   NUMBER 13-01-466-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

ROBERT ADRIAN HINOJOSA,                                                Appellant,

                                                   v.

THE
STATE OF TEXAS,                                                          Appellee.

                        On appeal from the 103rd District Court
                                 of Cameron
County, Texas.

                                   O P I N I O N

                    Before Justices Dorsey, Hinojosa, and
Castillo
                                  Opinion
by Justice Castillo

This is an appeal
of the revocation of appellant Robert Adrian Hinojosa=s deferred
adjudication community supervision.
Hinojosa pled guilty, without a plea bargain, to the offense of burglary
of a habitation[1]
and was placed on five years deferred adjudication in March of 1996.   A motion to revoke probation and adjudicate
guilt was later filed and, at the hearing on the motion, the trial court
adjudicated Hinojosa=s guilt and
sentenced him to three years confinement in the penitentiary.[2]  In his first issue, Hinojosa complains that
he did not enter a plea of true to the motion to adjudicate and the trial court
erred in not entering a plea of Anot true@ on his
behalf.  In his second, third, and fourth
issues, Hinojosa argues that without a plea of true on the part of appellant,
the evidence was legally and factually insufficient to support the trial court=s decision to
adjudicate.  In his fifth and final issue
on appeal, Hinojosa asserts that the trial court abused its discretion in
setting aside the deferred adjudication order and finding him guilty because:
a)@[a]ppellant=s plea amounted
to no evidence@; b) the
decision of the trial court was Aagainst the
great weight of the countervailing evidence@; c) revocation of probation and
imprisonment for failure to pay restitution and a fine violate due process
absent a finding of either willful refusal or that alternative forms of
punishment are not adequate as required by Bearden v. Georgia, 461 U.S.
660 (1983); and d) the trial court failed to make an inquiry as to the
defendant=s ability to
pay before revoking probation.  We
affirm.
Analysis

As this case arises
out of a trial court=s decision to
adjudicate guilt following the placing of appellant on deferred adjudication,
the first question that confronts this court is the one of our own jurisdiction
to review the claims before us.  See Tex. Code Crim. Proc. Ann. art. 42.12, '5b (Vernon Supp.
2002).[3]

Appellant=s complaints as to the
sufficiency of the evidence, raised in his enumerated issues number two, three,
and four, are clearly attacks on the trial court=s decision to adjudicate and thus are statutorily
barred from appellate review.  Tex. Code
Crim. Proc. Ann. art.
42.12,'5b (Vernon Supp.
2002).  A trial court=s decision to proceed
with an adjudication of guilt is one of absolute discretion and is not reviewable. Williams v. State, 592 S.W.2d 931,
932-33 (Tex. Crim. App. 1979) (holding that an
appellant cannot argue on appeal that the evidence adduced at the revocation
hearing was insufficient to prove the allegations in the State's motion to adjudicate).  It is well settled that no appeal may be
taken of a trial court=s determination to
adjudicate guilt.  Tex. Code Crim. Proc. Ann. art. 42.12, '5(b)(Vernon Supp.
2002);  Phynes
v. State, 828 S.W.2d 1, 2 (Tex. Crim. App.
1992).  We thus have no jurisdiction to
consider appellant=s issues two, three
and four.

Similarly, appellant=s assertion in his
first issue that he never entered a plea of true and the trial court improperly
entered a plea of true on his behalf, goes to the question of error in the
adjudication hearing process and is likewise not reviewable.
 Connolly v. State, 983 S.W.2d 738, 741
(Tex. Crim. App. 1999)(holding that an appellant
whose deferred adjudication has been revoked and who has been adjudicated
guilty Amay not raise
on appeal contentions of error in the adjudication of guilt process,@ not just in
the decision to adjudicate)(emphasis added).[4]  We therefore likewise have no jurisdiction to
consider appellant=s first issue.
Appellant=s final issue claims
that the trial court abused its discretion in revoking his deferred
adjudication probation and sentencing him to the penitentiary.  He subdivides his issue into four complaints.  The first two complaints, subissues
AA@ and AB,@ that the trial court
abused its discretion because appellant=s Aplea amounted to no
evidence@ and even if it was
evidence, the decision was Aagainst the great
weight of the countervailing evidence,@ mirror his first two
issues on appeal and are attempts to contest the trial court=s decision to proceed
with the adjudication of guilt.  As noted
previously, we are without jurisdiction to consider such contentions.  See Tex.
Code Crim. Proc. Ann. art. 42.12, '5b (Vernon Supp.
2002).  Appellant=s sub-issue AD,@ complaining of the
trial court=s action in revoking
appellant=s deferred
adjudication without inquiring as to his ability to pay, is an attack on the
trial court=s decision to
adjudicate and the process of adjudication and hence likewise not reviewable on appeal.  Id.;
Connolly, 983 S.W.2d at 741.

Appellant=s third sub-issue,
designated as AC,@ challenges both the
trial court=s decision to revoke
the deferred adjudication and the trial court=s decision to enter a sentence of imprisonment,
claiming that the same were violations of due process.  While the challenge to the trial court=s decision to
adjudicate is unreviewable under the bar of article
42.12, '5b, we may consider
the challenge to the trial court=s actions after a
finding of guilt.  Tex. Code Crim. Proc. Ann. art. 42.12, '5b (Vernon Supp.
2002)(A[a]fter
an adjudication of guilt, all proceedings, including assessment of punishment,
pronouncement of sentence, granting of community supervision, and defendant=s appeal continue as
if the adjudication of guilt had not been deferred.@);  Issa v. State,
826 S.W.2d 159, 161(Tex. Crim. App. 1992)(holding a
defendant does have a limited right to challenge errors made following a
determination to adjudicate).

Appellant intermingles
his arguments as to the trial court=s error in
adjudicating  his guilt (which we may not
review) and the trial court=s decision to imprison
him (which we may review), under the general argument that the trial court
erred in Arevoking Appellant=s community
supervision, adjudicating him guilty, and sentencing him to the penitentiary.@  Appellant argues that Bearden
requires the trial court to make two findings, the first being a finding of
willful refusal to pay, prior to revoking probation.[5]  However, such a finding would clearly go to
the question of a trial court=s decision to adjudicate
as the question of willful refusal to pay simply parallels the existing
requirement in Texas that the State must prove that Aan alleged failure to
pay fees, costs, and the like was intentional@ in order to support a finding of Atrue@ in a motion to
revoke.  Stanfield v. State, 718
S.W.2d 734, 738 (Tex. Crim. App. 1986).  Since we may not review the trial court=s decision to
adjudicate or the process by which it chose to do so, we cannot consider
appellant=s claim that the trial
court erred in Arevoking@ his deferred
adjudication without making a finding as to his willful refusal to pay.  Tex.
Code Crim. Proc. Ann. art.
42.12, '5(b)(Vernon Supp.
2002);  Connolly, 983 S.W.2d at
741; Phynes, 828 S.W.2d at 2.

 The second Bearden requirement that
appellant asserts was violated is the determination by the trial court that
alternative forms of punishment were not available.  Bearden, 461 U.S. at 672.  This complaint apparently is aimed at the
trial court=s actions at the
sentencing portion of the hearing and hence is not barred from appellate review
by article 42.12, '5b as discussed
previously.  We note, however,  that appellant made no complaint to the trial
court of its alleged failure and that even constitutional claims may be waived
by a failure to object at trial.  Briggs
v. State,  789 S.W.2d 918, 924 (Tex. Crim. App. 1990).
However, even if we review such claim in the interest of justice, the
requirement to consider other means of punishment only arises when a
probationer has made bona fide efforts to pay and has been unable to do so.  Corpus v. State, 26 S.W.3d 660, 662 (Tex.
App.BCorpus Christi 2000,
no pet.).  The trial court in the present
case made no such finding and the appellant below made no such argument.  Appellant argued at the hearing that he had
been dealing with his drug problems but did not say that he had not been able
to pay nor that he had made good faith attempts to do so.  Indeed, his testimony supported the
State=s argument that, over
most of the five years of his deferred adjudication, appellant had been using
drugs and thus had impliedly chosen to spend his money on drugs rather than his
court-ordered fines and restitution.   We find that the trial court in the present
case was not required to make any specific findings that other alternatives to
imprisonment were not adequate.[6]  We overrule this issue.
Conclusion
Having found that all
but one of appellant=s claims are barred
from appellate review, and having overruled appellant=s sole reviewable claim, we affirm the conviction and sentence of
the trial court.
ERRLINDA CASTILLO
Justice
Do not publish.
Tex. R. App. P. 47.3(b).

Opinion delivered and filed
this 13th day of June,
2002.

1Tex. Pen. Code Ann. '30.02(a)(1)(Vernon Supp. 2002).

2 The
State alleged that Hinojosa was in violation of the conditions of his community
supervision due to arrearages as follows: $300 in probation fees; $9,130 in
restitution; and $123 in the PSI fee.

3
We invited both parties to submit additional briefs on this issue.  None have been filed.

4
We note that during the proceedings, neither appellant nor his attorney objected
to any part of the proceedings, including the alleged failure of appellant to
enter a plea.

[5]
Specifically, the Supreme Court stated:

We
hold, therefore, that in revocation proceedings for failure to pay a fine or
restitution, a sentencing court must inquire into the reasons for the failure
to pay.  If the probationer willfully
refused to pay or failed to make sufficient bona fide efforts legally to
acquire the resources to pay, the court may revoke probation and sentence the
defendant to imprisonment within the authorized range of its sentencing
authority.  If the probationer could not
pay despite sufficient bona fide efforts to acquire the resources to do so, the
court must consider alternative measures of punishment other than
imprisonment.  Only if alternative
measures are not adequate to meet the State=s
interests in punishment and deterrence may the court imprison a probationer who
has made sufficient bona fide efforts to pay.
To do otherwise would deprive the probationer of his conditional freedom
simply because, through no fault of his own, he cannot pay the fine. Such a
deprivation would be contrary to the fundamental fairness required by the
Fourteenth Amendment.

Bearden v. Georgia, 461
U.S. 660, 672-73 (1983).

6 We
note, however, that the trial court had considered, and utilized, other
alternatives to incarceration in prior dealings with appellant on this
case.  The record reflects that the trial
court had previously modified appellant=s
probation on two prior occasions to send him to drug treatment and boot
camp.  However, according to the State=s
comments at the revocation hearing, which were not contested by appellant,
appellant was still testing positive for cocaine and marijuana use as little as
a week before the revocation hearing.


290 So.2d 383 (1974)
LOUISIANA STATE BOARD OF MEDICAL EXAMINERS
v.
Karen MORAN.
No. 6180.
Court of Appeal of Louisiana, Fourth Circuit.
January 25, 1974.
Rehearing Denied March 8, 1974.
Edward J. Rice, Jr., and Bernard S. Smith, New Orleans, for relator.
Alvin G. Baham, Gretna, for defendant-respondent.
Before SAMUEL, REDMANN, GULOTTA, STOULIG, BOUTALL, SCHOTT and MORIAL, JJ., and BAILES and MARCEL, JJ. Pro Tem.
SCHOTT, Judge.
This matter is before us on a writ of certiorari granted on the application of Louisiana State Board of Medical Examiners to review an order granting a suspensive appeal from a judgment permanently enjoining respondent from practicing acupuncture.
Relator established to the satisfaction of the trial judge that respondent was practicing acupuncture, that such constitutes the practice of medicine and that respondent is not licensed to practice medicine. When respondent applied for and was granted a suspensive appeal from the judgment, conditioned upon her posting a $300 bond, relator applied here for a writ on the ground that the trial judge's grant of a suspensive *384 appeal constituted an abuse of the discretion afforded him under LSA-C.C.P. Art. 3612 and was in violation of the provisions of LSA-R.S. 37:1286:
"The board through its proper officer may cause to issue in any competent court a writ of injunction enjoining any person from practicing medicine in any of its departments, until such person obtains a certificate under the provisions of this Part. This injunction shall not be subject to being released upon bond."
When this statute, a part of Act 56 of 1914, was passed by the Legislature the procedural rules relative to injunctions were found in the Code of Practice beginning with Art. 296. Art. 304 made it possible for a plaintiff to obtain an injunction ex parte on the face of the pleadings.
Art. 307 provided as follows:
"Whenever the act prohibited by the injunction is not such as may work an irreparable injury to the plaintiff, the court may in their discretion dissolve the same; provided the defendant execute his obligation in favor of the plaintiff, with the surety of one good and solvent person residing within the jurisdiction of the court, for such sum as the court may determine, according to the nature of the case, as security that he will deliver the property in dispute in the same state in which it was at the moment of issuing the injunction, and that he will pay besides to the plaintiff all damages he may have sustained by this act, if a definitive judgment be rendered against him in the suit pending."
In Union Sawmill Co. v. Summit Lumber Co., 119 La. 313, 44 So. 28, there was an appeal by plaintiffs from an order dissolving their injunction on bond. They contended that the trial judge had abused his discretion because the dissolution of the bond would cause them irreparable harm. The Court held that plaintiffs would not suffer irreparable harm; that they would be protected by the bond posted by defendants; and that the trial judge had not abused his discretion under the circumstances. The following excerpt from the Court's opinion provides an insight into the procedure which was employed at the time of this case in 1907:
"This is not the first time that the questions involved were brought here for our decision in this case. An injunction had been issued prior to the one now before us.
"On defendant's motion it was dissolved on bond.
"Subsequent to the rendition of the dissolving decree, plaintiff applied for a suspensive appeal, which was refused. Plaintiff then applied to this court for a writ of mandamus to compel the judge of the district court to grant an appeal. The application was denied. A rehearing was applied for, which the court refused. A number of propositions in support of plaintiff's right were advanced by plaintiff and pressed upon the court's consideration. They were considered. The court declined to grant plaintiff's demand.
* * * * * *
"There is a discretion vested in the district judge by article 307 of the Code of Practice, of which he would be divested if, before issuing the order authorizing bond to set aside the injunction, it were required that he should satisfy himself as to the legality and binding effect of the right claimed in all its details. That is not the intention of the article of the Code of Practice.
"Construing that article, this court said:
'The dissolution of an injunction on bond is the exercise of the discretionary power vested expressly in the judge by the terms of the article of the Code of Practice. The discretion of the judge cannot be coerced.'
"We will not take up the merits to ascertain whether the injury complained of is irreparable vel non."
*385 Upon considering this background, we have concluded that the intention of the Legislature in including the provision in LSA-R.S. 37:1286 that "This injunction shall not be subject to being released on bond" was to prevent an enjoined defendant from availing himself of the procedure afforded by Art. 307 of the Code of Practice. Without such a prohibition the Medical Board would have been faced with a dissolution of any injunction it might have obtained since in every case the defendant could show that the act prohibited by such an injunction, to wit, the practice of medicine would not be such as to work irreparable harm on the plaintiff Board and the obvious intention of the Legislature was to prevent the Board's acts from being frustrated by the Code of Practice article in question.
By Act 29 of 1924 the Legislature sought to regulate the procedure with respect to temporary restraining orders and preliminary writs of injunction. As discussed in American National Bank v. Baumann, 173 La. 336, 137 So. 54, the Act's purpose was "to rid the State of the abuse to which the ex parte issuance of the writ of injunction had been subjected for many years" by setting up a procedure under which preliminary injunctions could be obtained only contradictorily against a party and not ex parte on the face of the pleadings. The act was incorporated in the Code of Practice as Arts. 297.1 to 297.6, was later incorporated in LSA-R.S. 37:1286 et seq. and was essentially reenacted by the Legislature in the Code of Civil Procedure as LSA-C.C.P. Art. 3601 et seq. The present C.C.P. Art. 3612 prescribes: "An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction, but such an order or judgment shall not be suspended during the pendency of an appeal unless the court in its discretion so orders." The source provision, LSA-R.S. 13:4070 or Code of Practice Art. 297.5, concerned itself only with the preliminary injunction and prescribed that a devolutive appeal might be taken as a matter of right from the granting or refusal to grant a preliminary writ of injunction or an application to dissolve an injunction, but that "the court may, in its discretion, allow to any party enjoined a suspensive appeal from any order granting a preliminary injunction."
In attempting to reconcile what they considered to be conflicts between R. S. 37:1286 and R.S. 13:4070 (now C.C.P. Art. 3612) the Second Circuit in Louisiana State Board of Medical Examiners v. Tackett, La.App., 70 So.2d 207 (1953) and this Court in Louisiana State Board of Medical Examiners v. Knight, La.App., 180 So.2d 755 (1965), found that the provisions of the injunction statutes superseded the provisions of the medical practice act so that the grant of a suspensive appeal was within the discretion of the trial judge. In both cases the courts considered the language of the medical act to the effect that "This injunction shall not be subject to being released upon bond" as a prohibition against the filing of a suspensive appeal bond and consequently an insurmountable obstacle to the taking of a suspensive appeal. But we have concluded that the subject provision was not intended to apply to the suspensive appeal bond but only to the procedure then found in Art. 307 of the Code of Practice and in that respect we repudiate this Court's reasoning in Louisiana State Board of Medical Examiners v. Knight, supra. Since Art. 307 was repealed with the passage of the Code of Civil Procedure the subject provision of the medical act no longer has any application whatsoever and the question is governed exclusively by LSA-C.C.P. Art. 3612.
The article prescribes that a judgment relating to a preliminary or final injunction[1] shall not be suspended pending *386 appeal unless the court, in its discretion, so orders. We have concluded that under the circumstances of this case the trial court's granting of a suspensive appeal did constitute an abuse of the discretion afforded him under this article. The trial judge found that respondent was not a licensed physician but was practicing medicine. Having made such a finding, his granting of an injunction against the respondent on the one hand and his suspending the effect of the injunction pending appeal on the other is a gross inconsistency and is clearly beyond the limits of the discretion afforded to a trial judge by the article.
Accordingly, the order of the trial judge granting a suspensive appeal to the respondent is vacated, reserving however to respondent the right to prosecute her appeal as a devolutive appeal.
Order granting suspensive appeal vacated.
NOTES
[1]  In this case the record is not clear as to whether the court had before it a preliminary or final injunction. The prayer of the original petition is for a preliminary injunction but the judgment of the trial court awards a permanent injunction to plaintiff. But Art. 3612 makes no distinction and would apply in either case.