                    UNITED STATES COURT OF APPEALS
Filed 2/21/96TENTH CIRCUIT

WILLIAM E. LEWIS,                                             )
                                                              )
       Plaintiff-Appellant,                                   )
                                                              )
       v.                                                     )      No. 95-1161
                                                              ) (D.C. No. 93-S-2073)
McDONNELL DOUGLAS CORPORATION,                                )     (Dist. Colo.)
a Maryland corporation,                                       )
                                                              )
       Defendants-Appellees.                                  )
                                                              )

                                  ORDER AND JUDGMENT*

Before TACHA, HOLLOWAY, and BRISCOE, Circuit Judges.

       Plaintiff, William E. Lewis, appeals the district court's order granting summary

judgment in favor of his former employer, McDonnell Douglas Corporation, on his claim

under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. We affirm.

       In early 1992, Lewis was employed as a department manager for Instructional

Technology at McDonnell Douglas Corporation’s (MDC) McDonnell Douglas Training

Systems (MDTS) facility in Aurora, Colorado. Lewis was 51 years old, was approaching

his 25th year with MDC, and would have been fully vested under MDC’s retirement

benefit system in approximately 4 years.

       In April 1992, MDC announced the closing of the Aurora facility effective

       *
          This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders
and judgments; nevertheless, an order and judgment may be cited under the terms and conditions
of 10th Cir. R. 36.3.
November 1992, and the transfer of most of the Aurora operations to MDC’s world

headquarters in St. Louis. As a result of the closure, all 189 positions at Aurora were

scheduled to be eliminated. Because much of the work performed in Aurora was to be

transferred to other facilities, MDC created several new positions at the locations. MDC

managers Calvin Cooper, Ken Bloms, Bill James, and Joe Reeves were solely responsible

for identifying new positions that needed to be created. As these new positions were

identified and created, notice was posted on a bulletin board in Aurora and interested

Aurora employees were allowed to apply for the positions.

       Lewis alleges his primary concern was staying with MDC so that he could obtain

full retirement benefits and eligibility. Thus, Lewis alleges, “[m]oney was no sticking

point and a significant pay cut was not an issue.” Appellant’s br. at 2. Although he

regularly checked the Aurora bulletin board, he did not apply for any of the posted

positions. However, Lewis did contact Mark Darrah, manager of Department 354,

MDC’s St. Louis Design Engineering Department, about possible employment.

Specifically, Lewis telephoned Darrah sometime in April 1992, and thereafter faxed him

a resume and cover letter on May 12, 1992. The cover letter stated:

              Enclosed find my resume and one from Bill Ton.
              Just a few words about Bill. He has worked for me during most of
       both of his stints with MDC. He is a very bright and innovative person with
       a great deal of technical expertise. In short, he’s a great asset. Bill is a
       Senior Technical Specialist, grade 63.
              As for myself, I would prefer St. Louis (or other parts of the country)
       work that commences late this fall or early this winter -- we have some
       construction underway at our residence and I would like to finish my
       responsibilities to Aurora’s site manager.
              I’m currently a grade 78 (a MCAIR reorg. holding grade), Level F
       manager. I’d prefer, if possible, a Principal Technical Specialist slot.
              So you can get an idea of my capabilities/skills, I thought I’d pass on
       the names of some MCAIR, St. Louis folks you can talk to. These are
       people I’ve worked with, or for. Unfortunately, many others have recently

                                             2
       retired.
               Larry Lemke                        Denny Behm
               Bob Soucy                          Mike Tkach
               Dan Baerthel                       Larry Doyle
               Ed Winkler                         J. D. Willow

Appellant’s append. II at 500.

       At the time he received Lewis’ letter and resume, Darrah was reviewing candidates

to fill 3 to 5 “entry-level” positions in Department 354's Human Performance Laboratory

(none of which were created as a result of the closing of the Aurora facility). According

to Darrah, he weighed Lewis' qualifications and background when he received his

resume, and decided Lewis “was a much higher level than an entry level position,” and

“his experience was not germane to the openings.” Appellant’s append. I at 277.

       Darrah subsequently hired Katrine Helbing and Donna Murray, two female college

recruits in their mid-20's, to fill two of the positions in Department 354. With respect to

the position filled by Murray, Darrah stated that Lewis did not have “entry level

armament loading experience,” and his background and experiences “were not technically

matched to what these programs needed.” Appellant’s append. I at 283-84. With respect

to the position filled by Helbing, Darrah thought that Lewis probably could not have

performed the job because

       [t]he Helbing job was specific to a very highly technical level of understanding
       human vision and visual interaction with controls and displays. At the time
       [Lewis] worked in these areas, he did not work at the technical level that today’s
       world demands, things like night vision optics. Flying very fast at low levels at
       night in bad weather requires a very high level of technical experience in optical
       systems.

Appellant’s append. I at 285.

       Lewis' employment was terminated on November 20, 1992. He filed an age

discrimination charge with the Equal Employment Opportunity Commission and

                                             3
subsequently filed this action in the spring of 1994. Although Lewis originally alleged

two separate and distinct episodes of age discrimination, one focusing on the denial of an

opportunity to compete for the Department 354 positions and one focusing on the closure

of the Aurora facility, he subsequently stipulated that his claim of age discrimination

related solely to his application for employment in Department 354.

       MDC filed a motion for summary judgment, and the district court issued a written

order granting MDC’s motion. The court concluded: (1) Lewis “was not suitably

qualified for the two entry-level positions” in Department 354 because his grade level at

the time of application was “much higher than an entry-level position” and he “did not

express to [Darrah] that he would be willing to accept an entry level position”; (2) Lewis’

experience was not germane to the openings in Department 354 because his relevant

experience was not recent and did not fit the specific needs; and (3) Lewis did not

actually apply for the two entry-level positions in Department 354. Appellant’s append.

III at 669-70. Moreover, the court rejected Lewis' “subjective belief that MDC was trying

to save money on retirement benefits,” as well as evidence of stray remarks made by

certain MDC employees concerning his age and appearance. Id. at 670. The court

concluded that, even if Lewis could present a prima facie case of age discrimination, he

could not “meet his burden on summary judgment of discrediting MDC’s

nondiscriminatory reasons for his nonselection and presenting credible evidence to show

that age actually played a determinative role in MDC’s decisionmaking process.” Id. at

673.

       We review the district court’s grant of summary judgment de novo, applying the

same standard as the district court under Fed. R. Civ. P. 56(c). Universal Money Centers

                                             4
v. American Tel. & Tel., 22 F.3d 1527, 1529 (10th Cir.), cert. denied, 115 S.Ct. 655

(1994). Summary judgment is appropriate if “there is no genuine issue as to any material

fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(c). We examine the factual record and reasonable inferences therefrom in the light

most favorable to the nonmoving party. Applied Genetics, Intern. v. First Affiliated

Securities, 912 F.2d 1238, 1241 (10th Cir. 1990). If there is no genuine issue of material

fact in dispute, we must determine whether the district court correctly applied the law. Id.

       Although this case arose from a reduction in force at MDC’s Aurora facility,

Lewis' theory of discrimination is more analogous to a failure-to-hire claim. Specifically,

Lewis is not claiming that he was treated less favorably than younger employees during

the reduction in force; rather, he is claiming the positions he allegedly applied for in

Department 354 were filled by younger people. Accordingly, to establish a prima facie

case of age discrimination under a “failure-to-hire” theory, Lewis must show (1) that he

belongs to the protected class, (2) that he applied for and was qualified for the job, (3)

that despite his qualifications he was rejected, and (4) that the employer either ultimately

filled the position with someone sufficiently younger to permit an inference of age

discrimination or continued to seek applicants from among those having Lewis'

qualifications. Barber v. CSX Distribution Services, 68 F.3d 694, 698 (3d Cir. 1995); see

also Coe v. Yellow Freight System, 646 F.2d 444, 448-49 (10th Cir. 1981).

       Once a plaintiff establishes a prima facie case, the law creates a presumption of

unlawful discrimination, and the defendant employer must articulate a legitimate,

nondiscriminatory reason for not hiring the plaintiff. Texas Dept. of Community Affairs

v. Burdine, 450 U.S. 248, 254 (1981). The employer "need not persuade the court that it

                                              5
was actually motivated by the proffered reasons," but satisfies its burden merely by

raising "a genuine issue of fact as to whether it discriminated against the plaintiff." Id. at

254. If the burden of production is carried by the defendant, the plaintiff is given the

opportunity to prove the reasons provided by the employer are a pretext for

discrimination. Id. at 253. The plaintiff retains the ultimate burden of proving he was the

victim of intentional discrimination. Id.

       Assuming for purposes of argument that Lewis can establish a prima facie case of

discrimination, MDC has offered evidence demonstrating legitimate, nondiscriminatory

reasons why he was not hired for either of the positions in Department 354. Specifically,

the testimony of Darrah indicates that Lewis did not have the recent technological

background or experience. This testimony is supported by a review of Lewis'

employment biography, which indicates his educational background was in psychology,

not engineering. In contrast, Helbing and Murray had recently graduated with degrees in

industrial and systems engineering and human factors engineering, respectively.

Appellant’s append. II at 521, 532. Although Lewis offered evidence indicating he had

actual work experience in the area of human factors, he has not controverted Darrah’s

conclusion that this experience was “not technically matched to what these programs

needed.” Appellant’s append. I at 284; see Branson v. Price River Coal Co., 853 F.2d

768, 772 (10th Cir.1988) (in deciding whether an employee is qualified for a position

with her employer, "[i]t is the perception of the decision maker which is relevant, not [the

employee's] perception of herself.").

       Finally, Lewis has failed to present any evidence from which a finder of fact could

conclude that MDC’s proffered reasons for not hiring him in Department 354 were

                                              6
pretextual. With respect to the various remarks allegedly made by management personnel

at the Aurora facility concerning his clothing and age, they amount to nothing more than

“stray” remarks that have no connection to the alleged discrimination. See Palochko v.

Manville Corp., 21 F.3d 981, 982 (10th Cir. 1994); Cone v. Longmont United Hosp.

Ass'n, 14 F.3d 526, 531 (10th Cir. 1994). None of the people who allegedly made these

remarks had any input into Darrah’s hiring decisions. As for the lack of written job

descriptions for either of the positions at issue, this fact is insufficient to demonstrate

pretext when considered with all of the surrounding facts. Undoubtedly, such evidence

would have bolstered Darrah’s testimony concerning the qualifications necessary for the

positions. However, Lewis has not legitimately attacked those qualifications, and the lack

of written job descriptions is irrelevant.

       Lewis has failed to present sufficient evidence to create a genuine issue of fact

concerning whether MDC discriminated against him on the basis of his age. The order

granting MDC's motion for summary judgment is AFFIRMED.

                                                    Entered for the Court

                                                    Mary Beck Briscoe
                                                    Circuit Judge

                                               7


10 Cal.App.2d 128 (1935)
THE PEOPLE, Respondent,
v.
EDWARD KEPFORD, Appellant.
Crim. No. 1440.
California Court of Appeals. Third Appellate District.
November 12, 1935.
 Edward Kepford, in pro. per., for Appellant.
 U.S. Webb, Attorney-General, and Ralph H. Cowing, Deputy Attorney-General, for Respondent.
 Deirup, J., pro tem.
 The defendant was convicted of the crime of burglary in the second degree upon evidence which may be summarized as follows:
 Ralph Watson owned a poultry ranch. The defendant was the owner of a blue "Nash" sedan, around which was a narrow white stripe, and on three occasions the defendant had visited the ranch in his car. On the evening of February 10, 1935, Latima Ziemann, a neighbor, while driving slowly past the Watson place, observed a blue "Nash" sedan parked at the side of the road. She noticed a streak of "a bright color", which she recalled as being yellow, around the car. On the following morning Watson discovered that his barn had been broken into and that two egg cases, each half-full of eggs, had been stolen. Andrew Herzer, who lived on a ranch in an adjoining county, testified that about three weeks or a month prior to March 15, 1935, the defendant brought an egg case, partly full of eggs, to that place in his blue sedan. Andrew's mother testified that the case arrived at the time when the defendant did. Louis Totman, a deputy sheriff, took the egg case from the Herzer home on March 15th. It was offered in evidence, and was identified by Watson as being exactly like one of the two that had been stolen. The defendant did not account for his possession of the article.
 Defendant contends that each of the circumstances as proven failed to show, beyond a reasonable doubt, that he was connected with the crime. The "Nash" car seen at the edge of the road was not positively identified as being his, and the egg case shown to have been in his possession was not definitely proven to be the one which was stolen. Defendant argues that each of the circumstances must be viewed separately in the light of the presumption of innocence. *130
 [1] The jury had before it all of the circumstances connecting the defendant with the crime, and it was their province to draw inferences therefrom. The ownership of an automobile similar to one observed near the scene of a crime was held, in People v. Latona, 2 Cal.2d 714 [43 PaCal.2d 260], to be a circumstance indicating guilt, and testimony that an article found in a defendant's possession is similar to one that was stolen, is a sufficient identification, in the absence of an explanation by the defendant. (People v. Frahm, 107 Cal.App. 253 [290 P. 678].) We think that the circumstances in this case fully justified the conclusion of the jury, as expressed in their verdict; but even if we were of the opinion that they might be reasonably reconciled with the innocence of the defendant, we should not be warranted in interfering with the determination of the jury. (People v. Latona, supra.)
 [2] There was some conflict in the evidence as to whether the stripe on defendant's car was white or yellow, or a quarter of an inch wide, or less. The defendant asked the court to order a view of the automobile by the jury, and asserts that he was prejudiced by refusal of the court to do so. It is apparent, however, that such discrepancies in the testimony as are shown by the record were immaterial; furthermore, the making of an order for a view, pursuant to the provisions of section 1119 of the Penal Code, "is a matter committed solely to the discretion of the court, and it is difficult to conceive of a case in which the facts would justify a reversal for an abuse of such discretion." (People v. Wong Hing, 176 Cal. 699 [169 P. 357].)
 [3] The burglary was committed in Elkhorn township. The complaint against the defendant was filed in Stockton township, in the same county. Defendant contends that the justice of the peace of the latter township lacked jurisdiction to hold the defendant to answer in the superior court. It is, however, settled that a complaint charging the commission of a public offense may be filed before any magistrate within the county in which the offense was committed, and such magistrate has jurisdiction to hold the defendant to answer. (People v. Van Zandt, 123 Cal.App. 520 [11 PaCal.2d 645].)
 The judgment and order are affirmed.
 Pullen, P. J., and Thompson, J., concurred.


84 So.3d 1026 (2010)
STEPHANIE CHANEY
v.
STATE.
No. CR-09-1328.
Court of Criminal Appeals of Alabama.
July 15, 2010.

DECISION WITHOUT PUBLISHED OPINION
Dismissed.


380 S.C. 226 (2008)
669 S.E.2d 595
The STATE, Respondent,
v.
Donnie Raymond NELSON, Appellant.
No. 4423.
Court of Appeals of South Carolina.
Submitted June 2, 2008.
Decided July 8, 2008.
Rehearing Denied October 28, 2008.
*227 Appellate Defender Kathrine H. Hudgins, of Columbia, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Julie M. Thames, all of Columbia; and Solicitor Robert Mills Ariail, of Greenville, for Respondent.
*228 WILLIAMS, J:
In this criminal case, we affirm the trial court's decision to admit into evidence the statement of Jarvis Clement (Clement).

FACTS
Donnie Nelson (Nelson), along with two co-defendants,[1] proceeded to trial on charges arising from the robbery of Grady Blassingame's barbershop. Investigator Tammy Patton (Patton) learned Clement was involved in the robbery of another barbershop named the Distinguished Gentlemen. Patton interviewed Clement regarding the robbery of the Distinguished Gentleman. During this interview, Clement revealed the details of the Blassingame robbery.
According to Clement, the following occurred on the day of the Blassingame robbery. Shortly after arriving at Nanu's house, Nanu drove Nelson, Clovis, and Clement to a location across the street from the Blassingame barbershop. Nelson and Clovis exited the vehicle and entered the Blassingame barbershop while Nanu and Clement drove around the block multiple times. After the robbery, the four men returned to Clovis' house.
The State moved to introduce into evidence Clement's written statement obtained by Patton. Nelson, along with the other co-defendants, objected. The trial court allowed the statement into evidence. Nelson was found guilty of one count of armed robbery, two counts of possession of a weapon during the commission of a violent crime, and one count of conspiracy to commit armed robbery. Nelson was sentenced to seventeen years imprisonment for the armed robbery charge, five years imprisonment for the weapon charges, and five years imprisonment for the conspiracy charge, all sentences to run concurrently. This appeal follows.

STANDARD OF REVIEW
In criminal cases, this Court reviews errors of law only. State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 *229 (2001). An appellate court is bound by the trial court's factual findings unless they are clearly erroneous. Id. The admission of evidence is within the sound discretion of the trial court. State v. Pittman, 373 S.C. 527, 577, 647 S.E.2d 144, 170 (2007). To constitute an abuse of discretion, the conclusions of the trial court must lack evidentiary support or be controlled by an error of law. Id.

LAW/ANALYSIS
Nelson argues the trial court erroneously relied on Rule 801(d)(1)(B), SCRE, in admitting Clements written statement.[2] We disagree.
Pursuant to Rule 801(d)(1)(B), SCRE, a statement is not hearsay if
[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . consistent with the declarants testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; provided, however, the statement must have been made before the alleged fabrication, or before the alleged improper influence or motive arose . . . .
The South Carolina Supreme Court has explained the following elements must be satisfied before a prior consistent statement can be admitted into evidence based upon Rule 801(d)(1)(B):
(1) the declarant must testify and be subject to cross-examination, (2) the opposing party must have explicitly or implicitly accused the declarant of recently fabricating the statement or of acting under an improper influence or motive, (3) the statement must be consistent with the declarant's testimony, and (4) the statement must have been *230 made prior to the alleged fabrication, or prior to the existence of the alleged improper influence or motive.
State v. Saltz, 346 S.C. 114, 121-22, 551 S.E.2d 240, 244 (2001).
Before we address these elements, we must first determine whether Clement is the declarant. We find Clement is the declarant because he made oral statements intended to be assertions. Rule 801(a), (b), SCRE (explaining that a statement is an oral or written assertion intended to be an assertion and an individual who makes a statement is a declarant). With this is mind, we now turn our attention to the elements set out in Saltz.
It is undisputed that Clement testified and was subject to cross-examination; thus, the first Saltz element is satisfied. With respect to the second element, opposing counsel implicitly accused Clement of acting under an improper motive or influence by accusing Clement of lying in order to gain favorable sentencing. Specifically, at the time of his interview, Clement was incarcerated for a forgery charge. As noted above, Clement was involved in the robbery of the Distinguished Gentlemen. Patton became aware of Clement through Clements accomplice in the robbery of the Distinguished Gentlemen. Patton interviewed Clement regarding the Distinguished Gentlemen. During this interview, Clement revealed the details of the Blassingame robbery.
As a result of his involvement in the two robberies, Clement was at minimum facing the following charges: two armed robberies, two kidnappings, conspiracy, and possession of a weapon during the commission of a violent crime. At the time of the trial, Clement had been sentenced on the conspiracy charge and the possession charge, but he was still awaiting sentencing on the remaining charges. Counsel for the defense repeatedly accused Clement of being untruthful in order to gain a more lenient sentence for the remaining charges. Thus, the second Saltz element is fulfilled.
The third element requires Clements written statement be consistent with his trial testimony. This element is also met. In his written statement, Clement stated on the day of the Blassingame robbery he went to Nanu's house and saw Nelson there. Clement also stated Nanu drove the four-member party to a location across the street from the Blassingame *231 barbershop, Nelson and Clovis were dropped off and entered the barbershop, and Nanu drove repeatedly around the block until Nelson and Clovis exited the barbershop and entered Nanu's car at the location where they originally exited the vehicle. Clement repeated this account during his testimony.
Although it is true during trial Clement did not remember a few of the statements he made to Patton, we recognize two years passed between Clement's statement to Patton and the trial. The trial occurred on January 18, 2006, and Clement gave his statement to Patton on January 3, 2004. We acknowledge it could be difficult for Clement to recollect every detail due to this two year time interval. Additionally, viewing Clement's statement and his testimony as a whole, we conclude his statement is consistent with his testimony.
The final element that must be met is the statement must have been made prior to the alleged fabrication or prior to the existence of the alleged improper influence or motive. Saltz, 346 S.C. at 121-22, 551 S.E.2d at 244. Nelson argues the statement to Patton was made after the existence of a motive to fabricate, namely in the hopes of receiving a lenient sentence. We disagree.
Even if we were to assume, without deciding, that Clement had an improper motive for fabricating the truth, this motive did not arise until after the statement was made. As explained above, at the time of his interview, Clement was incarcerated for a forgery charge. Clement volunteered the information concerning the robberies of the Distinguished Gentleman and the Blassingame barbershop during an interview with Patton. The record is devoid of any evidence that Patton made any offers of leniency in order to induce Clement to make the statement. State v. Serrette, 375 S.C. 650, 652, 654 S.E.2d 554, 555 (Ct.App.2007) (stating the burden is on the appellant to provide an appellate court with an adequate record for review); see Rule 210(h), SCACR (stating an appellate court need not consider any fact which does not appear in the record). Therefore, the final Saltz element is met, and the trial court properly admitted the evidence based on Rule 801(d)(1)(B).

*232 CONCLUSION
Accordingly, the trial court's decision is
AFFIRMED.[3]
THOMAS and PIEPER, JJ., concur.
NOTES
[1]  The names of the co-defendants are Lawrence Waller, also known as Nanu (Nanu), and Lawrence Clovis (Clovis).
[2]  The State argues this issue is not preserved for review. We disagree. An objection was raised regarding the admissibility of Clement's written statement, and the trial court allowed the statement into evidence based on Rule 801(d), SCRE. See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (holding for an issue to be preserved for appeal it must have been raised to and ruled upon by the trial court).
[3]  We decide this case without oral arguments pursuant to Rule 215, SCACR.


976 So.2d 526 (2006)
DAVID L. LUCAS
v.
STATE.
No. CR-05-0021.
Court of Criminal Appeals of Alabama.
January 6, 2006.
Decision of the Alabama Court of Criminal Appeal Without Opinion. Reh. denied.


                                ATTORNEY GENERAL OF TEXAS
                                             GREG         ABBOTT

                                                 October 13.2004

The Honorable Charles A. Rosenthal Jr.                     Opinion No. GA-0259
Harris County District Attorney
1201 Franklin Street, Suite 600                            Re: Whether the attorney representing the state
Houston, Texas 77002                                       under chapter 59 of the Code of Criminal
                                                           Procedure may transfer forfeited property to the
                                                           attorney’s own office (RQ-021 l-GA)

Dear Mr. Rosenthal:

         You ask two questions concerning forfeiture proceedings:     first, whether chapter 59 of the
Code of Criminal Procedure authorizes the attorney representing the state to transfer forfeited
property to the attorney’s own office if the transfer accords with accepted accounting practices and
the terms of a local agreement with the seizing law enforcement agencies; and second, whether a
district attorney’s office is a “law enforcement agency” that, under chapter 59 of the Code of
Criminal Procedure, may receive a transfer of forfeited property.’

         You state that law enforcement officers in Harris County, including peace officers of the
district attorney’s office, seize property such as vehicles, furniture, jewelry, and computer equipment,
which a court then may order forfeited as contraband under Chapter 59 of the Code of Criminal
Procedure. See Request Letter, sups note 1, at 1; Brief, supra note 1, at 3. The district attorney’s
office has a local agreement with certain law enforcement agencies that, among other things,
provides that “[tlhree out of every ten motor vehicles shall be forfeited to the District Attorney for
official use and operation, unless expressly waived by the District Attorney’s Office.” Brief, sugra
note 1, at 5.

         Under chapter 59 of the Code of Criminal Procedure, a peace officer may seize certain
property as contraband subject to forfeiture. See TEX. CODE GRIM. PROC. ANN. arts. 59.01(2), 59.03
(Vernon Supp. 2004-05). If a district court determines after a hearing that property is contraband
subject to forfeiture, the court must “forfeit the property to the state, with the attorney representing
the state acting as the agent of the state.” Id. art. 59.05(e). The “attorney representing the state” in
chapter 59 is defined as “the prosecutor with felony jurisdiction in the county in which a forfeiture
proceeding is held,” certain city attorneys, and the attorney general. Id. art. 59.01(a). The attorney

        ‘See Letter from Honorable Charles A. Rosenthal Jr., Harris County District Attorney, to Honorable Greg
Abbott, Texas Attorney      General (Apr. 12, 2004) ( on tile with Opinion            Committee,      also available at
www.oag.state.tx.us) [hereinafter Request Letter]; Brief attached to Request Letter, at 1 [hereinafter Brief].
The Honorable   Charles A. Rosenthal Jr. - Page 2            (GA-0259)

representing the state has the duty, “[o]n final judgment of forfeiture,  [to] dispose ofthe property
in the manner required by Article 59.06 of this code.” Id. art. 59.05(e).

         The focus of your inquiry is article 59.06, which governs the disposition of forfeited
property. Article 59.06(a) requires the attorney representing the state to administer “all forfeited
property.      , acting as the agent of the state, in accordance with accepted accounting practices and
with the provisions of any local agreement entered into between the attorney representing the state
and law enforcement agencies.” Id. art. 59.06(a). The existence of a local agreement with a law
enforcement agency primarily determines how the attorney representing the state may proceed with
disposition of the property. See State Y. Twenty Thousand Four Hundred Eighty ($20,480) Dollars
in U.S. Currency, 865 S.W.2d 175, 176 (Tex. App.-Corpus Christi 1993, writ denied). Without a
local agreement, article 59.06(a) generally requires the property to be sold at public auction, and after
deducting certain payments and costs, the proceeds are to be deposited in the general revenue fund
of the state treasury. TEX. CODE GRIM. PROC. ANN. art. 59.06(a)(2) (Vernon Supp. 2004-05).

        When an attorney representing the state has executed a local agreement with a law
enforcement agency, the attorney has two principal options, as this office recently explained:

                The attorney may convey forfeited property to the law enforcement
                agency, which may “maintain, repair, use, and operate the property
                for official purposes.” Id. art. 59.06(b). Alternatively, pursuant to the
                local agreement, the attorney shall, after deducting certain costs,
                deposit “all money, securities, negotiable instruments, stocks or
                bonds, or things of value, or proceeds from the sale of those items”
                into special funds to benefit the attorney’s office and the appropriate
                law enforcement agency, to be used solely for official purposes. Id,
                art. 59.06(c)(1)-(4).

Tex. Att’y Gen. Op. No. GA-0122 (2003) at 3.

         You ask whether the attorney representing the state has a third principal option, namely,
whether chapter 59 authorizes the attorney representing the state to transfer property to the attorney’s
own office if the local agreement between the attorney and a law enforcement agency so provides.
See Request Letter, supra note 1, at 1; Brief, supra note 1, at 1. You suggest that article 59.06 may
be construed to that effect for several reasons. First, the statute does not expressly prohibit the
attorney representing the state to transfer property to the attorney’s office. See Brief, supra note 1,
at 1. Second, you contend that because subsection (b) states that the attorney “may” transfer property
to a law enforcement agency, the use of the word “may” indicates that the attorney has other options,
which could include transferring property to the attorney’s office. See Brief, supra note 1, at 3-4;
TEX. CODE GRIM. PROC. ANN. art. 59.06(b) (Vernon Supp. 2004-05). Finally, you suggest that
subsection (g)(l) seems to recognize that an attorney will receive property because the statute
provides that “[a]11 law enforcement agencies and attorneys representing the state who receive
proceeds or property.      shall account for the seizure, forfeiture, receipt, and specific expenditure
of all such proceeds and property in an audit[.]” TEX. CODE GRIM. PROC. ANN. art. 59.06(g)(l)
(Vernon Supp. 2004-05); Brief, supra note 1, at 4.
The Honorable Charles A. Rosenthal Jr. - Page 3             (GA-0259)

         In construing article 59.06, we consider the statute as a whole. See Helena Chem. Co. v.
WiZtins, 47 S.W.3d 486, 493 (Tex. 2001).            Article 59.06 expressly authorizes an attorney
representing the state to (1) transfer property to a law enforcement agency, and (2) to deposit
proceeds into accounts maintained for the benefit of the attorney representing the state and for law
enforcement agencies. See TEX.CODEGRIM.PROC.ANN. art. 59.06(b)-(c) (Vernon Supp. 2004-05).
The statute is otherwise silent with respect to the authority of an attorney representing the state to
transfer property. See id. Such silence is significant because, under the constitution, the legislature
regulates and prescribes the respective duties of county and district attorneys. See TEX. CONST. art.
V, 8 21; Garcia v. Laughlin, 285 S.W.2d 191, 194 (Tex. 1955). Accordingly, this office has
concluded that a district attorney has only those powers that have been delegated by the legislature.
See Tex. Att’y Gen. Op. No. JC-0395 (2001) at 2-3. Moreover, under article 59.06, the duties of
the attorney representing the state are expressly administrative. See TEX. CODE GRIM. PROC.ANN.
art. 59.06 (Vernon Supp. 2004-05). Generally, administrative agencies “may exercise only those
powers the law confers upon them in clear and express statutory language and those reasonably
necessary to fulfill a function or perform a duty that the Legislature has expressly placed with the
agency.” In re Entergy Corp., 142 S.W.3d 316, 322 (Tex. 2004); see also Subaru ofAm., Inc. v.
David McDavid Nissan, 84 S.W.3d 212, 220 (Tex. 2002). We believe that a court would apply
similar principles when construing article 59.06, so that an attorney representing the state will be
determined to possess only those powers expressly stated therein or necessarily implied.

         Under article 59.06, the existence of a local agreement is the controlling factor that
determines the authority ofan attorneyrepresenting   the state in administering forfeited property. See
TEX. CODE GRIM.PROC.ANN. art. 59.06 (Vernon Supp. 2004-05). This office has emphasized that
subsection (a) intends that “‘the disposition of forfeited property will be governed by the terms of
an existing local agreement in the first instance.“’ Tex. Att’y Gen. Op. No. GA-0005 (2002) at 2
(quoting LO-97-091, at 2); see also Tex. Att’y Gen. Op. Nos. GA-0122 (2003) at 1 n.4; JC-0075
(1999) at l-2. However, a local agreement cannot expand the authority of the attorney representing
the state beyond the powers authorized in article 59.06. The statute is quite specific that an attorney
representing the state may transfer property to a law enforcement agency pursuant to a local
agreement and does not authorize transfers to any other entity. See TEX. CODE GRIM. PROC.ANN.
art. 59.06(b)-(c) (Vernon Supp. 2004-05).

         Article 59.06(b), which provides that an attorney representing the state “may” transfer
property to a law enforcement agency, does not vest unlimited discretion in the attorney representing
the state. You suggest that the use of “may” is permissive so that the attorney representing the state
has discretion not to transfer property to a law enforcement agency and may instead transfer property
as the local agreement provides. The word “may” in a statute generally “creates discretionary
authority or grants permission or a power.” TEX. GOV’T CODE ANN. 5 3 11.016(l) (Vernon 1998).
In context, article 59.06(b) grants a district attorney the authority pursuant to a local agreement to
transfer property to a law enforcement agency only. The attorney representing the state has
discretion concerning the method ofdisposing or liquidating property, as this office recognized when
it advised an attorney that “as long as you administer the property in accordance with accepted
accounting practices and the provisions of your local agreement, you have the discretion to decide
how to dispose ofit most advantageously.” Tex. Att’y Gen. Op. No. JC-0075 (1999) at 1. However,
The Honorable Charles A. Rosenthal Jr. - Page 4                 (GA-0259)

under article 59.06 as written and as construed in JC-0075, an attorney representing the state does
not have discretion to decide in the first instance who is eligible to receive forfeited property.

         You interpret subsection (g)( 1) as implicitly recognizing the right of an attorney representing
the state to receive property because it states:

                All law enforcement        agencies and attorneys representing the state
                who receive proceeds       or property under this chapter shall account for
                the seizure, forfeiture,     receipt, and specific expenditure of all such
                proceeds and property       in an audit[.]

TEX. CODE GRIM. PROC. ANN. art. 59.06(g)(l)      (V emon Supp. 2004-05); see also id. art. 59.06(1)
(stating reporting requirements for a law enforcement agency or attorney representing the state who
does not receive “proceeds or property” during a certain time). However, by referencing to these
reporting requirements collectively, the statute does not necessarily imply that the attorney
representing the state is authorized to receive forfeited property or to transfer property to the
attorney’s own office. The answer to that question depends on whether the office of an attorney
representing the state is a “law enforcement agency” entitled to receive forfeited property under
article 59.06(b).

          Article 59.01(5) of the Code of Criminal Procedure defines a “law enforcement agency”
as “an agency of the state or an agency of a political subdivision of the state authorized by law
to employ peace officers.” TEX. CODE GRIM. PROC.ANN. art. 59.01(5) (Vernon Supp. 2004-05).
Prosecuting attorneys are authorized to employ investigators.        See TEX. GOV’T CODE ANN.
5 41.102(a) (Vernon 2004).         Under the Code of Criminal Procedure, a district attorney’s
investigators are included in the definition ofapeace officer. See TEX. CODE WM. PROC.ANN. art.
2.12(5) (Vernon Supp. 2004-05). Accordingly, a district attorney is authorized to employ peace
officers.

         Statutorily-defined words and phrases must be construed according to their statutory
definition. See TEx. GOV’T CODE ANN. $311 .Ol l(b) (Vernon 1998). Consequently, under article
59.06(b), the attorney representing the state may transfer forfeited property to a “law enforcement
agency” which, as defined in 59.01(5), includes the office ofthe district attorney. TEX. CODECRIM.
PROC. ikNN. arts. 59.01(5), 59.06(b) (Vernon Supp. 2004-05).

         Furthermore, in construing a statute, we may consider former statutory provisions on the
same or similar subject, administrative interpretation, circumstances under which a statute was
enacted, and the statute’s legislative history, among other matters, See TEX. GOV’T CODE ANN.
5 311.023 (Vernon 1998). Prior to the enactment of chapter 59, the Controlled Substances Act
provided that a court could forfeit property to the state or an agency of the state or to a political
subdivision of the state authorized by law to employ peace officers, and authorized an office of a
political subdivision of the state authorized to employ peace officers to use such property for official
purposes. See Act ofMay 18, 1989,71st Leg., R.S., ch. 678, 1989 Tex. Gen. Laws 2230 (enacting
Health and Safety Code), amendedby Act ofJuly 19,1989,71st Leg., 1st C.S., ch. 12, $3 5-6,1989
Tex. Gen. Laws 14,20-21. In Attorney General Opinion JM-8 12, this office determined that because
The Honorable Charles A. Rosenthal Jr. - Page 5             (GA-0259)

district attorneys are authorized to employ peace officers, the court could render a judgment under
the Controlled Substances Act forfeiting the property to the district attorney. See Tex. Att’y Gen.
Op. No. JM-812 (1987) at l-2.

         House Bill 65 from the Seventy-first Legislature, First Called Session, enacted chapter 59
oftheCodeofCriminalProcedure.         See Act ofJuly 19,1989,71st Leg., 1st C.S., ch. 12, 1989 Tex.
Gen. Laws 14. House Bill 65 created two important innovations to the forfeiture laws. First, it
established the administrative function of the attorney representing the state, who must administer
forfeited property as an agent for the state. Second, it authorizes the attorney representing the state
and law enforcement agencies to execute a local agreement concerning disposition ofproperty and
proceeds. According to the fiscal note, in some respects the disposition of forfeited property would
remain the same under House Bill 65:

               If there is a local agreement, disposition of forfeited property will be
               handled, as it is currently, with state and local agencies dividing the
               forfeited property among their agencies for use in enforcement and
               prosecution activities.

FISCAL NOTE, Tex. H.B. 65, 71th Leg., 1st C.S. (1989) (emphasis added). As opinion JM-812
suggests, the practice at the time House Bill 65 was enacted included forfeiture of property for use
by the district attorney for official purposes.

         We must assume that the legislature understood in 1989 that when it defined a “law
enforcement agency” in article 59.01 as an agency of the state or a political subdivision authorized
to employ peace officers, it included the office of a district attorney, who may also be the “attorney
representing the state.” We must also assume that the legislature was aware of this office’s
construction of similar language in the Controlled Substances Act as permitting forfeiture of
confiscated property to a district attorney’s office. See Slater v. Ellis County Levee Improvement
Dist. No. 9,36 S.W.2d 1014,1017 (Tex. 1931) (it is presumed when a statute is enacted with terms
similar to former law that has been construed, the terms in the new statute will receive the same
construction). That aspect of forfeiture was not intended to change, as recognized in the fiscal note.
Consequently, we conclude that under article 59.06 of the Code of Criminal Procedure, the attorney
representing the state, if the local agreement so provides, may transfer forfeited property to the
attorney’s office to maintain and use for official purposes.
The Honorable Charles A. Rosenthal Jr. - Page 6            (GA-0259)

                                       SUMMARY

                       Article 59.06 ofthe Code of Criminal Procedure authorizes an
               attorney representing the state to transfer forfeited property to “law
               enforcement agencies” as defined in article 59.01(5).         In article
               59.06(b), the office of an attorney representing the state is a “law
               enforcement agency” that may receive forfeited property Tom the
               attorney representing the state.

BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee


927 F.2d 1257
288 U.S.App.D.C. 402
Unpublished DispositionNOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.Donald Jeffries HATCH, Appellant,v.William M. PLAUT.
No. 90-7062.
United States Court of Appeals, District of Columbia Circuit.
Feb. 20, 1991.

APPEAL DISMISSED.
Before BUCKLEY, SENTELLE and RANDOLPH, Circuit Judges.
ORDER
PER CURIAM.

1
Upon consideration of the motion to dismiss, or in the alternative, for summary affirmance, and the opposition thereto;  and construing the notice of appeal as a request for issuance of a certificate of probable cause, it is

2
ORDERED, on the court's own motion, that the request for issuance of a certificate of probable cause be denied and the appeal be dismissed for lack of jurisdiction.  A certificate of probable cause is a jurisdictional prerequisite to an appeal by a state prisoner from the denial of a federal habeas petition.    See Garris v. Lindsay, 794 F.2d 722, 724 (D.C.Cir.), cert. denied, 479 U.S. 993 (1986).  A certificate of probable cause may issue only upon a "substantial showing of the denial of a federal right."    Barefoot v. Estelle, 463 U.S. 880, 892 (1983).  No such showing has been made here.  It is

3
FURTHER ORDERED that the motion to dismiss, or in the alternative for summary affirmance, be dismissed as moot.

4
Because no appeal has been allowed, no mandate shall issue.


63 Wn.2d 384 (1963)
387 P.2d 541
GEORGE COSON, Respondent,
v.
REUBEN R. ROEHL et al., Appellants.[*]
No. 36497.
The Supreme Court of Washington, En Banc.
December 12, 1963.
Stephen E. Chaffee and Kenneth C. Hawkins, for appellants.
Tonkoff, Holst & Hopp, for respondent.
WEAVER, J.
Defendants appeal from a money judgment against them. The judgment is based on an alleged breach of a written contract dated October 27, 1959.
Plaintiff sells building materials. October 27, 1959, three of plaintiff's agents negotiated with defendants to sell them materials and labor to install ceramic siding and to reroof their residence. The agents used an ancient sales canard: *385 when completed, defendants' residence would be a bellwether for additional sales.[1]
Upon conflicting evidence, the trial court found (and we cannot disturb the findings): (a) defendants stated to plaintiff's agents "... that $3,500.00 was all that they could afford and would agree to pay"; (b) plaintiff's agents told defendants that plaintiff company would furnish the labor and materials and perform according to the contract for a total price of $3,500.00; and "... that the plaintiff would absorb the sales tax and other charges so that the total the defendants would be required to pay would be $3,500.00." (Italics ours.)
In the presence of defendants, "$3500.00 inc. tax" was inserted in the appropriate blank of the printed contract. At the same time, the figures "60" and "$71.88" were inserted so that the contract provided for 60 monthly installments of $71.88. Both entries were made in ink. Defendants were led to believe that the monthly installments totaled $3,500.00; in fact, they total $4,312.80. The space for "Finance Charge" was left blank.
In the absence of defendants, plaintiff caused to be entered on the contract (in pencil) a finance charge of $812.80, thus making the total $4,312.80.
The same evening the contract was signed, defendants computed the total of monthly payments ($4,312.80) and later refused to allow plaintiff to perform the work.
The contract contains the following clause:
*386 "... this [agreement] shall constitute the entire contract and be binding upon the parties hereto, as there are no covenants, promises or agreements, written or oral, except as herein set forth...."
The trial judge was well aware of this court's decision in Haagen v. Landeis, 56 Wn. (2d) 289, 352 P. (2d) 636 (1960). He had tried that case also; our decision had been filed for publication 11 days prior to the trial of the instant case.
After trial, the judge announced his oral ruling. He analyzed the facts and concluded:
"... the court is finding that fraud is here and vitiated the contract. The judgment will be for the defendants."
In reaching this conclusion, the judge observed:
"... the court is still adhering to the rule, unless and until the recent case of Haagen v. Landeis, 156 W.D. 301 [the remittitur had not yet been sent down by this court and the possibility of a petition for rehearing had not been determined], becomes definitely the law, that fraud vitiates the entire contract, and notwithstanding the provision in the contract that there are no understandings or agreements that are not contained in writing in the contract, that nevertheless fraud can be shown and if shown vitiates the contract. Now, if our Supreme Court does in fact abandon that rule, of course the court will have to change its ruling here because that is the basis of the court's ruling." (Italics ours.)
Petition for rehearing in Haagen was denied November 10, 1960. Subsequently (the date does not appear in the record before us), the trial judge filed a written memorandum opinion in which he again recognized that plaintiff's agents were guilty of fraud when they stated to defendants that $3,500.00 was all they would be required to pay. The trial judge said:
"... It was the defendants' testimony that it was agreed that they would not be required to pay finance charges. The contract contained a clause providing in part:
"`* * * * this shall constitute the entire contract and be binding upon the parties hereto, as there are no covenants, promises, or agreements, written or oral, except as herein set forth.'
*387 "The court held that despite this clause, fraud vitiated the contract. The court further stated however, that the case of Haagen v. Landeis, 56 Wn. (2d) 289, which was then pending in the Supreme Court (petition for a rehearing having been filed) would control when finally determined. The petition for a rehearing in that case has been denied. Our court in the Haagen case, supra held:
"`The oral representations upon which the respondents relied were not contained in the agreement and, in fact, contradicted the plain and unambiguous provision thereof. Therefore, the respondents had no right to rely upon the oral representations. See Kelly v. Von Herberg, 184 Wash. 165; 50 Pac. (2d) 23, (1935). The trial court erred in finding fraud.'
"Under the rule of the Haagen case, supra, the defendants may not rely upon the oral representation which they claim constituted fraud.
"Plaintiff will, therefore, be awarded judgment."
In view of our holding in Haagen the trial judge had no choice. He entered a conclusion of law upon which judgment is based:
"That the defendants were not entitled to rely upon the representation of the plaintiff's agents that the total amount called for by the contract was $3,500.00."
In Webster v. L. Romano Engineering Corp., 178 Wash. 118, 34 P. (2d) 428 (1934) and in a plethora of decisions citing it, the court set forth the nine essential elements of fraud, all of which must be established by clear, cogent, and convincing evidence. In the instant case, we are concerned only with the eighth element  the right of defendants to rely upon the false and fraudulent representation.
Haagen v. Landeis, supra (four judges signed the majority opinion; four dissented; one concurred in the result), is authority for the trial court's conclusion that, in the face of a merger clause in the contract, as a matter of law, defendants were not entitled to rely upon the fraudulent representations of plaintiff's agents.
[1] Recently, this court had occasion to notice that there has been a
"... marked change in judicial attitude during the last half century toward the question of justifiable reliance. *388..." Johnson v. Olsen, 62 Wn. (2d) 133, 135, 381 P. (2d) 623 (1963).
We believe that Haagen sub silentio overruled at least seven prior decisions of this court.[2] To the extent that it is inconsistent with the general rule that a merger clause in a written contract does not foreclose the right to prove fraud, it is overruled.
Restatement, Contracts § 573, uses the following example:
"2. A and B enter into a written bargain that contains a clause stating that no representations not therein contained have been made. Fraudulent misrepresentations not contained in the writing in fact induced its formation. The bargain is voidable and an action can be maintained for deceit, the clause intended to exclude the assertion of fraud being illegal."
The policy reasons behind the majority rule are discussed in the classic case of Angerosa v. White Co., 248 App. Div. 425, 290 N.Y.S. 204 (1936):
"... To deny relief to the victim of a deliberate fraud because of his own negligence would encourage falsehood and dishonesty ...
"...
"... In this jurisdiction protection is given to one who is injured by falsehood or deception; fraud vitiates everything which it touches, and destroys the very thing which it was devised to support; the law does not temporize with trickery or duplicity. A contract, the making of which was induced by deceitful methods or crafty device, is nothing more than a scrap of paper, and it makes no difference whether the fraud goes to the factum, or whether it is preliminary to the execution of the agreement itself...."
[2] Plaintiff argues that the contract shows on its face that defendants were to pay $71.88 per month for a period *389 of 60 months. The product of these figures ($4,312.80) would have been apparent to defendants had they been facile with mental arithmetic. This, of course, is in direct conflict with the written price of $3,500.00, defendants' insistence that they would pay no more, and the agents' representations that $3,500.00 would include all charges. Misrepresentations frequently have the effect of causing the other party to fail to use the means of knowledge within his power.
One authority said:
"... The modern tendency is certainly toward the doctrine that failure to use available means of knowledge because of reliance on misrepresentation, even negligent failure to use them, because of trusting to a misrepresentation, will not excuse positive wilful fraud or deprive the defrauded person of his remedy...." 3 Williston on Sales (rev. ed.) § 634.
We conclude, as did the trial court in the first instance, that fraud vitiates the contract, and that defendants are not foreclosed by the merger clause of the contract from placing reliance upon the fraudulent representations.
The judgment is reversed.
DONWORTH, ROSELLINI, HUNTER, HAMILTON, and HALE, JJ., concur.
HILL, J. (concurring in the result)
I concur in the result. There is no question but that fraud vitiates a contract; and that, as a general rule, a party to a written contract is not foreclosed by a merger clause from proving fraudulent representations made by the other party, or his agent acting within the scope of his authority.
I cannot agree with the majority in its statement that, in view of our holding in Haagen v. Landeis (1960), 56 Wn. (2d) 289, 352 P. (2d) 636, the trial court had no alternative but to enter the judgment we are now reversing. The majority, in its treatment of the Haagen case, sets up a straw man and, then, proceeds with a devastating demolition.
*390 It was never intended that Haagen should overrule sub silentio or any other way the cases enumerated in footnote 2 of the majority opinion, or that it would apply in a case like the present, where no one questions the authority of the agents who made the representations relied on.
Haagen has a very limited application, so far as the merger clause is concerned, and relates to cases where the issue is the authority on the part of an agent (whose misrepresentation is the basis of the claimed fraud) to vary by parol the plain and unambiguous provisions of a written application prepared by his principal. None of the cases listed in the footnote to which we have referred presents such an issue.
Haagen was an action to recover the agreed price of certain advertising. The defendants testified that certain misrepresentations were made by an agent who was urging them to list their properties for sale in a publication called the "National Buyers' Guide." The merger clause[3] in no way limited the defendants in their proof. The issue was whether, having signed a short and simple application (set out in full in the opinion) for space in that publication, which application clearly stated the amount to be paid and the time of payment, the defendants were entitled to rely on representations by the agent which were that they would not have to pay for the advertising unless they sold their property.
The defendants knew that they were dealing with an agent, and their contention was that he had apparent authority to vary the terms of the application for advertising. There was no evidence of any such authority, except the representations of the agent.
The representations by the agent were not about something extraneous to the writing, but in effect were that the plain and unambiguous provisions relative to payment, contained in the application, did not mean what they said. *391 It is difficult to see how a publishing company could do more to make clear the limitation on the authority of an agent soliciting advertising than by limiting the agreement with the advertiser to the application which the advertiser signed. This was not a contract until the application was accepted by the publishing company, and the advertiser could have refused to sign the application unless it contained the terms to which he agreed. The publishing company had nothing to act upon except the application submitted to it.
There is still another reason why the Haagen case was correctly decided. The defendants  after the application for advertising space had been sent to the publishing company  notified that company of the claimed representations by its agent and, then, within 2 or 3 days after this notification, the defendants sent the company the following letter:
"`This note is [to] cancel expressed misunderstanding recently sent you. Please continue service on regular schedule.'"
The Haagen opinion states:
"... The letter withdrew respondents' previous objections to the contract as written and requested performance as provided therein."
Haagen held:
1. To prove fraud, the person claiming a misrepresentation must prove that he had a right to rely thereon.
2. Where the claimed misrepresentation is made by one known to be an agent, there can be no right to rely thereon, unless the agent was acting within the apparent scope of his authority.
3. Under the circumstances of the case, there being no evidence of apparent authority to vary the printed application for advertising except the fact of agency, the statement in the application that
"... `This Agreement contains the entire understanding between us and no representation or inducement has been made that is not set forth herein.' ..." *392 conclusively negated the claimed apparent authority of the agent to modify the application orally. (The word "conclusively" was properly used in that case because there was no evidence to the contrary.)
4. The persons claiming fraudulent representations had failed to prove their right to rely thereon by clear, cogent, and convincing evidence.
5. The persons claiming misrepresentations had specifically withdrawn their objection to the agreement claimed to be procured by fraud.
In my opinion, Haagen was correctly decided. Two statements in that opinion, taken out of context, are the reason for its repudiation by the majority:
A. Since the oral representations, upon which defendants relied, were not contained in the agreement and, in fact, contradicted the plain and unambiguous provisions thereof, they had no right to rely thereon.
B. The written agreement conclusively negates the alleged apparent authority of the agent to modify the agreement orally.
"A" would not be an accurate statement, if the representations had been made by a party to the agreement or by an agent whose authority to make them was not questioned, or by an agent who had apparent authority to make them. Considered in the context, the defendants in Haagen had no right to rely upon such representations because the agent had no apparent authority to make them. Actually, the merger clause alone is unimportant to a cause of action for fraud, except to the extent that it, together with other language in the contract, shows an absence of apparent authority (as in Haagen), or the presence of that authority, which is conceded in the instant case.
With reference to "B," we have already commented on the justification for the use of the word "conclusively."
The court has properly decided this case upon its facts, as it did the Haagen case upon its facts.
OTT, C.J., concurs with HILL, J.
*393 FINLEY, J. (concurring in the result)
I concur in the result for the reasons stated in my dissent in Haagen v. Landeis (1960), 56 Wn. (2d) 289, 352 P. (2d) 636. The apparent authority of the agent of the seller is material only where the buyer is attempting to hold the principal on a warranty, made by the agent but excluded in the written contract. It is immaterial if the seller is seeking enforcement of a contract whereby he would benefit through the fraud of his agent.
NOTES
[*]  Reported in 387 P. (2d) 541.
[1]  Mr. Roehl (defendant) testified:

"... they made the stipulation that they would make us a good deal if we will let them take pictures of before and after on the house and later on show people the place."
Mrs. Roehl (defendant) testified:
"... they told us that they could give us a real good cheap job, they said a cheap job but a good job, if we would allow them to use our home as a before-and-after advertisement on TV. We had no objection to that and also I believe it was Mr. Brown who said that they would bring people past our house out on the street, they wouldn't bother us, but they would bring them past to show our house which is in need of paint, they would see the difference in it and they expected Mr. Ayers to get quite a few sales in Sunnyside from it because they could see the improvement that the siding made on our house."
[2]  Becker v. Lagerquist Bros., Inc., 55 Wn. (2d) 425, 348 P. (2d) 423 (1960); Nyquist v. Foster, 44 Wn. (2d) 465, 268 P. (2d) 442 (1954); Gronlund v. Andersson, 38 Wn. (2d) 60, 227 P. (2d) 741 (1951); Peoples Bank & Trust Co. v. L. Romano Engineering Corp., 188 Wash. 290, 62 P. (2d) 445 (1936); Producers' Grocery Co. v. Blackwell Motor Co., 123 Wash. 144, 212 Pac. 154 (1923); Schroeder v. Hotel Commercial Co., 84 Wash. 685, 147 Pac. 417 (1915); Union Inv. Co. v. Rosenzweig, 79 Wash. 112, 139 Pac. 874 (1914).
[3]  The merger clause in the application for the advertising read: "`This Agreement contains the entire understanding between us and no representation or inducement has been made that is not set forth herein.'"


                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-15071         ELEVENTH CIRCUIT
                                        Non-Argument Calendar      AUGUST 15, 2011
                                      ________________________        JOHN LEY
                                                                       CLERK
                           D.C. Docket No. 8:09-cv-01278-RAL-TGW

JAMES R. JOHNSON,

llllllllllllllllllllllllllllllllllllllll                              Plaintiff-Appellant,

                                                versus

GUERRIERI MANAGEMENT, INC.,
a Florida Corporation,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellee.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Florida
                                 ________________________

                                           (August 15, 2011)

Before HULL, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      James Johnson appeals the jury's verdict in favor of Guerrieri Management,

Inc., in his employment discrimination action brought under the Uniformed

Services Employment and Reemployment Rights Act (“USERRA”). 38 U.S.C.

§§ 4311-13. On appeal, Johnson contends that a series of rulings and remarks by

the district court had the cumulative effect of depriving him of a fair trial. He also

asserts that the district court should have granted judgment as a matter of law in

his favor on his discrimination and reemployment claims. Finally, Johnson argues

that the district court abused its discretion by refusing to instruct the jury

regarding 38 U.S.C. § 4312(e)(3), which provides that an employee who delays his

return to work does not automatically forfeit his right to reemployment under

USERRA. For the reasons stated below, we affirm.

                                           I.

      We have recognized that the cumulative effect of multiple errors by a

district court may deprive a litigant of a fair trial. See United States v. Baker, 432

F.3d 1189, 1223 (11th Cir. 2005) (addressing cumulative error in the context of a

criminal trial). In conducting a cumulative error analysis, we must consider the

combined effect of all the errors identified by the appellant, including any

harmless errors. Id. An error is harmless if it had no effect on the appellant’s

substantial rights. Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1276

                                           2
(11th Cir. 2008). In this case, Johnson argues that the district court committed

several distinct errors. We will address each of the asserted errors in turn, and

then consider whether the cumulative effect of any errors deprived Johnson of a

fair trial.

    A. The Order Directing Johnson Not to Wear His Military Uniform at Trial

        Johnson’s first contention is that the district court erred by ordering him not

to wear his military uniform during trial. Even assuming for the sake of argument

that this order was erroneous, the error was harmless. The jury was made aware

that Johnson was a member of the Army Reserves, and the fact that Johnson was

not wearing his uniform could not have had any impact on the jury’s verdict.

Thus, Johnson is not entitled to a new trial based on this ruling. See Goldsmith,

513 F.3d at 1276; Fed.R.Civ.P. 61 (explaining that an error does not constitute

grounds for a new trial or setting aside a verdict unless it affected a party’s

substantial rights).

              B. Exclusion of Testimony from Johnson’s Military Witnesses

        Next, Johnson asserts that the district court erred by excluding testimony

from five service members who would have testified regarding his military orders.

We review a district court’s evidentiary rulings for an abuse of discretion.

Goldsmith, 513 F.3d at 1276. Evidence is relevant if it has “any tendency to make

                                            3
the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.”

Fed.R.Evid. 401.

      Here, the district court did not abuse its discretion by excluding the

testimony of Johnson’s military witnesses. According to Johnson, those witnesses

were going to testify regarding the military orders that he had received. That

testimony was not material to this case because Guerrieri Management conceded

that it had received adequate notice of Johnson’s orders. The dispute in this case

was whether Guerrieri Management refused to reemploy Johnson after he

completed his military service. Because the military witnesses apparently did not

have any personal knowledge regarding that issue, the district court correctly

concluded that their testimony was not relevant.

       C. The District Court’s Comments Regarding the Military Witnesses

      Johnson also argues that the district court improperly questioned why the

military witnesses were remaining in the courtroom as spectators. We review a

district court’s conduct during trial for an abuse of discretion. United States v.

Verbitskaya, 406 F.3d 1324, 1337 (11th Cir. 2005). “In order to amount to

reversible error, a judge’s remarks must demonstrate such pervasive bias and

                                          4
unfairness that they prejudice one of the parties in the case.” Id. (quotation and

alteration omitted).

      Contrary to Johnson’s suggestion, the district court did not ask why the

military witnesses were still in the courtroom. Instead, when Johnson announced

that some of the witnesses might remain to watch the proceedings, the district

court stated, “That’s fine. It’s a public trial.” That innocuous remark did not

reflect any bias or prejudice against Johnson, and, therefore, it cannot serve as the

basis for granting a new trial. See Verbitskaya, 406 F.3d at 1337.

                              D. Liquidated Damages

      Next, Johnson argues that the district court erred by granting judgment as a

matter of law to Guerrieri Management on his claim for liquidated damages.

Under USERRA, an employee is entitled to an award of liquidated damages equal

to his compensatory damages if he can establish that his employer willfully

violated the statute. 38 U.S.C. § 4323(d)(1)(C). In this case, the jury found that

Guerrieri Management did not violate USERRA, so it never reached the issue of

damages. Therefore, any error in the district court’s ruling on Johnson’s claim for

liquidated damages was harmless. See Goldsmith, 513 F.3d at 1276.

              E. Jury Instruction Regarding Offers of Reinstatement

                                          5
      Johnson also contends that the district court should not have given a jury

instruction on unconditional offers of reinstatement. “We review jury instructions

de novo to determine whether they misstate the law or mislead the jury to the

prejudice of the objecting party.” Palmer v. Bd. of Regents of Univ. Sys. of Ga.,

208 F.3d 969, 973 (11th Cir. 2000). In an employment discrimination case, a

plaintiff has a duty to mitigate damages. See Ford Motor Co. v. E.E.O.C., 458

U.S. 219, 231, 102 S.Ct. 3057, 3065, 73 L.Ed.2d 721 (1982) (Title VII case). If

the jury finds that the plaintiff unreasonably refused an offer of reinstatement from

his employer, then the plaintiff’s award of back pay must be reduced. Id. at

231-32, 102 S.Ct. at 3066.

      In this case, the district court accurately instructed the jury regarding offers

of reinstatement and Johnson’s duty to mitigate damages. See Ford Motor Co.,

458 U.S. at 231-32, 102 S.Ct. at 3065-66. Johnson argues that Gordon Guerrieri’s

remarks during the April 2009 unemployment compensation hearing did not

amount to an offer of reinstatement, but that was a disputed issue of fact for the

jury to resolve. The district court did not err by issuing the challenged instruction.

      F. District Court’s Comment Regarding Johnson’s Rule 50(a) Motion

      Johnson also objects to a remark that the district court made to his counsel.

After the district court denied Guerrieri Management’s motion for judgment as a

                                          6
matter of law on Johnson’s reemployment claims, Johnson’s counsel started to

argue that his client was entitled to judgment as a matter of law on that claim. The

district court responded, “Mr. Dawson, with all respect don’t waste your breath

and my time.” The district court observed that there were disputes of fact that

would have to be resolved by the jury.

        As noted above, a district court’s remarks will not be grounds for reversal

unless they demonstrate pervasive bias or prejudice against a party. See

Verbitskaya, 406 F.3d at 1337. Here, the district court’s brief remark to Johnson’s

counsel did not demonstrate that the court was biased against Johnson or his

counsel. Therefore, that remark cannot serve as the basis for a new trial. See id.

                                       G. Cumulative Error

        In this case, Johnson has identified, at most, one harmless error in the

district court’s order directing him not to wear his military uniform, and an issue

regarding liquidated damages that became irrelevant in light of the jury’s finding

that Guerrieri Management did not violate USERRA.1 Even assuming that those

two rulings were erroneous, they did not have any impact on the outcome of the

        1
         Johnson argues for the first time in his reply brief that the overall atmosphere of the trial was
“hostile and humiliating.” He also objects to remarks made by counsel for Guerrieri Management
during closing arguments. Because Johnson did not raise those arguments in his initial brief, we will
not consider them. See United States v. Levy, 379 F.3d 1241, 1244 (11th Cir. 2004) (explaining that
this Court does not address arguments raised for the first time in a reply brief).

                                                    7
case. Thus, Johnson has failed to establish cumulative error warranting a new

trial. See Baker, 432 F.3d at 1223.

                                          II.

      Fed.R.Civ.P. 50(a) permits a party to move for judgment as a matter of law

before a verdict has been returned. A party may then renew its motion for

judgment as a matter of law under Fed.R.Civ.P. 50(b) after the jury has returned its

verdict. The Supreme Court has explained that, if a party fails to make a Rule

50(b) motion, an appellate court lacks the power to direct the district court to enter

a judgment in favor of that party. Unitherm Food Systems, Inc. v. Swift-Eckrich,

Inc., 546 U.S. 394, 400-01, 126 S.Ct. 980, 985, 163 L.Ed.2d 974 (2006).

      In this case, Johnson made a Rule 50(a) motion at the close of his case, but

he did not renew that motion under Rule 50(b) after the jury returned its verdict.

Although Johnson argues that we still may review for plain error, the Supreme

Court explained in Unitherm that an appellate court has no authority to consider a

challenge to the sufficiency of the evidence unless the appellant filed a Rule 50(b)

motion in the district court. See Unitherm, 546 U.S. at 400-01, 407, 126 S.Ct. at

985, 989. This means that an appellate court may not correct even a plain error.

See Hi Ltd. P’ship v. Winghouse of Fla., Inc., 451 F.3d 1300, 1301-02 (11th Cir.

2006) (explaining that a party’s failure to file a Rule 50(b) motion bars any

                                          8
appellate review of the sufficiency of the evidence); see also Nitco Holding Corp.

v. Boujikian, 491 F.3d 1086, 1089 (9th Cir. 2007) (“Unitherm precludes even plain

error review when a party fails to file a Rule 50(b) motion.”); Hertz v. Woodbury

Cnty, Iowa, 566 F.3d 775, 780-81 (8th Cir. 2009) (same). Thus, we may not

review Johnson’s challenge to the sufficiency of the verdict.

                                          III.

      We review a district court’s decision not to give a requested jury instruction

for an abuse of discretion. Beckford v. Dep’t of Corr., 605 F.3d 951, 957 (11th

Cir. 2010). A district court’s failure to give a requested instruction constitutes

reversible error if the instruction: (1) was correct; (2) was not substantially

covered by the other instructions given; and (3) the failure to give the instruction

seriously impaired a party’s ability to argue his case. Id.

      Here, Johnson asked for a jury instruction on 38 U.S.C. § 4312(e)(3), which

provides that an employee’s failure to timely report to work at the conclusion of

his military service does not result in an automatic waiver of his right to

reemployment. Guerrieri Management, however, did not contend that Johnson

waived his right to reemployment by failing to return to work in a timely fashion.

During closing arguments, defense counsel expressly disavowed that theory,

stating, “We have never asserted in this case that he was untimely in reporting

                                           9
back to work and that’s why we didn’t give him his job back. That’s not the

circumstance here and we don’t contend that.”

      Defense counsel did make some references to Johnson’s delay in reporting,

but he did so only to suggest that it was unreasonable for Johnson to expect

immediate reinstatement and that it was appropriate for Guerrieri Management to

take some time to decide where to assign Johnson. Because Guerrieri

Management did not take the position that it terminated Johnson because of his

delay in returning to work, there was no need for a jury instruction on

§ 4312(e)(3). Accordingly, we affirm.

      AFFIRMED.

                                         10


                                     UNPUBLISHED

                        UNITED STATES COURT OF APPEALS
                            FOR THE FOURTH CIRCUIT

                                       No. 18-4712

UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

ANTHONY SCOTT HUNT,

                     Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Florence.
R. Bryan Harwell, Chief District Judge. (4:18-cr-00220-RBH-1)

Submitted: August 8, 2019                                         Decided: August 14, 2019

Before WILKINSON, KING, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Casey P. Riddle, Assistant Federal Public Defender, OFFICER OF THE FEDERAL
PUBLIC DEFENDER, Florence, South Carolina, for Appellant. Sherri A. Lydon, United
States Attorney, Kathleen M. Stoughton, Assistant United States Attorney, Robert Frank
Daley, Jr., Assistant United States Attorney, Columbia, South Carolina, Lauren L.
Hummel, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Anthony Scott Hunt appeals his sentence after pleading guilty to possession of a

firearm and ammunition subsequent to a felony conviction in violation of 18 U.S.C.

§ 922(g)(1) (2012). The district court calculated that his Guidelines range was 57 to 71

months and sentenced him within the range to 60 months in prison and three years of

supervised release. On appeal, Hunt contends that the district court erred in calculating his

Guidelines range, because his prior conviction in violation of S.C. Code Ann. § 44-53-370

was not a “controlled substance offense” as defined in U.S. Sentencing Guidelines Manual

§ 4B1.2(b) (2016) for purposes of USSG § 2K2.1(a)(4)(A). We affirm.

       “As a general matter, in reviewing any sentence whether inside, just outside, or

significantly outside the Guidelines range, we review for an abuse of discretion.” United

States v. Bolton, 858 F.3d 905, 911 (4th Cir. 2017) (internal quotation marks and citations

omitted). We first ensure the district court committed no significant procedural error such

as improperly calculating the Guidelines range. Gall v. United States, 552 U.S. 38, 51

(2007). In evaluating the district court’s calculation of the Guidelines range, we review its

factual findings for clear error and its legal conclusions de novo. United States v. Walker,

922 F.3d 239, 253 (4th Cir. 2019) (citation omitted). We review the legal question of

whether a prior conviction qualifies as a controlled substance offense under the Guidelines

de novo. United States v. Furlow, 928 F.3d 311, 317 (4th Cir. 2019) (citations omitted).

When a defendant has not properly preserved an issue by presenting it the district court,

we review the appellate contention for plain error only. Id. (citation omitted).

                                             2
       Hunt contends that the district court erred by applying the modified categorical

approach to find his prior conviction was a controlled substance offense, because the South

Carolina statute in question is indivisible, which precludes the use of the modified

categorical approach; and it is overbroad, since it covers more conduct than a controlled

substance offense under the Guidelines. We conclude that this issue is without merit. See

Furlow, 928 F.3d at 320-22; United States v. Marshall, 747 F. App’x 139, 150 (4th Cir.

2018); United States v. Rodriguez-Negrete, 772 F.3d 221, 226-27 (5th Cir. 2014). We

further conclude that the district court did not err by considering his sentencing sheet to

determine his crime of conviction or in applying the modified categorical approach to find

that his prior conviction was a controlled substance offense under the Guidelines. See

Furlow, 928 F.3d at 322; United States v. Bethea, 603 F.3d 254, 259 (4th Cir. 2010).

       Accordingly, we affirm the district court’s judgment. 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


23 Ill.2d 352 (1961)
178 N.E.2d 351
DOLORES V. McMEEN et al., Appellees,
v.
FLORENCE M. WHIPPLE et al., Appellants.
No. 36501.
Supreme Court of Illinois.
Opinion filed November 30, 1961.
BRIAN & WILSON, of Toulon, and R.K. RAINEY, of Princeton, for appellants.
McNEILLY & OLIVERO, of Peru, and ROBERT L. BURHANS, of Peoria, for appellees.
Decree affirmed.
Mr. JUSTICE HOUSE delivered the opinion of the court:
This is an equitable action based upon fraud in the exchange of real estate. The defendants appeal from a decree *353 finding fraud and directing a cancellation of deeds. A freehold is involved.
Defendant Walter E. Whipple, on Sunday, November 24, 1957, initiated negotiations with Marie Pohren for an exchange of a Fulton County farm in the name of his wife Florence, for a residence in the village of Wyanet. (While legal title to the residence was vested in plaintiffs Dolores V. McMeen and her husband Bruce as joint tenants, Marie, mother of Dolores, had an equitable interest in the property.) Whipple was persistent. He contacted Mrs. Pohren practically every day following his original overture, until the exchange was made on December 2, saying that he must raise funds immediately to settle a Federal case.
The McMeens lived in a distant community and came to the Pohren home for Thanksgiving dinner. That afternoon they and the Pohrens picked Whipple up and drove to the farm 80 to 100 miles distant. During the trip there was some discussion as to values and terms, and Whipple offered to take the Wyanet house for $12,000 and convey the farm for $20,000.
The following day Whipple again called on Mrs. Pohren insisting that he could not wait and wanted an immediate closing. On the Monday following he called McMeen asking him and his wife to come down for a closing that night. In the meantime Mrs. Pohren delivered a release of an unrecorded mortgage on the dwelling and the abstract and title papers to Whipple. He arranged a meeting at his attorney's office in the neighboring village of Buda for Monday, December 2. That night the dwelling was conveyed to Mrs. Whipple, the farm was conveyed to Mrs. Pohren and the latter and her husband executed eight $1000 notes secured by a mortgage upon the farm to Mrs. Whipple.
Plaintiffs contend that they were induced to make the exchange by false representations of Whipple and were thereby defrauded. The alleged false statements were: that the farm had a market value of $20,000 when in fact such *354 value was less than $10,000; that Whipple represented he had $20,000 to $22,000 invested in the farm when in fact his investment was less than $10,000; that he misrepresented the amount of the landlord's share of crops; and that there was a means of access to the farm by a public highway or roadway, whereas there is none.
The defendants maintain that valuation statements were mere "puffing." They further say that plaintiffs inspected the farm, had the duty to ascertain the means of access, and that the doctrine of caveat emptor applies.
While there is some dispute, a fair reading of the record discloses the following facts. The parties arrived at the farm late in the afternoon on Thanksgiving day. They drove onto the land a few car lengths, reaching it from the north by driving down an adjacent owner's lane over a rickety bridge and through a gate. When asked if that was the only way in, Whipple told them that there was a public highway or roadway on the south side of the farm across the creek which ran through the land, and that they had used a short cut. The creek was impassable by automobile. The women stayed near the car and the men walked out onto the farm a short distance. The parties remained only a short time and plaintiffs' inspection was cursory because of impending darkness. They were never shown the public highway or road which Whipple indicated furnished access to the land from the south.
There is no public highway or public road adjacent to the subject land. In fact, there is neither proof of the location of the nearest public road nor the exact location of even a private road which would furnish access. The land in question was originally the northerly part of a farm owned by one Daniel Yeoman. It was separated from the remainder by deed dated December 10, 1927, to a predecessor in title, which deed was silent as to access. On the same day the remainder of the original farm was conveyed and that deed recited: "There shall be free ingress and egress *355 to the land adjoining on the north that was part of the Dan Yeoman Estate at the date of this deed, providing gates are kept closed."
The question presented at the outset is whether defendant Whipple's untrue representation that a public highway or road furnished access to the land constitutes fraud which would justify recission. Under the decisions a false representation of a material existing fact, made with the intention to deceive, either knowing it to be false or making it in culpable ignorance of its truth or falsity, which was believed and justifiably relied upon by the other party to his injury, is actionable. (See e.g. Foster v. Oberreich, 230 Ill. 525; Johnston v. Shockey, 335 Ill. 363; Schwabacker v. Riddle, 99 Ill. 343; Miller v. John, 208 Ill. 173.) The representation was false, since the only access was over the land of another with the burden of passing through and keeping gates closed. It involved a material fact. Its purpose was to misinform and deceive. It is not certain that Whipple knew the representation to be false since he testified that he had never seen the road. However, he had owned the land for two years and should have known that the statement was false. Plaintiffs suffered injury, since it is a matter of common knowledge that land without an outlet to a public way is less valuable. That the representation was believed and relied upon by plaintiffs is evidenced by the fact that they entered into the exchange without examining the premises until the day following such exchange.
The remaining problem is whether plaintiffs were justified in relying upon the statement without attempting to ascertain its truth. "In determining this question, the representations must be viewed in the light of all the facts of which the plaintiff had actual notice, and also of such as he might have availed himself by the exercise of ordinary prudence." (Dillman v. Nadlehoffer, 119 Ill. 567, 577.) Here, plaintiffs had done business with Whipple before and *356 he had given them no reason to distrust him. Because of approaching darkness, they apparently did not have time to drive around to check for a public road. They lived a long distance from the farm and from each other. (See Miller v. John, 208 Ill. 173; Barnes v. Barnett, 188 Ill. App. 32.) Defendant Whipple was pressing for an early closing and succeeded in getting an exchange just four days later. Under such circumstances we are of the opinion that plaintiffs were justified in relying upon Whipple's word and that they were not negligent in failing to make a further independent investigation.
Defendants cite Schmidt v. Landfield, 20 Ill.2d 89, in support of their contention that plaintiffs were not justified in relying on the representation. It is of no help to them here but does illustrate the vast difference in circumstances with which the courts are confronted in applying a rule. Plaintiffs' nine years to get acquainted with the true facts in that case contrast sharply with the four-day period here.
The misrepresentation as to access alone amply justified the decree of the trial court. It does not necessarily follow that other representations or combinations of representations by defendant Whipple may not have been actionable. After owning the land over 14 months he claimed the value to have doubled from $10,000 to $20,000 without any explanation for the increase. The statement was attributed to him by several witnesses that he had $20,000 to $22,000 in the farm when in fact he had less than one half of that amount. When these representations are added to the misrepresentation as to access, the inevitable conclusion is reached that this was a deliberate attempt to overreach the plaintiffs.
We find no error, and accordingly the decree of the circuit court of Bureau County granting recission is affirmed in all respects.
Decree affirmed.