580 S.W.2d 117 (1979)
N. S. SAWYER and Laura Oppelt, Appellants,
v.
Walt PIERCE and Pat Pierce, Appellees.
No. 1330.
Court of Civil Appeals of Texas, Corpus Christi.
March 30, 1979.
Rehearing Denied April 19, 1979.
*119 James H. Denison, Jr., Denison & Mann, Harlingen, for appellants.
William L. Hubbard, Neal Bonner, Bonner & Bonner, Harlingen, for appellees.

OPINION
NYE, Chief Justice.
Walt Pierce and his wife, Pat, purchasers of certain improved real estate, brought suit against the sellers, N. C. Sawyer and Laura Oppelt, seeking rescission and cancellation of a real estate transaction and the return of their cash investment in the property, including the cost of repairs and added improvements. The sellers defended on the basis that the purchasers had waived their right to seek rescission and cancellation by ratifying the contract in question. After a trial before the court, sitting without the intervention of a jury, the court entered judgment rescinding the contract, cancelling the conveyance and awarding the purchasers a joint and several judgment against the sellers for $16,370.56. The sellers appeal.
The property in question, commonly called the Holiday Apartments and Trailer Park, was located in Arroyo City, Cameron County, Texas, and contained slightly less than one acre of land. The improvements *120 included: 1) a large house which had been divided into four apartments; 2) an outbuilding containing two baths and showers; 3) a pier extending into the adjacent arroyo; and 4) several improved trailer spaces all located on the property. The availability of this property for purchase was described and advertised in a typed brochure and indicated that inquiries should be directed to N. C. Sawyer (one of the appellants) at his address in San Antonio.
Mrs. Pierce, the buyer, originally learned that the property was for sale when her employer, Nussbaum Realty of Brownsville, Texas, received one of the brochures describing the property. The brochure contained numerous statements concerning the property, including the statement that "There's room for 30 trailer spaces ..." On July 21, 1976, Mrs. Pierce, who was a licensed real estate agent, attempted to contact Sawyer in San Antonio to obtain a listing on the property. Thereafter, Mr. and Mrs. Pierce became interested in buying the property for themselves.
The record indicates that Mrs. Pierce visited the property at least three times before the sale was consummated. During her first visit, which occurred immediately prior to her trip to San Antonio, she talked with a Mr. Garza who was in possession of the property under a contract for deed from Mr. Sawyer. After returning from San Antonio, Mrs. Pierce and her husband visited the property a second time when Mr. Garza was not present. During this visit, the Pierces walked around the premises, walked onto the pier, and looked into the outbuilding containing the bath and showers. During the third visit, Mr. Garza showed them through each of the apartments and the outbuilding. Mr. Garza informed them that he had been living on the property for approximately two years and that he had not operated the property very much because he was a minister and was gone much of the time. Mr. Garza told the Pierces that he obtained approximately $45.00 per month for the trailer spaces and that the apartment rental amount varied.
Thereafter, Mrs. Pierce contacted Mr. Sawyer and arranged for a meeting. Sawyer and appellant Oppelt, Sawyer's personal secretary, met the Pierces in Harlingen, Texas. As a result of this meeting the Pierces and Sawyer entered into a contract for the sale of the property to the Pierces. On August 17, 1976, the sale was closed and the property was conveyed to the Pierces by warranty deed. The consideration was $10,000.00 cash, the execution and delivery of a $60,000.00 note and the contractual obligation to install at purchasers' own expense "no less than ten trailer hookups" and to "replace all rotten lumber and paint said apartment house" within six months from the closing date of the sale. The obligations under the contract of sale and under the note were secured by a deed of trust on the property.
The Pierces took possession of the property and initiated their plans to develop the property for commercial purposes. In September of 1976, they were advised by the Cameron County Building Department that no more than fifteen trailer spaces could be developed on the property because the property was less than one acre and county regulations prohibited the placing of more than fifteen units on one acre of land. At first, the Pierces thought that this was an innocent mistake of fact on the part of the sellers, however, other disparities between the typed brochure and the condition of the premises soon became apparent thereafter. On September 27, 1976, the Pierces sent a letter to Sawyer and Oppelt complaining of the disparities and requested a compromise settlement.[1] On November 17, 1976, appellant *121 Oppelt sent the Pierces a letter which refused their settlement offer.
On January 5, 1977, an attorney for the Pierces attempted to notify appellant Sawyer by letter that the Pierces intended to rescind their purchase of the property. This letter remained undelivered. Thereafter, a second notice letter dated February 17, 1977, was sent and received by Sawyer. When Sawyer refused to accept the Pierces' offer to rescind, the Pierces did not make any further improvements to the property or further payments under the note. The Pierces then filed this suit against Sawyer and Oppelt. Sawyer then started foreclosure procedures under the deed of trust. On May 3, 1977, a foreclosure sale was held pursuant to the terms of the deed of trust. The property was sold to Sawyer himself for $35,000.00. By cross-action appellant Sawyer sought $28,200.00 for a deficiency between the amount the property brought at the trustee's sale and the obligations on the real estate contract and note.
The Pierces claimed in their suit against the appellants that the following statements contained in the original brochure that they received were false. They are, in relevant part, as follows, that:
1) "All [apartments] have 23,000 BTU new Whirlpool air conditioners, ..."
2) "Addn. Building: Separate from the apt. building there are 2 complete showers, comodes (sic), and lavatories for people to use that fish, picnic or trailers that are not modern."
3) "Bulkhead: Double cypress power driven into the ground at the waters edge, secured to extra long high line poles power driven into the ground, all secured to a `dead man' high line pole to prevent erosion."
4) "The Marshall Hutt Rd. (which this property fronts on) is the highway leading to the Lagune Atascosa Refuge, in Sept. this year they are to begin construction of a Scenic Rd. from Rio Hondo through Arroyo City, the game reserve to South Padre Island [will enhance] value of this property greatly."
5) "There is additional land owned by the owner of this property that lies between the bulkhead and the south boundary of the ship channel that is ideal for building house boats, boat houses, and boat docks."
6) "This property has not been managed in the summerin the winter the income is $535. from the apts. $150. for 3 of them$85. for 1One can get as high as $25. per night for the apts. offering lighted fishing from the 60' pier."
7) "There are presently 13 trailer spaces that rent for $65. per month in the winter which is $845. per monthtotal monthly winter income $1,380. There is room for a total of 30 trailer spaces which will bring in $1,950. monthly, plus the apts. total app. $2,500. per month."
The trial court found that: 1) the defendants made each of the above representations to the purchasers concerning the property in question during the course of the negotiations leading to the execution of the real estate sales contract; 2) the defendants made such representations for the purpose of inducing the purchasers to enter into the real estate sales agreement; 3) the purchasers relied upon such representations; 4) such representations were materially false; 5) the sellers were aware that such representations were materially false; 6) the *122 sellers' misrepresentations were made prior to the execution of the real estate sales contract; 7) the purchasers did not have knowledge that such representations were false; and 8) the purchasers expended certain sums as a result of the agreement to purchase the property in question, in addition to the cash downpayment ($10,000), interest payments for five months ($2,000), and six enumerated repairs and improvements to the property ($4,370.56).[2] Based on these findings of fact, the trial court awarded judgment to the Pierces setting aside and rescinding the real estate sales contract upon which the transaction was based and awarding them $16,370.56.
The sellers bring forward thirty-five points of error for our consideration. Appellants attack the trial court's failure to file additional findings of fact requested by them in support of their defense that the purchasers were not entitled to the remedy of rescission because they had ratified the real estate sales contract in question as a matter of law. The refusal of the trial court to adopt the sellers' tendered findings of fact was tantamount to findings against this defense. See Thompson v. Lee Roy Crawford Produce Co., 149 Tex. 357, 233 S.W.2d 295, 297 (1950); Sauer v. Johnson, 520 S.W.2d 438, 441 (Tex.Civ.App.Austin 1975, writ ref'd n. r. e.); Missouri Pacific Railroad Co. v. Trautmann Bros., 301 S.W.2d 240, 243 (Tex.Civ.App.San Antonio 1957, writ ref'd n. r. e.).
Next we must decide whether or not the evidence as a whole demonstrates that the purchasers ratified the fraudulent misrepresentations of the sellers as a matter of law. There are certain set rules that we must follow when considering such a question. Ratification is the adoption or confirmation by a person with knowledge of all material facts of a prior act which did not then legally bind him and which he had the right to repudiate. Ratification occurs when one, induced by fraud to enter into a contract, continues to accept benefits under the contract after he becomes aware of the fraud, or if he conducts himself in such a manner as to recognize the contract as binding. Once a contract has been ratified by the defrauded party, the defrauded party waives any right to seek rescission. Wise v. Pena, 552 S.W.2d 196, 199 (Tex.Civ. App.Corpus Christi 1977, writ dism'd); Kunkel v. Kunkel, 515 S.W.2d 941 (Tex.Civ. App.Amarillo 1974, writ ref'd n. r. e.); Daniel v. Goesl, 161 Tex. 490, 341 S.W.2d 892 (1960); Rosenbaum v. Texas Building & Mortgage Co., 140 Tex. 325, 167 S.W.2d 506 (1943); Payne v. Baldock, 287 S.W.2d 507 (Tex.Civ.App.Eastland 1956, writ ref'd n. r. e.).
The key element which must be proved to establish ratification of the fraudulent conduct is that the ratifying party had full knowledge of the fraudulent acts at the time he ratified these acts. Wise v. Pena, 552 S.W.2d 196, 200 (Tex.Civ.App. Corpus Christi 1977, writ dism'd); Most Worshipful Grand Lodge Free & Accepted Masons of Texas v. Hayes, 82 S.W.2d 411 (Tex.Civ.App.Dallas 1935, no writ). See also Rourke v. Garza, 530 S.W.2d 794 (Tex. Sup.1975); Viracola v. Dallas International Bark, 508 S.W.2d 472 (Tex.Civ.App.Waco 1974, writ ref'd n. r. e.); Norman v. Safway *123 Products, Inc., 404 S.W.2d 69 (Tex.Civ.App. Dallas 1966, no writ); Woods v. Fisher, 106 S.W.2d 774 (Tex.Civ.App.Texarkana 1937, no writ).
The question of ratification of a contract is usually a mixed question of law and fact. Wise v. Pena, 552 S.W.2d 196, 200 (Tex.Civ.App.Corpus Christi 1977, writ dism'd). If the evidence of ratification is uncontroverted or uncontrovertible, then the question of ratification could be determined as a matter of law. Rosenbaum v. Texas Building & Mortgage Co., 140 Tex. 325, 167 S.W.2d 506 (1943); Powell v. Rockow, 127 Tex. 209, 92 S.W.2d 437 (1936); Wise v. Pena, 552 S.W.2d 196, 200 (Tex.Civ. App.Corpus Christi 1977, writ dism'd); Gaston v. Copeland, 335 S.W.2d 406 (Tex. Civ.App.Amarillo 1960, writ ref'd n. r. e.). However, when the act or acts of ratification are controverted, the question of ratification becomes one for the trier of facts. Missouri Pacific Railway Co. v. Brazil, 72 Tex. 233, 10 S.W. 403 (1888); Wise v. Pena, 552 S.W.2d 196, 200 (Tex.Civ.App.Corpus Christi 1977, writ ref'd n. r. e.); Indemnity Insurance Company of North America v. Sterling, 51 S.W.2d 788 (Tex.Civ.App. Beaumont 1932, writ dism'd).
Mrs. Pierce testified, in substance, that her offer to purchase the property for $70,000 was predicated upon her estimation of the value of the property based upon income projections from expected rental income for thirty trailer spaces plus rental income from the house and apartments. When it became evident that the property would support a total of only fifteen trailer spaces pursuant to county regulations, Mrs. Pierce testified she wrote the September 27 letter in an attempt to reach a settlement agreement concerning the purchase price "so that we might not have a complete loss on income-producing property that wouldn't produce what it was represented to." The sellers did not notify the purchasers of their refusal to accept the terms of the proffered settlement agreement until November 17, 1976, when Oppelt sent a refusal letter to the Pierces. During this time, the purchasers tried to sell the property, but no purchaser was located. Mrs. Pierce testified to the effect that she and her husband thought that the representations made by the sellers were innocent until sometime in January, over a month after they received Oppelt's November 17 letter. It was then that they acquired information that the sellers knew of the county regulations at the time the representations were made to them. It was immediately thereafter that the purchasers notified the sellers of their intent to rescind the contract.
Ratification and waiver involve the question of intent. Humble Oil & Refining Co. v. Jeffrey, 38 S.W.2d 374 (Tex. Civ.App.Austin 1931) aff'd, 55 S.W.2d 521 (Tex.Comm'n App.1932, jdgmt. adopted); Rutherford v. Page, Southerland & Page, 429 S.W.2d 602, 610 (Tex.Civ.App.Austin 1968, writ ref'd n. r. e.); Athans v. Rossi, 240 S.W.2d 492 (Tex.Civ.App.Fort Worth 1951, writ ref'd n. r. e.); 10 Tex.Jur.2d, Cancellation of Instruments, §§ 57-58 (1959). See Rosenbaum v. Texas Bldg. & Mortg. Co., 140 Tex. 325, 167 S.W.2d 506, 508 (1943); United Parcel Service v. Helen of Troy Corp., 536 S.W.2d 415, 417-18 (Tex. Civ.App.El Paso 1976, no writ). None of the purchasers' acts, nor a combination thereof, is sufficient to establish ratification of the contract with full knowledge of the sellers' misrepresentations as a matter of law. The purchasers' delay or their conduct prior to their February rescission letter was not necessarily inconsistent with an intention of avoiding the agreement. Conflicting inferences concerning the purchasers' intent are raised by the evidence. At most, factual issues concerning sellers' defenses of ratification were raised. The trial court's express findings and its refusal to make the requested findings amounted to contrary findings which cannot be set aside on appellants' legal sufficiency points. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1957). See Thompson v. Lee Roy Crawford Produce Co., 149 Tex. 357, 233 S.W.2d 295, 297 (1950). Looking at the evidence only in the light most favorable to the purchasers' position, as we must, we find that there is evidence in the record to support the trial *124 court's negative findings concerning the sellers' defensive issue of ratification. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.Sup. 1965); Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359, 363 (1957). We cannot say that the evidence, when considered as a whole, conclusively establishes ratification as a matter of law.
We next turn to the purchasers' points of error which attack the trial court's findings concerning the ten separate misrepresentations. Although the trial court found that ten separate misrepresentations had been made by the sellers, the appellants contend that the crux of the dispute between the parties concerns the representation that "there is room for a total of 30 trailer spaces...." These points of error attacking the trial court's findings are, again in effect, legal sufficiency points which presents a question of law.
As a general rule, the following elements must appear to constitute actionable fraud based upon misrepresentation: 1) that a material representation was made; 2) that it was false; 3) that, when the speaker made it, he knew it was false or made it recklessly without any knowledge of its truth and as a positive assertion; 4) that he made it with the intention that it should be acted upon by the party; 5) that the party acted in reliance upon it; and 6) that he suffered injury thereby. The gist of such an action is found in the fraud of the defendant and damages to the plaintiff. Each of these elements must be established with a reasonable degree of certainty. The absence of any one of them will, of course, prevent a recovery. Custom Leasing, Inc. v. Texas Bank & T. Co. of Dallas, 516 S.W.2d 138, 143 (Tex.Sup.1974); United States Steel Corp. v. Fryer, 493 S.W.2d 487, 491 (Tex.Sup.1973). See King v. Tubb, 551 S.W.2d 436, 440-41 (Tex.Civ.App.Corpus Christi 1977, no writ); Traylor v. Gray, 547 S.W.2d 644, 650 (Tex.Civ.App.Corpus Christi 1977, writ ref'd n. r. e.); Menking v. Bishman Manufacturing Co., 496 S.W.2d 762, 765-66 (Tex.Civ.App.Corpus Christi 1973, no writ); Long v. Smith, 466 S.W.2d 32, 36 (Tex.Civ.App.Corpus Christi 1971, writ ref'd n. r. e.). A simple statement or representation standing alone does not create a cause of action for fraud. The statement must be proved to be false, and before a false statement becomes actionable, there must be a reliance by the complainant to his detriment. Menking v. Bishman Manufacturing Co., 496 S.W.2d 762, 766 (Tex.Civ. App.Corpus Christi 1973, no writ); Finger v. Morris, 468 S.W.2d 572 (Tex.Civ.App. Houston [14th Dist.] 1971, writ ref'd n. r. e.).
In point of error number two, the sellers generally attack the trial court's finding that each and all of the representations were material. However, the point of error is somewhat limited.
"The trial court erred in finding that all of the representations made by Sawyer and Oppelt regarding the property were material in that as a matter of law only the representation regarding the number of trailer spaces which could be placed on the property could arguably be material."
In order to constitute a suitable basis for a decree of cancellation, the misrepresentation alleged must relate to a material fact. In order to make it material, proof must be made that it induced the complaining party to enter into the contract. See Putnam v. Bromwell, 73 Tex. 465, 11 S.W. 491 (1889); Nimmo v. O'Keefe, 204 S.W. 883 (Tex.Civ. App.Fort Worth 1918, no writ); 25 Tex. Jur.2d, Fraud & Deceit, § 15, p. 630 (1961). The appellants told the Pierces that "There is room for a total of 30 trailer spaces which will bring in $1950 monthly, plus the apartments, total approximately $2500 per month." The Pierces testified repeatedly that the determining factor in their decision to buy the property was their income projections based upon income generated, in part, from 30 trailer spaces and that if there wasn't room for that many spaces there would not be sufficient income generated to finance the purchase of the property. Mrs. Pierce testified in substance that all of their plans were dependent upon the potential available number of trailer spaces. Appellants' arguments and authorities relating to this point of error, in effect, admit *125 that there is evidence in the record to support the trial court's finding that the representation concerning the available number of trailer spaces was a material representation. We agree there was ample evidence to support this finding.
The only other points of error directly relating to the trial court's findings that the sellers fraudulently misrepresented the potential trailer spaces available are points numbers 3, 12 and 28. In point of error number 12, appellants contend that there is no evidence in the record that the statement concerning the available number of trailer spaces was false. Under this point of error, appellants argue that there is no evidence that there was not room for 30 trailer spaces.
The contract of sale under which Mr. Garza had possession of the property in question was introduced into evidence. This contract also required Garza to place additional trailer spaces on the property. Garza testified that when he had applied to the county officials to obtain the permit to place additional trailer spaces on the property, the request was refused because of the county regulations concerning the number of trailer spaces. Garza testified that he informed appellant Oppelt of this county regulation and of his inability to obtain such a permit. It is undisputed that Oppelt drafted the brochure concerning the property on behalf of Sawyer and herself. There is ample evidence in the record that she did so knowing that the county regulations that were then in effect would preclude more than fifteen trailer spaces on the property, and that the representation in question was false. Appellants' point of error number 12 is overruled.
In point of error number 28, the appellants generally contend that the trial court erred in entering judgment in favor of the Pierces because, at the time of the closing of the sale, the Pierces were in possession of sufficient knowledge to put them on inquiry, and therefore were charged with knowledge, as a matter of law, of all facts which a proper inquiry would have revealed. The appellants contend that the only misrepresentation which the trial court found to exist, and of which the Pierces did not have full knowledge, was their representation regarding the number of trailer spaces that could be placed on the property in question. Appellants apparently contend that the accuracy of the representation regarding the trailer spaces could have easily been checked out by simply contacting the Cameron County Building Department. In this argument, the appellants indirectly raised the question of how this representation should be characterized.
We recognize the general rule that everyone is presumed to know the law and therefore has no right to rely upon representations by others as to what the law might be. Such representations are to be treated as mere statements of opinion and not of fact. In this instance, the misrepresentation was not clearly a misrepresentation as to a matter concerning the law. Compare Safety Casualty Company v. McGee, 133 Tex. 233, 127 S.W.2d 176 (1939). The appellants contend that the particular misrepresentation here was merely that the property had sufficient room for thirty trailer spaces. Although there is evidence to the contrary, there is ample evidence in the record from which the trial court could have reasonably concluded that Sawyer and Oppelt had actual knowledge that as a matter of fact thirty trailer spaces could not be placed on the property due to the county regulations. The misrepresentation was not that "the county regulations permit 30 trailer spaces on less than 1 acre of land." The misrepresentation was, only at most, an indirect misrepresentation of a legal matter and thus, the principles pertaining to representations as to matters of law are not absolutely analogous.
One notable exception to the general rule is that where one party who possesses superior knowledge as to the law takes advantage of the other party's ignorance in that respect, and intentionally makes a misrepresentation concerning the law for the purpose of deceiving the other party and actually succeeds in that respect, may be held responsible for his conduct. *126 Safety Casualty Co. v. McGee, 133 Tex. 233, 127 S.W.2d 176, 178-179 (1939). In Safety Casualty Company v. McGee, 133 Tex. 233, 127 S.W.2d 176, 178 (1939), our Supreme Court cited with approval the following statement of the exception:
"`The same is true where one who himself knows the law deceives another by misrepresenting the law to him, or knowing him to be ignorant of it, takes advantage of him through such ignorance, or where the person to whom the representations are made relies upon the supposed superior knowledge and experience of the other party and on his statement that it is unnecessary or inadvisable for him to consult a lawyer.'"
Here we have at most a mixed question of law and fact. Actually, it may have been possible to physically place thirty trailers on the land in question, but the county regulations (law) prohibited more than fifteen spaces in this particular case. The appellants knew of this regulation and deceived and misrepresented the facts to the appellees. There was a second material misrepresentation in the latter part of appellants' statement: that it was possible for the property to produce $1950 monthly income from the thirty trailer spaces. The evidence in the record showed that the Pierces were totally inexperienced in the mobile-home trailer park business. It was undisputed that the Pierces had no actual knowledge of the county regulation in question. There is ample evidence in the record that the sellers (appellants) knew of the county regulation in question and, in spite of that knowledge, intentionally and fraudulently made the misleading statement concerning the number of trailer spaces which could be placed in operation on the property and the amount of money such spaces would generate. There is evidence to support the trial court's finding. We hold that the appellees were not charged with knowledge of the fraud as a matter of law. Appellants' point of error number 28 is overruled.
What we have said under the above points of error is equally applicable to the only other point of error (three) which is related to the trial court's findings concerning fraudulent misrepresentation of the available trailer spaces. The sellers bring forward no other points of error attacking these findings. Even if it could be said argumentatively that the sellers' points of error relating to the other misrepresentations have some merit because of appellees' knowledge, the misrepresentations concerning the availability of additional trailer spaces, standing alone, are sufficient to support the trial court's judgment rescinding the contract.
The sellers' remaining points of error complain of the trial court's judgment allowing the purchasers to recover from the sellers the sum of $16,370.56. This case was tried before an able trial judge. He made extensive findings of fact. In addition to the expressed findings, the record shows that these same appellants have sold and resold this same property four or five times and have repossessed it the same number of times at a later date after each sale. They inferentially admitted, in effect, that the property wasn't worth the amount of the original sales price when they sold it at the trustee's sale. This is so, because they bid it in at their own sale at one-half ($35,000.00) of the original sales price ($70,000.00) less than a year after the sale had been consummated to these appellees. This was even after extensive improvements had been made to the property by the appellees. Then the appellants, without any actual notice to the appellees that if such property failed to bring at least the amount of the unpaid obligation at the trustee's sale, they would seek a judgment against the appellees for the deficiency between the amount realized at the trustee's sale and the remaining obligation under the deed of trust. In this case, they received both the property in question and, in addition, sought a deficiency judgment by way of a cross-action for $28,200.00. See Crow v. Heath, 516 S.W.2d 225 (Tex.Civ.App.Corpus Christi 1974, writ ref'd n. r. e.).
The trial court had the opportunity to see the parties and the witnesses, observe their demeanor, and judge their credibility. He *127 could believe that which he perceived to be the truth and disbelieve that which did not comport to his experience as a judge. The appellants' points of error are all legal sufficiency points or law questions based on the facts and evidence presented to the trial court. Appellants did not request any specific requests for findings for equitable adjustments in their favor, nor did they file objections to the findings in support of the trial court's monetary award. The primary purpose of a suit such as this to cancel a contract obtained by fraud is to undo the fraud and place the parties in their original position. Finch v. McVea, 543 S.W.2d 449, 452 (Tex.Civ.App.Corpus Christi 1976, writ ref'd n. r. e.); Howard v. Burkholder, 281 S.W.2d 764 (Tex.Civ.App.Amarillo 1955, writ dism'd). Where relief is finally granted, the original status of the parties must be restored as nearly as possible. In this case, possession and title to the property had been restored to Sawyer when he instituted foreclosure proceedings and purchased the property and secured possession at the foreclosure sale. We, therefore, find and conclude that the trial court correctly adjusted the equities in the damages awarded to appellees. All of appellants' points of error have been considered and are overruled.
The judgment of the trial court is AFFIRMED.
NOTES
[1]  "Enclosed is the check of $400.00 for Oct 76 interest.... There is only one stool & one lavatory that is hooked up & neither of them work. The roof on the building that they are in must be replaced & the roof in the main house leaks. 3 of the four air conditioners in the house are malfunctioning but of course they are more than three years old and that is about as long as they last year without being rebuilt. The pier and bulkhead is so corroded it is too dangerous for the public without a great deal of work plus a complete new wiring job. Of course there are many other things that were misrepresented but we feel sure they were not intentional. Our main concern is the county zoning laws & requirements for a travel trailer park. The only way we were able to put in the 8 trailer spaces was because the 13 hookups that were in are too close together to be allowed. Also the existing septic tanks were not adaquete (sic).... Walt and I have talked it over and have agreed that you probably did not mean to misrepresent the income potential and would want to be fair without us being out the expense of legal counsel. If we could do this without hiring a lawyer we feel that a notarized statement to the effect that we had fulfilled the trailer space requirements & the house painting & repairs (we have the estimation (over a thousand) & of course the painting we will complete in the six monthsand give us credit of $5,000.00 on the unpaid principal of $60,000 we could make the place in the condition it was represented.

[Signed]: Mr. & Mrs. W. E. Pierce."
[2]  The trial court also found:

9. "The following are found to exist with regard to said representations:
a. The income from the apartments was never as high as $535.00 per month;
b. The apartments on the property never rented for as much as $25.00 per night;
c. There was not room on the property to construct a total of thirty (30) trailer spaces;
d. The land between the bulkhead and the ship channel is subject to erosion and accretion and is further subject to Navigation District control as to the construction of the buildings;
e. There were no plans to construct a road adjacent to the property through to Port Isabel;
f. That the bulkhead was not constructed as represented and had been recently filled with dirt to replace dirt which had eroded;
g. There were no showers, commodes, or lavatories, and such plumbing facilities as were there were not hooked up;
h. The roof leaked; and
i. The air conditioning units were 3½ years old."


203 N.J. Super. 137 (1985)
495 A.2d 1372
MARK NEMCHICK, PETITIONER-RESPONDENT,
v.
THATCHER GLASS MANUFACTURING COMPANY, RESPONDENT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued May 22, 1985.
Decided August 5, 1985.
*139 Before Judges MATTHEWS, FURMAN and HAVEY.
Richard J. Riordan argued the cause for appellant, Thomas H. Green, attorney (Richard J. Riordan on the brief).
J. Edward Palmer argued the cause for respondent (J. Edward Palmer on the brief).
The opinion of the court was delivered by HAVEY, J.A.D.
This workers' compensation appeal raises the question of whether an employee who is injured while driving home after completion of an employment-assigned, off premises task, should be deemed to be in the "course of employment." Resolution of the issue requires us to interpret the meaning of the 1979 amendment to the Workers' Compensation Act (act) which adds a paragraph to the definition of employment under N.J.S.A. 34:15-36. The amendment, intending to provide "relief from the far-reaching effect of the `going and coming rule' decisions by defining and limiting the scope of employment," see Joint Legislative Statement to L. 1979, c. 283, reads as follows:
Employment shall be deemed to commence when an employee arrives at the employer's place of employment to report for work and shall terminate when the employee leaves the employer's place of employment excluding areas not under the control of the employer; provided, however, when the employee is required by the employer to be away from the employer's place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer; but the employment of employee paid travel time by an employer for time spent traveling to and from a job site or of any employee who utilizes an employer authorized vehicle shall commence and terminate with the time spent traveling to and from a job site or the authorized operation of a vehicle on business authorized by the employer. Travel by a policeman or fireman in responding to an emergency shall be deemed to be in the course of employment. [Emphasis supplied].
The judge of compensation found petitioner's accident to be compensable because petitioner had received or was entitled to receive reimbursement for travel expenses, a result clearly at variance with our holding in Nebesne v. Crocetti, 194 N.J. Super. *140 278 (App.Div. 1984), where we stated that "[r]egardless of make-whole reimbursement for expenses, a traveling employee is not in the course of his employment ... unless the employee is receiving employment wages for the time thus spent traveling." Id. at 281. We nevertheless affirm here, and hold that petitioner was "required by [respondent] to be away from [respondent's] place of employment ..." and was "... engaged in the direct performance of duties assigned or directed by [respondent] ..." when the accident, which caused petitioner's injuries, occurred. N.J.S.A. 34:15-36.
The essential facts are not in dispute. Petitioner was employed by respondent on a fixed salary as supervisor of the "select and pack" department. His regular work hours were from 7:00 a.m. to 5:00 p.m. at respondent's plant, located in Wharton, Morris County. At 4:45 p.m. on a work day, petitioner received instructions from his supervisor to report to Johanna Farms in Flemington, Hunterdon County, approximately 50 miles away from respondent's plant, no later than 10:30 p.m. in order to investigate a problem with glass products which had been shipped to Johanna Farms. In his two months of employment with respondent, petitioner had been dispatched on approximately five such assignments ranging in location from South Jersey to Connecticut. Petitioner went home at 5:00 p.m., showered and ate before leaving on the trip. He arrived there at 10:00 p.m. and worked through the night until 8:00 a.m. the following morning. On his way home he stopped at a coffee shop for breakfast and phoned in his report to respondent. After leaving the coffee shop and while proceeding homeward, petitioner blacked out at the wheel of his car and collided head-on with another vehicle on route 206 in Chester, Morris County. Petitioner's trip home from Johanna Farms to Blairstown, Warren County, was a significantly different route than his normal route home from respondent's Wharton plant. Petitioner received no additional income for the travel time to and from Johanna Farms.
*141 Prior to the 1979 amendment to the act, the common-law rule that injuries sustained by an employee having fixed hours and place of work, while going to and from work, was not compensable, had been significantly eroded by exceptions to the rule which evolved through case law. See 1 Larson, Workmen's Compensation Law, (Bender 1984), § 15.11 at 4-3; Hammond v. Great Atlantic & Pacific Tea Co., 56 N.J. 7, 11 (1970); Wyatt v. Metropolitan Maintenance Co., 74 N.J. 167, 173 (1977); Hornyak v. Great Atlantic & Pacific Tea Co., 63 N.J. 99, 103-104 (1973).
We observed in Ward v. Davidowitz, 191 N.J. Super. 518, 523 (App.Div. 1983) that the 1979 amendment was intended to exclude compensability for "lunch-break type accidents," citing Judge Napier's article "Impact of the Reform Act of 1980," 96 N.J.L.J. 17 (August 1981), where he commented that the amendment in question was:
[d]esigned to remove from compensability certain cases heretofore held compensable where special hazards existed en route to the employer's premises, off-premises injuries sustained during lunch hour and injuries sustained while traveling at the employer's direction but deviating from a direct line of travel to pursue a purely personal activity. [At 18].
A common-law exception clearly distinguishable from those cited by Judge Napier is the "special mission" exception which is described by Dean Larson as follows:
When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself. 1 Larson, Workmen's Compensation Law, supra, § 16.10 at 4-123.
See also Briggs v. American Biltrite, 74 N.J. 185 (1977) (injury while en route to work a Sunday overtime shift); Mikkelsen v. N.L. Industries, 72 N.J. 209, 218 (1977) (injury while en route home from union meeting); O'Reilly v. Roberto Homes, 31 N.J. Super. 387 (App.Div. 1954) (decedent killed while driving home at night from day-time job site after performing extra *142 task of lighting oil heater); Binet v. Ocean Gate Bd. of Ed., 90 N.J. Super. 571 (App.Div. 1966) (teacher killed while returning home after P.T.A. meeting). But see Muller v. Island Heights Volunteer Fire Co., 93 N.J. Super. 311 (App.Div. 1967) (volunteer fireman not in line of duty while returning home from regular company meeting at 11:00 p.m.); Hebrank v. Parsons, 88 N.J. Super. 406 (App.Div. 1965) (accident during return trip at 3:00 a.m. with petitioner's group chief from tavern 25 miles from motel where they were staying while on job).
The evident intent of the Legislature was to preserve the "special mission" exception to the "going and coming rule" when an employee is away from the work place at his employer's direction and "when the employee is engaged in the direct performance of duties assigned ... by the employer...." We noted in Ward v. Davidowitz, supra, 191 N.J. Super. at 523, that the amendment was to eliminate an employer's responsibility for accidents occurring in areas not under the employer's control unless the employee is required to be away from the work place by the employer. In that event, the central inquiry must be whether the employee was in the direct performance of his assigned duty. In finding that the record failed to support compensability for an off-premises accident during a lunch break, we nevertheless observed that there may be a "special circumstance or arrangement" which would bring an off-premises injury within the definition of employment under N.J.S.A. 34:15-36. Id. at 524.
There can be no question that petitioner was actually "engaged in the direct performance of [his assigned] duties" while at Johanna Farms. Respondent concedes in its brief that "an argument may be ... made that coverage continued up until when [petitioner] phoned in his report from the coffee shop, because [petitioner] was still in the direct performance of duties assigned ... by ... respondent ..." It urges, however, that petitioner's "direct performance of duties" ended after he left the coffee shop for his trip homeward. This time and place distinction made by respondent is specious. While this interpretation *143 of the statutory language has appeal as a simplistic resolution of the issue, it ignores the underlying rationale for the "special mission" rule as developed by case law prior to the amendment, which we must presume the Legislature was "thoroughly conversant with" when the amendment to the act was enacted. See Brewer v. Porch, 53 N.J. 167, 174 (1969); Nebesne v. Crocetti, supra, 194 N.J. Super. at 281.
We choose not to undertake defining the outer perimeter of the phrase "direct performance of [an employee's] duties" as envisioned by the Legislature. Whether an employee is deemed within the course of employment must be resolved on a case-by-case basis. Suffice it to say that we view the particular fact pattern before us as a "special circumstance or arrangement" of a type intended by the Legislature to survive the 1979 revision of the act, and that the entire journey to and from Johanna Farms was in the direct performance of petitioner's assigned duties. After petitioner's regular 8-hour shift, he was unexpectedly requested by his supervisor to journey 50 miles to an unfamiliar place to perform an assignment for respondent's benefit which required 10 hours to accomplish. He was faced with making his homeward journey after approximately 27 sleepless hours. The inconvenience, disruption of petitioner's normal daily routine, and, no doubt, enhanced exposure to hazard because of weariness and fatigue would not have ensued but for the work-related assignment, the benefits of which inured exclusively to respondent. That inconvenience and enhanced exposure to hazard was no less present after petitioner phoned in his report to respondent. In short, we are completely satisfied that petitioner's entire journey home was "sufficiently substantial to be viewed an an integral part of the service itself." Larson, Workmen's Compensation Law, supra, § 16.10 at 4-113. To conclude otherwise would do violence to the remedial purpose and spirit of the act. See Briggs v. American Biltrite, supra, 74 N.J. at 188. We do not view the "cost-saving" purposes of the 1979 amendments to the act, see *144 Poswiatowski v. Standard Chlorine Chemical Co., 96 N.J. 321, 331 (1984), as compelling any different result.
Finding that petitioner's accident occurred while in the course of his employment, the judgment of the court below is affirmed.


                            In the
    United States Court of Appeals
                 For the Seventh Circuit
                         ____________

No. 01-1958
UNITED STATES     OF   AMERICA,
                                              Plaintiff-Appellee,
                               v.

ARLYN ACKLEY,
                                          Defendant-Appellant.
                         ____________
           Appeal from the United States District Court
              for the Eastern District of Wisconsin.
           No. 00 CR 48—Charles N. Clevert, Judge.
                         ____________
     ARGUED JANUARY 9, 2002—DECIDED JULY 18, 2002
                    ____________

 Before FLAUM, Chief Judge, HARLINGTON WOOD, JR., and
EASTERBROOK, Circuit Judges.
  HARLINGTON WOOD, JR., Circuit Judge. This case in-
volves a few Native Americans of the Sokagoan Chippewa
community near Mole Lake, Wisconsin. The defendant,
Arlyn Ackley, was tribal chairman from 1994 to 1997.
Ackley appeals his October 2000 conviction on Counts II
and III of a three-count indictment which charged theft
from a gaming establishment in violation of 18 U.S.C.
§§ 1167(b) and 2.1 The district court granted the defend-

1
  On April 5, 2001, Ackley was sentenced to thirty months im-
prisonment and three years of supervised release on Counts II and
                                                    (continued...)
2                                                  No. 01-1958

ant’s motion for judgment of acquittal on Count I which
charged a conspiracy “to obstruct, purloin, willfully misap-
ply and take and carry away with the intent to steal ap-
proximately $38,715.69 belonging to Sokagoan Gaming
Enterprise, a gaming establishment operated by an Indian
tribe pursuant to an ordinance or resolution approved by
the National Indian Gaming Commission” in violation of 18
U.S.C. §§ 1167(b), 371, and 2.

                      BACKGROUND
  The Sokagoan Chippewa Tribal Community (“the tribe”)
is governed by a tribal council made up of six members
elected by the tribe.2 A tribal chairman is also elected by
the tribe. The government describes this position as “sim-
ilar to that of a governor of a state.” The gambling opera-
tions permitted to take place on the reservation are over-
seen by the Sokagoan Gaming Enterprise Corporation
(“SGEC”), which was run by a board appointed by the tribal
council.
  Ackley was elected tribal chairman in 1994 and served for
about three years. The facts relating to the charged offenses
need only be briefly related. While tribal chairman, Ackley
did considerable traveling; approximately once a week he
went somewhere. There was testimony that Ackley traveled
both on behalf of the tribe and on behalf of the SGEC. The
financing of those trips is what is involved in these offenses.

1
  (...continued)
III to run concurrently. He was ordered to pay $38,715.69
restitution and a $200 special assessment.
2
  The tribe is a federally recognized Indian Tribal Organization
as defined in 18 U.S.C. § 1163, which provides that the term “In-
dian Tribal Organization” means “any tribe, band, or community
of Indians which is subject to the laws in the United States re-
lating to Indian affairs or any corporation, association or group
which is organized under such laws.”
No. 01-1958                                                3

  Tribal financial procedures permitted the tribal chairman
to request travel advances prior to traveling. Ackley, as
tribal chairman, was issued an SGEC credit card (“the trib-
al credit card”). The SGEC paid the credit card bills for the
tribal credit card issued in Ackley’s name. Ackley’s secre-
tary, who was also his niece, handled most of his travel
arrangements. Prior to a trip, his secretary used the tribal
credit card to make Ackley’s hotel reservations. She would
prepare and submit a travel advance form to the accounting
office for Ackley which set out his anticipated spending
on hotels and per diem expenses. The tribal comptroller
would then issue a check in that amount payable to Ackley.
After the completion of travel, Ackley was required under
tribal financial procedures to submit his receipts from the
trip, set forth his actual expenditures on a portion of the
travel advance form designated for reconciliations, and
return any unused portion of the advanced funds. Ackley
did nothing to meet these requirements. In addition, after
receiving travel advances for hotel room costs, Ackley
charged those expenses to his tribal credit card. The SGEC,
not Ackley, paid these credit card charges. It was an easy
way for Ackley to make money on his travels. The evidence
showed nineteen trips for which Ackley received a travel
advance for hotel expenses and then charged those expenses
to his tribal credit card. For those nineteen trips, Ackley
was given $14,420 in advance funds for travel expenses,
including $8,688 for anticipated hotel expenses. During
those trips, Ackley charged $14,817.53 in hotel expenses
to his tribal credit card. Counts II and III of the indict-
ment dealt with two of these trips. Count II charged Ackley
with knowingly retaining with intent to convert to his
own use $1,500 belonging to the SGEC in connection with
an October 28, 1995 trip to San Diego, California. Count III
charged the knowing retention with intent to convert
$1,800 in connection with a May 31, 1996 trip to Tulsa,
Oklahoma.
4                                                No. 01-1958

  Ackley also used his tribal credit card for personal ex-
penses and to obtain cash advances for gambling at the
nearby Menomonie Nation casino, a fact which Ackley ad-
mitted to an FBI Special Agent. A member of the tribal
council and several SGEC board members testified that
there was no agreement allowing Ackley to use the tribal
credit card for personal expenses or cash advances. Fur-
ther, early in his tribal chairmanship, Ackley had been ad-
vised in writing of his responsibilities about travel ad-
vances, but that advice was ignored which is why we are
here.

                       THE ISSUES
  The first two issues as framed by Ackley in his brief are
as follows:
    The District Court committed plain error by construc-
    tively amending both charges in Counts Two and Three
    of the indictment by: (1) instructing the jury on a theory
    of guilt different than that alleged in the indictment;
    and (2) by allowing the jury to deliberate the conspiracy
    charge in Count One together with the substantive
    charges in Counts Two and Three because the Court
    deferred deciding Mr. Ackley’s motion for judgment of
    acquittal as to the conspiracy charge until post-verdict,
    at which time the District Court granted Mr. Ackley’s
    motion and dismissed the conspiracy charge because of
    insufficient evidence.
Ackley also challenges the sufficiency of the evidence to
support his convictions on Counts II and III.
  First, it should be noted that Ackley did not object to the
jury instructions and, in fact, his attorney affirmatively ap-
proved all of the instructions, so any claimed error was
waived. See United States v. Cusimano, 148 F.3d 824, 828
(7th Cir. 1998). In the absence of an objection in the district
No. 01-1958                                                  5

court, we review for plain error, id., and will reverse only
when the error “seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.” United States v.
Olano, 507 U.S. 725, 732 (1993) (internal quotations and
citations omitted). We find no plain error in the instruc-
tions. In cases involving constructive amendment of jury
instructions as claimed by Ackley, plain error occurs only
when the amendment constitutes a mistake so serious that
the defendant probably would have been acquitted but for
the mistake. Cusimano, 148 F.3d at 828. Ackley provides
no specific support for his assertion that he would have
been acquitted but for the alleged constructive amendment,
and given the strength of the evidence against him, he could
not. His claim of error fails.
  Additionally, the district court did not err in withholding
its ruling on Ackley’s motion for judgment of acquittal on
Count I. Ackley did not request severance of Count I from
Counts II and III in the district court. Nor would severance
have been appropriate. It was all the same evidence, most
of which would have been admissible in any event, and the
district court clearly instructed the jury that each count and
the evidence relating to it had to be considered separately.
  Ackley’s challenge to the sufficiency of the evidence re-
quires little attention. Viewed in the light most favorable
to the government, the record contains ample evidence
from which the jury could find guilt beyond a reasonable
doubt. See United States v. Thomas, 284 F.3d 746, 751 (7th
Cir. 2002). Ackley used legitimate business trips to steal
tribal money for his own purpose. It was not a one-time
event for him, but was a very reliable pattern Ackley know-
ingly used each time to enrich himself at tribal expense.
It was his own unique method of stealing. It was the
same as if he had slipped his hand into the pocket of the
tribe’s comptroller and slipped out the tribe’s wallet.
6                                                     No. 01-1958

                        CONCLUSION
  The defendant’s allegations of error are all without merit.
The record fully sustains the jury’s guilty verdict, not just
beyond a reasonable doubt, but beyond all doubt. The
district court cannot be faulted for its conduct of the trial.
The defendant’s appellate attorney did all he reasonably
could for the defendant in these circumstances.
    The district court is affirmed in all respects.
                                                       AFFIRMED.

A true Copy:
         Teste:

                          ________________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit

                      USCA-97-C-006—7-18-02


742 N.W.2d 75 (2007)
2007 WI App 251
STATE
v.
SNYDER.
No. 2007AP760-CR.
Court of Appeals of Wisconsin.
October 17, 2007.
Unpublished opinion. Affirmed.


717 So.2d 1247 (1998)
Jacquelyn Mayo, wife of/and Darryl J. MAYO
v.
BENSON CHEVROLET CO., INC., et al.
No. 97-CA-1121.
Court of Appeal of Louisiana, Fifth Circuit.
August 25, 1998.
Rehearing Denied October 19, 1998.
*1248 Scott McQuaig, W. Chad Stelly, McQuaig & Stelly, Metairie, for Defendant/Appellant.
Jason G. Dupree, Baton Rouge, for Defendant/Appellee.
Before GAUDIN, WICKER and CANNELLA, JJ.
WICKER, Judge.
Benson Chevrolet Co., Inc., defendant and third-party plaintiff, appeals the dismissal of its third-party demand on an exception of prescription. We reverse and remand.
The underlying lawsuit, filed on April 25, 1995 by Jacqueline and Darryl Mayo, seeks redhibition of plaintiffs' January 9, 1995 purchase of an automobile from Benson. Plaintiffs allege the car has numerous hidden defects that must have resulted from an accident prior to their purchase of the car, including misplacement of the left rear wheel, misalignment of the left fender, and misplacement of the left front door.
On January 9, 1996 plaintiffs supplemented their petition to add Harris Chevrolet, Inc. as an additional defendant, on the basis that Benson had obtained the car from Harris two days prior to their purchase of it. Harris filed an exception of no cause of action to plaintiff's demand, asserting there was no privity between plaintiffs and Harris and therefore no cause of action in redhibition, because Harris was neither the manufacturer of the vehicle nor seller of the vehicle to plaintiffs. That exception was maintained and Harris was dismissed from plaintiffs' suit on May 19, 1997.
On May 21, 1997 Benson filed a third party demand and cross-claim against Harris for breach of warranty of merchantability and fitness, seeking indemnification in the event it was cast in damages to plaintiffs. Harris filed an exception of prescription, asserting that Benson was put on notice of a possible claim against Harris when it was served with plaintiffs' petition on May 2, 1995. Since Benson did not file its demand against Harris until more than two years later, Harris asserted the action is untimely. The trial court granted the exception and Benson appeals.
Benson contends the trial court erred because prescription does not run on a claim for indemnity until the claimant is cast in judgment. In contrast, Harris argues that the only ground on which Benson can assert a claim against it is redhibition for Harris' transfer of the car to Benson and, therefore, Benson's claim is subject to the same time limitations as any redhibition claim (i.e., one year from date of discovery of defect, La. Civ.Code art. 2534).
Where the actual fault of the proximate cause of injury is attributable to one of the parties and the other is only technically or constructively at fault, from failure or omission to perform some legal duty, indemnity may be had against the one primarily responsible for the act which caused the damage. Appalachian Corp. v. Brooklyn Cooperage Co., 151 La. 41, 91 So. 539, 541 (La.1922). Indemnity, unlike contribution, is not dependent upon subrogation to the right of the creditor, but finds its basis in the concept of unjust enrichment, i.e., the party primarily at fault is unjustly enriched when one held liable vicariously or by reason of technical fault discharges the indebtedness. Lebleu v. Southern Silica of Louisiana, 554 So.2d 852, 859 (La.App. 3 Cir.1989). Liability for indemnity arises only when the party seeking indemnity, the indemnitee, is free from fault and has discharged a debt that should be wholly paid by the indemnitor. Chaudoir v. Porsche Cars of North America, 95-729 (La.App. 3 Cir. 12/6/95), 667 So.2d 569, 574.
"Indemnity is due when fairness requires that one person bear the total responsibility for an injury. The basis for indemnity in the civil law is restitution, the indemnitor having been unjustly enriched when the person seeking indemnity has discharged liability that was his responsibility." Klumpp v. XYZ Ins. Co., 547 So.2d 391, 393 (La.App. 3 Cir. 1989), writ denied, 551 So.2d 1322.
A solidary debtor who pays a debt that concerns only a co-debtor is, therefore, entitled to indemnity from the debtor in whose behalf the debt arose. * * * Thus, a person who is held liable vicariously or passively for the tort of another is due indemnity from the culpable tortfeasor. *1249 * * * One who is himself at fault, however, is not due indemnity because liability for indemnity exists only when the party seeking indemnity, the indemnitee, is free of fault and has discharged a debt that should be paid wholly by the indemnitor.
Klumpp, supra, at 393-394.
Indemnity shifts the entire loss from a tortfeasor only technically or constructively at fault to the person primarily responsible, while contribution apportions the loss among those jointly responsible. Green v. TACA Intern. Airlines, 304 So.2d 357, 359 (La. 1974).
"In regard to a claim for indemnity or contribution, prescription does not begin to run until the right vests.... Stated another way, prescription does not run until the party seeking it [indemnity] is cast in judgment." Bergeron v. Amerada Hess Corp., 478 So.2d 1308, 1310 (La.App. 5 Cir.1985); Blue Streak Enterprises, Inc. v. Gulf Coast Marine, Inc., 370 So.2d 633, 635 (La.App. 4 Cir.1979).
In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any loss sustained by the seller. Robertson v. Coleman Oldsmobile, Inc., 451 So.2d 1323, 1327 (La.App. 1 Cir.1984); La. Civ.Code Art. 2531.[1]
Because Benson has not yet been cast in judgment to plaintiffs, no right to indemnification has vested in it. Its right cannot have prescribed before it vested. Clearly, then, the trial court erred in finding Benson's claim for indemnity prescribed.
For the foregoing reasons, the judgment finding Benson's indemnification claim prescribed is reversed. The case is remanded for further proceedings. Costs of the appeal are assessed against Harris Chevrolet, Inc.
REVERSED AND REMANDED.
NOTES
[1]  "Under this Article a seller liable for redhibition has an action against his own seller, and other sellers in the chain of title of the thing, even if such sellers are not manufacturers." Revision Comments-1993 following La. Civ.Code Art. 2531.


                                          No. 02-295

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2002 MT 267

DARREN RICE,

              Plaintiff and Respondent,

         v.

STATE OF MONTANA,
Department of Labor and Industry,
Unemployment Insurance Division,

              Respondent and Appellant.

APPEAL FROM:         District Court of the Nineteenth Judicial District,
                     In and for the County of Lincoln,
                     The Honorable Michael C. Prezeau, Judge presiding.

COUNSEL OF RECORD:

              For Appellant:

                     Charles K. Hail, Montana Department of Labor & Industry, Helena, Montana

              For Respondent:

                     ( No Respondent’s Brief Filed )

                                                         Submitted on Briefs: August 8, 2002

                                                                Decided: November 26, 2002
Filed:

                     __________________________________________
                                       Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.

¶1      The Respondent, Darren Rice, appealed the Montana Board of

Labor and Appeals’ October 11, 2001, decision which denied him

unemployment benefits to the District Court for the Nineteenth

Judicial District in Lincoln County.                  The District Court reversed

the   Board     of   Labor     and    Appeals’       decision     and   awarded   Rice

retroactive unemployment benefits.                   The State of Montana appeals

the District Court’s decision.             We affirm the Order of the District

Court.

¶2      The sole issue on appeal is whether § 39-51-2302, MCA, barred

Rice’s claim for unemployment benefits as a matter of law.

                      FACTUAL AND PROCEDURAL BACKGROUND

¶3      The facts in this case are undisputed.                    Rice was diagnosed

with, and began treatment for, bi-polar disorder on September 21,

1998.    On October 14, 1999, he was hired by Interstate Transfer and

Storage (Interstate Transfer), as a full time long haul truck

driver.     As a long haul truck driver, Rice was required to travel

long distances and remain on the road for extended periods of time.
 When he was hired, his bi-polar condition was being successfully

treated     through     medication      and     he    was   fully   qualified     as   a

commercial truck driver pursuant to state and federal regulations.

¶4      On or around June 8, 2001, Rice suffered from a blackout while

visiting his home in Libby, Montana.                   Following the blackout, he

sought medical advice about his condition at the Libby Prompt Care

walk-in clinic.        After consulting with an emergency room doctor, a

Licensed Practitioner Nurse (LPN) authorized Rice to take four days

                                            2
off work, advised him to refrain from driving, and advised him to

seek further assistance from his regular doctor, Dr. Gregory

Winter.    Rice informed Interstate Transfer that he would not be

returning to work as scheduled and that he would contact them when

he had more information concerning his condition.        He was unable to

immediately contact Dr. Winter at the Fort Harris VA hospital.

However, the two VA counselors he talked to concurred with the

LPN’s opinion that he should not return to work as a trucker.

¶5   Based on the advice he received from the LPN and the two VA

counselors, on June 12, 2001, Rice notified Interstate Transport

that he would not be returning to work.       At that same time he filed

a claim for unemployment benefits retroactive to June 10, 2001.           On

June 22, 2001, Dr. Winter concluded that Rice should not drive a

motor vehicle and completed the necessary Department of Labor and

Industry (Department) form to document that opinion.
¶6   The Department conducted a hearing on August 13, 2001, and

issued its decision to deny benefits on August 17, 2001.                The

Department held that Rice was not qualified to receive benefits

because he had not received the advice of a licenced practicing

physician before resigning from his employment on June 12.              Rice

appealed the Department’s decision           to the Board of Labor and

Appeals (Board) which held an additional hearing on September 7,

2001.     The   Board   affirmed   the   Department’s   decision   to   deny

benefits on September 11, 2001.

¶7   Rice appealed the Board’s decision in the Nineteenth Judicial

District Court pursuant to § 39-51-2410, MCA.       The District Court’s

                                     3
review was limited to issues of law pursuant to § 39-51-2410(5),

MCA.    It concluded that the Department and the Board misinterpreted

§    39-51-2302,      MCA,     and    that    Rice     qualified       for    unemployment

benefits because he demonstrated that he left work for “good

cause.”      The State appeals the District Court’s conclusions of law.

                                        DISCUSSION

¶8     Does § 39-51-2302, MCA, bar Rice’s claim for unemployment

benefits?

¶9     Interpretation and construction of a statute is a matter of

law which we review to determine whether the district court’s

conclusions are correct.              State v. Price, 2002 MT 150, ¶ 15, 310

Mont. 320, ¶ 15, 50 P.3d 530, ¶ 15 (citation omitted). Construction of

a statute requires this Court “simply to ascertain and declare what is in the terms or substance

contained therein, not to insert what has been omitted or omit what has been inserted.”

Section 1-2-101, MCA.

¶10    The State contends that the District Court’s interpretation of

§ 39-51-2302, MCA, is incorrect and that Rice is not eligible for

unemployment because he failed to obtain a licensed and practicing

physician’s opinion before he resigned from his employment with

Interstate Transfer.            Rice did not file a Respondent’s Brief.

¶11    Section 39-51-2302, MCA, provides in part:

       (1)    An individual must be disqualified for benefits if
              the individual has left work without good cause
              attributable to the individual’s employment.
       (2)    The individual may not be disqualified if the
              individual leaves:
       (a)    employment because of personal illness or injury
              not associated with misconduct upon the advice of a
              licenced and practicing physician and, after

                                               4
           recovering from the illness or injury when recovery
           is   certified  by   a  licensed   and   practicing
           physician, the individual returned to and offered
           service to the individual’s employer and the
           individual’s regular or comparable suitable work
           was not available, as determined by the department,
           provided the individual is otherwise eligible; or .
           . . .

¶12   The Board interpreted § 39-51-2302, MCA, to require advice

from a licenced and practicing physician before an individual can

resign from his job because of personal illness.            The District

Court found that the Board’s interpretation of the statute was too

narrow and concluded that the advice of a licensed and practicing

physician was not the exclusive method of showing “good cause” for

leaving work.    We conclude that the District Court was correct.
¶13   Section   39-51-2302(1),   MCA,   disqualifies   an   employee   for

unemployment benefits if he voluntarily quits his job without good

cause attributable to his job.     Rules 24.11.457(1)(a) and (2)(a),

ARM, equate “good cause” with “undue risk” arising from the work

environment.     Section 39-51-2302(2)(a), MCA, provides that an

employee may not be disqualified from receiving benefits when the

claimant quits his job based upon a doctor’s recommendation and

similar suitable work is unavailable when he is able to return to

work.   This later section protects a person’s right to receive

benefits when the medical condition that caused the claimant to

leave work no longer exists, yet the claimant cannot return to work

because his or her job no longer exists.      The requirements of the

two provisions are independent.

¶14   The State argues that because subsection 2(a) requires the

medical advice that prompts a claimant to leave work to come from a

                                   5
licensed physician prior to resigning, Rice is prohibited from

receiving     benefits   because   he   did    not        receive   advice   from    a

“licensed and practicing physician” until after he resigned.                    The

District Court concluded that while prior advice from a physician

is an example of “good cause” specifically provided by statute,

there is nothing in the language of the statute to suggest that

there may not be other good causes for leaving employment.                          We

agree with the District Court that to interpret the statute so

narrowly would undermine the humane purpose for which unemployment

insurance is provided.
¶15   In this case, after experiencing blackouts, Rice resigned from

his employment based upon the advice of an LPN who conferred with a

licensed and practicing doctor.             To do otherwise would have been

detrimental to his employer, the public and himself.                   Following a

short delay, Rice’s physician, Dr. Winter, concurred with the

recommendation of the LPN and VA counselors and completed the

required medical documentation, which indicated Rice was not to

operate   a   motor    vehicle.     There     is     no    question   that   Rice’s

blackouts prevent him from continuing his employment as a long haul

truck driver.    Accordingly, we hold that § 39-51-2302(1), MCA, does

not require an employee to obtain a physician’s advice prior to

resigning     from    employment   under     these    circumstances      and   Rice

resigned from his job with “good cause.”

¶16   For these reasons, we affirm the Order of the District Court.

                                             /S/ TERRY N. TRIEWEILER

We Concur:

                                        6
/S/ PATRICIA COTTER
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE

                          7


Filed 10/21/13 P. v. McGivens CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA

THE PEOPLE,                                                         D063911

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD247682)

DAMON A. McGIVENS,

         Defendant and Appellant.

         APPEAL from a judgment of the Superior Court of San Diego County,

Dwayne K. Moring, Judge. Affirmed.

         Appellate Defenders, Inc. and Patrick E. DuNah, under appointment by the Court

of Appeal, for Defendant and Appellant.

         No appearance for Plaintiff and Respondent.

         As part of a plea bargain, Damon McGivens pleaded guilty to one count of

burglary (Pen. Code,1 § 459), admitted one prison prior (§ 667.5, subd. (b)), and one

1        All further statutory references are to the Penal Code unless otherwise specified.
serious/violent felony prior conviction (§ 667, subds. (b)-(i)). The parties stipulated to a

prison term of 44 months. The remaining charges and allegations were dismissed. The

burglary charge arose from McGivens entering a store to commit theft. McGivens was

sentenced in accordance with the plea agreement. McGivens was permitted to represent

himself in the trial court.

       McGivens filed a timely notice of appeal but did not obtain a certificate of

probable cause.

       Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436

(Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) raising a possible, but

not arguable issue. We offered McGivens the opportunity to file his own brief on appeal,

but McGivens has not responded.

                                       DISCUSSION

       Pursuant to Wende, supra, 25 Cal.3d 436, counsel asks this court to review the

record for error. Pursuant to Anders, supra, 386 U.S. 738, the brief identifies possible,

but not arguable issues:

       1. Was McGivens's plea constitutionally valid?

       2. Was McGivens properly granted leave to represent himself in the trial court?

       We have reviewed the entire record in accordance with Wende, supra, 25

Cal.3d 436 and Anders, supra, 386 U.S. 738, and have not found any reasonably arguable

appellate issues. McGivens has been represented by competent counsel on this appeal.

                                              2
                                DISPOSITION

    The judgment is affirmed.

                                              HUFFMAN, J.

WE CONCUR:

          McCONNELL, P. J.

                   AARON, J.

                                     3


614 So.2d 603 (1993)
Glinder Lee CECIL, Appellant,
v.
STATE of Florida, Appellee.
No. 92-1766.
District Court of Appeal of Florida, First District.
February 18, 1993.
Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.
PER CURIAM.
Glinder Lee Cecil has appealed from sentence imposed after remand by this court in Cecil v. State, 596 So.2d 461 (Fla. 1st DCA 1992). We remand for correction of Cecil's sentence as outlined below.
In October 1990, Cecil pled guilty to two 3d-degree felonies (Case Nos. 89-2561 and 89-2883), and received consecutive 5-year probationary terms. An affidavit of violation of probation was filed based on a new offense, the 3d-degree felony of purchasing cocaine (Case No. 91-418). The trial court revoked probation and, in March 1991, sentenced Cecil as follows: 89-2561  3 1/2 years incarceration plus 4 years, 7 *604 months probation concurrent with 89-2883  3 1/2 years plus 5 years probation, and 91-418  3 1/2 years plus 11 years probation, consecutive to the first two. Cecil appealed and this court reversed, finding that the total of each sentence exceeded the 5-year statutory maximum for 3d-degree felonies. Cecil. The court remanded for resentencing, and the mandate issued on February 19, 1992.
On January 2, 1992, an affidavit of violation of probation was filed based on a new offense of possession of cocaine (Case No. 92-3). Cecil pled guilty to the new charge, and admitted the violation of probation. On April 14, 1992, she came on for resentencing pursuant to Cecil, and for sentencing in 92-3. The trial court revoked probation in 89-2883 and 91-418, and orally resentenced Cecil to 3 1/2 year terms; no habitualization was orally pronounced. However, the written judgments and sentences reflect a sentence of 2 1/2 years in each case and that, as to each, Cecil was a habitual offender. The trial court relied on the convictions in 89-2883 and 91-418 to habitualize Cecil in 92-3, and she was sentenced in that case to 10 years. The disposition in 92-3 is not at issue herein.
Cecil argues only that the written judgments and sentences in 89-2883 and 91-418 must be corrected to eliminate the indication of habitual offender status as inconsistent with the oral pronouncement of sentence. The state concedes this error, and urges remand for correction. On our own motion, we also note that: 1) Cecil could not properly be charged with violating the probation imposed in 89-2561, 89-2883 and 91-418 as part of illegal sentences, Cecil, nor have that probation revoked; 2) the trial court failed to comply with the Cecil mandate to re-sentence Cecil in 89-2561; and 3) the 2 1/2 year terms reflected in the written judgments and sentences in 89-2883 and 91-418 are inconsistent with the 3 1/2 year terms orally pronounced at sentencing.
Based on the error raised by the parties, and on the errors noted in the court's own review of the case, we remand with the following directions: 1) re-sentence Cecil in 89-2561, in compliance with the Cecil mandate, see Stuart v. Hertz Corp., 381 So.2d 1161, 1163 (Fla. 4th DCA 1980) (district courts of appeal have inherent power to enforce their mandates); 2) strike from the judgments and sentences in 89-2883 and 91-418 any indication that probation was revoked in those cases, in that such probation was part of an illegal sentence stricken in Cecil; and 3) conform the written judgments and sentences in 89-2883 and 91-418 to the oral pronouncement of sentence by: a) striking any indication that Cecil was classified as an habitual offender in those cases and b) correcting the terms of incarceration to 3 1/2 years, see Bennett v. State, 588 So.2d 672 (Fla. 1st DCA 1991) (written sentence must conform with the oral pronouncement at the sentencing hearing).
Remanded with directions.
JOANOS, C.J., and ERVIN and WEBSTER, JJ., concur.


275 F.3d 131 (1st Cir. 2001)
GILLES FILIATRAULT, Plaintiff, Appellant,v.COMVERSE TECHNOLOGY, INC. AND BOSTON TECHNOLOGY, INC., Defendants, Appellees.
No. 01-1409
United States Court of Appeals For the First Circuit
Heard Dec. 6, 2001Decided December 27, 2001,

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Morris E. Lasker, Senior U.S. District Judge[Copyrighted Material Omitted]
Paul J. Murphy, with whom Menard, Murphy & Walsh LLP was on brief, for appellant.
Christopher J. Perry, with whom Catherine M. Stockwell and Hale and Dorr LLP were on brief, for appellees.
Before Selya, Circuit Judge, Rosenn* and Cyr, Senior Circuit Judges.
SELYA, Circuit Judge.

1
Plaintiff-appellant Gilles Filiatrault brought suit under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001-1461 (1994 & Supp. V 1999), and specifically, 29 U.S.C. § 1132(a)(1)(B) (authorizing a private action by a participant in, or beneficiary of, an ERISA-regulated plan "to recover benefits due . . . under the terms of [the] plan"). The lower court found the plaintiff's claims lacking in merit and entered summary judgment for the defendants. We affirm.

I.
Background

2
In this suit, the plaintiff seeks to collect benefits allegedly due under an employee severance benefit plan (the Plan) maintained by his quondam employer, defendant-appellee Boston Technology, Inc. (BTI). The relevant facts are largely undisputed. We begin with a decurtate summary.

3
In 1997, the plaintiff was a mid-level manager, employed by BTI and covered by the Plan. On August 20, 1997, BTI agreed to merge at a future date (January 14, 1998) into defendant-appellee Comverse Technology, Inc. (CTI) in a tax-free, stock-for-stock transaction. BTI would then dissolve.

4
On October 24, 1997, BTI terminated the plaintiff's employment, and the plaintiff responded by demanding payment of severance benefits under the Plan. Although the merger had not been consummated when BTI terminated his employment, the plaintiff claimed that a "change in control" nonetheless had occurred upon the execution of the agreement to merge, thereby triggering his entitlement to severance benefits. BTI refused to honor the plaintiff's demand.

5
BTI merged into CTI on January 14, 1998. CTI thereafter transferred certain of its assets, including all the former assets of BTI, into a new operating unit, Comverse Network Systems, Inc. (CNSI). CTI appears to have accomplished this transfer by delivering a bill of sale to CNSI.

6
On June 12, 1998, the plaintiff filed suit against BTI (as the Plan's sponsor) and CTI (as BTI's successor in interest) in the federal district court. The defendants moved to dismiss for failure to state an actionable claim. See Fed. R. Civ. P. 12(b)(6). When the district court converted this motion into a motion for summary judgment, see Fed. R. Civ. P. 12(b), the defendants filed a supporting affidavit subscribed to by Adalbert K. Wnorowski (BTI's general counsel up to the time of the merger and CNSI's general counsel thereafter). The plaintiff filed an opposition to the motion and simultaneously filed a motion to withhold decision pending additional discovery. See Fed. R. Civ. P. 56(f).

7
Following a hearing, the district court entered partial summary judgment for the defendants and, at the same time, granted the plaintiff's Rule 56(f) motion in part (allowing the plaintiff to depose a representative of the defendants on the issues that remained outstanding). On May 18, 2000, the plaintiff deposed Wnorowski and thereafter filed a supplemental opposition, a cross-motion for summary judgment, and a motion for partial reconsideration of the district court's earlier order. On September 14, 2000, the district court granted the balance of the defendants' motion for summary judgment and denied the plaintiff's cross-motions.1 This timely appeal followed.

II.
Standard of Review

8
We review the district court's entry of summary judgment de novo, taking the facts in the light most favorable to the summary judgment loser (here, the plaintiff). Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990). Although some incidental facts are controverted, those disputes are not material. The essence of the controversy resides in the pertinent documents, and neither the contents of those documents nor the facts necessary to put them into perspective are open to serious question. The Plan comes within the purview of ERISA; its relevant provisions are as stated herein; the plaintiff was a Plan participant; the terms of the agreement to merge are free from ambiguity; and the critical dates (e.g., when BTI dismissed the plaintiff and when it consummated the merger) are uncontroverted. Thus, so long as the lower court correctly construed the Plan and the agreement to merge, grasped the pertinent facts, and took them properly into account, summary judgment was appropriate. We turn to that inquiry.

III.
Analysis

9
When BTI terminated the plaintiff's employment, the Plan provided that employees who were dismissed without cause within twelve months after a "change in control" would receive certain described severance benefits. This is the focal point of the instant litigation: the plaintiff maintains that he was an employee of BTI at the time of a change in control and, accordingly, that he had an entitlement to those benefits when he thereafter was discharged without good cause. For summary judgment purposes, the defendants concede that the plaintiff can, at the least, make out a genuine issue of material fact as to termination without cause. They maintain, however, that no change in control occurred until after the plaintiff's termination, so that he had no entitlement to severance benefits. Accordingly, this appeal hinges on the meaning of the phrase "change in control."

A.
Relevant Plan Provisions

10
The provisions of an ERISA-regulated employee benefit plan must be interpreted under principles of federal common law. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56 (1987); see also Nash v. Trustees of Boston Univ., 946 F.2d 960, 964 (1st Cir. 1991) (applying that tenet to a severance pay plan). We think it obvious that federal common law embodies commonsense principles of contract interpretation. Thus, straightforward language in an ERISA-regulated plan should be accorded its plain, ordinary, and natural meaning. Burnham v. Guardian Life Ins. Co., 873 F.2d 486, 489 (1st Cir. 1989). It is against this backdrop that we inquire into the contours of the phrase "change in control."

11
The Plan itself contains the operative definition. It enumerates five events that will suffice to trigger a change in control. Two of these are potentially relevant here (Events 2 and 5). Event 2 provides that a change in control shall be deemed to have occurred upon the emergence of "an Acquiring Person (as such term is defined in the Rights Agreement dated as of May 9, 1991 between [BTI] and The First National Bank of Boston)." Event 5 provides that a change in control shall be deemed to have occurred if "the Company shall sell all or substantially all of its assets to another person or entity in one transaction or a series of related transactions." The plaintiff argues that one or both of these events occurred prior to the date of his discharge (October 24, 1997). We think not.

B.
Event 2

12
The plaintiff's argument that CTI became an "Acquiring Person" immediately upon the signing of the agreement to merge is insupportable. The Plan borrows the definition of acquiring person used in the Rights Agreement between BTI and its principal lender, originally entered into on May 9, 1991. That pact defines an acquiring person as "any person who . . . shall be the Beneficial Owner of 20% or more of the shares of Common Stock then outstanding of [BTI]." In turn, it defines beneficial owner as any person who owns or "has the right to acquire" securities.2 The plaintiff asserts that, upon executing the agreement to merge, CTI "ha[d] the right to acquire" BTI's stock (and, thus, became an acquiring person at that moment).

13
The flaw in this argument is that CTI did not obtain an unconditional right to acquire BTI's stock merely by signing the agreement to merge. There were numerous conditions precedent to the merger,3 and a failure of any of these conditions would have scuttled the merger. Consequently, CTI did not have "the right to acquire" BTI's stock until these conditions were satisfied and the merger was consummated. See, e.g., Riseman v. Orion Research, Inc., 749 F.2d 915, 919 (1st Cir. 1984) (explaining that a "firm agreement" is not tantamount to a purchase until the performance of a condition precedent). The last of these conditions precedent was not fulfilled until January 14, 1998 (the day that the parties consummated the merger). Because CTI did not become an acquiring person until that day, no change in control within the purview of Event 2 occurred during the currency of the plaintiff's employment.

C.
Event 5

14
That leaves Event 5: the "asset sale" provision. The evidence establishes beyond hope of contradiction that the CTI/BTI merger was a stock-for-stock transaction that did not involve the sale simpliciter of BTI's assets. To be sure, CTI adumbrated in an August 1997 press release that BTI's operations would be combined post-merger with those of CTI's network systems division. Then, after the merger had been consummated, CTI transferred certain of its assets, which included the former assets of BTI, to CNSI (a newly-created subsidiary that assumed, inter alia, the functions of CTI's network systems division). Moreover, CTI appears to have effectuated the transfer by bill of sale. This latter transaction, the plaintiff asseverates, was tantamount to a sale of BTI's assets, triggering a change in control because it was one of "a series of related transactions." This asseveration is unpersuasive.

15
In the first place, there was no "sale." Moreover, assuming arguendo that a sale occurred, it was not a sale by BTI, but, rather, a sale by CTI of BTI's former assets. Indeed, after the parties consummated the merger on January 14, 1998, BTI ceased to exist (and, therefore, neither had assets to sell nor the capacity to sell them).

16
In the second place, the only thing that actually transpired before the plaintiff's dismissal was the execution of the agreement to merge -- and that agreement did not require a transfer of BTI's assets by sale or otherwise. The reference in the text of Event 5 to a "series of related transactions" does not repair this hole in the plaintiff's case. Settled principles of construction forbid the balkanization of contractual language for interpretive purposes. See Smart v. Gillette Co. Long-Term Disab. Plan, 70 F.3d 173, 179 (1st Cir. 1995). Here, the plaintiff's construction wrests the phrase "series of related transactions" from its contextual moorings. When that phrase is read -- as it must be as part of the description of Event 5 as a whole, it plainly means that, for a triggering event to occur, BTI must "sell all or substantially all of its assets" either "in one transaction or a series of related transactions." Where, as here, BTI never essayed a sale of its assets, and none was required by any agreement entered into prior to the date of the plaintiff's dismissal, there was no series of related transactions within the ambit of Event 5. The plaintiff cites no authority that would give the quoted language so broad a sweep, and we see no basis for interpreting it in so expansive a manner.

17
In a last-ditch effort to salvage his Event 5 argument, the plaintiff remarks that the district court granted summary judgment as to Event 5 in its initial (March 1, 1999) order -- prior to the Wnorowski deposition. Building on this foundation, the plaintiff complains in a desultory fashion about the timing. We see no prejudice (and, therefore, no basis for any complaint). The dispositive question is purely a matter of interpreting unambiguous contract language. Extrinsic evidence is generally inadmissible on such a question, see Smart, 70 F.3d at 178; Boston Edison Co. v. FERC, 856 F2d 361, 367 (1st Cir. 1988), and the plaintiff has not indicated how access to discovery might have put him in a more advantageous position.

D.
Opportunity for Discovery

18
The final point raised on appeal concerns whether or not the district court permitted the plaintiff an adequate opportunity for discovery. The facts are as follows. On February 1, 1999, the plaintiff filed both an opposition to the defendants' motion for summary judgment and a Rule 56(f) motion seeking additional discovery. In an affidavit accompanying the later motion, counsel for the plaintiff complained generally that he had been afforded an insufficient opportunity for discovery, but he did not set forth what discovery he desired (save for a Rule 30(b)(6) deposition).4 At the ensuing hearing on the defendants' summary judgment motion, counsel explained that the additional discovery would permit him to test the veracity of the statements contained in the Wnorowski affidavit.

19
On March 1, 1999, the district court granted the plaintiff's request for additional discovery, allowing him to depose a representative of the defendants for up to three hours. The plaintiff proceeded to depose the defendants' designated representative, Wnorowski, for approximately ninety minutes. He then renewed his request for further discovery, but was inexplicit about what additional discovery he wished to pursue or why he wanted to pursue it. The district court denied the renewed request.

20
We need not tarry. The management of pretrial discovery lies primarily within the sound discretion of the district court. See Faigin v. Kelly, 184 F.3d 67, 84 (1st Cir. 1999). This court "will intervene in such matters only upon a clear showing of manifest injustice, that is, where the lower court's discovery order was plainly wrong and resulted in substantial prejudice to the aggrieved party." Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 186 (1st Cir. 1989). This is a high hurdle, and the plaintiff cannot clear it here.

21
Among other things, a party who seeks to invoke the prophylaxis of Rule 56(f) must articulate some plausible basis to support a belief that discoverable material exists which, if available, would suffice to raise a trialworthy issue. Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 988 (1st Cir. 1988). At the time that the plaintiff renewed his discovery request, he already had copies of his own employment agreement, the agreement to merge, the Rights Agreement, the amendment to the Rights Agreement, the Plan, the press release announcing the execution of the agreement to merge, and the pertinent minutes of BTI's board of directors. He also had the benefit of the Rule 30(b)(6) deposition. Apart from these items the plaintiff has not identified a single piece of discovery that would assist him in prosecuting his claims.

22
That omission is not surprising. The resolution of this paper-intensive case is dependent on the documents, and the documents are unambiguous insofar as they pertain to the issues presented. It is surpassingly difficult to imagine what additional evidence might bear on the issues that the plaintiff presses or what other testimony he might need to respond to the defendants' motion for summary judgment. Because the plaintiff cannot demonstrate that the trial court's management of the discovery process was unfairly prejudicial, his Rule 56(f) claim cannot succeed.

23
At the risk of carting coal to Newcastle, we mention a further ground that supports this holding. After taking the Rule 30(b)(6) deposition, the plaintiff filed a cross-motion for summary judgment along with his motion to reopen discovery. The filing of the former motion constituted an acknowledgment by the plaintiff that he had sufficient knowledge of the situation, then and there, to justify asking the court to enter summary judgment in his favor. As we have said before, the making of such a motion almost invariably indicates that the moving party was not prejudiced by a lack of discovery. See, e.g., Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 23 (1st Cir. 1999) ("Ordinarily, a party may not attempt to meet a summary judgment challenge head-on but fall back on Rule 56(f) if its first effort is unsuccessful.") (citation and internal quotation marks omitted); C.B. Trucking, Inc. v. Waste Mgmt., Inc., 137 F.3d 41, 44 (1st Cir. 1998) (similar); Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 92 (1st Cir. 1996) (similar).

IV.
Conclusion

24
We need go no further. When the words of a severance pay plan are plain, we will refrain from attempting to tease out of the text far-fetched nuances of meaning. Cf. Taylor v. Aetna Cas. & Sur. Co., 867 F.2d 705, 706 (1st Cir. 1989) (per curiam) (admonishing that courts should "abjure unnecessary mental gymnastics which give the terms of [a document] a forced or distorted construction") (citation and internal quotation marks omitted). That rule applies here -- and the fact that the severance pay plan is regulated under ERISA does not diminish its cogency. In the last analysis, courts have no warrant to redraft employee benefit plans in an effort either to work rough justice or to palliate the seemingly harsh effects of considered language in particular cases. Giving the relevant provisions of the Plan their plain, ordinary, and natural meaning, the district court's summary judgment order is fully supportable.

25
Affirmed.

Notes:

*
 Of the Third Circuit, sitting by designation.

1
 Final judgment did not enter until February 9, 2001, when the district court dismissed a tagalong count. This count is not in issue here, and we make no further reference to it.

2
 The parties to the Rights Agreement amended these definitions on August 20, 1997, to facilitate the proposed merger. The defendants urge us to apply the new language (which plainly excludes any possibility that CTI might have become an acquiring person merely by agreeing to merge). The plaintiff notes that the Plan itself was never amended and contends that the language in effect when he first became a participant should apply. We assume, for argument's sake, that the plaintiff is correct.
The plaintiff also contends that the mere fact that CTI's counsel saw fit to request amendment of this language buttresses his construction of the operative terms. But lawyers frequently see ghosts under every bed, and the fact that a party seeks a protective amendment does not necessarily mean that the unamended language is antithetic to his cause.

3
 Article VI of the agreement to merge sets forth an array of conditions precedent that had to be satisfied or waived in order for the merger to go forward. These include (1) stockholder approvals, (2) termination or expiration of the waiting period under the Hart Scott Rodino Act, 15 U.S.C. §§ 1311-1314 (1994 & Supp. V 1999), (3) effectiveness of the Form S-4 under the Securities Act, see 17 C.F.R. § 230, (4) Nasdaq listing of CTI's common stock, and (5) the receipt of opinion letters vouchsafing that the merger would qualify as a "pooling of interests" transaction.

4
 When a corporation is deposed, the corporation, in response to a deposition notice, is obliged to "designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf . . . ." Fed. R. Civ. P. 30(b)(6). Under this protocol, "[t]he person[] so designated shall testify as to [all] matters known or reasonably available to the organization." Id. In this case, the plaintiff asked for leave to invoke this rule and tendered a draft of a subpoena duces tecum that he proposed to serve in connection with such a deposition.