468 A.2d 1331 (1983)
James MOORE, a/k/a Maurice Moye, Appellant,
v.
UNITED STATES, Appellee.
No. 82-1175.
District of Columbia Court of Appeals.
Argued October 26, 1983.
Decided November 23, 1983.
*1332 Reita Pendry, Public Defender Service, Washington, D.C., with whom A. Franklin Burgess, Jr., Public Defender Service, Washington, D.C., at the time the brief was filed, was on the brief, for appellant.
Daniel S. Seikaly, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.
Before FERREN, BELSON and ROGERS, Associate Judges.
FERREN, Associate Judge:
Appellant argues that the trial court's decision to sentence him under the Federal Youth Corrections Act (FYCA), 18 U.S.C. §§ 5005-5026, after revoking his probation, violated Superior Court Criminal Rule 35. Concluding that appellant misapprehends the purpose of Rule 35 and its relationship to D.C.Code § 24-104 (1981) (governing probation revocation), we affirm.

I.
On November 13, 1981, appellant pleaded guilty to an information charging him with violation of the Bail Reform Act. D.C.Code § 23-1327 (1981). The court sentenced him to one year's imprisonment but suspended execution of the sentence and placed appellant on probation for two years. The court imposed this sentence without conducting a study or making any finding as to whether appellant would derive benefit from treatment under the FYCA. Because appellant was only nineteen at the time of sentencing, a finding of no benefit under the FYCA was required before appellant could receive an adult sentence. 18 U.S.C. § 5010(d).
On June 3, 1982, after a probation revocation hearing, the court found probable cause to believe that appellant had violated the conditions of his probation. Upon appellant's waiver of further hearing on the issue, the court revoked his probation. At that point, despite a request from appellant's counsel that the original one-year sentence be implemented without delay, the trial court remanded appellant to the custody of the Attorney General for observation and study to determine whether appellant would benefit from treatment under the FYCA.
At a sentencing hearing held August 12, 1982, appellant's counsel argued that because appellant's original sentence was set at one year, it would be improper for the court to impose, upon revocation, an FYCA sentence that could entail confinement and supervision for up to six years. The court rejected this argument, vacated appellant's adult sentence, and committed appellant for an indeterminate period to the custody of the Attorney General "to undergo vocational training or remedial education (specifically carpentry)" pursuant to § 5010(b) of the FYCA. 18 U.S.C. § 5010(b). The sentencing judge based his decision to impose an FYCA sentence on the report from the FYCA observations and study of appellant. He also reasoned that because the original sentence was mistakenly imposed without *1333 proper consideration of the FYCA, it was "illegal" and should be vacated.

II.
D.C.Code § 24-104 (1981) establishes "the scope of the trial court's discretion in sentencing upon revocation of probation."[1]Mulky v. United States, 451 A.2d 855, 856 (D.C.App.1982). In Mulky, supra, this court held that "the trial court [on revoking probation] has discretion to impose any sentence that the court could have imposed upon conviction, provided that the new sentence is no more severe than the original sentence." 451 A.2d at 856. Because there is no question that the trial court could have imposed an FYCA sentence upon conviction, we confront the question whether the new FYCA sentence was "more severe" than the original sentence. Before addressing this question, however, we must dispose of appellant's initial argument that Mulky, supra, is inapposite because Super.Ct. Crim.R. 35 alters the scope of sentencing discretion established by § 24-104.
Appellant's argument seizes upon the sentencing judge's comment that the original sentence was "illegal" for lack of a no-benefit finding required by the FYCA. Appellant contends that his original sentence was not illegal, but rather was "imposed in an illegal manner." Rule 35 provides that while a court "may correct an illegal sentence at any time," the correction of "a sentence imposed in an illegal manner" must be accomplished within 120 days of the imposition of sentence or within 120 days of the exhaustion of defendant's last avenue of appeal.[2] Appellant argues that Rule 35 controls this case and that the court's action was time-barred by the 120-day limit.
We reject this argument, without deciding whether appellant's original sentence was illegal or merely imposed in an illegal manner, and conclude that Rule 35 is inapplicable to this case. Here, the trial court acted in the context of revoking appellant's probation. Although Rule 35 sets limits on a trial court's discretion to correct or reduce a sentence where the only basis for such an action is the illegality of the sentence or the method by which it was imposed, D.C.Code § 24-104 (1981) confers upon the court authority to change a sentence upon the revocation of probation without regard to any time limit and irrespective of whether the original sentence was legal, illegal, or imposed in an illegal manner. We read § 24-104 and Rule 35 to be in harmony: § 24-104 establishes the scope of a court's discretion to modify a sentence within the context of probation revocation; Rule 35 controls such discretion in specified situations outside the probation revocation context. This reading is supported by Rule 35's provision that "[t]he Court may ... reduce a sentence upon revocation *1334 of probation as provided by law." Super.Ct.Crim.R. 35(b).[3]

III.
Returning to the question whether the FYCA sentence imposed on appellant was "more severe" than his original sentence within the meaning of Mulky, supra, we conclude that it was not. This court has long recognized "a valid distinction between youth offender treatment and imprisonment." Harvin v. United States, 245 A.2d 307, 311 (D.C.1968), aff'd per curiam, 144 U.S.App.D.C. 199, 445 F.2d 675 (en banc) (1971). An FYCA sentence differs from the usual criminal sentence both in its purpose  its "basic theory ... is rehabilitative"  and in its effect  the "conditions and terms" of confinement are different from those "a defendant would undergo in an ordinary prison." Carter v. United States, 113 U.S.App.D.C. 123, 125, 306 F.2d 283, 285 (1962); see Tolson v. United States, 448 A.2d 248, 250 (D.C.1982) (FYCA "was intended to create a means to rehabilitate youths convicted of serious criminal conduct .... by providing support and treatment rather than punishment ....").[4]
Because of these differences, we cannot agree with appellant that his FYCA sentence is "more severe" than his original sentence simply because the FYCA sentence may entail a longer period of confinement. Courts in this jurisdiction have consistently held that "confinement [under the FYCA] cannot be equated with incarceration in an ordinary prison." Carter, supra, 113 U.S. App.D.C. at 125, 306 F.2d at 285; Austin v. United States, 299 A.2d 545, 547 (D.C.1973) (the "non-punitive" nature of an FYCA sentence makes "a lengthier period of deprivation of liberty" both "justified and constitutionally permitted"); see also United States v. Donelson, 224 U.S.App.D.C. 389, 390, 695 F.2d 583, 584 (1982) (there is "no reason to equate the length of a Youth Corrections Act sentence with the length of an ordinary criminal sentence"). Appellant's contention that this court should focus solely on the maximum possible period of confinement when comparing the severity of the sentences at issue here is, thus, inconsistent with the well-established principle that the rehabilitative purpose and effect of an FYCA sentence "may be regarded as comprising [a] quid pro quo for a longer confinement." Carter, supra, 113 U.S.App.D.C. at 125, 306 F.2d at 285. Moreover, the indeterminate length of an FYCA sentence is not designed to increase a defendant's punishment, but is necessary to effectuate the rehabilitative goals of a *1335 defendant's treatment by permitting "an informed professional body [to] tailor the length of the sentence ... to fit the needs of the individual." Clark v. United States, 416 A.2d 717, 719 (D.C.) (quoting United States v. Jackson, 550 F.2d 830, 831 (2d Cir.1977), cert. denied, 449 U.S. 922, 101 S.Ct. 323, 66 L.Ed.2d 151 (1980)).
In light of the recognized benefits of treatment under the FYCA, we cannot conclude on the facts of this case that appellant's FYCA sentence is "more severe" than his original sentence. See Tolson, supra; Austin, supra.
Affirmed.
NOTES
[1]  At the time of the probation revocation and sentencing hearings in this case, the relevant language of § 24-104 read:

At any time during the probationary term... the court may revoke the order of probation and cause the rearrest of the probationer and impose a sentence and require him to serve the sentence or pay the fine originally imposed, or both....
This provision has recently been amended. D.C.Law 4-202, § 4, 30 D.C.Reg. 173 (effective March 10, 1983); see D.C.Code § 24-104 (Supp.1983). Because this amendment became effective after the sentencing decision at issue here, it is not relevant to our decision in this case.
[2]  Super.Ct.Crim.R. 35(a), (b) provide:

(a) CORRECTION OF SENTENCE. The Court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.
(b) REDUCTION OF SENTENCE. The Court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the Court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction. The Court may also reduce a sentence upon revocation of probation as provided by law. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this paragraph.
[3]  Appellant advances an alternative argument based on the provision of Rule 35(b) quoted in the text. Appellant contends this provision mandates that, when a trial court decides to revoke probation and impose a new sentence, the new sentence must constitute a reduction of the original sentence. He further argues that this mandate to "reduce" the original sentence is different from the requirement stated in Mulky, supra, 451 A.2d at 856, that the new sentence can be "no more severe than the original sentence." Appellant would have us apply this supposedly stricter Rule 35(b) requirement in reviewing the sentence imposed in this case.

Again, appellant misapprehends the purpose of Rule 35. Rule 35 is not intended to set the outmost bounds on a trial judge's discretion to modify a sentence after revoking probation. It merely recognizes probation revocation as one of the situations in which the trial court has discretion to reduce a sentence; it does not direct the trial court to reduce a defendant's sentence upon revoking probation. Thus, even if we indulge appellant's assertion that there is a meaningful difference between the "reduce" language of Rule 35 and the "no more severe" limitation set forth in Mulky, supra, the language of Rule 35 is inapposite to the question whether the trial court went beyond its grant of authority in changing appellant's original sentence.
Nor does the statement of this court in Mulky, supra, 451 A.2d at 858 n. 4, that Rule 35 and D.C.Code § 24-104 (1981) are "consistent" compel us to read the language of Rule 35 into § 24-104. The fact that two provisions are consistent does not necessarily mean that they are precisely coextensive. As the court in Mulky recognized, § 24-104 controls the trial court's sentencing discretion when revoking probation and Rule 35 cannot "abrogate or enlarge" our reading of that section. 451 A.2d at 850 n. 4 (quoting In re G.C.S., 360 A.2d 498, 500 (D.C.1976)).
[4]  We also note in this regard that an FYCA sentence brings with it the possibility of expungement of the criminal conviction. See 18 U.S.C. § 5021 (1969 & Supp.1983).


348 Ill. App. 341 (1952)
109 N.E.2d 222
Lyle W. Roszell, Plaintiff-Appellant,
v.
Herman Gniadek, Defendant-Appellee.
Gen. No. 9,824.
Illinois Appellate Court.
Opinion filed November 14, 1952.
Released for publication December 10, 1952.
*342 HEYL, ROYSTER & VOELKER, of Peoria, for appellant; CLARENCE W. HEYL, of Peoria, of counsel.
THEODORE B. DURFEE, of Peoria, for appellee.
MR. JUSTICE O'CONNOR delivered the opinion of the court.
A negligence action was filed by the plaintiff on December 22, 1949 for injury to his person and damage to his car against the defendant, in the circuit court of Tazewell county. On the defendant's own motion, but with the consent of the plaintiff, an order was entered on January 16, 1950 extending the time for the filing of the defendant's pleading to January 26, 1950. On January 26, 1950 a motion to strike a portion of the complaint was filed by the defendant. No demand for jury trial was filed in the original complaint, and the defendant failed to demand a jury until April 19, 1950, when he filed a motion for leave to file a jury demand. This motion was supported by an affidavit of the defendant's attorney to the effect that failure to demand a jury trial was the result of his own inadvertence and mistake.
At the September term (November 9, 1950) leave was granted defendant to file jury demand within ten days, which demand was so filed. Later the plaintiff's motion to strike the jury demand was denied.
The jury trial which followed resulted in a verdict for the defendant as to the complaint of the plaintiff, and for the plaintiff on the counterclaim.
The sole issue presented on this appeal is to determine if the trial judge had the authority to extend the time for the defendant to file the jury demand.
*343 Section 64 of the Civil Practice Act provides as follows:
"A plaintiff desirous of a trial by jury shall make his demand for a jury in writing, and file such demand with the clerk at the time suit is commenced, and a defendant desirous of a trial by jury shall make such demand and file the same at the time of filing his appearance; otherwise such party shall be deemed to have waived a jury...."
Section 59 of the Civil Practice Act provides in part as follows:
"Additional time may be granted on good cause shown, in the discretion of the court and on such terms as may be just, for the doing of any act or the taking of any step or proceeding prior to judgment in any civil action."
This portion of section 59 is supplemented by paragraph 5 of Supreme Court Rule 8 which reads:
"The judge, for good cause shown on special motion after notice to the opposite party, may extend the time for putting in any pleading or the doing of any act which is required by the rules to be done, within a limited time, either before or after the expiration of the time."
The appellant takes the position, in the light of the language of section 64 above quoted, that it was error for the trial judge to have permitted a jury demand to be filed by the defendant after both a motion to extend the time for pleading and a motion to strike the complaint had been filed by the defendant.
Appellant claims that each document was equivalent to a general appearance, and having filed a general appearance the defendant is, in the words of the section, "deemed to have waived a jury."
[1-4] While the right to a trial by jury is a constitutional guarantee section 64 imposes regulations as to what must be done by a litigant to display his desire *344 for a jury trial so as to insure the orderly presentation of the business of the court. This section has been held to be reasonable in its requirements, and constitutional. Stephens v. Kasten, 383 Ill. 127. The provision is not intended to impose a burden on a person or to create a condition precedent of the enjoyment of a constitutional privilege, but merely establishes an orderly method for a party to a lawsuit to inform the court of his desire to have his case tried by a jury, as is his right. In the light of the accompanying sections of the Civil Practice Act, the Supreme Court rules above quoted, and the decisions of our Supreme Court, section 64 is not intended to diminish the right to a trial by jury as is guaranteed by both our State and Federal Constitutions.
The issue presented here seems to have been carefully and studiously considered by our Supreme Court in Stephens v. Kasten, supra. There a motion to strike unaccompanied by a jury demand, was filed as to two of three counts of a negligence complaint. The complaint was amended on its face and a new motion to dismiss the suit was filed. This second motion, like the first, failed to demand a jury. The second motion was later withdrawn and the defendant was ordered to answer or otherwise plead by February 10, 1941. On that day both an answer and a jury demand were filed by new attorneys representing the defendant from Edwardsville. Thereafter, on motion, the court struck the jury demand and on trial found the issues against the appellants. On appeal the Supreme Court reversed the trial court and held that to arbitrarily refuse to accord to parties litigant the right to file a jury demand after time therefor had expired, upon good cause shown, was an abuse of the discretion of the court, and the cause was remanded for a new trial with a jury.
*345 The opinion, on page 133, adopted the language used in Morrison Hotel & Restaurant Co. v. Kirsner, 245 Ill. 431 at page 433:
"In view, however, of the provision of the constitution that the cherished right of trial by jury shall remain inviolate, the statute should be liberally construed in favor of the right and the inclination of the court should be to protect and enforce the right."
In the Stephens case, supra, our Supreme Court stated on pages 133 and 134:
"Courts jealously guard the right of a person to a trial by jury. Section 59 of the Civil Practice Act attempts to protect the rights of individuals for good cause shown in allowing additional time in the discretion of the court for the doing of any act or taking of any step or proceeding prior to judgment in any civil action.
"Paragraph 5 of Supreme Court Rule 8 furthers this protection by providing that the court may, on motion, extend the time for putting in any pleading or the doing of any act which is required by the rules to be done, within a limited time, either before or after the expiration of the time. It is true that this section and the rule of court thereunder cannot authorize an extension of limitation periods fixed by a statute nor extensions of time to do acts beyond the period over which a court has jurisdiction. However, in order to read purpose into the statute, and the rule of court thereunder, such provisions must be construed to apply to situations in which, for good cause shown and in fairness and justice, time should be extended in which to allow a party to exercise the right of trial by jury as guaranteed to him by the constitution."
For authority the Stephens case, supra, followed Osgood v. Skinner, 186 Ill. 491, in which a jury demand was permitted to be filed after the cause had been tried *346 without a jury on the original hearing and the matter was reversed and remanded for a new trial by the Appellate Court.
From the Osgood case, supra, at page 496, the following is quoted:
"Even at the term when a waiver is made it is within the discretion of the court to permit a withdrawal of it, and such permission is ordinarily given when the opposite party will not suffer. In case the jury has been discharged for the term on the strength of the waiver, or there is some other good reason, the court might deny a party the privilege of withdrawal; but so jealous is the law of the right to trial by jury, that ordinarily a court will permit such withdrawal where others rights will not be injuriously affected."
In Vail, Mills & Armstrong v. City of Paris, 344 Ill. App. 590 this court concluded that the grant of additional time to the defendants in which to plead did not expressly or by implication extend the time for filing a jury demand. This opinion is not intended to change that view.
[5] The trial court granted the motion of the defendant (supported by affidavit) for leave to file a jury demand. This was within the sound discretion of the court and a procedure which was not followed in the City of Paris case, supra. Inadvertence and mistake, the basis of the defendant's request for additional time in which to file the jury demand, seems to be slight reason, to be sure, but in view of the Kasten case, supra, it seems to be sufficient, if in the wisdom of the trial judge the motion for additional time in which to file the jury demand is granted.
Considering Stephens v. Kasten, supra, as raising the identical point involved here we follow the Supreme Court and accordingly affirm the circuit court of Tazewell *347 county and the action of the trial judge in granting the additional time for the filing of the jury demand.
Judgment affirmed.
WHEAT, P.J. and REYNOLDS, J., specially concurring.


365 F.Supp. 1387 (1973)
Michael LEPORE and Vito Lepore, Plaintiffs,
v.
NEW YORK NEWS INC., Defendant.
No. 72 Civ. 2024.
United States District Court, S. D. New York.
September 28, 1973.
*1388 White, Coch & Robinson, P. C., New York City by Nicholas L. Coch, New York City, for plaintiffs.
Townley, Updike, Carter & Rodgers, New York City by Andrew L. Hughes, Michael S. Belohlavek, New York City, for defendant.

MEMORANDUM AND ORDER
KEVIN THOMAS DUFFY, District Judge.
Plaintiffs Michael Lepore and Vito Lepore seek an order preliminarily enjoining the defendant New York News Inc. (the News) from terminating their carrier agreements and from committing other acts of harassment. Before reaching the merits of this particular motion, it is necessary to place it in the context of previous developments both in this case and in a related case.
On May 11, 1972 the plaintiffs filed this action alleging that the News had violated both the Sherman Act and the Clayton Act. Plaintiffs asked for damages and injunctive relief, and on July 21, 1972 Judge Gurfein issued a preliminary injunction.
That injunction which, as modified, is still in effect prevents the defendant from terminating plaintiff Michael Lepore's carrier agreement and from committing other acts of harassment. However, Judge Gurfein's injunction is limited in two ways: first, it protects only the plaintiff Michael Lepore but does not protect the other plaintiff Vito Lepore; and second, it is limited to the Coop City franchise and does not extend to the remaining geographic areas in which plaintiffs operate.
Prior to the issuance of Judge Gurfein's injunction and, indeed, prior to the filing of this suit, thirty-one independent home delivery dealers of the News brought a separate and independent action in which all of the parties in this suit were named as defendants. Bowen v. New York News Inc., 366 F. Supp. 651 (S.D.N.Y., filed August 27, 1973).
On June 29, 1973 Judge Bauman filed an opinion in the Bowen case in which he generally upheld the independent delivery dealers' contentions that the News' distribution system violates the federal antitrust laws. In an attempt to explain Judge Bauman's decision to its franchise dealers, the News sent a form letter dated July 13, 1973 to all of its franchise dealers, including both of the plaintiffs in this case. In that letter the News stated: "During the period of the appeal The News will not enforce the fair trade provisions of its contract with you." This letter was of an admittedly provisional nature and explicitly stated that there would be a need for future modifications of the franchise agreement. However, the letter was quite clear and unequivocal in stating that the fair trade provisions of the contract would not be enforced during the pendency of the appeal.
In reliance on this letter the plaintiff Vito Lepore, immediately after the presidential price freeze ended on August 12, 1973, raised his prices to his carrier boys in the Bay Shore-Brentwood area. He suggested to these carriers that they, in turn, raise the prices to their customers.
On August 27, 1973 Judge Bauman entered his judgment in the Bowen case. That judgment enjoined the defendant News from fixing the price at which wholesalers could resell the papers but the operation of the judgment was *1389 stayed pending the determination of an appeal.
Following the entry of the judgment and its stay, the News on September 5, 1973 sent another letter to all of its franchise dealers. This second letter informed the franchise dealers of the stay in the Bowen case and concluded by stating: "For the present we will continue doing business as usual." This represented a change from the News' position in its July 13, 1973 letter.
By this time the News had evidently learned of plaintiff's price increase and it contacted some of plaintiff's customers to verify the increase. On September 12, 1973 John White, Home Delivery Manager of the News, telephoned Vito Lepore and informed him that in view of Judge Bauman's stay in the Bowen case the News intended to adhere to the franchise contract and planned to enforce the price restrictions.
On September 14, 1973 plaintiffs brought an order to show cause why the defendant should not be preliminarily enjoined from terminating their carrier agreements and from committing other acts of harassment. Defendant opposed the issuance of the injunction and argument was held on this matter on September 21, 1973 during which the operative facts were stipulated.
In order to succeed on this motion the plaintiffs have, under the traditional standards of equity, the burden of proving both a strong likelihood of ultimate success on the merits and irreparable damage if the relief sought is not granted. See, e. g., Gulf & Western Indus. Inc. v. Great Atlantic & Pacific Tea Co., 476 F.2d 687, 692-693 (2d Cir. 1973); National Ass'n of Letter Carriers v. Sombrotto, 449 F.2d 915, 920-921 (2d Cir. 1971). See also ABA, Antitrust Developments: 1955-1968, 94-97 (1968).
As to the first requirement, a strong likelihood of ultimate success, it is clear that the plaintiffs have met their burden. Plaintiffs' suit is based on a claim that the News is violating the federal antitrust laws. Only one month ago Judge Bauman, after a long, careful and thorough study of the entire News distribution system, reached the same basic conclusion. It is hard to imagine a means by which a likelihood of success could be more clearly demonstrated.
As to the second requirement, a showing of irreparable harm, I find that the plaintiffs have also met this burden. If the defendant does in fact terminate the plaintiffs, the plaintiffs will be irreparably harmed. They will have lost their business and their customers and should they eventually succeed on the merits of this case, it may be impossible to reestablish the businesses as going concerns. Such a victory would, indeed, be pyrrhic.
That the court has the power to issue an injunction when the termination of a franchise is threatened is quite clear. "Many courts have held that defendants who are or may be guilty of anticompetitive practices should not be permitted to terminate franchises, leases or sales contracts when such terminations would effectuate those practices." Milsen Co. v. Southland Co., 454 F.2d 363, 366 (7th Cir. 1971). This is true even though "the plaintiff had violated the terms of the franchise or sales agreement and had given the defendant a contractual basis for termination." Id. See also Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197 (2d Cir. 1970); Interphoto Corp. v. Minolta Corp., 295 F.Supp. 711 (S.D.N.Y.), aff'd, 417 F.2d 621 (2d Cir. 1969).
While the plaintiffs may be irreparably harmed the defendant, on the other hand, will suffer little or no injury if plaintiffs are allowed to sell the newspapers at a higher price during the pendency of the Bowen appeal. At the argument on this motion it was stipulated that the number of customers who have cancelled their subscriptions because of the price increase is seven, certainly not by any measure a significant loss to the News. In fact, the total number of papers sold by the plaintiffs has increased since the price rise.
*1390 Defendant argues, however, that it will suffer irreparable harm if the preliminary injunction is issued because the News can not expect its other franchise dealers to adhere to a maximum resale price if the plaintiffs are permitted to impose additional charges. This argument overlooks the fact that since Judge Gurfein's injunction was entered over one year ago the plaintiff Michael Lepore has had the right to impose additional charges in his Coop City franchise. Yet, despite this fact, the other franchise dealers have adhered to the maximum resale price set by the defendant.
Defendant also claims that the relief sought by the plaintiffs is unnecessary, that there is no threat to terminate or harass the plaintiffs. However, the defendant has already filed suit in New York State Court seeking an injunction against the plaintiffs' price rise. Such an act is clear evidence of the defendant's intention to take some action against the plaintiffs.
Finally, both parties are agreed that the traditional function of a preliminary injunction is to preserve the status quo. Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319, 323 (2d Cir.), cert. denied, 394 U.S. 999, 89 S.Ct. 1595, 22 L.Ed.2d 777 (1969). Defendant argues that the issuance of a preliminary injunction in this case would violate the status quo. Defendant does not define the status quo but impliedly assumes that the status quo is the situation which existed under the franchise contract before the Bowen decision. However, when plaintiff Vito Lepore in reliance on defendant's letter of July 13, 1973 and the Bowen decision raised the prices, a new status quo may have been established.
The status quo, as a general rule, is defined as the "last uncontested status which preceded the pending controversy." Westinghouse Elec. Corp. v. Free Sewing Machine Co., 256 F.2d 806, 808 (7th Cir. 1958). However, the Second Circuit has realized that such a definition "cannot be mechanically applied." National Ass'n of Letter Carriers v. Sombrotto, 449 F.2d 915, 921 (2d Cir. 1971); Compare Unicon Management Corp. v. Koppers Co., 366 F.2d 199, 204 (2d Cir. 1966). In this case I find the status quo to be the situation as it presently exists, that is, after the plaintiffs' price increase in reliance on the defendant's letter and the Bowen decision. Thus, an injunction will issue to protect the status quo as I have defined it to be.
It is my opinion that any litigation which, in essence, is founded on the basic question of the legality or illegality of the entire News distribution system should await the decision of the Second Circuit Court of Appeals in Bowen v. New York News Inc., supra. Thus, until such time as that decision is rendered it is hereby
Ordered and adjudged that defendant is,
(a) preliminarily enjoined from terminating its carrier agreement with plaintiffs or stopping deliveries of its newspapers to them because, contrary to the provisions of said carrier agreement, they resell defendant's newspapers at prices higher than the regular established home delivery price fixed by defendant pursuant to the carrier agreement,
(b) required to continue to sell its newspapers to plaintiff Vito Lepore in quantities ordered by him at prices no higher than those charged to all other franchise dealers operating in the Suffolk County area under independent home delivery carrier agreements and
(c) preliminarily enjoined from committing any of the following acts of harassment or reprisal directed toward either of plaintiffs:
(1) contacting any customer of plaintiffs or any of its carriers unless such customer has first called defendant with a complaint;
(2) contacting, intimidating or interfering in any manner with the delivery or activities of plaintiffs' carriers and carrier boys.
So ordered.


                                      COURT
OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH

                                        NO.
2-06-129-CV

IN THE INTEREST OF

H.G., A CHILD

                                              ------------

           FROM
THE 322ND DISTRICT COURT OF TARRANT COUNTY

                                              ------------

                                MEMORANDUM
OPINION[1]

                                              ------------
I.  Introduction

Appellant Natasha C., the
biological mother of four-year-old H.G., filed a notice of appeal contesting
the trial court=s order
terminating her parental rights.  In five
issues, appellant contends (1) that the evidence was factually insufficient to
support the jury=s best
interest finding, (2) that the evidence was factually insufficient to support
the jury=s section 161.001(1)(D)
endangerment finding, (3) that the evidence was factually insufficient
to support the jury=s section
161.001(1)(E) endangerment finding, (4) that the evidence was factually
insufficient to show that appellant constructively abandoned H.G., and (5) that
section 263.405(i) is not a bar to appellant=s sufficiency complaints.  Tex. Fam. Code Ann. ' 161.001(1)(D), (E) (Vernon Supp. 2006).  Because we hold that the evidence was
factually sufficient to support the jury=s best interest and section 161.001(1)(E) endangerment findings, we
affirm.
II.  Factual Background
Child Protective Services (ACPS@)
investigator Lisa Lambert arrived at appellant=s apartment on September 18, 2004, and Brandon C., H.G.=s stepfather, answered the door.
Brandon had a black eye, dark bruises, a bloody ear, facial cuts, and a
neck wound allegedly caused by appellant=s use of brass knuckles.  When
Lambert asked H.G. what happened, she said that AMommy did it.@  Additionally, appellant admitted that she hit
Brandon because she was upset that he had not cleaned up the apartment or put
the children to bed when she came home.
Because of this investigation, CPS removed H.G. and C.G., H.G.=s ten-month-old brother, from appellant=s home.

Dr. Rhonda Polakoff, a
psychologist, evaluated H.G. immediately and determined that H.G. had symptoms
consistent with a child who has difficulty coping.  Dr. Polakoff diagnosed H.G. with a depressive
disorder, an adjustment disorder, and with a post-traumatic stress
disorder.  Sheila Nash, H.G.=s foster parent, caught four-year-old H.G. masturbating on several
occasions.  When Nash asked H.G. why she
did it, H.G. said that ADaddy@ Brandon showed her how to make her Acookies@ feel
better.
In addition to engaging in
domestic violence, appellant had mental disorders and a history of drug dealing
and usage.  Also, prior to the
termination trial, appellant missed twenty-four out of forty-four visits with
H.G. and failed to complete the drug testing portion of her CPS service plan.
III.  Statement of Points
Because appellant=s fifth issue is potentially dispositive, we address it first.  Appellant asserts that section 263.405(i) of
the Texas Family Code is not a bar to her other four complaints because (1) she
complied with it, (2) to the extent she did not comply with it, the court
should excuse compliance under rule 2 of the Texas Rules of Appellate
Procedure, and (3) section 263.405(i) constitutes a violation of the
separations of powers provision of the Texas Constitution.
Section 263.405(i) of the
Texas Family Code provides,

The appellate court may not consider any issue
that was not specifically presented to the trial court in a timely filed
statement of the points on which the party intends to appeal or in a statement
combined with a motion for new trial.
For purposes of this subsection, a claim that a judicial decision is
contrary to the evidence or that the evidence is factually or legally
insufficient is not sufficiently specific to preserve an issue for appeal.[2]

The State does not contend that appellant failed
to preserve her complaints.   We agree
with both parties that appellant sufficiently pled and timely filed the
statements of points for new trial.
See Tex. Fam. Code Ann.
' 263.405(i).  Accordingly, we
sustain appellant=s fifth
issue.  We do not address the other two
subissues because appellant complied with section 263.405(i).
IV. Endangerment,
Abandonment, and Best Interest of the Children
A.  Endangerment and Abandonment Findings
In her second and third
issues, appellant argues that the evidence is factually insufficient to support
the jury=s findings that she (1) engaged in conduct that endangered H.G.=s physical or emotional well-being and (2) knowingly placed or
knowingly allowed H.G. to remain in conditions which endangered her physical or
emotional well-being.  In her fourth
issue, appellant claims that the evidence is factually insufficient to support
the jury=s finding that she constructively abandoned H.G.

A parent=s rights to Athe
companionship, care, custody, and management@ of his or her children are constitutional interests Afar more precious than any property right.@  Santosky v. Kramer, 455
U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982).
AWhile parental rights are of constitutional magnitude, they are not
absolute.  Just as it is imperative for
courts to recognize the constitutional underpinnings of the parent-child
relationship, it is also essential that emotional and physical interests of the
child not be sacrificed merely to preserve that right.@  In re C.H., 89 S.W.3d
17, 26 (Tex. 2002).  In a termination case,
the State seeks not just to limit parental rights but to end them permanentlyCto divest the parent and child of all legal rights, privileges,
duties, and powers normally existing between them, except for the child=s right to inherit.  Tex. Fam. Code Ann. ' 161.206(b); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
 We strictly scrutinize termination
proceedings and strictly construe involuntary termination statutes in favor of
the parent.  Holick, 685 S.W.2d at
20-21; In re D.T., 34 S.W.3d 625, 630 (Tex. App.CFort Worth 2000, pet. denied) (op. on reh=g).

In proceedings to terminate
the parent‑child relationship brought under section 161.001 of the family
code, the petitioner must establish one or more of the acts or omissions
enumerated under subdivision (1) of the statute and must also prove that
termination is in the best interest of the child under subdivision (2).  Tex.
Fam. Code Ann. ' 161.001(1),
(2); Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 1984); Swate v.
Swate, 72 S.W.3d 763, 766 (Tex. App.CWaco 2002, pet. denied).  Both
elements must be established; termination may not be based solely on the best
interest of the child as determined by the trier of fact.  Tex. Dep=t of Human Servs. v. Boyd, 727 S.W.2d
531, 533 (Tex. 1987).
Termination of parental
rights is a drastic remedy and is of such weight and gravity that due process
also requires the petitioner to justify termination by clear and convincing
evidence.  Tex. Fam. Code Ann. '' 161.001, 161.206(a); In re G.M., 596 S.W.2d 846, 847 (Tex.
1980).  This intermediate standard falls
between the preponderance standard of ordinary civil proceedings and the
reasonable doubt standard of criminal proceedings.  G.M., 596 S.W.2d at 847; D.T.,
34 S.W.3d at 630.  It is defined as the Ameasure or degree of proof that will produce in the mind of the trier
of fact a firm belief or conviction as to the truth of the allegations sought
to be established.@  Tex.
Fam. Code Ann. ' 101.007
(Vernon 2002).
                1.  Factual Sufficiency Standard of Review

The higher burden of proof in
termination cases alters the appellate standard of factual sufficiency
review.  C.H., 89 S.W.3d at
25.  A[A] finding that must be based on clear and convincing evidence cannot
be viewed on appeal the same as one that may be sustained on a mere
preponderance.@  Id.
In considering whether the evidence of termination rises to the level of
being clear and convincing, we must determine Awhether the evidence is such that a factfinder could reasonably form a
firm belief or conviction@ that the
grounds for termination were proven.  Id.  Our inquiry here is whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that the
parent violated one of the conduct provisions of section 161.001(1) and that
the termination of the parent=s parental rights would be in the best interest of the child.  Id. at 28.
                                            2.  Analysis

At trial, Lambert, the CPS
investigator, testified that she received a call about H.G. on September 18,
2004.  The caller alleged that appellant
and Brandon engaged in violent physical altercations in front of the
child.  When Lambert arrived at Brandon
and appellant=s apartment,
Brandon answered the door.  Initially,
Brandon denied his identity, but when Lambert confronted him about the work
apron he was wearing that still had his nametag attached, Brandon admitted to
his identity.  Lambert testified that
Brandon had a Abeat up@ face, a black eye, dark bruises, a bloody ear, and lots of cuts.  Lambert also testified that she had received
a report that appellant hit Brandon with brass knuckles.  In addition to Brandon=s facial injuries, there was a bruise on his neck consistent with an
injury caused by such a weapon.  In
Lambert=s opinion, the injuries had all just recently been inflicted.
After speaking with Brandon,
Lambert entered the home and spoke with H.G.
H.G. told her that AMommy did it, and Mommy hurt Daddy Brandon, and Mommy was mad.@  When Lambert spoke with
appellant, appellant admitted that she hit Brandon because she was upset that
he had not cleaned up the apartment or put the children to bed.  Because of this investigation, CPS ultimately
removed H.G. and C.G. for domestic violence concerns.  While in Lambert=s custody, H.G. threw a Atemper tantrum times ten,@ and acted abusive towards C.G.
Appellant=s mother, Vivian Mayo-Martin, opined that H.G. often witnessed violent
physical altercations between appellant and Brandon.  Vivian testified that during these
altercations, Brandon used ten-month-old C.G. as a shield from appellant=s blows.  Whenever appellant called,
Vivian would immediately pick up H.G. and C.G. because she did not want them to
observe appellant=s violence.

Vicki Olstien, Brandon=s aunt, also testified about appellant=s violent tendencies.  Olstien
testified that appellant and Brandon lived with her for around two months after
Brandon had been shot in October of 2005.
Olstien stated that on one occasion, she heard Brandon yelling for help
in his bedroom.  When Olstien=s son broke down the door, Olstien saw appellant biting Brandon=s finger and kicking him repeatedly.
After Olstien broke up the fight, appellant and Brandon said that Athey were on a three-day down cycle from doing some speed.@  Then later, when Olstien tried
to break up another fight between appellant and Brandon, appellant bit Olstien=s finger and wrestled with her on the floor.  Appellant also used a piece of wood from the
bed to hit Olstien=s husband in
the shoulder.  Ultimately, Olstien called
the police because appellant and Brandon refused to leave; the police arrived
shortly thereafter and arrested appellant.
At the trial termination,
appellant maintained that neither H.G. nor C.G. had seen her hit Brandon.  However, she believed that slapping men was Anot a big deal@ and
admitted that H.G. had seen her slap Brandon two or three times.  Appellant testified that whenever H.G. saw
her slap Brandon, H.G. asked her to stop hitting and hurting her daddy.

Dr. Polakoff evaluated H.G.
in October 2004, and determined that H.G. had extreme tantrums, was aggressive,
and would self-mutilate, all symptoms consistent with a child who has
difficulty coping.  Dr. Polakoff
diagnosed H.G. with an adjustment disorder, a depressive disorder, and with a
post-traumatic stress disorder.  Nash,
H.G.=s foster parent, agreed with Dr. Polakoff=s assessment and testified that H.G. would often bang her head against
the wall, slap herself in the face, pull out her hair, and bite herself.  Nash noted that the slightest thing could
send H.G. into a rage, including someone placing a napkin on her the wrong
way.
Nash also testified that H.G.
would act out sexually.  Specifically, on
the first day that Nash brought H.G. home, H.G. masturbated to orgasm while
sitting in the car seat.  On another
occasion, according to Nash, H.G. said that Brandon showed her how to make her Acookies@ feel
better.  On a third occasion, H.G. told
Nash that Brandon would stick an object in her Acookies@ and make it
feel better, and she wished that Nash would do so.
In addition to allowing H.G.
to experience both domestic and sexual abuse, appellant also has a history of
drug dealing and drug use.  First,
appellant admitted that she sold methamphetamine to support herself and her
children.  Appellant also testified that
she used marijuana periodically starting at age fourteen and would often smoke
on the back porch while the children were in bed.  In September 2004, the same month that CPS
removed her children, appellant tested positive for marijuana.

Based on our review of the
entire record, we conclude that a factfinder could reasonably form a firm
belief or conviction that appellant engaged in conduct that endangered the
physical or emotional well-being of H.G., and therefore, we hold that the
evidence is factually sufficient to support the jury=s finding.  See Tex. Fam. Code Ann. ' 161.001(1)(E); In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); C.H.,
89 S.W.3d at 28.  Accordingly, we
overrule appellant=s third
issue.
Because a petitioner need
establish only one of the acts or omissions enumerated under subdivision (1) of
section 161.001, we need not address appellant=s second issueCwhether the
evidence is factually sufficient to support the jury=s 161.001(1)(D) findingCor appellant=s fourth
issueCwhether the evidence was factually sufficient to support the jury=s finding that appellant constructively abandoned H.G.  See Tex.
Fam. Code Ann. _ 161.001(1)(D), (N); In re A.J.L., 136 S.W.3d 293, 305 (Tex.
App.CFort Worth 2004, no pet.); In re S.F., 32 S.W.3d 318, 320 (Tex.
App.CSan Antonio 2000, no pet.).
Accordingly, we overrule appellant=s second and fourth issues.
We will next consider whether
the jury=s finding that termination of appellant=s parental rights was in H.G.=s best interest was factually insufficient as appellant claims in her
first issue.  See Tex. Fam. Code Ann. ' 161.001(2).
B.  Appellant=s Best-Interest Claim
Nonexclusive factors that the
trier of fact in a termination case may use in determining the best interest of
the child include
(1)    the desires of the child,

(2)    the emotional and physical needs of the
child now and in the       future,

(3)    the emotional and physical danger to the
child now and in the     future,

(4)    the parental abilities of the individuals seeking custody,

(5)    the programs available to assist these
individuals to promote       the best
interest of the child,

(6)    the plans for the child by these individuals
or by the agency        seeking custody,

(7)    the stability of the home or proposed placement,

(8)    the acts or omissions of the parent which
may indicate that        the existing
parent‑child relationship is not a proper one, and

(9)    any excuse for the acts or
omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371‑72 (Tex. 1976); In re M.N.G., 147
S.W.3d 521, 539 (Tex. App._Fort Worth 2004, pet. denied).
These factors are not exhaustive.
Some listed factors may be inapplicable to some cases; other factors not
on the list may also be considered when appropriate.  C.H., 89 S.W.3d at 27; M.N.G.,
147 S.W.3d at 539.  Furthermore,
undisputed evidence of just one factor may be sufficient in a particular case
to support a finding that termination is in the best interest of the
child.  C.H., 89 S.W.3d at 27; M.N.G.,
147 S.W.3d at 539.  On the other hand,
the presence of scant evidence relevant to each Holley factor will not
support such a finding.  C.H., 89
S.W.3d at 27; M.N.G., 147 S.W.3d at 539.
In addition to the above, a
parent=s inability to provide adequate care for the child, lack of parenting
skills, poor judgment, and repeated instances of immoral conduct may also be
considered when looking at the child=s best interest.  In re
C.A.J., 122 S.W.3d 888, 893 (Tex. App.CFort Worth 2003, no pet.).  We
now address those factors for which relevant evidence was admitted.
1.  The Emotional and Physical Danger to H.G. Now
and in the Future

Appellant, H.G., and Vivian
all testified that H.G. was present when appellant attacked Brandon.  Further, although H.G. was not present during
all of the altercations between Brandon and appellant, there is evidence that
H.G.=s self-mutilation and tantrums resulted from living with
appellant.  Appellant admitted to not
getting along with people, she bit and wrestled with Olstien, and she hit
Olstien=s husband in the shoulder with a piece of wood.  Appellant=s violent tendencies clearly pose a physical danger to H.G. now and in
the future.  See Holley, 544
S.W.2d at 371‑72.  Additionally,
by slapping Brandon at least two times in front of H.G. and by inflicting cuts,
bruises, a black eye, a bloody ear, and a possible brass knuckle bruise on
Brandon while H.G. was home, appellant placed H.G. in emotional danger.  See id.

The evidence at trial also
showed that appellant had sold methamphetamine, had cared for the children
while using marijuana, and failed to maintain steady employment or
housing.  Further, Vivian testified that
Brandon would use H.G.=s
ten-month-old brother as a shield when appellant attacked him.  Brandon also allegedly sexually abused H.G.
by teaching her how to make her Acookies@ feel
better.
Additionally, appellant
testified that she had multiple personalitiesCa good one named Tasha and a bad one named NatashaCand often saw the shadow of her deceased son run around and dance.
Even without considering
appellant=s attack on
Brandon and its impact on H.G., the evidence supports a finding that appellant
was both unstable and indifferent to H.G.=s physical and emotional safety during much of H.G.=s young life.  These instances
support the jury=s finding
that termination is in H.G.=s best interest.  See C.H.,
89 S.W.3d at 27; M.N.G., 147 S.W.3d at 539.
2.  The Plans for the Children by the Agency
Seeking Custody_The
Stability of the Home or Proposed Placement

Nash became H.G.=s foster parent on June 8, 2005, and has expressed an interest in
adopting her.  Nash makes her living
providing foster care, makes approximately $50,000 a year, and is not
married.  Nash stated that it is
important for children to have a male role model, and that she has three
brothers, a son, and a nephew.  Vivian
testified at trial that Nash is unfit to adopt H.G. because Nash keeps foster
children who come in and out of her home and therefore cannot provide a stable
environment for children.
However, during the time that
H.G. has been living with Nash, H.G. has experienced less temper tantrums and
self-mutilating behavior and does not act out sexually as often.  Beverly Shockey, H.G.=s CPS caseworker, testified that Nash should be allowed to adopt H.G.
because appellant was unstable and could not provide the long-term therapy that
H.G. needs.  Dr. Polakoff confirmed
Shockey=s recommendation that H.G. needs structure and stability to cope with
her adjustment, depressive and post-traumatic stress disorders.
The evidence here shows that
H.G.=s lifestyle improved significantly after CPS placed her with Nash,
supporting the jury=s finding
that termination was in H.G.=s best interest.  See C.H.,
89 S.W.3d at 27; M.N.G., 147 S.W.3d at 539.
3.  The Acts or Omissions of the Parent Which May
Indicate that the Existing Parent-Children Relationship is Not a Proper One

Evidence of a parent=s unstable lifestyle can support a factfinder=s conclusion that termination is in the child=s best interest.  In re D.S.,
176 S.W.3d 873, 879 (Tex. App.CFort Worth 2005, no pet.).  A
parent=s drug use, inability to provide a stable home, and failure to comply
with her family service plan support a finding that termination is in the best
interest of the child.  Id.      Numerous witnesses testified that appellant
is emotionally unstable, has anger management issues, and engages in domestic
violence.  In addition to these
behaviors, appellant has a history of drug distribution and use.  The same month that CPS removed H.G. from
appellant=s home,
appellant tested positive for marijuana.
The evidence at trial also showed that appellant sold methamphetamine
and had cared for H.G. while using marijuana.
The evidence also showed that prior to the termination trial, appellant
completed her CPS-recommended psychological testing and attended two counseling
appointments. However, appellant did not follow through with her drug treatment
and only came to twenty-four out of forty-four possible visits with H.G.  The last time appellant visited H.G. prior to
the March 22, 2006 termination trial was on October 27, 2005.  Additionally, appellant was consistently late
to the two-hour visitations.
Based upon our review of the
entire record, we conclude that the jury could have reasonably formed a firm
conviction or belief that termination of appellant=s rights was in H.G.=s best interest.  Accordingly,
we hold that the evidence is factually sufficient to support the jury=s best interest findings, and we overrule appellant=s first issue.

V.  Conclusion
Having sustained appellant=s fifth issue, we affirm the trial court=s order terminating appellant=s parental rights to H.G.

PER CURIAM

PANEL F:    LIVINGSTON, HOLMAN, and GARDNER, JJ.

DELIVERED:
January 11, 2007

[1]See Tex. R. App. P. 47.4.

[2]Tex. Fam. Code Ann. '
263.405(i) (Vernon Supp. 2006); In re C.R., No. 02-06-00099-CV, 2006 WL
3114468, at *1 (Tex. App.CFort
Worth Nov. 2, 2006, no pet. h.) (mem. op.) (Livingston, J., concurring)
(analyzing this statute); In re D.A.R., 201 S.W.3d 229, 230 (Tex. App.CFort
Worth 2006, no pet.) (same).


UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARY NASH, a resident of Wake
County, North Carolina,
Plaintiff-Appellant,

v.
                                                               No. 00-1312
HUDSON BELK COMPANY #458, of
Raleigh, North Carolina, a Delaware
Corporation,
Defendant-Appellee.

MARY NASH, a resident of Wake
County, North Carolina,
Plaintiff-Appellant,

v.
                                                               No. 00-1867
HUDSON BELK COMPANY #458, of
Raleigh, North Carolina, a Delaware
Corporation,
Defendant-Appellee.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CA-99-134)

Submitted: August 31, 2000

Decided: September 27, 2000

Before WILKINS, MOTZ, and TRAXLER, Circuit Judges.

_________________________________________________________________
Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Mary Nash, Appellant Pro Se. Gregory Phillip McGuire, Sarah Helen
Berdahl, HAYNSWORTH, BALDWIN, JOHNSON & GREAVES,
L.L.C., Raleigh, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In No. 00-1312, Mary Nash appeals the district court's order enter-
ing summary judgment for Defendant in an action alleging race dis-
crimination in employment. In No. 00-1867, Nash appeals the district
court order awarding Defendant, as the prevailing party, $4096 in
attorney's fees. We affirm.

In August 1998, Nash, an African-American, requested a transfer
to the china department at the Belk store where she had worked since
1987. The transfer was denied. The reason for the denial was the
belief that Nash had engaged in an improper sales transaction in 1996
when she previously worked in the china department. Nash alleged
that the transfer denial constituted race discrimination in violation of
Title VII of the Civil Rights Act of 1964. See 42 U.S.C.A. § 2000e-
2 (West 1994). Because Nash provided no direct evidence of race dis-
crimination, she was required to rely on the burden-shifting method
of proof announced in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). However, Nash failed to establish a prima facie case of
discrimination because the open position was not filled by someone
outside the protected class and because she did not establish that
white employees who were suspected of wrongdoing also were

                    2
denied requested transfers. See Alvarado v. Board of Trustees of
Montgomery Community College, 928 F.2d 118, 121 (4th Cir. 1991).

Nash also asserted in this action that there was a racially hostile
work environment at the store. This allegation was not raised in her
EEOC charge and therefore was not properly before the district court.
However, to the extent that the claim was properly before the court,
it lacked merit because Nash presented no evidence tending to show
that the incidents of harassment she identified occurred because of her
race. See Causey v. Balog, 162 F.3d 795, 801 (4th Cir. 1998).

A district court, in its discretion, may award reasonable attorney's
fees and costs to the prevailing party in an employment discrimination
action. See 42 U.S.C.A. § 2000e-5(k); see also Christiansburg Gar-
ment Co. v. EEOC, 434 U.S. 412, 422 (1978). Here, the district court
found that fees should be awarded to Defendant but that the request
for $8165.90 in fees was excessive. Applying the factors first identi-
fied in Johnson v. Georgia Highway Express, Inc. , 488 F.2d 714 (5th
Cir. 1974), the court awarded Defendant $4096 in fees. We conclude
that the district court did not abuse its discretion in awarding fees or
setting the amount of the award.

We therefore affirm. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.

AFFIRMED

                    3


377 Pa. Superior Ct. 1 (1988)
546 A.2d 1127
Martin PSAKI, Appellant,
v.
Darlene FERRARI and Joseph Grosso, Appellees.
Supreme Court of Pennsylvania.
Argued April 7, 1988.
Filed July 25, 1988.
Reargument Denied September 16, 1988.
*2 James Cunilio, Bryn Mawr, for appellant.
Before WIEAND, McEWEN and BECK, JJ.
WIEAND, Judge:
The issue in this appeal is whether a judgment for money damages will support a lis pendens filed against real estate which is owned by a stranger to the judgment and which is not the subject of any pending litigation. The trial court held that a lis pendens filed under such circumstances was improper. We agree and affirm.
Martin Psaki commenced a civil action against Darlene Ferrari and Joseph Grosso to recover unpaid loans in the amount of $99,408. When Ferrari and Grosso failed to file an answer to the complaint, Psaki, on July 25, 1985, caused a default judgment to be entered against them. Thereafter, on October 30, 1985, Psaki caused a lis pendens notice to be indexed against real estate owned by William A. Koepke at 680 Wetherly Lane, Devon, Chester County. Title to this *3 real estate had been acquired by Koepke from Ferrari by deed dated March 5, 1985 and thereafter recorded in the Office of the Recorder of Deeds in and for Chester County. When Koepke, in turn, agreed to sell the real estate to a third person, he was compelled to place in escrow the sum of $110,000 in order to obtain a release of the lis pendens. This sum was deposited with the Prothonotary pending final determination of the validity of the lis pendens. The court thereupon, by order dated July 8, 1986, cancelled the lis pendens. After further proceedings, the trial court held that the lis pendens had been improperly indexed against Koepke's real estate and ordered a return of the $110,000 to him. Psaki appealed.
Strictly speaking, the effect of a lis pendens is not to establish an actual lien upon the property affected. Its purpose is merely to give notice to third persons that the real estate is subject to litigation and that any interest which they may acquire in the real estate will be subject to the result of the action. Dice v. Bender, 383 Pa. 94, 97, 117 A.2d 725, 726-727 (1955). Lis pendens has no application except in cases involving the adjudication of rights in specific property. Shannon v. Barrett, 65 Pa.D & C.2d 446, 448-449 (Del.Co. 1974). Thus, a party is not entitled to have his case indexed as lis pendens unless title to real estate is involved in litigation. Lis pendens may not be predicated upon an action seeking to recover a personal demand. 54 C.J.S. Lis Pendens § 11. See: Fesler v. Bran-Kel, Inc., 62 Del.Co.R. 422, 424 (1974). When a personal demand is reduced to judgment, of course, it becomes a lien, without more, on real estate which is owned by the judgment debtor. In re Upset Sale, Tax Claim Bureau of Berks County, 505 Pa. 327, 334, 479 A.2d 940, 943 (1984). See also: 42 Pa.C.S. § 4303(a). In such event, the filing of a lis pendens is unnecessary.
The judgment recovered by appellant against Ferrari was not a lien against the real estate which Koepke had earlier acquired from Ferrari. This real estate, moreover, was not at any relevant time the subject of an action to *4 adjudicate rights of ownership therein.[1] Therefore, the attempt to index a lis pendens against the real estate owned by William Koepke was a nullity and subject to cancellation. Koepke was not appellant's judgment debtor and was never a party to the proceedings in which the default judgment had been entered. To permit a lis pendens under these circumstances would be to permit a person holding a judgment to place a cloud against the title to real estate owned by any other person, whether or not a party to the judgment, merely by filing a praecipe. This is not the law.
The order of the trial court is affirmed.
NOTES
[1]  Lis pendens cannot be used to assert a claim that a conveyance of real estate has been made in fraud of the grantor's creditors. Such a claim must first be made in an equity action to set aside the conveyance.


114 B.R. 672 (1990)
In re L.D. ALDERSON, Debtor.
Bankruptcy No. 89-50106.
United States Bankruptcy Court, D. South Dakota, W.D.
April 27, 1990.
*673 *674 L.D. Alderson, Hayes Center, Neb., pro se.
Rodney C. Lefholz, Rapid City, S.D., former atty. for L.D. Alderson.
Dennis C. Whetzal, Rapid City, S.D., Trustee.
Thomas A. Lloyd, Asst. U.S. Atty., Pierre, S.D., for the U.S.
Andrew B. Reid, Hot Springs, S.D., for Eunice I. Gull & Roger Armstrong.
Robert A. Martin, Rapid City, S.D., for Alexander Drilling Co.
Al Arendt, Pierre, S.D., for Dorothy Clark.
Rick Entwistle, Sioux Falls, S.D., for First Bank of South Dakota.
Michael M. Hickey, Rapid City, S.D., for Norwest Bank.

MEMORANDUM DECISION
IRVIN N. HOYT, Chief Judge.
The Court has before it: (1) Attorney Rodney C. Lefholz's application for compensation and reimbursement of expenses and the objections thereto, (2) Attorney Lefholz's motion to reconsider the Court's order of November 22, 1989, assessing terms against Attorney Lefholz, (3) creditor Eunice I. Gull's motion for terms against Attorney Lefholz and the debtor, L.D. Alderson, and (4) creditors Roger and Cindy Armstrong's motion for terms against Attorney Lefholz and the debtor.
L.D. Alderson filed a petition under Chapter 12 of the United States Bankruptcy Code on May 8, 1989. The first meeting of creditors was held on July 6, 1989. On August 3, 1989, Alderson filed his Chapter 12 plan of reorganization. Creditors of L.D. Alderson, especially Eunice Gull, Roger Armstrong and Cindy Armstrong, submitted numerous motions. Motions included were to dismiss or convert, remove the debtor in possession, relief from the automatic stay, enjoin the use of cash collateral, and objections to confirmation of Alderson's plan. Adversary proceedings to determine the dischargeability of debts were initiated by Mrs. Gull, Roger and Cindy Armstrong and Norwest Bank. Hearings had to be continued on several matters due *675 to the debtor's failure to furnish necessary records and information. In the interim, the debtor's income was frozen and ordered to be paid directly to the Trustee.
On October 3, 1989, the Court held a lengthy hearing on the above-mentioned motions. Witnesses included the debtor, Fall River County Sheriff Leo Bray, Mike Cross of the United States Forest Service, and Perle O'Daniel and Mike Assman, farmer/ranchers. After hearing the evidence, the Court converted Alderson's bankruptcy to Chapter 7 because of the fraud that permeated his Chapter 12.
After conversion, Mrs. Gull and Roger and Cindy Armstrong filed motions for: relief from the stay, to enjoin the use of cash collateral, for terms and contempt, turnover of property, determination of executory contracts, and objections to claimed exemptions. An expedited hearing on these motions was set for October 20, 1989, in Pierre. At the beginning of the October hearing, Attorney Lefholz made an oral motion to withdraw as debtor's counsel because of conflicts between Attorney Lefholz and the debtor. A hearing on Attorney Lefholz's motion to withdraw was set for November 8, 1989.
The timing of Attorney Lefholz's motion to withdraw stymied the proceedings on the other motions. The Court was forced to continue the majority of the motions set for hearing and generally ruled so as to preserve the estate and maintain the status quo of the case. The Court granted terms against Attorney Lefholz for Attorney Andrew Reid's time and expenses in traveling to Pierre for the expedited hearings.
On December 12, Attorney Lefholz filed a motion to reconsider the Court's assessment of terms against him and also submitted an application for final compensation and reimbursement of expenses. Mrs. Gull and Roger and Cindy Armstrong objected to Attorney Lefholz's motion to reconsider. Objections to Attorney Lefholz's fee application were received from Mrs. Gull, Roger and Cindy Armstrong, Norwest Bank, and the United States Trustee. The initial hearing on the fee application was held on January 9, 1990. The Court determined that the application was deficient and continued the hearing to afford Attorney Lefholz an opportunity to amend his fee application. Attorney Lefholz submitted an amended fee application on January 24, 1990. Mrs. Gull again objected to the application.
On February 5, 1990, a final hearing was held concerning the four motions currently pending before the Court. The Court took the matters under advisement.
The basis of Attorney Lefholz's motion to reconsider is that Attorney Reid's motion for terms and contempt created the conflict of interest that caused Attorney Lefholz to withdraw. Further, Attorney Lefholz argues that the expedited hearings set for October 20 were unnecessary as evidenced by later continuances, and that the expense of the expedited hearings in Pierre could have been minimized had the matters been handled by teleconference.
Attorney Reid responded that Attorney Lefholz's motion was baseless and untimely. The Court did not learn of Attorney Lefholz's intent to withdraw as counsel until the October 20 hearing in Pierre. It did not appear that Attorney Reid knew of Attorney Lefholz's decision to withdraw as Attorney Reid was ready to proceed with the scheduled hearings.
While Attorney Lefholz is correct that the hearings scheduled for October 20 were continued to November 8 and again to December 11, it was not because of the Court's or Attorney Reid's inability to proceed. The first continuance was necessitated by Attorney Lefholz's motion to withdraw, and the second continuance was due to Mr. Alderson's inability to secure substitute bankruptcy counsel. The Court also is not persuaded by Attorney Lefholz's contention that expenses could have been minimized had the hearings set for Pierre been handled by teleconference. Hearings of this nature are not routine or uncontroverted, and they are not compatible with a teleconference disposition.
It appears to the Court that Attorney Lefholz's decision to withdraw could and should have been made known before *676 Attorney Reid departed for Pierre. Attorney Lefholz's motion to reconsider the terms against him to compensate Attorney Reid for the time and expenses he incurred in coming to Pierre for the expedited hearing will be denied.
The Court will next examine the motions for terms filed by Mrs. Gull and Roger and Cindy Armstrong against Attorney Lefholz and the debtor. These motions ask that Attorney Lefholz and the debtor be required to pay Attorney Reid's costs and expenses. The bases of the motions against the debtor are his fraudulent activity throughout the pendency of this case, his failure to prepare for the Section 341 meeting and the 2004 examination, his failure to comply with discovery requests, and his abuse of the bankruptcy process by the perpetuation of his wrongful possession of the movants' property. Requests for terms against Attorney Lefholz and the debtor are based upon their awareness of the fraudulent nature of the debtor's statements and schedules, their failure to amend the same, and their misrepresentation to Attorney Reid concerning the availability of the debtor's financial records.
The motions for terms are made pursuant to 28 U.S.C. § 1927, and Federal Rules of Civil Procedure 11, 26(g), 37 and 56(g). These Rules comport with Bankruptcy Rules 9011, 7026, 7037 and 7056. Rules 7026, 7037 and 7056 apply in adversary proceedings and contested matters. However, it is questionable whether a bankruptcy court has jurisdiction to impose sanctions under 28 U.S.C. § 1927, In re Arkansas Communities, Inc., 827 F.2d 1219 (8th Cir.1987), although other courts have held that such jurisdiction exists. See, e.g., In re Usoskin, 61 B.R. 869 (Bankr.E.D.N.Y. 1986).
Attorney Reid's request first will be analyzed under Bankruptcy Rule 9011.
Bankruptcy Rule 9011 provides, in salient part:
Every petition, pleading, motion and other paper served or filed in a case under the Code on behalf of a party represented by an attorney except a list, schedule, statement of financial affairs ... or amendments thereto, shall be signed by at least one attorney of record[.] ... The signature of an attorney or a party constitutes a certificate that the attorney or party has read the document; that to the best of the attorney's or party's knowledge, information, and belief formed after reasonable inquiry it is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass, to cause delay, or to increase the cost of litigation.... If a document is signed in violation of this rule, the court on motion or on its own initiative, shall impose on the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including a reasonable attorney's fee.
Rule 9011 and its counterpart, Rule 11, are designed to discourage the filing of frivolous court papers or those that are legally unreasonable or without factual foundation. Hartman v. Hallmark Cards, 833 F.2d 117 (8th Cir.1987); Kurkowski v. Volcker, 819 F.2d 201 (8th Cir.1987). In Lupo v. R. Rowland & Co., 857 F.2d 482 (8th Cir.1988), the Eighth Circuit also stated that the purpose of Rule 11 is to compensate the offended party for the expenses caused by a violation and also to penalize the offender.
A violation of Rule 9011 occurs when a party or attorney files or serves a document (1) not well grounded in fact, warranted by existing law or containing a good faith argument for a change of the existing law, or (2) for an improper purpose. See Byrne, Sanctions for Wrongful Bankruptcy Litigation, 72 Am.Bankr.L.J. 109, 114 (1988). See also Robinson v. National Cash Register Co., 808 F.2d 1119 (5th Cir.1987). The Rule is intended to be vigorously applied to curb frivolous pleadings and other papers. Adduono v. World Hockey Ass'n, 824 F.2d 617 (8th Cir.1987). *677 However, it is not a panacea intended to remedy all manner of attorney misconduct. Id.
Under Rules 11 and 9011 the conduct of the non-movant is to be judged under a standard of "objective reasonableness." E.E.O.C. v. Milavetz & Assoc., P.A., 863 F.2d 613 (8th Cir.1988). See also Hartman, Adduono and Kurkowski, supra and O'Connell v. Champion Int'l Corp., 812 F.2d 393 (8th Cir.1987). Good faith is not a defense under Rule 11. See Milavetz and Hartman, supra. See also Robinson, supra and Byrne at 114.
Under Rule 9011, the attorney has a duty of undertaking a reasonable inquiry in a case to avoid the imposition of sanctions. However, the Rule does not mandate exhaustive research and investigation before commencing a bankruptcy case. Byrne, supra at 122 (citing In re TCI, Ltd., 769 F.2d 441 (7th Cir.1985)). A lawyer who undertakes a reasonable inquiry before filing a petition or other paper will not suffer sanctions if, ultimately, the lawyer has been deceived by the client. Byrne, supra at 123 (citing In re Ligon, 50 B.R. 127 (Bankr.M.D.Tn.1985)). Moreover, lists, schedules and statements of financial affairs, and amendments thereto, are excepted from the papers that must be signed by the debtor's attorney. See B.R. 9011 advisory committee's note. Under B.R. 1008, the documents must be verified by the debtor. Thus, sanctions may not lie against an attorney for transgressions surrounding these documents. See In re Brantley, 84 B.R. 508 (Bankr.S.D.Oh.1988). If circumstances warrant, however, the court may determine whether the attorney should be suspended from practicing before the bankruptcy court. Id.
Even if the Rule did apply to schedules and statements, the Court would refrain from sanctioning Attorney Lefholz. Here, Attorney Lefholz was retained by a debtor whose bookkeeping methods were inadequate and unconventional. This made it possible for the debtor to conceal his true financial condition and hamper his attorney's ability to verify the accuracy of the information provided by the debtor. The amorphous condition of the debtor's records, coupled with the debtor's history of deception, leads the Court to conclude that Mr. Alderson was not forthright with his attorney when the schedules and statements were completed, and that the state of his books and records prevented his attorney from discovering the true facts surrounding the debtor's financial condition.
The Court also concludes that sanctions against Attorney Lefholz are not warranted because of the misrepresentations concerning the availability of the debtor's financial records. The Court was advised at numerous hearings that Mr. Alderson did not bring requested records to the hearing but would furnish them to Attorney Reid as soon as possible thereafter. The Court learned that the records had not been furnished as promised or were incomplete. Mr. Alderson denied attempting to withhold documents. On other occasions, Mr. Alderson stated that the requested documents had been forwarded to Attorney Reid or to his accountant when, in fact, this had not been done. Mr. Alderson would allow Attorney Reid to review his records when they were placed in the hands of his accountant but forbade the accountant from allowing Attorney Reid to photocopy the same, requiring that he copy needed information in longhand.
The Court cannot condone Mr. Alderson's attempts to frustrate Attorney Reid's conducting discovery, but the Court does not believe that Attorney Lefholz was involved in withholding the requested information from Attorney Reid. It appears that Mr. Alderson alone is responsible for thwarting Attorney Reid's discovery attempts. While Attorney Lefholz could instruct his client to cooperate in the discovery process, there is little that Attorney Lefholz could do to force his client to cooperate. There was no indication that Attorney Lefholz conspired with Mr. Alderson to frustrate the discovery process. The Court is satisfied that Mr. Alderson is the sole offender and accordingly will deny the motion for terms against Attorney Lefholz.
*678 Mrs. Gull and Roger and Cindy Armstrong also move for terms under Bankruptcy Rules 7026(g), 7037(b)(2) and 7056(g). The Court does not believe that Bankruptcy Rule 7026(g) or 7056(g) would be applicable here. Rule 7026(g) requires sanctions where an attorney or party has signed requests, responses or objections to discovery, and its requirements and thrust are similar to that of Rule 9011. However, the record is devoid of any requests, responses or objections to discovery signed by Mr. Alderson or Attorney Lefholz, and sanctions would not lie under Bankruptcy Rule 7026(g).
Bankruptcy Rule 7056(g) relates to affidavits presented in bad faith or for the purpose of delay pursuant to a motion for summary judgment. It provides that the offending party or attorney must pay the costs attendant with the affidavit that are incurred by the other party. While four adversary proceedings were commenced in this case and summary judgment was granted in each, no affidavits were filed by the debtor prior to the Court's grant of summary judgment. While hand written documents from the debtor were received after the summary judgment hearings, these documents in no way increased the creditors' costs of obtaining summary judgment. Thus, sanctions would not lie under Bankruptcy Rule 7056(g).
Bankruptcy Rule 7037 provides for sanctions where an offending party fails to obey a court order to provide or permit discovery. Rule 7037(b)(2) provides in pertinent part:
If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, or if a party fails to obey an order entered under Rule 26(f), the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
.   .   .   .   .
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
Any party who seeks to evade or thwart full and candid discovery incurs the risk of serious consequences under this Rule. 8 C. Wright & A. Miller, Federal Practice & Procedure, § 2281 (1970). This Court entered such an order on September 18, 1989, requiring the debtor's tax returns and records be made available to creditors' counsel. In addition, the debtor was orally advised by the Court on many occasions to cooperate in the discovery process. The Court, earlier in this opinion, noted the debtor's lack of cooperation in the discovery process.
Due to fraud perpetrated by the debtor, this case was converted to Chapter 7. The Court's findings of fact and conclusions of law, entered October 31, 1989, set forth in detail the circumstances surrounding the debtor's activities. Most notable is that the debtor made intentional omissions, gave evasive responses, and made other fraudulent misrepresentations at the Section 341 meeting, the 2004 examination, and in hearings before this Court concerning the purchase and operation of the Gull Ranch and cattle transactions with Roger and Cindy Armstrong. The debtor's lack of cooperation in disclosing the true nature and extent of his financial condition seriously hampered the efforts of creditors' counsel and resulted in the continuance of several hearings set by this Court. The debtor's tactics and conduct frustrated the rights of his creditors and thwarted the bankruptcy process. His unjustifiable actions have caused the unnecessary escalation of legal fees and creditor costs. Mr. Alderson's activities warrant the granting of Rule 7037(b)(2) sanctions against him and in favor of Mrs. Gull and Roger and Cindy Armstrong.
*679 The Court finds that Mr. Alderson violated Rule 7037(b)(2) through his omissions, misrepresentations, and lack of cooperation in discovery. Attorney Reid is directed to submit to the debtor and file with the Court an itemized schedule of fees and costs incurred through October 31, 1989, the date of entry of the Court's order of conversion. He may include fees and costs incurred in pursuing the motion for terms against the debtor. The debtor will be allowed ten days to submit a written response to the Court and opposing counsel. The Court will, thereafter, determine the sum allowable as terms under Rule 7037(b)(2).
Attorney Lefholz requests $11,525.65 in compensation and reimbursement of expenses attendant with this case. The time sheets attached to his application show his first entry to be on May 5, 1989, and the last entry to be on November 7, 1989. Expenses were first incurred on May 8, 1989, and last incurred on December 22, 1989.
Attorney Reid, on behalf of Mrs. Gull, objects to the fee application on numerous grounds but primarily because of the lack of success in confirming a Chapter 12 plan, the conversion of the case to a Chapter 7, and the deficiencies within the application itself.
Compensation of professionals is primarily governed by § 330(a) of the Code, which states:
After notice ... the court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title, or to the debtors attorney
(1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney, as the case may be ... based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and
(2) reimbursement for actual, necessary expenses.
Under B.R. 2016(a), an entity seeking compensation for services or reimbursement for expenses must file an application with the Court setting forth a detailed statement of (1) the services rendered, time expended and expenses incurred, and (2) the amount requested.
The burden of proof in a request for the approval of professional fees and expenses is on the applicant. In re Yankton College, 101 B.R. 151 (Bankr.D.S.D. 1989), see also In re Grimes, 115 B.R. 639 (Bankr.D.S.D.1990).
In evaluating an application for the approval of compensation and expenses, the Court utilizes the lodestar approach and the twelve factors recognized in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). However, the Court may reduce the fees otherwise payable to the debtor's counsel when counsel knew or should have known that conversion was inevitable. See In re S & E Oil Co., 66 B.R. 6 (Bankr.W.D.La.1986), and In re Freedlander, Inc., The Mortgage People, 103 B.R. 752 (Bankr.E.D.Va.1989).
In S & E, Judge Bernhard noted that the debtor's attorney "allowed the tail to wag the dog" by letting his client oppose the efforts of the trustee and create unnecessary and costly delays in the administration of the case. Judge Bernhard then noted that "[l]ong prior to conversion it should have been obvious to counsel that the debtor would not be able to reorganize." Id. at 8. The Court then determined that twenty percent of the services rendered were not necessary, and the fee was reduced by that percentage.
In Freedlander, supra, Judge Shelley denied a portion of the debtor's attorney's fees, relying on S & E and noting that "[t]he `writing on the wall' was even more clear in the instant case. Counsel should have restricted its efforts ... with conversion plainly in prospect. And Counsel should have ceased all work when ... it became apparent that conversion inexorably approached." Id. at 758. Fees were then reduced accordingly.
Circumstances dictate that Attorney Lefholz should have known that this case was a candidate for conversion prior *680 to the October 3 hearing when conversion was ordered. It appears from the record that the debtor generated a significant portion of his income from the sale of timber taken off the ranch. The timber income was never divulged in the debtor's schedules. Moreover, much income was derived by the debtor from pasturing cattle and horses for other producers. The details of the pasturing arrangements came to light during the hearing. It is questionable whether proceeds from these activities would be classified as farm income under the Code. Income from timber harvesting is includable in farm income when such is done on a sustained yield basis and is part of an integrated farming operation. In re Sugar Pine Ranch, 100 B.R. 28 (Bankr.D. Or.1989). Here, the harvesting of timber is neither on a sustained yield basis nor a part of an integrated farming operation. Rather, it was a one time removal of timber from the ranch. Pasturing livestock in return for a fee and where the debtor is not exposed to the normal risks inherent in farming does not constitute farm income under the Code. See, e.g., In re Hampton, 100 B.R. 535 (Bankr.D.Or.1987) (custom farming for a fee does not constitute farm income under § 101(17) where the debtor bears no risk in raising and harvesting the crop), and Armstrong v. Corn Belt Bank, 55 B.R. 755 (Bankr.C.D.Ill.1985), affd., 812 F.2d 1024 (7th Cir.1987) (debtor's income must have some connection with the inherently speculative nature of farm income).
It was revealed at the hearings that the debtor had generated $100,000.00 in income from the sale of timber and had sold over 1,200 acres of property to make payments under the Gull Ranch purchase agreement. The debtor was cannibalizing the ranch to fund its purchase and to pay current expenses. The only source of income listed in the debtor's schedules is for "cow care" which generated $2,500.00 per month. Realistically, this source of income would exist for only a limited period of time during any year. This raised the question of whether the debtor, in good faith, could propose a feasible plan.
It appears to the Court that the underlying problem was the inability of Attorney Lefholz to gain the complete cooperation and confidence of his client. As a result, Attorney Lefholz first learned of many facts at the hearings when the same should have been discovered from his client beforehand. The Court believes that the debtor and Attorney Lefholz had the duty to ascertain and present the debtor's true financial condition rather than fobbing off this process on Attorney Reid, whose extensive investigation exposed the fallacies of the debtor's schedules and proposed plan.
Attorney Lefholz had an obligation to determine whether there was any merit in the motions and objections raised by the creditors in this case. The volume and tenor of those motions should have alerted Attorney Lefholz of the fact that there were numerous problems and serious questions about the debtor's farming/ranching operation, and that confirmation was doubtful.
At several hearings Attorney Lefholz expressed his frustrations in trying to deal with a recalcitrant client. An attorney's remedy is to decline further representation, an option that Attorney Lefholz ultimately exercised in this case. See Rule 1.16(b) of the South Dakota Rules of Professional Conduct.[1] The Court will not condone or *681 compensate efforts that are spent not reorganizing the debtor, but instead lending themselves to facilitating the debtor's malevolent efforts and motives. Attorney Lefholz was not under any compulsion to continue to represent Mr. Alderson. Mr. Lefholz's explanation for his withdrawal was a recognition of the very things previously discussed in this opinion. In the Court's opinion, Attorney Lefholz's cognition about his relationship with his client was long overdue. This is reflected in the Court's consideration of his fee application.
In summary, the Court believes that every debtor's attorney must discern the debtor's true financial condition to determine whether reorganization under the Bankruptcy Code is the proper course of action. Professor Thomas Jackson wrote:
Bankruptcy law can and should help a firm stay in business when it is worth more to its owner alive than dead. That is a far cry, however, from saying that it is an independent goal of bankruptcy law to keep firms in operation. Not all businesses are worth more to their owners  or to society  alive than dead, and once one recognizes that, one has to identify which firms bankruptcy law should assist and why. Saying that bankruptcy law `exists' to help keep firms in operation helps not at all in drawing that line.
T. Jackson, The Logic and Limits of Bankruptcy Law (1986).
The Court must determine at which point Attorney Lefholz knew or should have known that conversion of Alderson's case was plainly in prospect. A review of the hearings suggests that Attorney Lefholz knew or should have known this after the hearing on September 14, 1989. Too many inconsistencies and impediments had surfaced by that date. It had become apparent that the debtor was dissipating the assets of the Gull Ranch, and that many of his business transactions were fraudulent. It was clear that the debtor's schedules and statements were inaccurate and incomplete, and that the debtor's true financial condition could not be ascertained because of the debtor's propensity for fabrication. Mr. Alderson diverted efforts from reorganization to frustration of creditors. Therefore, the Court will allow attorney fees and costs only through September 14, 1989.
Attorney Lefholz requested fees and reimbursement for expenses totaling $11,525.65, including sales tax. His fee was set at $75.00 per hour. His fee application reflects that 79.3 hours were devoted to this case through September 14. Consideration of the twelve Johnson factors[2] leads the Court to conclude that the application is generally acceptable with the exceptions noted below. The Court deleted the following from those hours billed through September 14, as they appear to be ministerial in nature or of a benefit to Mr. Alderson personally rather than to the bankruptcy estate, see In re Reed, 890 F.2d 104 (8th Cir.1989):

Date        Time       Comment
5-16-89      .5        Preparation of mailing matrix
5-25-89      .1        Examination of letter from bankruptcy clerk
5-26-89      .2        Call to client re: office appointment
7-21-89      .2        Letter to client confirming 2004 exam
8-7-89       .2        Call to Perle O'Daniel re: cattle
*682
Date        Time       Comment
8-8-89       .2        Call from Perle O'Daniel re: cattle
8-8-89      1.2        Examination re: exemptions
8-22-89      .2        Call to client re: office conference
8-29-89     1.0        Conference with client re: dischargeability
           ____
    Total   3.8
    Total hours allowed: 75.5 hours at $75.00  =  $5,662.50
            + 6% tax                           =     339.75
                                                  _________
                                     Total        $6,002.25

Attorney Lefholz also requests reimbursement for certain expenses incurred during the pendency of this case totaling $1,071.40. Expenses incurred through September 14 total $505.10. While the itemization of expenses lacks detail, the Court will allow them in full with the caveat that Attorney Lefholz provide more detailed itemization in future requests.

   Total fees allowed              $6,002.25
   Total expenses allowed             505.10
                                   _________
             Grand Total           $6,507.35

Pursuant to § 726(b) of the Bankruptcy Code, Attorney Lefholz's fees and expenses will be subordinated to the § 503(b) administrative expenses that have been or will be incurred in this case since the date it was converted.
This constitutes the Court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52 and Bankruptcy Rules 7052 and 9014. This is a core proceeding under 28 U.S.C. § 157(b)(2)(A). The Court will enter an appropriate order.
ORDER DENYING RECONSIDERATION, ASSESSING TERMS AND APPROVING APPLICATION FOR COMPENSATION AND REIMBURSEMENT
Pursuant to the Memorandum Decision filed in this matter and executed this same date
IT IS HEREBY ORDERED that Attorney Rodney C. Lefholz's motion to reconsider the Court's order dated November 22, 1989, is denied.
IT IS FURTHER ORDERED that creditors Eunice Gull and Roger and Cindy Armstrong's motions for terms against Attorney Lefholz are denied.
IT IS FURTHER ORDERED that creditors Eunice Gull and Roger and Cindy Armstrong's motions for terms against debtor L.D. Alderson are granted.
IT IS FURTHER ORDERED that Attorney Rodney C. Lefholz's application for fees and reimbursement of costs is approved in the amount of $6,507.35, to be subordinated to the costs of administration of debtor's converted Chapter 7 case.
NOTES
[1]  Rule 1.16(b) and the comment to the Rule, as codified in the appendix to SDCL Title 16-18 provide, in salient part:

[A] lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:
(1) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
(2) the client has used the lawyer's services to perpetrate a crime or fraud;
(3) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;
(4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(6) other good cause for withdrawal exists.
[2]  The factors to be considered under Johnson are:

1. the time and labor required
2. the novelty and difficulty of the questions
3. the skill required to perform legal services properly
4. the preclusion of employment due to acceptance of the case
5. the customary fee
6. whether the fee is fixed or contingent
7. time limitations imposed by the client or the circumstances
8. the amount involved and the results obtained
9. the experience, reputation and ability of the attorney
10. the undesirability of the case
11. the nature and length of the professional relationship with the client
12. awards in similar cases