                          STATE OF MICHIGAN

                             COURT OF APPEALS

LAWRENCE A. NAKFOOR and DEBRA L.                                     UNPUBLISHED
NAKFOOR,                                                             January 30, 2018

               Plaintiffs-Appellees/Cross-
               Appellants,

v                                                                    No. 335257
                                                                     Eaton Circuit Court
OUR SAVIOR LUTHERAN CHURCH, C & D                                    LC No. 15-001137-CZ
HUGHES, and O’HARROW CONSTRUCTION
COMPANY,

               Defendants,

and

CHARTER TOWNSHIP OF DELTA,

               Defendant-Cross-Appellee,

and

EATON COUNTY DRAIN COMMISSIONER,

               Defendant-Appellant/Cross-
               Appellee.

Before: MURPHY, P.J., and SAWYER and BECKERING, JJ.

PER CURIAM.

        Plaintiffs’ real property has been flooded on several occasions in the last few years during
heavy rains, which flooding plaintiffs attributed to an increase in the elevation of neighboring
property during its development and construction and defects in an adjacent storm water drain
system. Plaintiffs filed suit against the neighboring property owner, defendant Our Savior
Lutheran Church (OSLC), a contractor that delivered and dumped the fill that increased the
elevation of OSLC’s land, defendant C & D Hughes, and a construction company involved in
earth moving during OSLC’s development of its property, defendant O’Harrow Construction
Company. None of these defendants are part of this appeal. Plaintiffs also sued defendants

                                                -1-
Eaton County Drain Commissioner (the Drain Commissioner) and Delta Charter Township (the
Township), alleging negligence for failing to remedy defects in the storm drain or drain system,
negligence in allowing the elevation change in OSLC’s property, and inverse condemnation.
The trial court denied the Drain Commissioner’s motion for summary disposition that was based
on the invocation of governmental immunity, with the court allowing plaintiffs’ defect and
negligence claims to go forward under the “sewage disposal system event” (SDSE) exception to
governmental immunity, MCL 691.1416 et seq. The Drain Commissioner appeals that ruling as
of right. The trial court granted summary disposition in favor of the Township on the basis of
governmental immunity, concluding that the SDSE exception was inapplicable to the Township.
That decision is not being challenged on appeal. Finally, the trial court granted summary
disposition in favor of the Drain Commissioner and the Township on plaintiffs’ claim of inverse
condemnation. Plaintiffs cross appeal that ruling. We affirm the denial of the Drain
Commissioner’s motion for summary disposition, affirm the ruling summarily dismissing
plaintiffs’ inverse condemnation claim against the Township, and reverse the dismissal of the
inverse condemnation claim brought against the Drain Commissioner.

                                            I. FACTS

        Plaintiffs reside in the Countryside Estates subdivision in Grand Ledge, Michigan. In
1991, the Drain Commissioner constructed the “Myers & Henderson Drain District Project,”
which consisted of a 15-inch drainpipe, catch basins, and a berm that ran on a north-south line
along the eastside of the subdivision. Plaintiffs’ property abuts the west side of the drain system.
The drain project resolved a flooding problem in the subdivision and was effective for over 17
years. Plaintiffs and other residents claimed that undeveloped property directly adjacent to the
east side of the drain and berm was lowland and for years served as an unintentional “de facto
retention pond,” preventing flooding in the subdivision.

        In 2008, OSLC began its construction of a church, a school, and ball fields on the
previously undeveloped property to the east of the storm water drain system. In 2007, the
Township had approved OSLC’s site plan, which did not reflect any change in the property’s
elevation and referenced proposed storm drainage and grading plans to ensure that storm water
would be contained on site and not trespass to the west where the subdivision is located. And the
Drain Commissioner had granted OSLC a soil erosion and sedimentation control permit. Despite
the fact that increasing the elevation of OSLC’s land was not part of OSLC’s approved site plan,
C & D Hughes began openly delivering to and dumping on OSLC’s property extensive amounts
of spoil dirt excavated from storm water retention ponds that were part of a project known as the
Section 17 Drain Project, which was located in another area of Eaton County. In answers to
interrogatories provided by C & D Hughes, it was asserted that the Drain Commissioner had
approved the excavation of the spoil dirt from the retention ponds “but had no role in the
disposition of the dirt.” According to C & D Hughes, it “receives no income from the
disposition of spoil dirt” and numerous entities had requested receipt of the spoil dirt excavated
from the Section 17 Drain Project, including OSLC. Interestingly, OSLC, in a response to
requests for admissions, denied that it had agreed to or approved of the spoil dirt being dumped
on its land. Regardless, the elevation of OSLC’s property was ultimately raised four feet,
approximately two feet higher than the berm. Plaintiffs allegedly warned the Drain
Commissioner that this change in elevation would result in runoff onto their property. Nothing

                                                -2-
was done by the Township or the Drain Commissioner to enjoin, challenge, or reverse the
increase in the elevation of OSLC’s property.

        From 2009 through 2013, there were several instances of rainfall and spring snowmelt
that caused water to overflow the berm and flood the subdivision. In June 2013, a “major
rainfall” resulted in water flooding plaintiffs’ property, with over five feet of standing water
ending up in their basement, which rendered all of its contents unsalvageable. In April 2014, the
Drain Commissioner approved the installation of two additional “catch basins” on the east side
of the berm that flowed into the 15” drainpipe. However, in May 2014, water again overflowed
the berm.

        On June 14, 2015, a heavy rainfall caused flooding once again. Nine days later, another
storm caused flooding so severe that emergency personnel were unable to reach plaintiffs’ home,
and plaintiffs’ basement was again flooded. Around this time, on or about June 22, 2015,
plaintiffs and several other subdivision property owners submitted a “Petition for Cleaning,
Widening, Deepening, Straightening and Extending a County Drain” to the Drain Commissioner.

         On February 24, 2016, plaintiffs filed their complaint against defendants and eventually
filed a second amended complaint. Plaintiffs’ complaint focused quite heavily on the 2007-2008
planning, oversight, processes, and review connected to the development of OSLC’s property
and the increase in the land’s elevation. Further, we find especially pertinent here the following
allegations in plaintiffs’ complaint, which were set forth in the “claims” section of the complaint:

       45.     Mr. Graham, Delta Township Planning Manager[,] was at the construction
       site and witnessed the dumping activity. Mr. Graham was also aware that the site
       plan showed no change in the site’s elevation. . . . Mr. Graham’s comments at this
       past June 15, Delta Township Board Meeting evidences the fact that he had
       reason to believe that the Eaton County Drain Commissioner . . . had “worked out
       an agreement” to bring the fill to the church site. The fact that Mr. Graham asks
       for a copy of a soil erosion and fill plan, doesn’t absolve the Township of
       responsibility. The Township Zoning Ordinance states: “the clearing, grading and
       balancing of land may commence absent site plan review if all necessary permits
       have been obtained from the appropriate State and local agencies.” Without
       evidence that the permits had in fact been obtained, the Township had ample
       reason to enforce compliance with the approved site plan, and stop the fill
       activity.

       46.     Given Mr. Graham’s above comments, combined with the fact that the
       Eaton County Drain Commissioner doesn’t act to stop the dumping, there is
       reason to believe that . . . the Eaton County Drain Commissioner had in fact
       approved the several week fill activity. It is unfathomable to believe that a Drain
       Commissioner would approve any fill activity without requiring the need for a
       permit. But to allow thousands of truckloads of dirt to be hauled to a previous
       County Drain Project site are indefensible and negligent. The Defendant[s’]
       collective actions are directly responsible for the Plaintiffs ongoing flooding
       damages.

                                                -3-
                                               ***

       50.     Since May 15, 2014, the Defendants have been aware there is a defect
       causing the catch basins and drain pipe under the earthen berm to fail to drain. . . .
       The most recent flooding of the Plaintiffs[’] property was the result of not only
       water coming from the church property overflowing the berm, it was exacerbated
       by the fact that the intersections’ catch basins weren’t draining.

                                               ***

       53.     The Plaintiffs believe that for the past seven years, the Defendants have
       been negligent in failing to properly perform their duties. Not only did the
       Defendants fail to stop the fill activity in 2008, despite continued efforts by the
       Plaintiffs, the Defendants have subsequently failed to remedy the impact the fill
       dirt has had in causing debris and water to overflow the berm. The Defendants
       have also been negligent over these last two years in taking the necessary
       corrective action to ensure that the intersection catch basins will drain at all times.
       Allowing the . . . [subdivision] to flood and become impassable not only
       represents an ongoing risk to the health and safety of the Plaintiffs, it’s a similar
       risk to any motorist entering the intersection when it’s flooded. The Plaintiffs
       flooding issues and losses are a direct result of the Defendants long term
       negligence.

        The Drain Commissioner and the Township moved for summary disposition, and the trial
court issued a detailed opinion and order. The court found that plaintiffs’ inverse condemnation
claim failed as a matter of law because there was no affirmative action taken by the Township
and Drain Commissioner that was directly aimed at plaintiffs’ property. It appears that the trial
court made this ruling under MCR 2.116(C)(8) and (10). The trial court also concluded that the
Township was not an appropriate governmental agency for purposes of implicating the SDSE
exception to governmental immunity, thereby entitling the Township to summary disposition
under MCR 2.116(C)(7). Finally, the court denied that portion of the Drain Commissioner’s
motion asserting governmental immunity, ruling that the SDSE exception to governmental
immunity had been sufficiently pleaded and factually supported, and rejecting various arguments
posed by the Drain Commissioner, which we shall explore below.

                                          II. ANALYSIS

           A. STANDARD OF REVIEW AND SUMMARY DISPOSITION TESTS

        We review de novo a trial court’s ruling on a motion for summary disposition. Spiek v
Dep’t of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998). The applicability of governmental
immunity and the statutory exceptions to immunity is likewise reviewed de novo on appeal.
Snead v John Carlo, Inc, 294 Mich App 343, 354; 813 NW2d 294 (2011). Issues involving
statutory interpretation are also reviewed de novo. Estes v Titus, 481 Mich 573, 578-579; 751
NW2d 493 (2008). Finally, constitutional questions are subject to de novo review. Hinojosa v
Dep’t of Natural Resources, 263 Mich App 537, 541; 688 NW2d 550 (2004).

                                                -4-
        MCR 2.116(C)(7) provides for summary disposition when a claim is barred because
of “immunity granted by law.” The movant may submit affidavits, depositions, admissions, or
other documentary evidence in support of the motion if substantively admissible. Odom v
Wayne Co, 482 Mich 459, 466; 760 NW2d 217 (2008). The complaint’s contents must be
accepted as true unless contradicted by the documentary evidence. Id. This Court must consider
the documentary evidence in a light most favorable to the nonmoving party for purposes of MCR
2.116(C)(7). RDM Holdings, Ltd v Continental Plastics Co, 281 Mich App 678, 687; 762 NW2d
529 (2008). “If there is no factual dispute, whether a plaintiff’s claim is barred under a principle
set forth in MCR 2.116(C)(7) is a question of law for the court to decide.” Id. When, however, a
relevant factual dispute does exist, summary disposition is not appropriate. Id.

        With respect to MCR 2.116(C)(8), which provides for summary disposition when a
“party has failed to state a claim on which relief can be granted,” it tests the legal sufficiency of a
complaint. Beaudrie v Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001). The trial court
may only consider the pleadings in rendering its decision. Id. All factual allegations in the
complaint are accepted as true. Dolan v Continental Airlines/Continental Express, 454 Mich
373, 380-381; 563 NW2d 23 (1997). “The motion should be granted if no factual development
could possibly justify recovery.” Beaudrie, 465 Mich at 130.

        Finally, in regard to the well-established principles governing a motion for summary
disposition brought pursuant to MCR 2.116(C)(10), this Court in Pioneer State Mut Ins Co v
Dells, 301 Mich App 368, 377; 836 NW2d 257 (2013), explained:

               In general, MCR 2.116(C)(10) provides for summary disposition when
       there is no genuine issue regarding any material fact and the moving party is
       entitled to judgment or partial judgment as a matter of law. A motion brought
       under MCR 2.116(C)(10) tests the factual support for a party's claim. A trial court
       may grant a motion for summary disposition under MCR 2.116(C)(10) if the
       pleadings, affidavits, and other documentary evidence, when viewed in a light
       most favorable to the nonmovant, show that there is no genuine issue with respect
       to any material fact. A genuine issue of material fact exists when the record,
       giving the benefit of reasonable doubt to the opposing party, leaves open an issue
       upon which reasonable minds might differ. The trial court is not permitted to
       assess credibility, weigh the evidence, or resolve factual disputes, and if material
       evidence conflicts, it is not appropriate to grant a motion for summary disposition
       under MCR 2.116(C)(10). A court may only consider substantively admissible
       evidence actually proffered relative to a motion for summary disposition under
       MCR 2.116(C)(10). [Citations and quotation marks omitted.]

                      B. GOVERNMENTAL IMMUNITY – GENERALLY

       In Moraccini v City of Sterling Hts, 296 Mich App 387, 391-392; 822 NW2d 799 (2012),
this Court set forth some basic controlling principles regarding governmental immunity:

             Except as otherwise provided, the governmental tort liability act (GTLA),
       MCL 691.1401 et seq., broadly shields and grants to governmental agencies
       immunity from tort liability when an agency is engaged in the exercise or

                                                 -5-
       discharge of a governmental function. MCL 691.1407(1); Duffy v Dep’t of
       Natural Resources, 490 Mich 198, 204; 805 NW2d 399 (2011); Grimes v Dep’t of
       Transp, 475 Mich 72, 76-77; 715 NW2d 275 (2006). “The existence and scope of
       governmental immunity was solely a creation of the courts until the Legislature
       enacted the GTLA in 1964, which codified several exceptions to governmental
       immunity that permit a plaintiff to pursue a claim against a governmental
       agency.” Duffy, 490 Mich at 204. A governmental agency can be held liable under
       the GTLA only if a case falls into one of the enumerated statutory exceptions.
       Grimes, 475 Mich at 77; Stanton v Battle Creek, 466 Mich 611, 614-615; 647
       NW2d 508 (2002). An activity that is expressly or impliedly authorized or
       mandated by constitution, statute, local charter, ordinance, or other law constitutes
       a governmental function. Maskery v Univ of Mich Bd of Regents, 468 Mich 609,
       613-614; 664 NW2d 165 (2003). This Court gives the term “governmental
       function” a broad interpretation, but the statutory exceptions must be narrowly
       construed. Id. at 614. “A plaintiff filing suit against a governmental agency must
       initially plead his claims in avoidance of governmental immunity.” Odom, 482
       Mich at 478-479.

                C. SDSE EXCEPTION TO GOVERNMENTAL IMMUNITY

        “A governmental agency is immune from tort liability for the overflow or backup of a
sewage disposal system unless the overflow or backup is a sewage disposal system event and the
governmental agency is an appropriate governmental agency.” MCL 691.1417(2). A SDSE is
defined as “the overflow or backup of a sewage disposal system onto real property.” MCL
691.1416(k). And a “sewage disposal system” encompasses “storm sewers . . . and includes a
storm water drain system under the jurisdiction and control of a governmental agency.” MCL
691.1416(j). Accordingly, reading MCL 691.1416(k) and (j) together, and as relevant to this
case, a SDSE involves the overflow or backup of a storm sewer or storm water drain system.
MCL 691.1417(3) provides:

               If a claimant, including a claimant seeking noneconomic damages,
       believes that an event caused property damage or physical injury, the claimant
       may seek compensation for the property damage or physical injury from a
       governmental agency if the claimant shows that all of the following existed at the
       time of the event:

              (a) The governmental agency was an appropriate governmental agency.

              (b) The sewage disposal system had a defect.

               (c) The governmental agency knew, or in the exercise of reasonable
       diligence should have known, about the defect.

               (d) The governmental agency, having the legal authority to do so, failed to
       take reasonable steps in a reasonable amount of time to repair, correct, or remedy
       the defect.

                                               -6-
              (e) The defect was a substantial proximate cause of the event and the
       property damage or physical injury.

        Relying on these criteria, this Court has held that in order for a claimant to avoid
governmental immunity under the SDSE exception, the claimant must establish the elements
found in MCL 691.1417(3)(a) through (e). Cannon Twp v Rockford Pub Schs, 311 Mich App
403, 415; 875 NW2d 242 (2015); Linton v Arenac Co Rd Comm, 273 Mich App 107, 113-114;
729 NW2d 883 (2006); Willett v Waterford Charter Twp, 271 Mich App 38, 49; 718 NW2d 386
(2006). A “defect” is statutorily defined as a “construction, design, maintenance, operation or
repair defect.” MCL 691.1416(e). Regarding this definition, the panel in Willett, 271 Mich App
at 51, quoting Random House Webster's College Dictionary (1997), observed that “[g]iven that
the definition of ‘defect’ itself uses the term ‘defect,’ and that the second use of the term is
undefined in the statute, we reference dictionary definitions[,]” and a “ ‘defect’ is defined as ‘a
fault or shortcoming; imperfection.’ ” (Citations omitted.) Accordingly, a “defect” in a storm
sewer or storm water drain system encompasses a fault, shortcoming, or imperfection in the
construction, design, maintenance, operation, or repair of the sewer or system.

                  D. DISCUSSION – GOVERNMENTAL IMMUNITY ISSUE

        We find it important to first identify the nature of the negligence claims actually being
made by plaintiffs in their complaint. As reflected in paragraphs 50 and 53 of the complaint,
plaintiffs alleged that the Drain Commissioner was negligent: (1) for failing to stop the fill
activity in 2008 that heightened the elevation of OSLC’s property; (2) for failing to remedy the
impact the fill dirt had on causing debris and water to overflow the berm; and (3) for failing to
take corrective actions with respect to catch basins and the drainpipe, which were not draining
properly. We shall address each of these claims in turn.

         In regard to the claim that the Drain Commissioner was negligent for failing to stop the
fill activity that resulted in the increased elevation of OSLC’s property, the assertion simply does
not implicate the SDSE exception to governmental immunity, considering that it does not pertain
to a failure to repair, correct, or remedy a fault, shortcoming, or imperfection, i.e., a defect, in the
construction, design, maintenance, operation, or repair of the storm drain or storm water drain
system. MCL 691.1417(3); MCL 691.1416(e); Willett, 271 Mich App at 51.

        Next, concerning the claim that the Drain Commissioner was negligent for failing to
remedy the impact the fill dirt had on causing debris and water to overflow the berm, we find
that this allegation does implicate the SDSE exception to governmental immunity. With the
development of OSLC’s land and the increase in the elevation of the property, there was a
change in the physical environment adjacent to the storm water drain system, resulting in storm
waters that flowed into the system at a level that far exceeded the flow that occurred with pre-
development rainfalls. And there was evidence sufficient to survive summary disposition
indicating that with the change in the landscape’s physical environment, the storm water drain
system was inadequate to handle some rainfalls, causing flooding in the subdivision. Thus, there
was evidence that the storm water drain system had a fault, shortcoming, or imperfection as to
the operation or maintenance of the system following the increase in the elevation of OSLC’s
property. MCL 691.1417(3); MCL 691.1416(e); Willett, 271 Mich App at 51.

                                                  -7-
        The situation is somewhat analogous to the facts in Willett, except that the outside force
here – the elevation change – is more permanent in nature. In Willett, the plaintiff sued the
defendant township because of a sewage backup caused by an obstruction in the sewer system
created by a third party placing a large piece of concrete or asphalt into the system. 271 Mich
App at 40-43. This Court recognized that the township had not created the obstruction and that
“no reasonable maintenance program could have prevented the rogue act of a third party in
creating the ‘defect.’ ” Id. at 52. However, the Willett panel observed that the SDSE exception to
governmental immunity did not require the responsible governmental authority to be at fault for
creating or causing a defect. Id.

        Just as the temporary obstruction in Willett caused a “defect” in the sewage disposal
system, absent any fault by the township, with regard to the operation or maintenance of the
system, there was evidence in the instant case that the neighboring elevation increase resulted in
a defect in the storm water drain system with respect to the system’s operation or maintenance,
even if the Drain Commissioner played no role whatsoever in the elevation change.

        Next, relative to plaintiffs’ claim that the Drain Commissioner was negligent for failing
to take corrective actions with respect to catch basins and the drainpipe, which were not draining
properly, we conclude that the claim also implicates the SDSE exception to governmental
immunity. Again, there was evidence sufficient to survive summary disposition showing the
existence of a fault, shortcoming, or imperfection in the maintenance or operation of the storm
water drain system, given the evidence that the drains failed to flow at times. MCL 691.1417(3);
MCL 691.1416(e); Willett, 271 Mich App at 51. Because there existed adequate evidence to
avoid summary dismissal based on governmental immunity for the reasons stated above, we find
it unnecessary to address the question whether there was an issue of fact regarding whether the
flooding resulted from a design or construction defect in the storm water drain system, assuming
plaintiffs’ complaint even alleged such a defect.

        The Drain Commissioner argues that there was no evidence that the storm drain was
actually defective, contending that the storm drain’s capacity was designed to handle 10-year
flood events and not “the unprecedented rain events of 2013 and 2015.” There appears to be
conflicting evidence concerning whether the heavy rains in 2013 and 2015 exceeded or failed to
exceed the 10-year threshold and even regarding what exactly constitutes a 10-year storm.
Regardless, as indicated, we decline to decide the “design” or “construction” issue. We will,
however, voice a few comments on the matter. It is evident from the record that the flooding
problems that developed in 2008 forward were not merely the result of rains, heavy or otherwise,
but rather rains in conjunction with the increased elevation of OSLC’s property; there were no
flooding problems in the subdivision beforehand for approximately 17 years, during which there
were certainly heavy rains at times. The Drain Commissioner conveniently ignores the
increased-elevation component of this case in discussing whether a defect existed in the storm
water drain system. While perhaps the storm drain, as originally designed and constructed, was
adequate to prevent flooding in the subdivision before the change in elevation, although the
previously undeveloped property flooded, the elevation increase clearly gave rise to a flooding
problem. And the question that lies at the heart of this case is whether the storm water drain
system had a defect with respect to its operation or maintenance, taking into consideration
rainfalls and the change in the physical environment – the increase in the elevation of OSLC’s
property. On this question there exists a genuine issue of fact.

                                               -8-
       Further, there were adequate allegations and evidence that the Drain Commissioner
knew, or in the exercise of reasonable diligence should have known, about the faults,
shortcomings, and imperfections in the maintenance or operation of the storm water drain
system; there was evidence that the repeated flooding of plaintiffs’ property and the subdivision
was brought to his attention from the very beginning and that he was aware of the elevation
change and the associated concerns. MCL 691.1417(3)(c). Indeed, there was evidence that the
Drain Commissioner was alerted about the prospect of flooding before it even first occurred.

        Next, there was adequate evidence showing that the Drain Commissioner failed to take
reasonable steps in a reasonable amount of time to repair, correct, or remedy the alleged defects
in the operation or maintenance of the storm drain. MCL 691.1417(3)(d). The problematic
flooding has been ongoing for years, and the installation of the two additional catch drains did
not halt the flooding. The Drain Commissioner argues that he lacked the necessary legal
authority to repair, correct, or remedy the alleged defects. Id. However, MCL 280.196(4)
provides:

               If an inspection discloses the necessity of expending money for the
       maintenance and repair of a drain in order to keep it in working order, the drain
       commissioner for a county drain, or the drainage board for an intercounty drain,
       may without petition expend an amount not to exceed in any 1 year $5,000.00 per
       mile or fraction of a mile for maintenance and repair of a drain, exclusive of
       inspection and engineering fees and the cost of publication and mailing. The
       determination of the maximum expenditure allowed without a petition or
       resolution shall be based on the total number of miles of the drain and not on the
       actual number of miles or location of the maintenance or repair. [Emphasis
       added.]

        Accordingly, the Drain Commissioner had the authority, absent any petition, to expend
monies on the maintenance and repair of the storm water drain system in order to keep it in
working order, so long as he stayed within the monetary limits of the statute. Indeed, the Drain
Commissioner previously acted without a petition in 2014 when he authorized the addition of the
two catch basins. As part of discovery, the Drain Commissioner admitted: “Two flared end
sections/intakes were added into the 15” drain on the Myers and Henderson drain district . . .
This was considered a maintenance issue, and therefore, did not require a petition.” (Emphasis
added.) Given the nature of plaintiffs’ claims as characterized and discussed earlier, the remedy
could have potentially entailed cost-acceptable maintenance and repair efforts directed in a
manner to address and respond to the impact of additional storm waters handled by the storm
drain as caused by the change in the elevation of OSLC’s property, i.e., to bring the storm drain
into working order under the changed environmental circumstances. Ultimately, the trier of fact
will need to assess, under the evidence presented and the parameters set by MCL 280.196(4),
whether the statute provided the Drain Commissioner with the legal authority to effectively
repair, correct, or remedy the alleged operational and maintenance defects.

                               E. INVERSE CONDEMNATION

       Inverse condemnation concerns the taking of private property absent the commencement
of condemnation proceedings, and pursuant to Const 1963, art 10, § 2, and US Const, Am V, “a

                                               -9-
victim of such a taking is entitled to just compensation for the value of the property taken.” Hart
v Detroit, 416 Mich 488, 494; 331 NW2d 438 (1982). In Hinojosa, 263 Mich App at 548, this
Court observed:

               What governmental action constitutes a “taking” is not narrowly
       construed, nor does it require an actual physical invasion of the property. No
       precise formula exists. Pertinent factors include whether the governmental entity
       abused its exercise of legitimate eminent domain power to plaintiff's detriment.
       Further, a plaintiff alleging inverse condemnation must prove a causal connection
       between the government's action and the alleged damages. A plaintiff alleging a
       de facto taking or inverse condemnation must prove that the government's actions
       were a substantial cause of the decline of his property's value and also establish
       the government abused its legitimate powers in affirmative actions directly aimed
       at the plaintiff's property. While there is no exact formula to establish a de facto
       taking, there must be some action by the government specifically directed toward
       the plaintiff's property that has the effect of limiting the use of the property.
       [Citations, ellipsis, and quotation marks omitted.]

Inaction or omissions cannot support a claim of inverse condemnation. Id. at 549.

        A taking can occur when there is a diminution of property value caused by the
government. Merkur Steel Supply, Inc v Detroit, 261 Mich App 116, 130; 680 NW2d 485
(2004). “It is well settled that a governmental actor may cause a taking of private property by
flooding the property or diverting excess surface water onto the property.” Wiggins v City of
Burton, 291 Mich App 532, 572; 805 NW2d 517 (2011). Despite plaintiffs’ protestation to the
contrary, all inverse condemnation claims require proof of affirmative actions by the government
that are aimed at a plaintiff’s property. Long v Liquor Control Comm, __ Mich App __, __; __
NW2d __ (2017); slip op at 2; Wiggins, 291 Mich App at 571; Blue Harvest, Inc v Dep’t of
Transp, 288 Mich App 267, 277; 792 NW2d 798 (2010); Marilyn Froling Revocable Living
Trust v Bloomfield Hills Country Club, 283 Mich App 264, 295; 769 NW2d 234 (2009);
Hinojosa, 263 Mich App at 548; Merkur, 261 Mich App at 130.

       Review of plaintiffs’ complaint does not reveal any allegations of affirmative actions
taken by the Township with respect to the elevation change of OSLC’s property; just alleged
omissions and failures to act. Accordingly, the trial court properly granted summary disposition
in favor of the Township on plaintiffs’ claim of inverse condemnation. However, the same
cannot be said with respect to the Drain Commissioner. As gleaned from paragraphs 45 and 46
of the complaint, plaintiffs essentially alleged that there was evidence showing, as well as
surrounding circumstances from which it could be inferred, that the Drain Commissioner had
agreed to or approved the fill activity that increased the elevation, which would constitute an
affirmative act. Although there was evidence that the Drain Commissioner did not approve or
authorize the fill activity, there was also evidence to the contrary. In Township Board Meeting
Minutes from June 15, 2015, it was stated:

               Mr. Graham stated a site plan was approved in 2008 for [OSLC]. Shortly
       thereafter, there was a Section 17 drain project done on St. Joe Highway by Brady
       Harrington, the Drain Commissioner. Mr. Harrington needed a place to dispose of

                                               -10-
       waste, he worked out an agreement with CD Hughes to haul all of the spoil dirt on
       to the westernmost portion of the church property.

        The trial court indicated that even assuming that there was evidence of an affirmative act,
there was no evidence indicating that any act was aimed at plaintiffs’ property. We find that the
trial court construed the term “aimed” too narrowly. In Peterman v Dep’t of Natural Resources,
446 Mich 177, 191; 521 NW2d 499 (1994), our Supreme Court ruled:

               In the instant case, the trial court found that defendant's actions were the
       proximate cause of the destruction of plaintiffs' beachfront property. Assuming
       that defendant did not directly invade plaintiffs' land, it undoubtedly set into
       motion the destructive forces that caused the erosion and eventual destruction of
       the property. Defendant was forewarned that the construction of the jetties could
       very well result in the washing away of plaintiffs' property, and the evidence
       reveals that the destruction of plaintiffs' property was the natural and direct result
       of the defendant's construction of the boat launch. The effect of defendant's
       actions were no less destructive than bulldozing the property into the bay. . . .
       Defendant, therefore, may not hide behind the shield of causation in the instant
       case.

       Here, the Drain Commissioner did not directly invade plaintiffs' land, but there was
evidence that he set into motion the forces that ultimately caused flooding, i.e., authorizing or
approving the fill activity that resulted in the increase in the elevation of OSLC’s property, which
had the effect of diverting excess storm water onto plaintiffs’ property.

        Affirmed with regard to the denial of the Drain Commissioner’s motion for summary
disposition premised on governmental immunity, affirmed with respect to the summary dismissal
of plaintiffs’ claim of inverse condemnation against the Township, and reversed and remanded
relative to the ruling granting summary disposition to the Drain Commissioner on plaintiffs’
claim of inverse condemnation. We do not retain jurisdiction. Plaintiffs are awarded taxable
costs under MCR 7.219 as to the Drain Commissioner, and the Township is awarded taxable
costs under MCR 7.219 as to plaintiffs.

                                                             /s/ William B. Murphy
                                                             /s/ David H. Sawyer
                                                             /s/ Jane M. Beckering

                                               -11-


191 Ill. App.3d 940 (1989)
548 N.E.2d 433
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
CLARENCE JOHNSON, Defendant-Appellant.
Nos. 1-87-1258, 1-87-2566 cons.
Illinois Appellate Court  First District (6th Division).
Opinion filed November 27, 1989.
Randolph N. Stone, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for appellant.
Cecil A. Partee, State's Attorney, of Chicago (Inge Fryklund and Lacoulton Walls, Assistant State's Attorneys, of counsel), for the People.
Judgment reversed.
PRESIDING JUSTICE EGAN delivered the opinion of the court:
The defendant, Clarence Johnson, and Enrique Acosta were charged separately with unlawful delivery of less than 10 grams of cocaine. Their cases were consolidated and were tried together in a *941 bench trial. Acosta was discharged at the close of the State's case. The defendant was convicted at the close of all the evidence and sentenced to 30 months' probation. On the State's motion the sentence was modified to three years' imprisonment to comport with the statutory sentencing guidelines for defendants who had previously been convicted of felonies. The only issue is whether the defendant was proved guilty beyond a reasonable doubt.
The State's principal witness was Theodore Rizo, a narcotics agent for the Illinois Department of State Police. He testified as follows:
At approximately 3 p.m. on August 10, 1984, he drove to the Contina Tavern at 1900 West Cullerton Street in Chicago, Illinois, where he planned to purchase some cocaine. He was wearing civilian clothes and drove an undercover vehicle. Angel Luna, an informant, was with him. Approximately 11 other agents were in the vicinity of the tavern maintaining surveillance.
Luna entered the tavern while Rizo remained in the car. After a few minutes Luna returned alone; they had a conversation; and Rizo sent Luna back into the tavern to tell Enrique Acosta that Rizo wanted to speak with him. Acosta came out and spoke to Rizo through an open window on the passenger side of a car. Acosta asked Rizo if he was ready to buy some cocaine; Rizo said that he was and that he preferred a delivery early that evening. Acosta left to make a phone call, returned a couple of minutes later and instructed Rizo to come back around 5:30 p.m. Rizo told Acosta that he would call at that time and left.
Rizo called Acosta at about 5:20 p.m. that same day and asked if "it was ready." Acosta said that it was not ready and asked Rizo to call back in 10 minutes. Rizo called back and had a conversation with a woman but not with Acosta. He called again at 6 p.m. and spoke with Acosta, asking if "it was ready." Acosta said it was and instructed Rizo to go to the tavern. When he returned to the tavern he was to purchase 1.5 kilograms of cocaine for $61,000 cash. However, he did not have the cash with him.
Rizo and Luna drove in separate cars to the tavern at 7:30 or 7:50 p.m. Rizo again instructed Luna to go into the tavern. Luna entered the tavern and returned alone a couple of minutes later. Rizo and Luna had a conversation, and Luna went back into the tavern. Luna returned to the car with Acosta and the defendant. Luna stood by the right headlight of the car, while Acosta and the defendant approached the open passenger window. Acosta leaned in the window and said to the defendant, "This is Ted [Rizo]"; the defendant then leaned in, *942 shook Rizo's hand and said, "Hi, I am Clarence."
Although he had been to the tavern 7 to 10 times before this meeting, Rizo had never spoken with the defendant before, either in person or by telephone. He had spoken only with Luna and another individual who had acted as a "go-between" in the past.
Rizo asked the defendant if "it was ready." The defendant said, "I am sorry; it is not ready. I don't know where my man is at. He was supposed to be here at the tavern." Rizo said that he could not wait and was going to leave. The defendant again apologized for the delay and said, "This man is in Wisconsin and he is prompt." Rizo again said he was leaving; and the defendant said, "Well, if you can't wait around a little bit, I can go to my house and get you an eighth or quarter ounce of pure cocaine."
Rizo said that he was at the tavern to do business and that, if the defendant was not ready, he would leave. The defendant said, "Don't go empty-handed. Let me get you some of what my people are moving for me" and indicated toward the tavern. Rizo told the defendant, "Fine. I will take that, but I'll also want to get your telephone number so I can get ahold of you."
The defendant entered the tavern and returned to the car one or two minutes later. He leaned through the passenger window and handed Rizo eight paper packets. He told Rizo, "there should be an eighth in there." He also handed Rizo a piece of paper bearing the name "Clarence," the word "tavern" or "tav" and a telephone number. Rizo recognized the telephone number as that of the Contina Tavern. He told the defendant that he was in a hurry and that he would be back in contact with the defendant. Rizo left.
He conducted a field test on the contents of the eight packets, detecting the possible presence of cocaine. He inventoried the packets, placed them in a heat-sealed evidence envelope and "subsequently [two weeks later]" delivered the packets to the State laboratory in Joliet for analysis.
He testified to the names of six of the surveillance agents at the tavern, including his superior, and said that there were about five more agents whose names he could not recall. He did not know the exact location of the agents when the defendant handed him the packets. He admitted that Luna was present when the defendant handed him the packets. Although the defendant had given Rizo a phone number, Rizo did not call the defendant back that evening, and the defendant never made any deal with Rizo or gave him any other drugs.
The parties stipulated to the testimony of Devendra Trivendi, a *943 State forensic scientist: On August 24, 1984, she received two heat-sealed envelopes from Agent Rizo, one of which contained eight packets having a total weight of 1.3 grams of white powder, which she analyzed and concluded was cocaine.
The State rested and both defendants moved for discharge. The judge denied the defendant's motion but allowed the motion of Acosta without expressing any reason for his ruling. Apparently the charge against Acosta was based on the theory of accountability.
The defendant was the only witness for the defense. He testified as follows:
He had talked to Luna at the tavern three or four times over the one- or two-month period before August 10. On numerous days Luna, whom he knew only as "Angel," came into the tavern and talked with everyone inside, sometimes 20 or 30 people. He would also buy drinks for everyone. On occasions when the defendant visited the tavern after school, Luna would approach the defendant and buy him drinks. They talked about "women, whatever men talk about" and then Luna would steer the conversation toward drugs. Luna never talked about meeting with others, but only about Luna buying drugs from the defendant. The defendant thought that Luna was a drug dealer looking for merchandise and told Luna that he did not want to be involved with drugs anymore. He admitted that he had been convicted for a drug violation in 1978.
On August 10 he was in the tavern when Luna came in and bought him a drink. Luna told him that friends of the defendant were outside and wanted to see him. The defendant asked who was outside. Luna started walking to the door of the tavern, and the defendant followed him outside. When outside, the defendant saw a man, whom he did not recognize, wave to him from a car. At some point Luna told the defendant that this concerned drugs, and the defendant again told Luna that he no longer wanted anything to do with drugs. The defendant returned to the tavern. He had never seen nor talked to the man in the car before. He did not talk to the man in the car that night, nor did he give the man any cocaine. He had never talked to Luna about meeting the man. He thought that Rizo was the man he saw in the car.
After the defendant returned to the tavern, he looked out the doorway and saw Luna talking to the man in the car. Luna handed the man something, which the defendant could not see clearly enough to describe.
The defendant was arrested on December 2, 1985, almost 16 months after August 10, 1984. (Rizo swore to the complaint and a *944 warrant was issued on November 18, 1985.) Rizo had called the defendant's ex-wife, told her to contact the defendant and tell him to surrender himself on drug charges. The defendant called the police station and talked with another agent because he could not reach Rizo. The other agent told the defendant that he could spend Thanks-giving with his family and to come in the following Monday. On Monday, December 2, the defendant went to the police station and met Rizo, who took him back to a small office. Rizo said, "We [can] do this one of two ways. Either you can work for us and bring us in some individuals or you can get in this cage." He knew of no reason for Rizo to pick on him other than that Rizo "want[ed] a stool pigeon."
The State's rebuttal established the defendant's previous convictions for aggravated assault and possession of a controlled substance in 1978, for which he was sentenced to four years' imprisonment; and a conviction of unlawful use of weapons in 1980 for which he was sentenced to 27 months' imprisonment. Rizo was not called in rebuttal.
Before trial, the State filed an answer to a discovery motion and identified "Angel Luna" as a possible witness. The defendant filed a motion for pertinent information about Luna and to produce Luna at hearings on motions and at trial. The motion asked in the alternative for an order dismissing the charge with prejudice should the State refuse to produce Luna. No order expressly ruling on that motion appears of record. On June 17, 1986, at a hearing on the motion, the judge asked for a response to the motion and for a hearing on the application of Roviaro v. United States (1957), 353 U.S. 53, 1 L.Ed.2d 639, 77 S.Ct. 623. The judge said he would like a hearing to determine whether or not there was "participation by the informant."
On November 17, the defendant's attorney told the court, "The last time it was indicated [the State] didn't want to produce the informant for this small of a case, and the State was supposed to talk to [Rizo]." The matter was continued to November 24. On that date, the attorney for the defendant addressed the court as follows:
"Right, and you granted the motion to produce informant, Your Honor. I spoke to the assistant State's Attorney, Eddie Hansen was the last one I spoke to with respect to this, and he had indicated that he spoke with Agent Rizo, which indicated that it was their position that they did not want to produce their informant for whatever reasons, I am not sure. I don't know what the status is now." (Emphasis added.)
The judge was informed that Luna was a "transactional informant"; and he later said, "Rizo is not going to decide the case, who's going to produce the informant and who's not." He also said, "Somebody *945 named Rizo is not going to make that decision."
In his post-trial motion, the defendant contended that the court "erred in not dismissing the indictment for failure to produce the informant for interview as the court previously ordered." He also said that the court "erred in not requiring the informant to be produced for trial as requested by the defense."
 1 The first question to be addressed is the effect of the failure to call Luna. The defendant's argument on this point is restricted to the contention that the State's proof was insufficient, and he asks only for reversal. He does not assign as error, as a matter of law, the judge's denial of his motion for a new trial for failure to call Luna. See Roviaro v. United States (1957), 353 U.S. 53, 1 L.Ed.2d 639, 77 S.Ct. 623.
A case cited by both sides is People v. Guido (1962), 25 Ill.2d 204, 184 N.E.2d 858. In that case the supreme court affirmed the conviction for a narcotics offense even though the informant was not called to testify. The supreme court said this:
"It is next urged that the failure of the prosecution to call [the informer] as a witness raises an inference that his testimony would have been unfavorable and thus creates a reasonable doubt of defendant's guilt. The prosecution, however, is not obligated to call an informer as a witness, nor does the failure to do so create a reasonable doubt of guilt. (People v. Aldridge, 19 Ill.2d 176.) It is only where there is an unexplained failure to call such a witness that an unfavorable inference may arise, (People v. Strong, 21 Ill.2d 320,) and the testimony here was that [the informer's] whereabouts were unknown. Cf. People v. Morrison, 23 Ill.2d 201." (Emphasis added.) Guido, 25 Ill.2d at 209.
The absence of Luna, who allegedly was present when the defendant handed Rizo the narcotics, is unexplained and, therefore, an unfavorable inference arises, as a matter of law, that his testimony would be unfavorable to the State.
We turn now to the lapse of time between the alleged act on August 10, 1984, and the filing of the charges against the defendant on November 18, 1985. The question before us is whether the lapse of time may be considered in determining the credibility of Rizo. Whether the lapse of time constituted a denial of due process is not before us. (See People v. Lawson (1977), 67 Ill.2d 449, 367 N.E.2d 1244.) In a number of cases convictions were upheld even though a lapse of time existed between the time of the alleged criminal act and the accusation against the defendant. (People v. Guido (1962), 25 Ill.2d 204, *946 184 N.E.2d 858; People v. Peyton (1962), 25 Ill.2d 392, 185 N.E.2d 163; People v. Parson (1963), 27 Ill.2d 263, 189 N.E.2d 311; People v. Luckett (1962), 24 Ill.2d 550, 182 N.E.2d 696; People v. Hatch (1964), 49 Ill. App.2d 177, 199 N.E.2d 81.) In Guido, the lapse of time was 3 1/2 months, but the testimony of the principal narcotics agent was corroborated by the testimony of another agent, and the principal agent testified he delayed the arrest because he contemplated further purchases from the defendant. In Peyton, the lapse of time was 50 days. The defendant, however, admitted delivery of a package to the agent but denied knowledge of its contents. The agent testified that the reason for the delay in arresting the defendant was that he was conducting other investigations which would be threatened by the arrest of the defendant. In Parson, the lapse of time was five months and the testimony of the principal agent was corroborated by the testimony of two other agents. In addition a statement by a co-conspirator incriminating the defendant was admitted into evidence. The agent testified that they kept the defendant under observation during the time in question. In Luckett, the lapse of time was one day. A police officer testified that the defendant made an oral confession to him. The principal officer explained the delay by saying that he did not want to reveal his identity as a police officer at that particular time and place. In Hatch, the lapse of time was two months. The informant testified corroborating the police officer in the principal details. Moreover, the defendant himself testified that he was present when the narcotics were delivered but that the money was given to the informant. His principal defense was entrapment. The principal agent testified that the reason for the delay was that he left on vacation soon after the incident; that after his vacation he was on military leave; and that upon his return he believed that the defendant was hiding out on a "shop-lifting rap."
The facts of those cases are in sharp contrast to the facts in this case. There is a time gap of one year and four months in this case, almost four times longer than any of the other cases; there is no corroboration here; and there is no explanation for the excessive delay between the act and the accusation.
 2 It is our judgment that the evidence fails to establish the defendant's guilt beyond a reasonable doubt. To summarize, the record fails to show why Luna was not produced for an interview, as the judge had ordered, and why Luna was not called at trial. Rizo never explained the absence of what would have been strong corroboration of his testimony: the slip of paper in the defendant's handwriting he allegedly received from the defendant. Rizo never explained the lapse *947 of two weeks between the time he allegedly received narcotics from the defendant and the time he brought the narcotics to the crime laboratory. In closing argument the prosecutor said that it was probable and likely that the other officers saw the "manner in which the delivery took place"; but he never explained the failure to produce any of the other 11 agents who were part of the surveillance team. Rizo failed to explain why he waited from August 10, 1984, until November 18, 1985, before he filed any charges. Although not of the same impact as the failure to explain the absence of the witness, the lapses in time and the absence of the physical evidence, the unrebutted testimony of the defendant that Rizo threatened to bring charges against him unless he became an informant is another circumstance to be considered in weighing the credibility of Rizo. People v. Quintana (1968), 91 Ill. App.2d 95, 234 N.E.2d 406.
The judge said he was deciding the case on "credibility"; but, if he was deciding it on credibility and he believed Rizo, we do not understand why Acosta was acquitted. Rizo's testimony, if believed, established Acosta's guilt as a co-conspirator. Rizo said that Acosta asked him if he was ready to purchase cocaine and instructed him to come back later. Rizo had other incriminating conversations with Acosta, and it was Acosta who allegedly brought the defendant to Rizo.
 3 The credibility of the witnesses in a case tried without a jury is for a trial judge to determine, but his finding, although entitled to great weight, is not conclusive; a reviewing court will reverse a conviction if the evidence is so unsatisfactory as to raise a reasonable doubt of the defendant's guilt. (People v. Pellegrino (1964), 30 Ill.2d 331, 196 N.E.2d 670.) We repeat the observations of this court in People v. Quintana that we do not know whether the defendant was engaged in the sale of narcotics, "but we do know that in this case the testimony of the police officer is suspect and that his uncorroborated testimony is insufficient to prove the defendant guilty beyond a reasonable doubt." (Quintana, 91 Ill. App.2d at 99.) The judgment of the circuit court is reversed.
Judgment reversed.
McNAMARA, J., and LaPORTA, J., concur.


55 B.R. 658 (1985)
In re Harry Charles PAPPAS, Debtor.
CHESHIRE COUNTY SAVINGS BANK, Plaintiff,
v.
Harry C. PAPPAS and Richard P. Salem, Trustee, Defendants.
Bankruptcy No. 4-81-00193-G, Adv. No. 4-83-0343.
United States Bankruptcy Court, D. Massachusetts.
December 16, 1985.
*659 Irving D. Labovitz, Manuel M. Farber, Cooley, Shrair, Alpert, Labovitz, & Dambrov, P.C., Springfield, Mass., for plaintiff.
Richard P. Salem, Leicester, Mass., Trustee.

MEMORANDUM AND ORDER
PAUL W. GLENNON, Bankruptcy Judge.
This matter comes before the Court on an objection by a creditor bank, Cheshire County Savings Bank (the "Bank"), to the Trustee's line of questioning and attempts to introduce certain evidence at a hearing on the Bank's complaint for relief from the automatic stay.

FACTS
The procedural history and the facts of this adversary proceeding are substantially set out in this Court's "Memorandum and Order on Trustee's Motion for Sanctions and Creditor's Motion to Confirm Sale or Alternatively to Require Abandonment of Real Property by the Trustee," issued on June 3, 1985 (Adversary Proceeding No. 4-83-0343). Those facts need not be repeated in full here.
A hearing on the Bank's complaint seeking relief from the automatic stay was held before this Court on October 17, 1985. At that hearing, Albert J. Jacques, a vice-president of the Bank, testified as to the amounts owed by the debtor, Harry C. Pappas (the "Debtor"), to the Bank. He further testified as to the value of two pieces of real property owned by the Debtor, on which the Bank now wishes to foreclose.
On cross-examination, the trustee sought to question Mr. Jacques about payments to the Bank allegedly made by the Debtor after the filing of the Debtor's petition in bankruptcy. The Trustee claims that the payments were not applied to the debt owed by the Debtor to the Bank.
The Bank's attorney vigorously objected to this line of questioning and the introduction of any evidence concerning the alleged postpetition payments. At that point, the Court suspended the hearing and took the Bank's objection under advisement.

DISCUSSION
The issue now before the Court is whether the Trustee may introduce evidence regarding alleged postpetition payments made by the Debtor to the Bank at a hearing on the Bank's request for relief from the automatic stay. The Bank asserts that these postpetition payments, if they exist, should be the subject of a separate complaint by the Trustee against the Bank. No such Complaint has been filed by the Trustee. The Bank further points out that the Trustee's answer to the Bank's Complaint is in the nature of a general denial and does not mention the alleged postpetition payments as either an affirmative defense *660 or a counterclaim.[1] The Bank claims that it is now too late for the Trustee to amend his pleadings[2] and, in any event, that a counterclaim of this sort should not be heard at a hearing on relief from the automatic stay.
The Trustee asserts that the Bank's claim against the Debtor should be disallowed as a result of the alleged post-petition payments, pursuant to 11 U.S.C. §§ 502(d) and 549. He further states that the Court should not grant the Bank relief from the automatic stay prior to determining whether the Bank is a postpetition transferee whose claim should be disallowed.
Complaints for relief from the automatic stay are governed by 11 U.S.C. § 362. The legislative history of that section states, in part:
[A]t the expedited hearing under subsection [362](e), and at hearings on relief from the stay, the only issue will be the lack of adequate protection, the debtor's equity in the property, and the necessity of the property to an effective reorganization of the debtor, or the existence of other cause for relief from stay. This hearing will not be the appropriate time at which to bring in other issues, such as counterclaims against the creditor, which, although relevant to the question of the amount of the debt, concern largely collateral or unrelated matters. This approach is consistent with that taken in cases such as In re Essex Properties, Ltd., 430 F.Supp. 1112 (N.D.Cal.1977), that an action seeking relief from the stay is not the assertion of a claim which would give rise to the right or obligation to assert counterclaims. Those counterclaims are not to be handled in the summary fashion that the preliminary hearing under this provision will be. Rather, they will be the subject of more complete proceedings by the trustee to recover property of the estate or to object to the allowance of a claim. However, this would not preclude the party seeking continuance of the stay from presenting evidence on the existence of claims which the court may consider in exercising its discretion. What is precluded is a determination of such collateral claims on the merits at the hearing.
In re Vacuum Cleaner Corporation of America, 33 B.R. 701, 705 (Bankr.E.D.Pa. 1983); quoting S.Rep. No. 95-989, 95th Cong., 2d Sess. 55, reprinted in 1978 U.S. Code Cong. & Admin.News 5787, at 5841.
As a general rule, hearings on relief from stay under § 362 are not the proper forum for deciding counterclaims by a debtor against a creditor. In re W.E. Tucker Oil, Inc., 42 B.R. 897, 902 (Bankr. W.D.Ark.1984); In re Heinzeroth, 40 B.R. 518, 519 (Bankr.E.D.Pa.1984); In re Vacuum Cleaner Corp. of America, 33 B.R. at 706; In re Biller, 27 B.R. 206, 208 (Bankr.M.D.Pa.1982); In re Born, 10 B.R. 43, 49 (Bankr.S.D.Tex.1981). It has been pointed out, however, that "there is a tremendous difference between adjudication of the merits and mere consideration of counterclaims and defenses. Nothing in the comments of Congress indicates that it intended bankruptcy judges to blind themselves to the existence of factors which might bear on the ultimate resolution of a dispute between a debtor and a secured creditor." In re Tally Well Service, Inc., 45 B.R. 149, 151 (Bankr.E.D.Mich.1985). See In re Davenport, 34 B.R. 463 (Bankr. M.D.Fla.1983); In re Marta Group, Inc., 33 B.R. 634 (Bankr.E.D.Pa.1983); United Companies Financial Corporation v. Brantley, 6 B.R. 178 (Bankr.N.D.Fla.1980).
Counterclaims or affirmative defenses are divided into two groups, those which directly contest the validity of a creditor's lien or the amount of that lien, as opposed to those claims which would only *661 effect a reduction or set-off against the debt. The first type should be considered in a hearing on relief from stay; the latter should not. In re Tally Well, 45 B.R. 149; In re Davenport, 34 B.R. 463; In re Marta Group, 33 B.R. 634; United Companies Financial Corporation v. Brantley, 6 B.R. 178.
Preference and fraudulent transfer actions brought under §§ 547 and 548 of the Bankruptcy Code are among those claims which challenge the validity of a secured party's lien and should be considered at a hearing on relief from stay, particularly where the debtor would be unable to utilize those defenses in a subsequent state court action to foreclose on the debtor's property. In re Davenport, 34 B.R. 463 (Bankr.M.D.Fla.1983); In re Marta Group, Inc., 33 B.R. 634, 641 (Bankr.E. D.Pa.1983). In In re Dudley, 38 B.R. 666 (Bankr.M.D.Pa.1984), the court went so far as to rule on a debtor's § 548 fraudulent transfer claim because the debtor's claim arose out of the same transaction as the creditor bank's § 362 motion.
The Court finds that the Trustee's §§ 502(d) and 549[3] claims regarding alleged postpetition transfers to the Bank are claims which "strike at the heart" of the validity of the Bank's lien. In re Tally Well Service, Inc., 45 B.R. at 153, United Companies Financial Corporation v. Brantley, 6 B.R. at 188. As such, these claims will be considered, though not adjudicated, at the hearing on relief from stay, in part because they do not appear to be defenses capable of being raised at a state court hearing on foreclosure.
The Trustee has not, as yet, filed any claim against the Bank regarding these alleged postpetition payments. The Court suggests that, if he intends to do so, he file any such Complaint posthaste. The Court further suggests that any allegations in that Complaint be plead with great specificity, particularly as to dates and amounts. The Court, while it will consider any such claim filed by the Trustee in ruling on the request for relief from stay, does not intend to conduct a full hearing on that claim at the time of the continued hearing on relief from stay.
The parties are hereby ordered to contact the clerk's office with suggested dates for the continued hearing on the Bank's Complaint for relief from stay.
SO ORDERED.
NOTES
[1]  Immediately prior to the October 17, 1985 hearing, the Trustee filed in Court a "Memo in Opposition to Plaintiff's Complaint for Relief from Stay" which sets out, in a general fashion, his claims regarding these payments.
[2]  The Court notes that Rule 15 of the Federal Rules of Civil Procedure provides that leave of the court to amend a pleading shall be freely given when justice so requires.
[3]  Section 502(d) states, in relevant part:

. . . the court shall disallow any claim of any entity . . . that is a transferee of a transfer avoidable under section . . . 549 . . . of this title. . . .
Section 549 states, in relevant part:
. . . the trustee may avoid a transfer of property of the estate
(1) made after the commencement of the case;
(B) . . . that is not authorized under this title or by the court.


392 F.Supp.2d 317 (2005)
James ARLIO, Plaintiff,
v.
Marlin J. LIVELY, Defendant.
No. CIV. 3:03CV2013(JBA).
United States District Court, D. Connecticut.
September 28, 2005.
*318 *319 *320 Karen Lee Torre, New Haven, CT, for Plaintiff.
Colleen D. Fries, James E. Coyne, Coyne, Von Kuhn, Brady & Fries, Stratford, CT, for Defendant.

RULING ON POST-TRIAL MOTIONS [DOCS. ## 63, 65, 66, 68, 76, 77]
ARTERTON, District Judge.
Plaintiff James Arlio, a police Sergeant for the Town of Trumbull, alleged that Marlin Lively, the former Chief of Police, retaliated against him for exercising his First Amendment rights, and violated his Fourteenth Amendment right to due process of law, by summarily suspending him on trumped-up charges of sleeping on the job and thereby sabotaging his chance to be promoted to Lieutenant. At trial, held May 3-9, 2005, the jury found the defendant liable on both of the constitutional claims as well as a state law claim of intentional infliction of emotional distress. The jury found that the plaintiff had failed to prove that he would have been promoted to Lieutenant but for the defendant's unconstitutional conduct, and thus awarded no economic damages, but awarded $150,000 in non-economic damages and $100,000 in punitive damages. See Verdict Form [Doc. # 58].
Defendant now challenges the jury verdict on a number of grounds. He seeks judgment as a matter of law on the basis of qualified immunity [Doc. # 63] and excessive damages [Doc. # 65]. He further seeks a new trial [Doc. # 66] on the ground that the Court erred in permitting certain other Trumbull police officers to testify concerning Lively's retaliation against them and in admitting evidence of previous labor arbitration proceedings between the parties in this case. For the reasons that follow, defendant's motions will be denied. Additionally, plaintiff seeks attorney fees as the prevailing party in this case, and his motion will be granted as set forth below.
*321 I. Defendant's Renewed Motion for Judgment as a Matter of Law
Defendant seeks judgment as a matter of law on the basis that he is entitled to qualified immunity. Defendant argues, citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), and Lennon v. Miller, 66 F.3d 416, 421 (2d Cir.1995), that a government official performing a discretionary function is shielded from § 1983 liability if he reasonably believed, in light of clearly established law, that his conduct was lawful. He asserts in a conclusory fashion, without citing to any trial evidence, that "this court should make the legal determination that the defendant is entitled to qualified immunity since it is clear that a reasonable officer could have believed that the defendant's actions were lawful...." Def. Mem. of Law [Doc. # 64] at 3.
The defendant misapprehends the standard for qualified immunity in a First Amendment retaliation case. Because malicious intent is an element of the plaintiff's claim in such a case, "it can never be objectively reasonable for a government official to act with the intent that is prohibited by law." Locurto v. Safir, 264 F.3d 154, 169 (2d Cir.2001). Therefore the standard is a subjective one and "turns on an issue of fact," namely the defendant's motive. Id. at 170.
The jury in this case found that by suspending the plaintiff because of his protected political activity, defendant Lively wilfully violated the plaintiff's First Amendment rights. Therefore the jury necessarily found that Lively acted with a constitutionally prohibited retaliatory motive. The jury also found that Lively committed the state law tort of intentional infliction of emotional distress, which involves "extreme and outrageous" conduct exceeding "all possible bounds of decency, [so as] to be regarded as atrocious, and utterly intolerable in a civilized community." Appleton v. Bd. of Educ., 254 Conn. 205, 210-11, 757 A.2d 1059 (2000). Given these jury findings, and given that the defendant cites no evidence supporting his argument, the Court cannot find that Lively acted reasonably as a matter of law. Therefore his motion for judgment on the ground of qualified immunity must be denied.
II. Damages
Defendant moves for judgment as a matter of law, see Def. Mot. [Doc. # 65], and for a new trial [Doc. # 66] on the grounds that the award of $150,000 in noneconomic damages and $100,000 in punitive damages "is clearly excessive and not supported by the evidence." Def. Mem. [Doc. # 67] at 4. His memorandum of law simply restates defendant's conclusory position that the damages awarded against him were excessive, without providing legal arguments or citations. Defendant does not seek to have the damages awards reduced.
When evaluating an award of compensatory damages, a court "may order a new trial only when the verdict is irrational or so high as to shock the judicial conscience ...." Nairn v. Nat'l R.R. Passenger Corp., 837 F.2d 565, 567 (2d Cir.1988). "In order to determine whether a particular award is excessive, courts have found it useful to review awards in other cases involving similar injuries, while bearing in mind that any given judgment depends on a unique set of facts and circumstances." Id. at 568.
The award of $150,000 in compensatory damages to plaintiff Arlio cannot be said to be irrational. Although the jury did not find that Arlio would have been promoted to Lieutenant but for the suspension, and consequently did not award economic damages, the jury was instructed *322 that it could award non-economic damages for "emotional distress or pain, humiliation, personal indignity, embarrassment, fear, anxiety and/or anguish which the plaintiff has suffered or may with reasonable certainty be expected to suffer in the future." Jury Charge [Doc. #] at 36. Arlio testified that he suffered embarrassment and humiliation due to the extensive local press coverage of Lively's accusation that Arlio was sleeping on the job. He further testified that this embarrassment is ongoing, as his coworkers and other members of the community still tease him about the incident. Arlio also stated that he suffered anxiety during the time Lively suspended him without a hearing, because of his uncertainty about whether he would be able to take the Lieutenant test or whether he would even get his job back. The jury found that Lively's actions against Arlio violated Arlio's First Amendment rights because they were motivated by political animus, and also that they constituted the state law tort of intentional infliction of emotional distress. Thus an award of damages for emotional distress is consistent with the jury's verdict in plaintiff's favor on these claims.
Second, the jury's award is well within the realm of recently-affirmed damages awards in First Amendment cases seeking compensation for emotional distress. See, e.g., Gonzalez v. Bratton, 147 F.Supp.2d 180 (S.D.N.Y.2001) ($250,000 verdict for emotional distress not excessive in light of evidence of ongoing sex-based harassment and retaliation, including defendant's acts of filing false disciplinary reports against plaintiff, leading to plaintiff's constructive discharge); Phillips v. Bowen, 115 F.Supp.2d 303 (N.D.N.Y.2000) (emotional distress verdict of $400,000 upheld on jury verdict finding First Amendment retaliation against sheriff's department employee); Mihalick v. Town of Simsbury, 37 F.Supp.2d 125 (D.Conn.1999) (remittitur of damages ordered to $150,000 where plaintiff prevailed on claims for violation of First and Fourth Amendment rights and intentional infliction of emotional distress). While Plaintiff's memorandum of law in opposition to defendant's motion for a new trial [Doc. # 75] contains an extensive list of other similar cases with verdicts in this range, defendant cites no contrary evidence or cases. The compensatory damages award of $150,000 therefore is within the realm of rationality and similarity to awards in other cases, and does not shock the judicial conscience.
Similarly, the Court concludes that the jury's assessment of $100,000 in punitive damages is well within constitutional bounds. "The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor." State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). The factors to be considered in determining excessiveness of punitive damages are the degree of reprehensibility of the defendant's misconduct; the disparity between compensatory and punitive damages awarded; and the difference between punitive damages awarded and the civil penalties authorized or imposed in comparable cases. Id. at 418, 123 S.Ct. 1513 (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)).
Regarding the first prong, the evidence adduced at trial showed reprehensible conduct amounting not only to a violation of Arlio's constitutional rights but also intentional infliction of emotional distress. Arlio showed that the defendant engaged in a malicious campaign to tarnish his name and reputation based on Arlio's support for an opposing political candidate. Such efforts to chill First Amendment expression *323 indeed could be considered reprehensible. Additionally, Arlio adduced undisputed evidence that Lively summarily suspended him from his job without offering a prior opportunity for Arlio to dispute Lively's accusation of sleeping on the job, and then persisted in ignoring Arlio at a subsequent public meeting. The violation of Arlio's due process rights was blatant.
Under the second prong of Gore, the assessment of $100,000 in punitive damages was less than the compensatory damages awarded, and thus well within the Supreme Court's direction that the ratio should not exceed "a single-digit." State Farm, 538 U.S. at 425, 123 S.Ct. 1513. The third prong of the Gore test, requiring comparison between punitive damages and civil penalties, leads to the same conclusion, because the assessment of $100,000 is well within the range of compensatory damages awards in similar cases, as discussed above.
The Court therefore finds that the compensatory and punitive damages awards imposed by the jury were not excessive and were in accordance with governing law. Thus defendant's motions for a directed verdict and a new trial on this basis are denied.
III. Motion for New Trial
A. Testimony of Trumbull Police Officers
Defendant moves for a new trial on the ground that the Court erred in admitting the testimony of Officers Targowski, Hammel, Harry and Cifatte of the Trumbull Police Department, concerning acts of politically-motivated retaliation committed against them by defendant Lively. Defendant asserts that this was "propensity" evidence prohibited by Fed. R.Evid. 404(b) and was more prejudicial than probative. Def. Mem. of Law at 2.
However, as the Court held in denying defendant's motion in limine to exclude this testimony, Lively's specific intent and motive for disciplining Arlio was an element of Arlio's First Amendment retaliation claim. The evidence of Lively's treatment of similarly-situated police officers was probative of Lively's motivation for his adverse treatment of plaintiff, and thus was relevant and offered for a proper purpose under Fed.R.Evid. 404(b).
Rosa v. Town of East Hartford, No. 3:00cv1367(AHN), 2005 WL 752206 (D.Conn. Mar. 31, 2005), relied on by the defendant, is distinguishable. The plaintiff in that case asserted a claim for unreasonable force, and as the court held, "the subjective motivations of an individual officer have no bearing on whether the force used to effectuate an arrest was reasonable under § 1983." Id. at *3. Therefore the court excluded evidence of other situations where the defendant had used a police dog to make an arrest. By contrast, defendant Lively's subjective motivation or retaliatory intent was a key element that plaintiff Arlio was required to prove at trial. Defendant argues that the dissimilarity of the other officers' testimony regarding the time and circumstances of prior acts of retaliation rendered the officers' testimony merely evidence of Lively's "propensity to discipline officers who supported the Democratic party." Def. Mem. at 2. Defendant attempts to draw too fine a line between motivation to discipline officers of a particular persuasion and impermissible propensity evidence.
The case law supports admission of testimony by other similarly-situated employees in statutory employment discrimination cases, where the plaintiff similarly must prove discriminatory motive or intent. "It is clear that an employer's conduct tending to demonstrate hostility towards a certain group is both *324 relevant and admissible where the employer's general hostility towards that group is the true reason behind firing an employee who is a member of that group." Heyne v. Caruso, 69 F.3d 1475, 1479 (9th Cir.1995); see also Ansell v. Green Acres Contracting Co., 347 F.3d 515, 521 (3d Cir.2003) ("[O]ther acts are admissible under Rule 404(b) in the employment discrimination context for the proper purpose of establishing negative discriminatory intent."). More specifically, "[b]ecause an employer's past discriminatory policy and practice may well illustrate that the employer's asserted reasons for disparate treatment are a pretext for intentional discrimination, this evidence should normally be freely admitted at trial." Phillip v. ANR Freight Sys., Inc., 945 F.2d 1054, 1056 (8th Cir.1991) (quoting Hawkins v. Hennepin Technical Ctr., 900 F.2d 153, 154 (8th Cir.), cert. denied, 498 U.S. 854, 111 S.Ct. 150, 112 L.Ed.2d 116 (1990)).
Finally, the disputed testimony of the Trumbull police officers was more probative than prejudicial under Rule 403. Any "unduly inflammatory" effect of this testimony, Def. Mem. of Law at 3, was cured by the Court's limiting instruction during trial and in the jury charge:
[O]n the First Amendment retaliation count, in which plaintiff Arlio alleges that the defendant suspended him because of what plaintiff claims was defendant's bias against officers perceived to be affiliated with the Police Union and the Trumbull Democratic Party, you have heard the testimony of Officers Edward Targowski, Kevin Hammel, Michael Harry, and Richard Cifatte. This testimony was permitted only on the issue of defendant Lively's motive in disciplining plaintiff Arlio. It is to be considered only on this issue and not as showing any propensity of the defendant to act in any particular way. In other words, it is only permitted to be considered as to whether the defendant was politically motivated in suspending Arlio.
Jury Charge [Doc. # 55] at 16. The jury is presumed to follow its instructions.
Additionally, contrary to defendant's argument, the officers' testimony was permitted under the terms of their 2002 settlement agreement with the Town of Trumbull. See Def. Mem. of Law, Ex. B. As defendant acknowledges, the agreement contains an exception "as otherwise provided by law or judicial process," id. at ¶ 6, which clearly applies to witnesses subpoenaed to testify at this trial. Having found their testimony relevant and proper for the limited purpose offered, it was not "merely an opportunity for the officers to once again reiterate the claims made in their complaint which was conditionally settled." Def. Mem. at 3. Preclusion of the other officers' testimony at Arlio's trial would have been antithetical to public justice because it would have permitted a private agreement to override a judicial subpoena.
B. Labor Arbitration Decision
Defendant contends that the Court "erred in allowing the jury to hear any reference to the fact that the plaintiff filed a grievance which was upheld by the State Labor Board," Def. Mem. at 4, on the grounds of irrelevance and unfair prejudice under Fed.R.Evid. 402 and 403. The jury was charged that they were "not to consider [the] board's decision except for the explanation as to why the plaintiff is not seeking damages for any lost wages he may [have] incurred during the time of his suspension." Jury Charge at 15-16. Further, the jury was entitled to consider the evidence that, due to the suspension imposed by Lively, plaintiff had to pursue *325 another adversarial proceeding to recover, belatedly, unpaid salary and benefits.
IV. Plaintiff's Motion for Attorney Fees and Costs
As a prevailing party in a civil rights case, plaintiff is entitled to an award of reasonable attorney fees and costs. 42 U.S.C. § 1988. Plaintiff has filed a motion seeking an award of $68,985 in attorney fees and $1,387.44 in costs through the time of trial [Doc. # 68], and a supplemental motion for $11,310 in fees for postjudgment proceedings [Doc. # 77].[1] Plaintiff's counsel requests a rate of $300/hour for her time. Defendant does not object to this rate, and on the basis of the supporting affidavits, the Court finds it reasonable in light of counsel's experience. Therefore the requested attorney fees are granted in the amount of $80,295.
Defendant objects to plaintiff's request for the cost of plaintiff's deposition transcript. Under D. Conn. L. Civ. R. 54(c)(2)(ii), a party may recover such costs if, among other reasons, the transcript is "necessarily obtained for the preparation of the case and not for the convenience of counsel." Obtaining a client's deposition testimony is a reasonably necessary step in preparing that client to testify at trial and in preparing the examination of other witnesses, including the defendant, whose testimony is anticipated to bear on the same subject matter as covered in plaintiff's deposition. Therefore this cost is recoverable.
Similarly, copying costs are "taxable only if counsel can demonstrate that ... copies were necessarily obtained for use in the case." Id. at 54(c)(3)(i). As it is this Court's preference that counsel provide jurors with exhibit books for their use during trial, plaintiff's request for such copying expenses is granted over defendant's objection.
Plaintiff's request for costs of an expedited transcript of a January 2005 status conference are disallowed under Local Rule 54(c)(7)(iv) as having been "produced for the convenience of counsel." The request for an expedited transcript of the hearing on the Rule 50 motion is similarly denied, and only regular transcript rates ($3.30/page) are recoverable. The transcript was needed to aid in preparing plaintiff's opposition brief to defendant's renewed motion for judgment as a matter of law, but plaintiff sought neither an extension of time to permit regular transcript receipt, nor requested leave to incur expedited transcript costs and obtain recovery thereof.
Finally, defendant's objection is sustained as to the cost of attempted service of a subpoena on Attorney Floyd Dugas, who did not testify at trial. See D. Conn. L. Civ. R. 54(c)(1), (permitting "service fees for ... subpoenas for nonparty witnesses testifying at trial."). In sum, plaintiff is awarded costs in the amount of $1,158.89.
V. Conclusion
Accordingly, defendant's post-trial motions [Docs. ## 63, 65, 66] are DENIED. Plaintiff's motions [Docs. ## 68, 76, 77] for costs and fees are GRANTED in the total amount of $81,453.89, and an amended judgment shall issue accordingly.
IT IS SO ORDERED.
NOTES
[1]  Plaintiff's motion for leave to file an amended affidavit in support of these motions [Doc. # 76] is GRANTED, and the affidavit is made part of the record.


                                                                                FILED
                                                                        United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                             Tenth Circuit

                                     TENTH CIRCUIT                             June 20, 2013

                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff – Appellee,
                                                             No. 12-5048
v.                                                 (D.C. No. 4:07-CR-00017-CVE-1)
                                                           (D. N.D. Okla.)
BARRY LEE CURTIS,

             Defendant - Appellant.

                             ORDER AND JUDGMENT*

Before MATHESON, EBEL, and O’BRIEN, Circuit Judges.

      The issue in this appeal is whether the Fair Sentencing Act of 2010 (FSA) applies

retroactively to defendants who are sentenced before its enactment but later receive a

sentence modification. The answer is clearly no.

      *
        Oral argument would not materially assist the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). We have decided this case on the briefs.
        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
                                     BACKGROUND

       In 2007, Curtis pled guilty to, inter alia, possession with intent to distribute five

grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1).1 Under the then-

applicable sentencing guidelines, he faced a guideline range of 70-87 months

imprisonment. He was also subject to a mandatory minimum sentence of five years

because his offense involved five or more grams of crack cocaine. See 21 U.S.C. §

841(b)(1)(B)(iii) (2007). The district judge sentenced him to 77 months imprisonment.

       On August 3, 2010, Congress enacted the FSA to reduce the sentencing disparity

between crack cocaine and powder cocaine offenses. Dorsey v. United States, -- U.S. --,

132 S. Ct. 2321, 2326 (2012); see also Fair Sentencing Act of 2010, Pub. L. No. 111–

220, 124 Stat. 2372 (Aug. 3, 2010). Relevant here, it increased the amount of crack

cocaine necessary to trigger a mandatory minimum five-year sentence under 21 U.S.C. §

841(b)(1)(B)(iii) from 5 grams to 28 grams. Dorsey, 132 S. Ct. at 2329; see also Fair

Sentencing Act of 2010, Pub. L. No. 111–220 § 2(a), 124 Stat. 2372, 2372. It also

directed the Sentencing Commission to amend the guidelines to reflect the statutory

changes. Dorsey, 132 S. Ct. at 2329; see also Fair Sentencing Act of 2010, Pub. L. No.

111–220, § 8, 124 Stat. 2372, 2374. The Commission complied by amending the

guidelines to lower the offense levels for specified quantities of crack cocaine. See

       1
          Curtis also pled guilty to possession of a firearm in furtherance of a drug-
trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A), which carries a mandatory
minimum 60 month sentence to run consecutive to any other term of imprisonment. This
sentence was not subject to modification and is not at issue in this appeal.

                                             -2-
United States v. Osborn, 679 F.3d 1193, 1194 (10th Cir. 2012). It later made these

amendments retroactive effective November 1, 2011. Id.

       Relying on these amendments, Curtis moved for a reduction of his sentence under

18 U.S.C. § 3582(c)(2). The amendments reduced his guideline range to 57-71 months.

He also sought to avoid the five-year statutory minimum by seeking retroactive

application of the FSA, thus allowing the judge to impose a sentence below the

minimum.2

       The judge granted Curtis’s motion and reduced his sentence to 60 months.

Although she did not expressly address the retroactivity of the FSA, she impliedly

rejected this argument by finding the applicable guideline range to be 60-71 months

imprisonment.

                                      DISCUSSION

       In Dorsey, the Supreme Court held the FSA’s more lenient penalties applied to

defendants who committed their offenses prior to the effective date of the Act (August 3,

2012) but who were sentenced after that date. 132 S. Ct. at 2326. Relying on the

reasoning of Dorsey, Curtis argues the FSA applies to those, like him, whose sentences

were modified after August 3, 2010. “The retroactivity of a statute is a question of law

we review de novo.” Valdez-Sanchez v. Gonzales, 485 F.3d 1084, 1088 (10th Cir. 2007).

       2
         The presentence report held Curtis responsible for 44.98 grams of crack cocaine.
This amount is still significantly above the 28-gram quantity necessary to trigger the five-
year mandatory minimum sentence under the FSA. Thus, Curtis relies on the amount of
crack cocaine in the indictment, i.e., 5 grams or more of crack cocaine.

                                           -3-
       Curtis’s argument is foreclosed by our precedent. In United States v. Lewis, we

held the FSA’s change to the quantity of crack cocaine necessary to trigger the mandatory

minimum sentence does not apply retroactively to defendants who were sentenced before

it went into effect. 625 F.3d 1224, 1228 (10th Cir. 2010); see also United States v.

Cornelius, 696 F.3d 1307, 1328 (10th Cir. 2012); Osborn, 679 F.3d at 1195 n.1. More

recently, we concluded Dorsey did not affect this precedent or require a different result

for those whose sentences were modified after the FSA’s enactment: “[T]he exception

outlined in Dorsey is limited to sentences imposed post-FSA, and does not extend to

adjudications of motions to reduce sentences entered post-FSA. The Court’s holding in

Dorsey narrowly applies to post-FSA sentencing for pre-FSA conduct.” United States v.

Lucero, 713 F.3d 1024, 1027 (10th Cir. 2013) (rejecting argument that sentence

modification is a resentencing to which the FSA should apply; district court cannot

modify a pre-FSA sentence to below the mandatory minimum sentence applicable at the

time of sentencing). We are bound by this precedent absent en banc reconsideration or a

superseding contrary decision by the Supreme Court. See In re Smith, 10 F.3d 723, 724

(10th Cir. 1993).

       AFFIRMED.

                                          Entered by the Court:

                                          Terrence L. O’Brien
                                          United States Circuit Judge

                                           -4-


427 So.2d 261 (1983)
Amelia T. MARGERUM, Appellant,
v.
ROSS BUILDERS, INC., a Florida Corporation, Appellee.
No. 82-646.
District Court of Appeal of Florida, Fifth District.
February 16, 1983.
Terrence William Ackert of Legal Aid Society of Orange County Bar Ass'n, Inc., and Charles R. Stepter, Jr., Orlando, for appellant.
Alice Blackwell White of Lowndes, Drosdick, Doster & Kantor, P.A., Orlando, for appellee.
ORFINGER, Chief Judge.
We reverse the final order entered by the trial court, which dismissed the action on the ground that it was barred by the applicable statute of limitations. There are no allegations in the second amended complaint that show, as a matter of law, the necessary application of the statute of limitations. Only when an affirmative defense appears on the face of a prior pleading may that defense be argued as a ground for a motion to dismiss. Fla.R.C.P. 1.110(d). Otherwise, the statute of limitations is an affirmative defense which must be pleaded as a defense to a prior pleading. Id. On a motion to dismiss the complaint, the court must look solely to the complaint, and may not consider an affirmative defense which does not appear on the face of the complaint. Frank v. Campbell Property Management, Inc., 351 So.2d 364 (Fla. 4th DCA 1977). The cause is remanded for further proceedings.
REVERSED and REMANDED.
SHARP and COWART, JJ., concur.