551 F.2d 971
Mr. and Mrs. Archie DAVIS, Plaintiffs-Appellees Cross Appellants,v.UNITED COMPANIES MORTGAGE AND INVESTMENT OF GRETNA, INC.,Defendant-Appellant Cross Appellee.
No. 75-1486.
United States Court of Appeals,Fifth Circuit.
May 9, 1977.

Ralph Dwyer, Jr., New Orleans, La., for defendant-appellant cross appellee.
Michael Osborne, Patrick A. Rankin, New Orleans, La., for plaintiffs-appellees cross appellants.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before JONES, WISDOM and GODBOLD, Circuit Judges.
GODBOLD, Circuit Judge:

1
The defendant made a consumer loan to plaintiffs for the purpose of financing repairs and renovations to plaintiffs' home, secured by a first mortgage on the home.

2
The lender's copy of the disclosure statement disclosed a $7.35 per month charge for fire insurance in space marked "Escrow for: Fire Insurance."  The borrowers' copy did not contain this disclosure.  This violated the requirement in Regulation Z of a "duplicate" instrument.  12 C.F.R. § 226.8(a).  The monthly fire insurance premium was not included in the computation of the amount and total of monthly payments, a violation of 15 U.S.C. § 1639(a)(6) and 12 C.F.R. § 226.8(b)(3), nor was it reflected in the total "finance charge," a violation of 15 U.S.C. §§ 1605(c), 1639(a)(4), and 12 C.F.R. § 226.4(a)(6).1  The district court did not err in directing rescission as permitted by the Truth in Lending Act, 15 U.S.C. § 1635(a).2

3
We affirm the award of $3,500 attorney fees to plaintiffs.  15 U.S.C. § 1640(a)(3).  Plaintiffs are awarded an additional attorney fee of $500 for services on this appeal.  Id.

4
The court awarded a statutory penalty of $1,000 pursuant to 15 U.S.C. § 1640(a)(2)(A).  By cross appeal plaintiffs claim that they are entitled to two penalties because both husband and wife signed note and mortgage.  We think they are correct.  Because both signed the mortgage and promissory note, under Louisiana law each is jointly and severally liable for the repayment of the debt.  Consolidation Loans, Inc. v. Guercio, 200 So.2d 717 (La.App.,1967); Shreveport Bank and Trust Co. v. Tyler, 275 So.2d 451 (La.App.,1973).  Cf. Mitchell v. C.I.R., 430 F.2d 1 (C.A.5,1970).  The Truth in Lending Act,  15 U.S.C. § 1631(a), provides:

5
Each creditor shall disclose clearly and conspicuously, in accordance with the regulations of the Board, to each person to whom consumer credit is extended, the information required under this part . . . .  (Emphasis added.)

6
In this case, under Louisiana law, credit was extended to both husband and wife.  The civil liability section of the Act, 15 U.S.C. § 1640(a) says:

7
. . .  any creditor who fails to comply with any requirement imposed under this part . . .  with respect to any person is liable to such person in an amount equal to the sum of . . .  (2)(A)(i) in the case of an individual action twice the amount of any finance charge in connection with the transaction, . . .  except that the liability under this subparagraph shall not be less than $100 nor greater than $1,000 . . . .  (Emphasis added.)

8
The trial court found and we have affirmed that appellant violated the Truth in Lending Act by failing to comply with all the requirements of the Act in this transaction.  The creditor did not fulfill the dictates of the Act to either borrower involved in this credit transaction.  Section 1640 makes the creditor liable to "any person" with respect to whom it fails to meet the requirements of the Act.  Here, since there were two borrowers and hence failure to comply with the Act as to two persons, two statutory penalties will be imposed.  Mason v. General Finance Corp. of Virginia, 401 F.Supp. 782 (E.D.Va.,1975).  See also, Allen v. Beneficial Finance Co., 531 F.2d 797 (CA7, 1976); Simmons v. American Budget Plan, Inc., 386 F.Supp. 194 (E.D.La., 1974); Gillard v. Aetna Finance Co., Inc., 414 F.Supp. 737 (E.D.La.,1976); Rivers v. Southern Discount Co., 4 CCH Consumer Credit Guide P 98,796 (N.D.Ga., 1973).

9
We are aware that some courts have allowed only one recovery in cases similar to this.3  We believe our result is more consonant with the plain language of the statute and with the law of Louisiana.  St. Marie v. Southland Mobile Homes, Inc., 376 F.Supp. 996 (E.D.La.,1974), held that only one penalty should be imposed because when husband and wife sign in a credit transaction the "family unit" is obligated, and there are not two separate obligors.4  We understand the Louisiana law to be otherwise.  Doggett v. Ritter Finance Co. of Louisa, 384 F.Supp. 150 (W.D.Va.,1974), rests on the theory that if there are two borrowers each jointly and severally liable for the entire amount, each has been extended one-half the credit and each should get one-half the penalty.  This does not accord with joint and several liability for the full amount.5

10
AFFIRMED on the appeal.  AFFIRMED as modified on the cross-appeal.

JONES, Circuit Judge, dissenting in part:

11
But for the precedents1 by which I am bound I might have thought that the penal statute here involved should be strictly construed and if so construed would not apply to an insurance premium which was no part of the hire of the money loaned.  However stare decisis requires my concurrence in the conclusion that the statute permits the imposition of a penalty for the omission of the insurance premium from the disclosure statement furnished to the appellees.

12
There was a legal joint and several liability of both the husband and the wife for payment of the single loan made to them as a family unit.  They knew, of course, that the insurance premiums had to be paid, but because of the omission from the disclosure the maximum penalty was imposed and then doubled because the husband and wife family unit was composed of two persons.

13
The legislative history of the statute shows that it was not intended that a double penalty should be imposed.  In H. R. Rep. No. 1040, 90th Cong., 1st Sess.  (1967) (to accompany H. R. 11601), 1968 U.S. Code Cong. & Admin. News, pp. 1962, 1976 it is said:

14
"Any creditor failing to disclose required information would be subject to a civil suit with a penalty equal to twice the finance charge, with a minimum penalty of $100 and a maximum penalty not to exceed $1,000 on any individual credit transaction."

15
The cases cited in the opinion of the majority present different theories for imposing dual penalties.  Mason v. General Finance Corp. of Virginia, 401 F.Supp. 782 (E.D.Va.,1975), and Allen v. Beneficial Finance Co., 7th Cir. 1976, 531 F.2d 797 rely upon the "any person" language found in Sec. 1640(a), and hold that since both a husband and wife are technically obligors who deserve disclosure both qualify as a "person" to whom the creditor has failed to fulfill the disclosure requirements, entitling each to a penalty.  Simmons v. American Budget Plan, Inc., 386 F.Supp. 194 (E.D.La.,1974), and Gillard v. Aetna Finance Co., Inc., 414 F.Supp 737 (E.D.La.,1976) hold that when the loan involves a security interest in the principal residence of the obligors each is entitled to receive a disclosure statement and therefore each has been harmed by the failure of the creditor.  Rivers v. Southern Discount Co., 4 CCH Consumer Credit Guide, Sec. 98,796 (N.D.Ga.,1973) justifies dual penalties as a sort of quid pro quo for the creditor's obtaining two signatures on the loan.  The only unifying thread running throughout these cases is that the liability of both husband and wife justifies recovery by both.  In these cases consideration was not given to the proposition that a single loan to a single family to finance repairs to a single home constituted an "individual credit transaction" with only a single penalty permitted.

16
It is conceded in the majority opinion that some courts have allowed only a single penalty recovery in such cases as this.  In St. Marie v. Southland Mobile Homes, Inc., 376 F.Supp. 996 (E.D.La.,1974) it is recognized that both husband and wife are technically separate obligors, but it is held that where a single transaction creates an indebtedness of a single family, the unitary nature of the transaction and harm to the husband and wife as a family is best remedied by a single penalty.

17
The framers of the legislation intended to limit the penalty to $1000 in any individual credit transaction.  This decision permits that maximum to be multiplied by the number, however many, of joint and several obligors.  I would limit recovery to a single obligor.

18
The insertion of footnote 3 in the majority opinion, after the foregoing portion of this dissent was submitted, requires the comment that none of the dictionaries to which I have access indicate that, prior to this decision, the word "individual" has been regarded as ambiguous.

1
 15 U.S.C. § 1605(c) provides that charges for insurance shall be included in the finance charge unless "a clear and specific statement in writing is furnished by the creditor to the person to whom the credit is extended, setting forth the cost of the insurance if obtained from or through the creditor, and stating that the person to whom the credit is extended may choose the person through which the insurance is to be obtained."  No such statement was given to the borrower here

2
 We need not consider other grounds, which include lender's retaining in escrow a substantial part of the loan proceeds to be disbursed to the builder doing the repair and renovation, retention by the lender of a part of these funds after the builder abandoned the job, and use by the lender of part of the escrow funds to pay a "moral obligation" to a lumber supplier

3
 Judge Jones, in dissent, finds from the legislative history that Congress did not intend two penalties in a case such as this, relying upon language from the House Report referring to a maximum penalty "not to exceed $1,000 on any individual credit transaction."  The phrase "any individual credit transaction" is an ambiguous one, but it seems to us not applicable to a transaction in which under local law both husband and wife were extended credit and were jointly and severally liable for the entire debt.  In any event, the result which we reach is, we think, required by the language of the statute itself

4
 Also following the "family unit" theory is In re Wilson, 411 F.Supp. 751 (S.D.Ohio,1975)

5
 Also, because we have based our result on the wording of 15 U.S.C. §§ 1631 and 1640 we need not decide whether two disclosure statements were required under 12 C.F.R. § 226.6(e), thus giving rise to two recoveries under different reasoning.  See Simmons, supra, Powers v. Sims and Levin Realtors, 396 F.Supp. 12 (E.D.Va.,1975).  Cf. Gerasta v. Hibernia Nat. Bank, 411 F.Supp. 176 (E.D.La.,1975)

1
 Cited in the opinion of the majority


903 F.2d 299
HUTTO STOCKYARD, INC.;  John D. Hutto;  Charles L. Hutto, Petitioners,v.UNITED STATES DEPARTMENT OF AGRICULTURE, Respondent.
No. 89-2717.
United States Court of Appeals,Fourth Circuit.
Argued Jan. 11, 1990.Decided May 9, 1990.

Karen J. Williams, Williams & Williams, Orangeburg, S.C., for petitioners.
Ellen Ruth Hornstein, Office of the Gen. Counsel, U.S. Dept. of Agriculture, Washington, D.C., for respondent.
C. Bradley Hutto, Charles H. Williams, Williams & Williams, Orangeburg, S.C., on brief, for petitioners.
James Michael Kelly, Associate Gen. Counsel, Raymond W. Fullerton, Asst. Gen. Counsel, Margaret M. Breinholt, Deputy Asst. Gen. Counsel, U.S. Dept. of Agriculture, Washington, D.C., for respondent.
Before POWELL, Associate Justice (Retired), Supreme Court, sitting by designation, and CHAPMAN and WILKINS, Circuit Judges.
WILKINS, Circuit Judge:

1
Hutto Stockyard, Inc., John D. Hutto, and Charles L. Hutto (collectively Hutto) petition for review of the decision of a Judicial Officer for the United States Department of Agriculture (USDA) that Hutto violated statutory and regulatory provisions of the Packers and Stockyards Act (Act), 7 U.S.C.A. Secs. 181 et seq.    (West 1980 & Supp.1990).  The Judicial Officer (JO), adopting the order of the Administrative Law Judge (ALJ) as the final order of the Secretary, suspended Hutto as a registrant under the Act for 90 days,1 fined it $20,000, and ordered it to cease and desist from violating the Act.  Hutto contends that USDA failed to comply with the Administrative Procedures Act (APA) and that USDA deprived it of due process.  In addition, Hutto contends that the decision of the Secretary is not supported by substantial evidence and that the monetary penalty imposed is excessive.  We affirm in part, reverse in part, vacate in part, and remand.

I.

2
Hutto Stockyard, Inc., operates a livestock market in Holly Hill, South Carolina, and a hog buying station in Manning, South Carolina.  Charles Hutto and his son operate the Manning buying station at which they essentially serve as middlemen for farmers selling hogs.  Hogs are weighed at the station, purchased for an amount based on the hogs' weight, and re-sold to packers for an amount based on this same weight for a few cents more per pound.

3
In April 1987, Packers and Stockyards Administration representatives David Auten and Ben Baird conducted a "sting" operation to investigate the weighing practices at Hutto's Manning buying station.  After weighing 13 hogs on a scale in their truck, Auten and Baird transported them to Manning where they reweighed six of the hogs and recorded the weights.  Impersonating a farmer, Auten then transported these six hogs to Hutto's buying station where he offered to sell them.

4
Hutto's weighmaster weighed Auten's six hogs in three drafts:  two of the hogs were weighed individually, and four were weighed together.  As the following chart illustrates, the weights of the hogs as determined by the weighmaster were less than the weights earlier determined by Auten and Baird:

5
Draft No.  No. of Hogs  USDA Weight  Hutto Weight  Discrepancy In Pounds
    1           1           401          390                11
    2           4           813          795                18
    3           1           176          165                11
----------

6
After receiving payment for the hogs, Auten left the buying station to join Baird who had remained a short distance away.  The two men then reweighed the second group of seven hogs on their scale and drove back to the buying station where the weighmaster weighed the hogs in two drafts:  six together and one individually.  Again, there were discrepancies between the weights determined by the weighmaster and the weights earlier determined by Auten and Baird:

7
Draft No.    No. of     USDA Weight     Hutto Weight    Discrepancy In Pounds
              Hogs
    4          6            1412             1390                    22
    5          1             204              200                     4
----------

8
Auten testified that he observed the weighmaster insert the scale ticket in the poise2 before weighing the hogs.  Auten further testified that the weighmaster was closing the trig loop latch when the indicator needle was above rather than in the target area of the Spinks indicator.  He also testified that the weighmaster was not balancing the scale every 15 minutes or 15 weighing drafts, whichever came first.  Additionally, according to Auten's testimony, after the hogs were weighed, the weighmaster gave him the scale tickets and a check in payment for the hogs.  The scale tickets did not show the date of weighing or the weighmaster's initials or name, and were imprinted with the location of the Holly Hill livestock market rather than the Manning buying station.

9
According to Auten and Baird, three mechanical factors contributed to the short-weighing.  First, the scale was "back-balanced" by two pounds, causing it to weigh two pounds light.  Back-balancing results when the scale is balanced while accumulated debris (such as manure) remains on the scale.  Second, inserting the scale ticket in the poise before the scale registered the hogs' weight caused the scale to weigh an additional two pounds light.  Finally, Auten and Baird disassembled the poise and inside found a dead mouse, straw, and acorns.3   Auten and Baird stated that the dead mouse caused the scale to short-weigh by up to nine pounds.

10
USDA charged Hutto with falsely weighing livestock in violation of 7 U.S.C.A. Sec. 213(a) (West 1980) which, inter alia, prohibits stockyard operators from using "any unfair ... or deceptive practice or device in connection with ... [the] weighing ... of livestock."4   USDA contends that Hutto caused the false weighing by:

11
(1) failing to balance the empty scale every 15 minutes or 15 drafts, whichever came first, 9 C.F.R. Sec. 201.73-1(a)(1) (1989);

12
(2) back-balancing the scale, id.;

13
(3) closing the trig loop latch when the indicator needle was above rather than in the target area, 9 C.F.R. Sec. 201.73-1(b)(1)(i) (1989);

14
(4) inserting the scale ticket in the poise before weighing, 9 C.F.R. Sec. 201.73-1(g)(1) (1989);  and

15
(5) allowing material (the mouse and its nest) to accumulate in the poise, id.

16
In addition, USDA alleged that Hutto violated 7 U.S.C.A. Sec. 221 (West Supp.1990) by issuing improperly completed scale tickets.5

17
The ALJ found that Hutto had committed the alleged violations, albeit without bad motive or intent.  Hutto appealed the decision of the ALJ to the JO.  The JO adopted the ALJ's decision as the final order, but "inferred" from the record that Hutto had a financial motive to falsely weigh and that it willfully violated the Act.

II.

18
Hutto contends that the decision of the Secretary that it falsely weighed hogs is not supported by substantial evidence.  At the administrative hearing before the ALJ, Hutto presented extensive evidence disputing the allegation of false weighing.  It argued that the discrepancy between the weights obtained by Auten and Baird and those of the weighmaster could be accounted for by considering (1) the three mechanical factors relating to the scale (back-balancing, prematurely inserting the scale ticket in the poise, and the dead mouse in the poise), (2) the fact that the USDA scale weighed in one-pound intervals and Hutto's scale weighed in five-pound intervals, and (3) the "shrinkage" (weight loss due to perspiration, urination, defecation, and tissue loss) of the hogs between the time of USDA and Hutto weighings, as established by expert veterinary testimony.  Hutto contends that once these factors are considered, no discrepancy between the USDA and Hutto weights remains, and thus no evidence exists to support the ALJ's finding of a violation of section 213(a).  Moreover, the weighmaster testified that he periodically balanced the scale and that there was no evidence that the back-balancing was caused by anything other than the accumulation of debris resulting from the continuous weighing of hogs that morning.  Hutto also offered the testimony of two sellers that the weighmaster closed the trig loop latch when the indicator needle was in the target area.  Our review of the record demonstrates that Hutto offered a plethora of evidence which would fully support a finding in its favor.

19
However, the ALJ essentially rejected all of the testimony offered by and on behalf of Hutto and accepted all of the testimony offered by the government witnesses.  Since we may not assess and pass on the credibility of witnesses, we cannot say the ALJ's findings do not meet the substantial evidence test.

III.

20
We first address the 90-day suspension.6   Under the APA Hutto could be suspended as a registrant under the Act "only if, before the institution of agency proceedings therefor, [it] has been given--(1) notice by the agency in writing of the facts or conduct which may warrant the action;  and (2) opportunity to demonstrate or achieve compliance with all lawful requirements."    5 U.S.C.A. Sec. 558(c) (West 1977).  However, this pre-suspension notice is not required if Hutto willfully violated the Act.  Id.

A.

21
Hutto contends that it was not given notice of the facts or conduct warranting suspension as required by section 558(c) of the APA.  It concedes that during the 1960's and 1970's USDA issued several written warnings concerning possible improper weighing and record-keeping practices at the Holly Hill location.  Although USDA argues that these warnings constituted sufficient notice, the last warning was given in 1976, more than a decade before the instant violations.  Also, USDA inspected Hutto's Holly Hill location in 1982 and found that Hutto was employing proper weighing procedures.  We therefore conclude that, under the circumstances here, the outdated warning letters do not constitute the notice envisioned and required by section 558(c).7

B.

22
Thus, under the APA the suspension of Hutto was not proper unless it willfully violated the Act.  We note initially that the Supreme Court has held that nothing in 7 U.S.C.A. Sec. 204 (West 1980), authorizing suspensions under the Act, "confines its application to cases of 'intentional and flagrant conduct' or denies its application in cases of negligent or careless violations."    Butz v. Glover Livestock Comm'n Co., 411 U.S. 182, 187, 93 S.Ct. 1455, 1458, 36 L.Ed.2d 142 (1973).  Glover, however, concerned the level of conduct necessary to warrant suspension under the Packers and Stockyards Act in a case in which the notice requirement of section 558(c) of the APA had been satisfied.  Here, by contrast, the notice requirement was not satisfied and consequently the conduct must rise to the level of willfulness required to justify suspension under section 558(c) of the APA.  We agree with the Tenth Circuit that, in the context of a suspension under the Packers and Stockyards Act, "willfulness" for purposes of section 558(c) means "an intentional misdeed or such gross neglect of a known duty as to be the equivalent thereof."    Capitol Packing Co. v. United States, 350 F.2d 67, 78-79 (10th Cir.1965).  A less stringent definition may collide with the requirements of administrative due process and would betray the plain meaning of the word.

23
Notwithstanding the specific finding of the ALJ that there was no evidence to support a finding of willfulness, the JO "inferred" that Hutto's acts were intentional.8   His inference was derived from the frail premises that prematurely inserting the scale ticket in the poise "necessarily results in shortweighing" and that the weighmaster closed the trig loop latch when the needle was above rather than in the target area.  Although stating that existence of a motive to short-weigh is irrelevant for purposes of determining whether conduct is intentional, the JO speculated that by short-weighing Hutto could receive a better price from packers who would have obtained more favorable yields due to the short-weighing.  In addition, the JO ventured that perhaps Hutto was offering to pay more per pound than competing hog buyers and thus was luring sellers from surrounding markets.  The record is barren of any evidence, direct or indirect, to support these unwarranted speculative theories.  We specifically reject them as totally unconfirmed by the record or the reality of the marketplace.  Furthermore, the ALJ specifically found that "[t]here is no evidence that [Hutto] received financial gain or improved standing with buyers or sellers as a result of alleged misweighing."    Indeed, if Hutto had wished to benefit financially by deceptive weighing, it logically would have weighed the hogs artificially high, for the amount of profit it realized increased proportionally by the weight attributed to the hogs at the time it purchased them, for this same weight was the basis on which packers paid Hutto.  There was no economic incentive to short-weigh and while short-weighing resulted in a loss to the sellers, it likewise resulted in a loss to Hutto.

24
We hold that the JO's "inference" that Hutto intentionally violated the Act is not supported by substantial evidence.  Therefore, because Hutto did not receive reasonable notice, the 90-day suspension is set aside for failure to comply with the requirements of the APA.

IV.

25
The JO affirmed the ALJ's order fining Hutto $20,000.  In support of the imposition of this fine, USDA contends that Hutto committed six separate violations of the Act:  five violations of 7 U.S.C.A. Sec. 213(a) (engaging in false and deceptive weighing practices) and one violation of 7 U.S.C.A. Sec. 221 (failing to maintain proper record-keeping procedures).

A.

26
Decisions of the Secretary may be set aside if found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."    5 U.S.C.A. Sec. 706(2)(A) (West 1977).  7 U.S.C.A. Sec. 213(b) requires the Secretary, before assessing monetary penalties for a violation of section 213(a), to consider (1) the gravity of the offense, (2) the size of the business involved, and (3) the effect of the penalty on the person's ability to continue in business.  See Spencer Livestock Comm'n Co. v. Department of Agric., 841 F.2d 1451, 1457 (9th Cir.1988);  Bosma v. United States Dep't of Agric., 754 F.2d 804, 810 (9th Cir.1984).  As the proponent of the penalty, USDA bears the burden of producing evidence that the penalty was reasonable.  5 U.S.C.A. Sec. 556(d) (West 1977);  Bosma, 754 F.2d at 810.    While the record shows that the ALJ and the JO gave some consideration to the first factor, the gravity of the offense, before assessing the $20,000 penalty,9 USDA conceded at oral argument that the record demonstrates that neither the ALJ nor the JO explicitly considered the second and third factors.  Indeed, a strained reading of the record does not allow a conclusion that even indirect consideration was given to these two other equally important factors.  Consideration of all three factors is mandated by statute and is far from a technical requirement.  The need for full consideration of these equally important factors is vividly demonstrated here since the penalty imposed is almost three times the amount of the 1986 net profit of Hutto Stockyard.  Thus, on the basis that it was imposed "not in accordance with law" since the Secretary failed to comply with the statutory requirements, we vacate and remand for reconsideration of the imposition of the section 213(b) monetary penalty.

27
In addition to failing to consider all of the statutory factors, the fine imposed exceeds the statutory maximum.  USDA contends that Hutto committed five separate violations of section 213(a):  failing to balance the empty scale every 15 minutes or 15 drafts, back-balancing the scale, closing the trig loop latch when the indicator needle was above rather than in the target area, inserting the scale ticket in the poise before weighing, and allowing material to accumulate in the poise.  Yet it is unclear from the record, the opinion of the ALJ, or the opinion of the JO how many acts Hutto was actually found to have committed to support the finding of a violation of section 213(a);  it is clear, however, that whatever acts were relied upon all occurred contemporaneously.

28
Section 213(a) prohibits the use of "any unfair ... or deceptive practice or device in connection with ... [the] weighing ... of livestock."    False weighing is an unfair or deceptive practice under the Act.  However, the methods by which a stockyard operator allegedly causes false weighing--whether it is back-balancing or not discovering that a mouse has entered and died in the poise--although violative of the regulations, are not in themselves unfair or deceptive practices supporting separate violations of section 213(a).  Rather, they are evidence that an unfair and deceptive practice of false weighing may have occurred.  To hold otherwise would allow an operator to be successively penalized under section 213 for what is actually only one violation.  Cf. Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955) (when criminal statute ambiguous as to whether simultaneous transportation of more than one person in violation of the Mann Act exposed defendant to cumulative punishment, doubt resolved against turning single transaction into multiple offenses).

29
We see no reasonable basis for finding that Hutto committed more than one unfair or deceptive "practice" of false weighing.  "Practice" within the context of section 213 means " 'uniformity and continuity, and does not denote a few isolated acts.' "    Guenther v. Morehead, 272 F.Supp. 721, 727 (S.D.Iowa 1967) (quoting McClure v. E.A. Blackshere Co., 231 F.Supp. 678, 682 (D.Md.1964));  see also Capitol Packing, 350 F.2d at 77 (to find violation of section 213(a), "a specified manner of dealing must be found to be unfair or deceptive").  The conduct USDA complains of here occurred during a few hours of a single day.  Accordingly, we hold that the facts of this case support a finding of only one violation of section 213(a).

B.

30
The ALJ also found that Hutto violated 7 U.S.C.A. Sec. 221 by issuing improperly completed scale tickets.  Specifically, he found that the scale tickets did not show the date of weighing, the weighmaster's initials or name and listed Hutto's Holly Hill rather than Manning location.  See 9 C.F.R. Sec. 201.49(a) (1989).  Section 221, the statutory analog to 9 C.F.R. Sec. 201.49, requires a stockyard owner to "keep such accounts, records, and memoranda as fully and correctly disclose all transactions involved in his business."    7 U.S.C.A. Sec. 221.  This section further provides that if the Secretary finds that the accounts, records, and memoranda of a stockyard owner do not fully and correctly disclose all transactions involved in his business, the Secretary may prescribe the manner and form in which such materials are to be kept.  Thereafter, the stockyard owner who fails to keep such material in the prescribed manner and form "shall upon conviction be fined not more than $5,000, or imprisoned not more than three years, or both."    7 U.S.C.A. Sec. 221.

31
We hold that section 221 is inapplicable here.  First, the section requires that the stockyard owner be notified by the Secretary that his method of keeping accounts, records, and memoranda is inappropriate.  The only notification Hutto received concerning record-keeping practices was contained in the outdated warning letters discussed earlier.  For the same reasons that Hutto was not given proper pre-suspension notice under the APA, we hold that it was not given proper notice pursuant to section 221.

32
Second, since application of the regulation to Hutto was a final agency action, it may be set aside only if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."    5 U.S.C.A. Sec. 706(2)(A).  "To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.  Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one."    Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971) (citations omitted).  Applying this standard of review, we are "required to make a careful inquiry to determine the reasonableness of the administrative interpretation and application of the regulation."    Phelps Dodge Corp. v. Federal Mine Safety and Health Review Comm'n, 681 F.2d 1189, 1192 (9th Cir.1982).  In Phelps the Ninth Circuit reversed an order of the Federal Mine Safety and Health Review Commission fining Phelps for allegedly violating a mine safety regulation.  The regulation at issue mandated that "[e]lectrically powered equipment shall be deenergized before mechanical work is done on such equipment.  Power switches shall be locked out or other measures taken which shall prevent the equipment from being energized without the knowledge of the individuals working on it."    Id. at 1191 n. 1.    Two Phelps employees were standing on a "panfeeder" cleaning out a rock-clogged drop chute when an agency inspector arrived.  The employees often used the panfeeder to jostle the rocks and move loose stones.  Because they were cleaning out the chute and the panfeeder was electrically powered, the employees were engaged in "mechanical work" on "electrically powered equipment."    Although the Phelps employees had turned off the electrical power to the panfeeder at a nearby control box, they had not "locked out" the panfeeder by flipping a power switch in a distant control room.  The agency inspector issued an order and fine based on the failure to "lock out" the panfeeder.

33
On judicial review Phelps contended that "the regulation has been incorrectly applied in this case because its basic purpose, fairly read, is to protect workers from the hazards of electrical shock, not such hazards as may attend removal of rocks from the chute."    Id. at 1192.    The Ninth Circuit held that the Secretary abused his discretion by applying the regulation to the facts of the case because "[t]he regulation inadequately expresses an intention to reach the activities to which [the agency] applied it."    Id. at 1193.    The court was persuaded that the regulation was only intended to protect workers from injuries caused by electric shock and, if a different intent existed, fair warning of the reach of the regulation had not been given.

34
The rationale of Phelps applies a fortiori here because, as USDA acknowledged, section 201.49 is intended to protect a seller whose animal is weighed but not immediately purchased and the seller and animal are separated for several hours or more between the weighing and purchase.  Here, after each weighing, the seller was paid immediately for the hog(s) according to the weight determined in the seller's presence.10   Indeed, USDA conceded at oral argument that enforcement of section 201.49 under these facts would serve no rational purpose and remedy no harm since other documents which Hutto gave to the sellers provided all the information required by the regulation.  We hold that enforcement of the regulation under these facts is unreasonable and amounts to an abuse of discretion.  Accordingly, we reverse the finding of the Secretary that Hutto violated section 221.V.

35
In conclusion, we vacate the suspension order and vacate and remand the monetary penalty.  On remand the Secretary is instructed to consider, in accordance with 7 U.S.C.A. Sec. 213(b), the fact that this violation was not committed willfully, the size of Hutto's business and the effect of the proposed penalty on Hutto's ability to continue in business.  Additionally, we hold that on remand Hutto may only be sanctioned for one violation of section 213(a).  We also reverse the finding of the Secretary that Hutto violated section 221.  We affirm the cease and desist order.

36
AFFIRMED IN PART;  REVERSED IN PART;  VACATED IN PART;  AND REMANDED WITH INSTRUCTIONS.

1
 This order prohibits Hutto Stockyard from operating its business at all locations for the entire suspension period

2
 The Hutto Stockyard scale weighs in five-pound increments.  Although larger in size, it is similar in design to a physician's scale.  The weight is ascertained by sliding the "poise" along the horizontal main bar until it reaches the proper 100-pound increment.  The "knurl" on the poise is then turned to the nearest five-pound increment.  Then, when the needle on the "Spinks indicator" settles in the target area, the trig loop latch is closed, the scale ticket is inserted in the poise, and the printing handles are squeezed (printing the weight on the scale ticket).  If the trig loop latch is closed by the weighmaster when the indicator needle is above rather than in the target area, the printed weight will be artificially low.  Likewise, if the latch is closed when the indicator needle is below rather than in the target area, the printed weight will be artificially high

3
 The South Carolina Department of Agriculture had conducted its biannual inspection of the scale a week earlier and found it to be in proper operating condition.  The poise is the most delicate part of the scale and is enclosed within a metal box.  USDA regulations prohibit weighers from adding material to or otherwise tampering with the poise.  9 C.F.R. Sec. 201.73-1(g)(1) (1989).  Moreover, when a weigher, such as Hutto, "has reason to believe that a scale is not functioning properly" he may not repair the scale but "shall discontinue weighing, report the facts to the parties responsible for scale maintenance, and request inspection, test, or repair of the scale."    9 C.F.R. Sec. 201.73-1(g)(4)

4
 Violation of section 213(a) carries a maximum fine of $10,000.  7 U.S.C.A. Sec. 213(b)

5
 Violation of section 221 carries a maximum fine of $5,000

6
 Although both the order of the ALJ and the order of the JO suspended Hutto Stockyard and John and Charles Hutto as registrants under the Act, USDA notes in its brief that only Hutto Stockyard could actually be suspended because only it was registered under the Act

7
 Nor are we persuaded by the strained contention of USDA that notice should be imputed to Hutto because it once acknowledged on a form that it had read "Packers and Stockyards Scales and Weighing Memorandum No. 3," which mentions the regulations pertaining to weighing and record keeping

8
 The JO attached his 37-page "USDA Sanction Policy" as an appendix to the 69-page order.  This appendix pontificates on the nature and goals of punishment and champions the deterrent effects of the severe sanction policy of the USDA.  The didactic and punitive tone of the appendix is punctuated with quotations from Nietzsche, Plato, Socrates, and the Bible, as well as several contemporary philosophers.  Significantly, the JO admits in the appendix that:  "Frequently, I infer that certain conduct was intentional and done with knowledge of unlawfulness (for the benefit of reviewing judges who may dislike my hard-nosed sanction policy )."    (Emphasis added.)
The JO's self-described policy of reflexively inferring intentional conduct belies any contention that his finding on this issue is supported by substantial evidence.  In fact, as the Sixth Circuit observed while reviewing a decision of this same JO, there has been a "near approach" to a breach of the line between judging and prosecuting.  Parchman v. United States Dep't of Agric., 852 F.2d 858, 866 (6th Cir.1988) (reviewing JO's decision and finding "disturbing instances of what may appear to be a punitive mentality overriding individual considerations").

9
 Neither the method used by the ALJ and the JO in calculating this penalty nor the amount of the penalty respectively attributable to the violations of sections 213(a) and 221 are found in the record.  Furthermore, two important factors should have been given paramount consideration when assessing the gravity of the offense--that no willful or intentional misconduct was involved and that no financial gain or other advantage accrued to Hutto

10
 USDA cites as evidence of this violation the fact that the ticket given to the seller immediately after weighing listed the site of the weighing as Holly Hill rather than Manning.  This argument illustrates the position in which USDA's overbearing approach has placed it, for no one can seriously believe that a seller who has transported his hog to the Manning location will be persuaded that he actually drove to Holly Hill because his ticket listed the Holly Hill location and is thus somehow unfairly treated


316 S.W.3d 616 (2008)
Doris JONES and Billy Jones
v.
Lisa June COX.
No. W2008-00729-COA-R9-CV.
Court of Appeals of Tennessee, at Jackson.
October 21, 2008 Session.
November 25, 2008.
Application for Permission to Appeal Denied by Supreme Court June 1, 2009.
*617 Winston S. Evans, Jeffrey J. Switzer, Nashville, TN, for Appellant.
William B. Ryan, Memphis, TN, for Appellee.

OPINION
J. STEVEN STAFFORD, J., delivered the opinion of the court, in which DAVID R. FARMER, J., and HOLLY M., KIRBY, J., joined.
This is a Tenn. R.App. P. 9 appeal from the trial court's denial of Appellant/Defendant's motion to dismiss the Appellees/Plaintiffs' complaint for legal malpractice. Appellant, a licensed attorney, represented the Appellees in a lawsuit following an automobile accident. Appellant failed to effect service of process on the party-defendant to that suit. Appellees retained other counsel and filed a legal malpractice lawsuit against Appellant. Appellees' new counsel made a strategic decision to withhold service of process on Appellant pending the outcome of the underlying case. Appellant filed a motion to dismiss pursuant to Tenn. R. Civ. P. 4.01(3) for intentional delay of service of process. The trial court denied the motion to dismiss, and this appeal followed. We reverse and remand.
On August 27, 2003, Doris Jones was involved in a car accident in Jackson, Tennessee. On that date, Ms. Jones' vehicle was struck from the rear by a vehicle driven by Susannah P. Johnson. As a result of the accident, Ms. Jones suffered an injury to her neck.
Following the accident, Ms. Jones and her husband, Billy J. Jones (together "Appellees"), retained Appellant Lisa June Cox to provide legal representation in their lawsuit against Ms. Johnson. On August 23, 2004, Ms. Cox filed a complaint *618 against Ms. Johnson in the Circuit Court at Madison County on behalf of the Joneses. On the same day, Ms. Cox prepared and caused a summons to be issued and served on Ms. Johnson at a Jackson, Tennessee address. The summons was returned "unserved" on August 26, 2004. The deputy sheriff who attempted to serve Ms. Johnson made the following notation on the summons: "Not found, moved out approximately three months ago to Powder Springs, GA."
On or about December 1, 2005, the Joneses met with Ms. Cox. At that meeting, Ms. Cox first informed the Joneses that their case against Ms. Johnson might be in trouble due to the failure to effect service of process on Ms. Johnson. On February 13, 2006, Ms. Cox sent a letter to the Joneses, informing them, among other things, that process had not been served on Ms. Johnson, and that Ms. Cox had not obtained an address for Ms. Johnson. In her letter, Ms. Cox opines: "I believe that the time limit has passed for us to find [Ms. Johnson] and service to be reissued." Ms. Cox informs the Joneses that, if she is unsuccessful in locating and serving Ms. Johnson, then "you [the Joneses] may want to see another lawyer ... or contact my insurance carrier directly." Upon receipt of the letter, the Joneses dismissed Ms. Cox as their attorney, and retained William Ryan as their counsel. Mr. Ryan was able to locate and serve Ms. Johnson on March 2, 2006. In response, Ms. Johnson (and her insurance carrier) filed a motion to dismiss the Jones' complaint and/or for summary judgment. As grounds, Ms. Johnson averred that the complaint and summons were not served within the time allowed under Tennessee law; consequently, Ms. Johnson argued that the applicable statute of limitations had expired, resulting in a bar to the Jones' lawsuit against her. On August 8, 2006, the circuit court granted Ms. Johnson's motion, thereby dismissing the Jones' complaint against Ms. Johnson.
On November 20, 2006, the Joneses, through their new attorney, filed a complaint for legal malpractice against Ms. Cox, alleging that she had failed to exercise due diligence in attempting to effect service of process on Ms. Johnson. Although a summons was issued on that same day, the Jones' attorney did not attempt service. Some nine months later, on August 28, 2007, a second summons was issued and service on Ms. Cox was attempted. Service was made on September 7, 2007.
On October 11, 2007, Ms. Cox filed a motion to dismiss the complaint pursuant to Tenn. R. Civ. P. 12.02(5) and (6).[1] On January 8, 2006, the Joneses filed a response to Ms. Cox's motion to dismiss. The Affidavit of their attorney, Mr. Ryan, was filed as an exhibit to the response. Therein, Mr. Ryan does not deny delaying service of process in the Jones' case against Ms. Cox; his reasons, as set out in the affidavit, are as follows:
3. After I became involved in the [Jones'] case against Ms. Johnson, I put Ms. Cox's insurance carrier on notice of a potential legal malpractice claim against Ms. Cox. During the [Jones'] lawsuit against Ms. Johnson, I worked with Winston Evans, who was an attorney hired by Lisa June Cox's insurance carrier....
* * *

*619 5. After the [Jones'] lawsuit against Ms. Johnson was dismissed ... and while the case was on appeal, I had numerous discussions in the late summer/early fall of 2006 with Winston Evans concerning resolution/settlement of the [Jones'] legal malpractice claim against Lisa June Cox.... [S]ettlement discussions did not prove to be fruitful.
6. On October 9, 2006, I advised Mr. Evans that I was going to proceed forward and file a lawsuit ... against Ms. Cox....
* * *
8. Thereafter, the parties discussed entering into a tolling agreement to avoid the [Joneses] having to unnecessarily file suit against Ms. Cox while the [Jones'] case against Ms. Johnson was still pending. But the parties were not able to agree....
9. On November 20, 2006, while their case against Ms. Johnson was still on appeal, the [Joneses] filed a lawsuit against Lisa June Cox alleging legal malpractice.... A Summons was issued for service on Lisa June Cox on that same date.
10. At the time that the [Jones'] lawsuit was filed against Ms. Cox, I believed that the [Joneses] had ninety (90) days under Tenn. R. Civ. P. 3 to serve Ms. Cox with a copy of the Complaint and Summons. I believed, per the terms of Tenn. R. Civ. P. 3, that if service was not made on Ms. Cox within the initial ninety (90) day period the summons could be re-issued on Ms. Cox at any time within one (1) year and the statute of limitations would be tolled. Moreover, I believed that if service was consummated on Ms. Cox that she would file a motion to stay the proceedings until the [Jones'] case against Ms. Johnson was resolved....
11. Oral argument in the [Jones'] case against Ms. Johnson was held on April 18, 2007.
12. On April 20, 2007, I called Winston Evans.... During this call, I notified Mr. Evans that the [Joneses] had filed a lawsuit against [Lisa June Cox] alleging legal malpractice....
13. Believing that I had until at least November 20, 2007 to get the Summons re-issued, I waited to serve Lisa June Cox with process until after the Tennessee Court of Appeals rendered its decision. Had the Tennessee Court of Appeals not rendered its decision by the end of October of 2007, I would have proceeded to serve Ms. Cox with the lawsuit.
14. As it happened, the Tennessee Court of Appeals issued its decision on July 16, 2007....
15. After the Tennessee Court of Appeals decision I contacted Mr. Evans to discuss the ... case against Ms. Cox. On August 6, 2007, I sent a waiver of service form ... to Mr. Evans.... Mr. Evans contacted me on August 19, 2007 and advised that he could not execute the waiver.... On August 20, 2007, Mr. Evans contacted me and advised that he had authority from Ms. Cox to accept service....
16. Thereafter, I caused another Summons to be issued and served on Lisa June Cox. The Summons was issued on August 28, 2007 and service was made on Ms. Cox ... on September 7, 2007.
17. I did not intentionally delay service of the complaint on Ms. Cox to achieve any tactical advantage or benefit. Service on Ms. Cox was solely withheld in order to see whether the case against Ms. Johnson would be salvaged. If the case against Ms. Johnson were salvaged there would be no need to proceed *620 against Ms. Cox. Once the Tennessee Court of Appeals affirmed the trial court's decision dismissing the case, and the only avenue left was a permissive appeal to the Tennessee Supreme Court, Ms. Cox was served with the lawsuit.
Ms. Cox's motion to dismiss was denied by the trial court's Order of February 4, 2008. On February 28, 2008, Ms. Cox filed a motion seeking permission to appeal the trial court's decision to this Court pursuant to Tenn. R.App. P. 9.[2] On March 28, 2008, the trial court entered an order granting Ms. Cox permission to seek a Tenn. R.App. P. 9 appeal. By Order of May 5, 2008, this Court granted Ms. Cox's Tenn. R.App. 9 application for interlocutory appeal. Ms. Cox raises one issue for review:
Does an intentional nine and one-half month delay in service of a Summons after filing of a Complaint render the filing of the Complaint "ineffective" pursuant to T.R.C.P. 4.01(3)?
This issue involves a question of law. As such, we review the trial court's decision de novo upon the record with no presumption of correctness. Tenn. R.App. P. 13(d). As this Court recently discussed in Watson v. Garza, ___ S.W.3d ___ (Tenn.Ct.App.2008):
Because the trial court's jurisdiction of the parties is acquired by service of process, proper service of process is an essential step in a proceeding. The record must establish that the plaintiff complied with the requisite procedural rules, and the fact that the defendant had actual knowledge of attempted service does not render the service effectual if the plaintiff did not serve process in accordance with the rules.
"The Tennessee Rules of Civil Procedure govern the service of process, and the Supreme Court has held that the Rules of Civil Procedure are `laws' of this state, in full force and effect, until such time as they are superseded by legislative enactment or inconsistent rules promulgated by the Court and adopted by the General Assembly." "Service of process must strictly comply to Rule 4 of the Tennessee Rules of Civil Procedure."
Id. at ___ (internal citations omitted).
Tenn. R. Civ. P. 4.01 reads, in relevant part, as follows:
4.01. Summons; Issuance; By Whom Served(1) Upon the filing of the complaint the clerk of the court wherein the complaint is filed shall forthwith issue the required summons and cause it, with *621 necessary copies of the complaint and summons, to be delivered for service to any person authorized to serve process. This person shall serve the summons, and the return indorsed thereon shall be proof of the time and manner of service....
* * *
(3) If a plaintiff or counsel for plaintiff (including third-party plaintiffs) intentionally causes delay of prompt issuance of a summons or prompt service of a summons, filing of the complaint (or third-party complaint) is ineffective.
Subsection (3) of the Tenn. R. Civ. P. 4.01 was adopted by our Supreme Court on December 10, 2003, and became effective July 1, 2004. It is undisputed that the Jones' cause of action against Ms. Cox accrued on December 1, 2005, when Ms. Cox informed the Joneses that their case against Ms. Johnson might be fatally flawed due to lack of service of process. The applicable statute of limitations for legal malpractice claims is one-year from the accrual thereof. Tenn.Code Ann. § 28-3-104(a)(2). A legal malpractice action accrues at the time the plaintiff knows, or should (in the exercise of reasonable diligence) know that an injury has occurred. See, e.g., John Kohl & Co., P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn.1998). The Joneses filed their complaint for legal malpractice against Ms. Cox on November 20, 2006, which was within the applicable statute of limitations. A summons was issued on that same day, but, as stated in Mr. Ryan's affidavit, he withheld service of process on Ms. Cox, pending the outcome of the Jones' case against Ms. Johnson. Another summons was issued nine months later on August 28, 2007, with service being made on Ms. Cox on September 7, 2007. The issue before us is whether this delay of service of process rendered the filing of the complaint ineffective, thus resulting in the expiration of the one year statute of limitations.
This Court recently addressed the applicability of Tenn. R. Civ. P. 4.01(3) in The Estate of Robyn Butler, et al. v. Lamplighter Apartments, et al., 278 S.W.3d 321 (Tenn.Ct.App.2008), wherein we held that:
The plaintiffs filed a Complaint and obtained issuance of summons for service on each defendant prior to October 14, 2005. The filing of the initial Complaint, however, was not effective because counsel for Plaintiffs intentionally caused the delay of prompt service of a summons. See Tenn. R. Civ. P. 4.01(3). The plaintiffs did not effectively file a complaint until after the statute of limitations had expired. Accordingly, all of the plaintiffs' claims are time barred.
Id. at 323-24.
Likewise, the Jones' attorney admits in his affidavit that he did not attempt service of process on Ms. Cox because he was awaiting the outcome of the appeal in the underlying case. Although we concede that Mr. Ryan's strategy was logical given the fact that, had the dismissal of the Jones' case against Ms. Johnson been reversed, a malpractice suit against Ms. Cox would not be necessary, the rules simply do not allow attorneys to participate in this sort of waiting game. Under Tenn. R. Civ. P. 4.01(3) it is the intent to withhold service of process that is the test. From the facts in the record, and in light of Mr. Ryan's own sworn statements, it is clear that he intentionally withheld service of process in this case, albeit for a very reasonable purpose. As we determined in Butler, supra, an intentional delay under Tenn. R. Civ. P. 4.01(3) mandates a conclusion that the original complaint was not effectively filed. Regardless of the savings *622 exceptions set out in Tenn. R. Civ. P. 3.[3] (upon which the Joneses rely), the intent to withhold service of process makes the filing of the complaint on November 20, 2006 ineffective. Although a second summons was issued within a year of the initial summons, this did not toll the applicable statute of limitations.
For the foregoing reasons, we reverse the order of the trial court, and remand for entry of an order granting Ms. Cox's motion to dismiss. Costs of this appeal are assessed against the Appellees, Doris and Billy J. Jones, for which execution may issue if necessary.
NOTES
[1]  Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion in writing: ..., (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted....
[2]  Rule 9. Interlocutory Appeal by Permission from the Trial Court.(a) Application for Permission to Appeal; Grounds.Except as provided in Rule 10, an appeal by permission may be taken from an interlocutory order of a trial court from which an appeal lies to the Supreme Court, Court of Appeals or Court of Criminal Appeals only upon application and in the discretion of the trial and appellate court. In determining whether to grant permission to appeal, the following, while neither controlling nor fully measuring the courts' discretion, indicate the character of the reasons that will be considered: (1) the need to prevent irreparable injury, giving consideration to the severity of the potential injury, the probability of its occurrence, and the probability that review upon entry of final judgment will be ineffective; (2) the need to prevent needless, expensive, and protracted litigation, giving consideration to whether the challenged order would be a basis for reversal upon entry of a final judgment, the probability of reversal, and whether an interlocutory appeal will result in a net reduction in the duration and expense of the litigation if the challenged order is reversed; and (3) the need to develop a uniform body of law, giving consideration to the existence of inconsistent orders of other courts and whether the question presented by the challenged order will not otherwise be reviewable upon entry of final judgment. Failure to seek or obtain interlocutory review shall not limit the scope of review upon an appeal as of right from entry of the final judgment.
[3]  Tenn. R. Civ. P. 3 provides: "All civil actions are commenced by filing a complaint with the clerk of the court. An action is commenced within the meaning of any statute of limitations upon such filing of a complaint, whether process be issued or not issued and whether process be returned served or unserved. If process remains unissued for 90 days or is not served within 90 days from issuance, regardless of the reason, the plaintiff cannot rely upon the original commencement to toll the running of a statute of limitations unless the plaintiff continues the action by obtaining issuance of new process within one year from issuance of the previous process or, if no process is issued, within one year of the filing of the complaint."


COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NOS. 2-05-00386-CR

      2-05-00387-CR

PHILLIP DEWAYNE MAYFIELD	APPELLANT

V.

THE STATE OF TEXAS	STATE

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

FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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

MEMORANDUM OPINION
(footnote: 1)

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

I.  Introduction

Appellant Phillip Dewayne Mayfield appeals his convictions for indecency with a child (L.A.), aggravated sexual assault (of T.A.), and indecency with a child (T.A.).  The jury assessed punishment at two years’ confinement and recommended probation for the indecency with a child conviction involving L.A.; fifteen years’ confinement for the aggravated sexual assault involving T.A.; and ten years’ confinement with a recommendation of probation for the indecency with a child conviction involving T.A.  The trial court sentenced Mayfield accordingly.  On appeal, Mayfield raises six issues, arguing that the trial court erred by admitting four pieces of extraneous bad acts evidence, that the trial court erred by overruling his motion for mistrial, and that the cumulative effect of these errors requires reversal.  We will affirm.

II.  Factual Background

Mayfield started living with M.G.A. and her four children when M.G.A.’s oldest daughter, T.A., was in the third grade.  When T.A. turned thirteen and was in the seventh grade, Mayfield moved her clothes out of the way and rubbed her behind.  Later, Mayfield progressed to putting his fingers in T.A.’s genitals and having oral and vaginal sex with her.  Mayfield continued to have sex with T.A. until she turned sixteen and told him that it was wrong and that she wanted it to stop.  Several years later, Mayfield approached T.A.’s younger sister L.A. while she was playing a computer game and fondled her chest after he had massaged her shoulders.  Both girls eventually reported the incidents to their mother, and ultimately Mayfield was charged and convicted of the present offenses.

III.  Extraneous Bad Acts Evidence

In his first four issues, Mayfield argues that the trial court erred by admitting evidence of extraneous bad acts:  being a “Peeping Tom,” assaulting a neighbor named Debra Edwards, drinking, and having a shouting match with M.G.A.  The State responds that the “Peeping Tom” evidence was admissible to rebut testimony that Mayfield was not the type of person to commit a sexual offense involving children and to rebut a defensive theory; the State also responds that Mayfield waived any error in the admission of the other extraneous bad acts evidence by failing to object every time that the evidence was mentioned.  Because the State asserts that Mayfield may have waived some of his issues, we first review the record to determine whether Mayfield properly preserved the alleged error regarding the four extraneous bad acts before proceeding to a 403 and 404(b) analysis.

A.	Preservation of Error

Outside the presence of the jury, both sides took Debra Edwards, Mayfield’s neighbor, on voir dire and questioned her about a “Peeping Tom” incident, Mayfield’s drinking, and an altercation Mayfield had with her.  Mayfield objected to the admission of Edwards’s testimony, arguing that her testimony was not relevant, was cumulative, and was barred under rules of evidence 403, 404(b), and 401.  The trial court overruled Mayfield’s objections but granted him a running objection.

To preserve error, a party must continue to object each time the objectionable evidence is offered.
Fuentes v. State
, 991 S.W.2d 267, 273 (Tex. Crim. App.),
cert. denied,
 528 U.S. 1026 (1999);
Ethington v. State
, 819 S.W.2d 854, 858-59 (Tex. Crim. App. 1991).  A trial court’s erroneous admission of evidence will not require reversal when other such evidence was received without objection, either before or after the complained-of ruling.
Leday v. State
, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998);
Johnson

v. State
, 803 S.W.2d 272, 291 (Tex. Crim. App. 1990),
cert. denied
, 501 U.S. 1259 (1991),
 overruled on other grounds by Heitman v. State
, 815 S.W.2d 681 (Tex. Crim. App. 1991).  This rule applies whether the other evidence was introduced by the defendant or the State.
Leday
, 983 S.W.2d at 718.

One exception to this general rule is when a defendant offers evidence identical to that which he objected to earlier to rebut, destroy, or explain the previously admitted evidence.
Id.
 at 718-19;
Rogers v. State
, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993).  Another exception
 is
 that a request for a running objection is timely and preserves error as long as it does not encompass too broad a subject matter during too broad a time or over different witnesses.
 Ford v. State
, 919 S.W.2d 107, 113 (Tex. Crim. App. 1996);
 Sattiewhite v. State
, 786 S.W.2d 271, 283 n.4 (Tex. Crim. App. 1989),
cert. denied
, 498 U.S. 881 (1990).  A third exception is i
f a trial court hears objections to proffered evidence outside the jury’s presence and rules that the evidence is admissible, the objections are deemed to apply to the evidence when it is admitted before the jury without the necessity of repeating the objections.
Tex. R. Evid.
 103(a)(1);
Geuder v. State
, 115 S.W.3d 11, 13-14 (Tex. Crim. App. 2003);
Ethington
, 819 S.W.2d at 859.

1.	Evidence Of Drinking

Edwards testified in front of the jury that Mayfield “[did] quite a bit of drinking, and he became very loud, very rude when he was drinking.  Violent.  He staggered.”  Edwards also testified that Mayfield appeared intoxicated when she spotted him being a “Peeping Tom” and when he assaulted her.  Although this testimony was covered by the running objection that the trial court granted Mayfield, prior witnesses had already testified without objection regarding Mayfield’s drinking habits.  For instance, M.G.A. testified without objection that Mayfield “used to drink a lot” and that he was crazy when he drank.  Mayfield’s counsel cross-examined M.G.A. regarding Mayfield’s drinking.  And, M.G.A. testified on redirect without objection that someone intervened to talk to Mayfield about his drinking problem.  Additionally, M.G.A.’s sister and T.A. both testified without objection about Mayfield’s drinking problem.

Because
evidence about Mayfield’s drinking was admitted without objection before the complained-of ruling, Mayfield failed to preserve any error associated with Edwards’s testimony regarding Mayfield’s drinking problem.
See Fuentes
, 991 S.W.2d at 273;

Leday
, 983 S.W.2d at 718;
Johnson
, 803 S.W.2d at 291.
We therefore overrule Mayfield’s third issue.

2.	Evidence Of Shouting Match With M.G.A.

Edwards testified that on a couple of occasions, she had heard M.G.A. and Mayfield fighting, mainly Mayfield screaming.  Mayfield’s counsel cross-examined Edwards, confirming that she had heard Mayfield screaming at M.G.A. while he was drunk.  Although this testimony was also covered by the running objection that the trial court granted Mayfield, prior witnesses had already testified without objection regarding Mayfield’s fights with M.G.A.  Specifically, prior to Edwards’s testimony, L.A. testified during questioning by Mayfield’s counsel that she knew that her mother and Mayfield were having problems with their relationship and that she had heard their frequent arguments.  M.G.A.’s sister testified without objection that Mayfield was physical and violent with M.G.A. and that he had pushed her and hit M.G.A. in the past.  T.A. testified without objection that Mayfield was “mean” to her mom and had once tipped over a couch on which M.G.A. had been sitting.

Because
evidence of Mayfield’s arguments and fights with M.G.A. was admitted without objection before the complained-of ruling, Mayfield failed to preserve any error associated with Edwards’s testimony regarding Mayfield’s shouting match with M.G.A.
See Fuentes
, 991 S.W.2d at 273;

Leday
, 983 S.W.2d at 718;
Johnson
, 803 S.W.2d at 291.
We overrule Mayfield’s fourth issue.

3.	Evidence Of Assaulting Edwards

Edwards also testified regarding one occasion when Mayfield swung her around, pushed her, and threatened to punch her.
Specifically, Edwards testified that
her oldest daughter had told her that Mayfield’s stepson was bugging her younger sister and that she had told him to leave her sister alone. Mayfield thereafter accused Edwards of hitting his stepson and of calling his stepson a derogatory term.  Edwards tried to explain that she had never touched his stepson or called him a name.
Despite her response, Edwards testified that May
field swung her around, pushed her, and threatened to punch her.  Later,
Mayfield took the stand and explained that he had verbally confronted Edwards about hitting his stepson but that he had never had a physical confrontation with her or any other woman.
Mayfield’s explanation concerning this extraneous bad act is the only other testimony in the record regarding this event; therefore, Mayfield did not waive his objections to this extraneous bad act evidence.
See
Leday
, 983 S.W.2d at 718.

 The State concedes that this bad act testimony was not relevant.  We agree and accordingly hold that the trial court erred by admitting it.
See, e.g., Russell v. State
, 113 S.W.3d 530, 541 (Tex. App.—Fort Worth 2003, pet. ref’d).

Having found error, we must conduct a harm analysis to determine whether the error calls for reversal of the judgment.
Tex. R. App. P.
 44.2.  Because the error in admitting the evidence was nonconstitutional error, we apply rule 44.2(b) and disregard it if it did not affect appellant’s substantial rights.
Tex. R. App. P.
 44.2(b);
see Mosley v. State,
 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g),
cert. denied
, 526 U.S. 1070 (1999);
Coggeshall v. State
, 961 S.W.2d 639, 642-43 (Tex. App.—Fort Worth 1998, pet. ref’d).

A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict.
King v. State
, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing
Kotteakos v. United States
, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946));
Coggeshall,
 961 S.W.2d at 643.  In making this determination, we review the record as a whole.
 See Johnson v. State
, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

In the present case, Edwards’s testimony on this extraneous bad act took up less than ten pages in the 575-page record of the trial on the merits.

Prior to closing arguments, the trial court read the charge to the jury, instructing them that

if there is any testimony before you in this case regarding the Defendant’s having committed bad acts other than the offense alleged against him in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the Defendant committed such other bad acts, if any were committed, and even then you may only consider the same in determining the intent of the Defendant, if any, in connection with the offense, if any, alleged against him in the indictment in this case, and for no other purpose.

Thereafter, the State during its closing argument reminded the jurors that the case was not about anyone except T.A. and L.A.  The State made only one inexplicit reference to Mayfield’s encounter with Edwards, describing it as “that incident that happened but didn’t happen.”

We conclude that, in the context of the entire case against appellant, the trial court’s error in admitting the testimony in question did not have a substantial or injurious effect on the jury’s verdict and did not affect appellant’s substantial rights.
See King
, 953 S.W.2d at 271.  Thus, we disregard the error.
See

Tex. R. App. P.
 44.2(b).
  We overrule Mayfield’s second issue.

4.	“Peeping Tom” Evidence

Our review of the record demonstrates that Mayfield was granted a running objection to the “Peeping Tom” evidence presented by Edwards. Edwards testified that on two occasions she caught Mayfield looking into her daughters’ bedrooms while the girls were undressing.  This evidence was not admitted through any other witness; therefore, Mayfield’s running objection regarding the “Peeping Tom” evidence preserved this alleged error.  We thus
 proceed to analyze the admission of this evidence under rules 403 and 404(b).

B.	Standard Of Review For A Determination Under Rule 404(b)

Rule 404(b) embodies the established principle that a defendant is not to be tried for collateral crimes or for being a criminal generally.
Tex. R. Evid.
404(b);
Nobles v. State
, 843 S.W.2d 503, 514 (Tex. Crim. App. 1992);
 Jones v. State
, 119 S.W.3d 412, 418 (Tex. App.—Fort Worth 2003, no pet.). Consequently, extraneous offenses are not admissible at the guilt-innocence phase of trial to prove that a defendant acted in conformity with his character by committing the charged offense.
Tex. R. Evid.
404(b);
Jones
, 119 S.W.3d at 418.  An extraneous offense, however, has noncharacter-conformity relevance where it has any tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.
Tex. R. Evid. 401
;
 Powell v. State
, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001).  That is, extraneous offense evidence that tends to make an elemental or evidentiary fact more or less probable or tends to rebut some defensive theory is relevant beyond its tendency to prove a person’s character or that he acted in conformity therewith.
  Montgomery v. State
, 810 S.W.2d 372, 386-87 (Tex. Crim. App. 1991) (op. on reh’g);
Jones
, 119 S.W.3d at 419.  Consequently, evidence of other crimes or extraneous misconduct may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, or absence of mistake or accident.
Tex. R. Evid.
404(b);
Jones
, 119 S.W.3d at 419
.  Such evidence may also be introduced to rebut a defensive theory.
Jones
, 119 S.W.3d at 419
.

The State, as the proponent of extraneous offense evidence, bears the burden of showing admissibility.
See Rankin v. State
, 974 S.W.2d 707, 718 (Tex. Crim. App. 1998) (op. on reh’g).  The trial court’s task is to determine whether extraneous offense evidence is relevant for a purpose other than to prove the propensity of the defendant to commit crimes or other bad acts.
Jones
, 119 S.W.3d at 419
.  Rulings on relevance should be left largely to the trial court, relying on its own observations and experience, and will not be reversed absent an abuse of discretion.
Moreno v. State
, 858 S.W.2d 453, 463 (Tex. Crim. App.),
cert. denied
, 510 U.S. 966 (1993);
Jones
, 119 S.W.3d at 419
.  Appellate courts should give great discretion to the trial courts in matters of relevancy, reversing only if the trial court acts outside “the zone of reasonable disagreement.”
Montgomery
, 810 S.W.2d at 391.  Moreover,
 a trial court’s decision regarding admissibility of evidence will be sustained if correct on any theory of law applicable to the case, even when the court’s underlying reason for the decision is wrong.
Romero v. State
, 800 S.W.2d 539, 543-44 (Tex. Crim. App. 1990).

C.	Rule 404(b) Relevance Determination

Mayfield initially contends that the State was not justified in its proffer of the “Peeping Tom” evidence because he did not open the door by putting his character in question.  Mayfield also argues that the “Peeping Tom” evidence was not relevant to prove opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident and that the “Peeping Tom” evidence
had no relevance to any fact of consequence in this case apart from its tendency to prove conduct in conformity with character.  The State asserts that the “Peeping Tom” evidence was admissible to rebut Mayfield’s defensive theory that L.A. and T.A. fabricated the allegations against him.

At the outset, we address Mayfield’s contention that he did not open the door to the admission of extraneous offenses.  Specifically, he asserts that the State cannot rely on its own questioning of his sister—who stated during cross-examination that she did not believe that Mayfield committed the charged offenses because she knew her brother—to the open the door.

As a general rule, the defensive theory that the State wishes to rebut through the use of extraneous offense evidence must be elicited on direct examination by defense and may not be elicited by “prompting or maneuvering” by the State.
Wheeler v. State
, 67 S.W.3d 879, 885 (Tex. Crim. App. 2002).  However, in this case, the record reflects that Mayfield, not the State, initially presented the defense that he was the victim of a frame-up.

During opening statement, Mayfield’s counsel painted the case as an act of “desperation” in which M.G.A. was trying to get back at Mayfield because he had kicked M.G.A. and her family out of his house.  Mayfield’s counsel specifically stated that M.G.A. had influenced T.A. and L.A. “to make these things [allegations] up.”  Although it was the State that asked Mayfield why other witnesses would have lied, Mayfield’s counsel carried the frame-up defensive theory through closing argument:

Now, I know that it is hard to imagine why someone would just come up here and lie.  I know that.  But I also know it happens.  And I know it is hard for you to imagine how a mother could use her children to make awful, awful charges.  But I know that happens as well, and you can ask any judge in the country.

Thus, the record demonstrates that Mayfield propounded a defensive theory—that he was the victim of a frame-up by M.G.A.—that was subject to rebuttal evidence by the State, as long as the evidence also complied with the specific requirements of rules 404(b) and rule 403.
See Blackwell v. State
, 193 S.W.3d 1, 13 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d);
see also Keen v. State
, 85 S.W.3d 405, 412-13 (Tex. App.—Tyler 2002, pet. ref’d) (showing that defensive theory was introduced during defense’s opening statement).

As noted above, to be admissible under rule 404(b), the extraneous offense evidence must have probative value beyond character conformity.
Tex. R. Evid.
 404(b).  To be probative, the extraneous offense evidence admitted to rebut a defensive theory must be similar to the charged offense.
See Wheeler
, 67 S.W.3d at 888-89 (holding extraneous offense similar to charged offense because in both cases defendant reached underneath young girl’s outer clothing and touched her private parts while family member was nearby);
Plante v. State
, 692 S.W.2d 487, 492-93 (Tex. Crim. App. 1985) (holding that high degree of similarity between extraneous and charged offenses used in cases proving modus operandi not required when purpose of proof is to show intent);
Dennis v. State
, 178 S.W.3d 172, 179 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (holding that extraneous offense evidence admitted to rebut defensive theory of frame-up need not be signature crime or nearly identical to charged offense; rule 404(b) requires only similarity to charged offense).

At trial, the “Peeping Tom” evidence consisted of Edwards’s testimony that she caught Mayfield looking through her daughters’ bedroom windows while they were undressing.  Edwards’s oldest daughter was approximately the same age as T.A. and L.A. were when Mayfield molested them.  Thus, this “Peeping Tom” evidence was probative because it was similar to the charged offense in that it demonstrated that Mayfield displayed an inappropriate sexual interest in teenage girls, thus rebutting Mayfield’s defensive theory that he was the victim of a frame-up.

D.	Standard Of Review For Trial Court’s Rule 403 Determination

Having determined that the “Peeping Tom” evidence is relevant, we next review whether the trial court abused its discretion by overruling Mayfield’s rule 403 objections.  If a trial court determines that evidence of other crimes or extraneous misconduct has relevance aside from character conformity, and a timely, proper rule 403 objection is made, the trial court must make a balancing determination under rule 403.
Montgomery
, 810 S.W.2d at 388-89.  Rule 403 provides that “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.”
Tex. R. Evid.
403.  Only “unfair” prejudice provides the basis for exclusion of relevant evidence.
Montgomery
, 810 S.W.2d at 389.  Unfair prejudice arises from evidence that has an undue tendency to suggest that a decision be made on an improper basis, commonly an emotional one.
Id.
  In evaluating the trial court’s determination under rule 403, a reviewing court is to reverse the trial court’s judgment “rarely and only after a clear abuse of discretion,” recognizing that the trial court is in a superior position to gauge the impact of the relevant evidence.
Mozon v. State
, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999);
Jones
, 119 S.W.3d at 421-22.

The trial court’s balancing determination must be measured against the relevant criteria by which a rule 403 decision is made.
Mozon
, 991 S.W.2d at 847.  The relevant criteria in determining whether the prejudice of an extraneous offense substantially outweighs its probative value include (1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable—a factor that is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense, (2) the potential the other offense evidence has to impress the jury “in some irrational but nevertheless indelible way,” (3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense, and (4) the force of the proponent’s need for this evidence to prove a fact of consequence, that is, does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.
Id.
 (citing
Montgomery
, 810 S.W.2d at 389-90).  When the relevant criteria are viewed objectively and lead to the conclusion that the danger of unfair prejudice substantially outweighs the probative value of the proffered evidence, the appellate court should declare that the trial court erred by failing to exclude it.
Jones
, 119 S.W.3d at 422
(citing
Montgomery
, 810 S.W.2d at 392).

E.	Rule 403 Balancing Test

Mayfield argues that the “Peeping Tom” evidence was more prejudicial than probative.  Specifically,
 he argues that the “Peeping Tom” evidence was prejudicial because it painted him as a pedophile.

The first of the rule 403 balancing factors—the strength of the “Peeping
 Tom” evidence to make a fact of consequence more or less probable—weighs strongly in favor of admissibility.  The “Peeping Tom” evidence was probative of Mayfield’s intent to commit the sexual offenses against T.A. and L.A. by showing that he had a similar pattern of gratifying his sexual desires through watching Edwards’s daughters undress.  Additionally, because nothing in the record indicates that Edwards had any motive to frame Mayfield, the rebuttal testimony provided by Edwards was also probative of whether M.G.A. was framing Mayfield for the sexual offenses committed against T.A. and L.A.
See Blackwell
, 193 S.W.3d at 15.

With regard to the second factor, it is doubtful that Edwards’s testimony impressed the jury in some irrational way.  The “Peeping Tom” evidence, which did not involve any physical touching, was not worse than the charged offenses and was not graphic.
Therefore, the second factor weighs in favor of admissibility.

The third factor—the time that the State spent developing evidence of the extraneous bad act—was not unduly lengthy.  Edwards’s testimony on direct about the “Peeping Tom” incident took up only about twelve pages in a 575-page record.  Thus, this factor is neutral and favors neither admissibility nor exclusion of the evidence.
See id.
 at 18.

The fourth factor—the State’s need for the extraneous bad act evidence—was significant.  Because T.A. waited for several years before she told her mother about the sexual assaults that Mayfield had perpetrated against her, there was no physical evidence of the sexual assaults.  Moreover, there were no witnesses other than the victims to the charged events.  Therefore, this factor weighs heavily in favor of admissibility.

Considering all four factors together, we conclude that the probative value of Edwards’s testimony regarding the “Peeping Tom” incidents was not substantially outweighed by its prejudicial impact.  Consequently, we hold that the trial court properly overruled Mayfield’s 403 objection and admitted the “Peeping Tom” extraneous bad act evidence to rebut Mayfield’s defensive theory that he was being framed.
See Jones
, 119 S.W.3d at 423;
see also Blackwell
, 193 S.W.3d at 18 (both holding that extraneous offense evidence was properly admitted to rebut appellant’s defensive theory regarding a frame-up and that evidence was admissible under rules 404(b) and 403).
  We overrule Mayfield’s first issue.

IV.  Trial Court Properly Overruled Mayfield’s Motion For Mistrial

In his fifth issue, Mayfield contends that the trial court erred by overruling his motion for mistrial due to witnesses’ and bystanders’ emotional outbursts during trial testimony.  Specifically, Mayfield argues that the emotional outbursts of L.A., T.A., and the “wailing bystander” were so outrageous that Mayfield did not receive a fair trial.  The State responds that Mayfield failed to preserve error, if any, regarding the emotional outbursts by failing to make a complaint at the time of the conduct.

Rule 33.1 of the Texas Rules of Appellate Procedure provides that, as a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely and specific request, objection, or motion.
Tex. R. App. P.
 33.1;
Griggs v. State
, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007).  In accordance with rule 33.1, a motion for mistrial must be both timely and specific.
Griggs
, 213 S.W.3d at 927.  (citing
Young v. State
, 137 S.W.3d 65, 65-66 (Tex. Crim. App. 2004)).  A motion for mistrial is timely only if it is made as soon as the grounds for it become apparent.
Id.
 (citing
Wilkerson v. State
, 881 S.W.2d 321, 326 (Tex. Crim. App. 1994)).

The record reflects that both L.A. and T.A. were very emotional before and during their testimony, crying through most of the questioning.  Right after L.A. took the stand and told the jury her name and where she went to school, the trial court asked the jury to retire to the jury room, presumably because she was crying.  Likewise, T.A. was crying as she entered the courtroom before her testimony commenced and continued crying throughout her time on the witness stand.

The following day, Mayfield presented his motion for mistrial.  One of Mayfield’s attorneys testified regarding the events of the previous day involving L.A.’s and T.A.’s uncontrolled crying; however, there is no mention in Mayfield’s attorney’s testimony, nor in his brief, describing the “wailing bystander.”  One of the State’s prosecutors also took the stand and gave his account of the events from the previous day.  After hearing testimony from the attorneys representing both sides, the trial court denied Mayfield’s motion for mistrial.

The trial court then asked T.A. whether she wished to continue testifying, and T.A. said that she did and that she was in better control of her emotions.  The trial court brought in the jury and instructed them,

Ladies and gentlemen, if you will recall at the conclusion of jury selection on Tuesday, before we started any testimony, I gave you an instruction at that time, and I want to reinstruct you again, that as jurors[,] you must not be influenced in any degree by any personal feeling of sympathy for or prejudice against the State or the Defendant in this case, for each is entitled to the same fair and impartial consideration, okay?  With that, we are ready to proceed.

Thus, the trial court essentially instructed the jury to disregard any sympathy they felt for L.A. or T.A. because of the emotion they displayed.  Therefore, the trial court properly instructed the jury to disregard, thereby curing any harm.
See Bauder v. State
, 921 S.W.2d 696, 700 (Tex. Crim. App. 1996) (stating that curative instructions are presumed effective to withdraw from jury consideration almost any evidence or argument that is objectionable),
overruled on other grounds by Ex Parte Lewis
, No. PD-0577-05, 2007 WL 57823 (Tex. Crim. App. Jan. 10, 2007).  Because any harm was cured by the trial court’s instruction to disregard, we need not address whether Mayfield timely brought his motion for mistrial.
See

Tex. R. App. P.
 47.1.  We overrule Mayfield’s fifth issue.

V.  Reversal Not Required

In his sixth issue, Mayfield argues that the cumulative effect of the alleged errors in issues one through five requires reversal.  Because we have held that there was no harmful error regarding the admission of extraneous bad acts evidence and the overruling of Mayfield’s motion for mistrial, there is no error to accumulate.
See Reyna v. State
, No. 02-05-00285-CR, 2006 WL 2578267, at *4 (Tex. App.—Fort Worth Sept. 7, 2006, no pet.) (mem. op.) (not designated for publication) (holding that because there was no error regarding voir dire or the failure to file a motion to suppress, there was no error to accumulate);
see also Univ. of Tex. at Austin v. Hinton
, 822 S.W.2d 197, 205 (Tex. App.—Austin 1991, no writ) (finding no error in the trial, appellate court overruled cumulative error issue).  We therefore overrule Mayfield’s sixth issue.

VI.  Conclusion

Having overruled Mayfield’s six issues, we affirm the trial court’s judgments.

SUE WALKER

JUSTICE

PANEL A:  CAYCE, C.J.; WALKER and MCCOY, JJ.

DO NOT PUBLISH

Tex. R. App. P.
 47.2(b)

DELIVERED:  March 29, 2007

FOOTNOTES
1:See

Tex. R. App. P.
 47.4.


                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-2861
                         ___________________________

                                 Decker Plastics Inc.

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                      West Bend Mutual Insurance Company

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                      Appeal from United States District Court
                 for the Southern District of Iowa - Council Bluffs
                                  ____________

                             Submitted: March 11, 2016
                               Filed: August 19, 2016
                                    [Published]
                                   ____________

Before LOKEN, BYE, and KELLY, Circuit Judges.1
                           ____________

PER CURIAM.

       At the time in question, Al’s, Inc. of Storm Lake, Iowa (“A1’s”), packaged and
sold landscaping materials. Decker Plastics Corp. (“Decker”) sold plastic bags to

      1
       This opinion is being filed by Judge Loken and Judge Kelly pursuant to 8th
Cir. Rule 47E.
A1’s that A1’s filled with landscaping materials (sand and rock) and stored outdoors
for sale to its customers. Because Decker failed to manufacture the bags with an
ultraviolet inhibitor (“UVI”), the bags deteriorated in the sunlight, causing small
shreds of plastic to commingle with A1’s landscaping materials, sometimes while still
in A1’s inventory and sometimes after delivery to its customers. As the contaminant
could not be inexpensively separated from A1’s products, Al’s had to clean spilled
materials from customer sites, purchase replacement bags from another supplier, and
pay to clean up its own premises.

       A1’s sued Decker to recover its losses. Decker and A1’s settled the lawsuit,
and Decker filed a claim with its comprehensive general liability (“CGL”) insurer,
West Bend Mutual Insurance Company (“West Bend”). West Bend denied coverage.
Decker commenced this action in Iowa state court. West Bend removed, invoking the
district court’s diversity jurisdiction, and moved for summary judgment on numerous
grounds. The district court granted summary judgment, concluding there was no
“occurrence” triggering coverage under the terms of West Bend’s policy as construed
in Pursell Constr., Inc. v. Hawkeye-Sec. Ins. Co., 596 N.W.2d 67, 70 (Iowa 1999).
Decker appeals. Iowa law governs our interpretation of the West Bend policy.
Reviewing the grant of summary judgment de novo, we conclude there was an
occurrence. Accordingly, we reverse and remand.

      The West Bend policy provided coverage for an “occurrence” resulting in
“property damage.” Like the policy at issue in Pursell, 596 N.W.2d at 70, West
Bend’s policy defined “occurrence” as “an accident, including continuous or repeated
exposure to substantially the same general harmful conditions.” Under Iowa law, an
“accident” is “an undesigned, sudden, and unexpected event, usually of an afflictive
or unfortunate character, and often accompanied by a manifestation of force. . . . [The
term] clearly implies a misfortune with concomitant damage to a victim, and not the
negligence which eventually results in that misfortune.” Id. (quotation omitted).

                                         -2-
       In Pursell, the Supreme Court of Iowa considered whether the insurer’s CGL
policy covered third party negligence and breach-of-contract claims against the
insured, a construction contractor whose defective workmanship -- building the lower
levels of two houses below the floodplain -- required costly remedies to bring the
houses into compliance with a local ordinance. 596 N.W.2d at 68. The court held
there was no occurrence triggering coverage:

             We agree with the majority rule and now join those jurisdictions
      that hold that defective workmanship standing alone, that is, resulting in
      damages only to the work product itself, is not an occurrence under a
      CGL policy.

Id. at 71; accord Liberty Mut. Ins. Co. v. Pella Corp., 650 F.3d 1161, 1175-76 (8th
Cir. 2011) (defective windows); Norwalk Ready Mixed Concrete, Inc. v. Travelers
Ins. Co., 246 F.3d 1132, 1136-37 (8th Cir. 2001) (faulty concrete work that damaged
a parking lot). West Bend argued, and the district court agreed, “that A1’s claimed
losses against Decker Plastics, as foreseeable and expected consequences of Decker
Plastics’ defective workmanship [omitting UVI from the bags it sold A1’s], did not
result from an ‘accident,’ and were not an ‘occurrence’ under” West Bend’s policy.

      We disagree with this analysis because it disregards the Supreme Court of
Iowa’s narrow holding in Pursell -- that a claim of “defective workmanship standing
alone, that is, resulting in damages only to the work product itself,” is not an
occurrence. 596 N.W.2d at 71. Here, Decker’s defective bags were sold to its
customer, A1’s, which then used the bags to store its own property, landscaping
materials. The defective bags unexpectedly deteriorated, causing damage to A1’s
other property. The deterioration of the bags was the covered occurrence. To
rephrase Pursell’s definition of “accident,” the occurrence was “a misfortune with
concomitant damage to a victim [A1’s], and not the negligence [of Decker] which
eventually result[ed] in that misfortune.” The covered property damage (if any) was
to A1’s property other than the bags.

                                         -3-
        We have repeatedly construed “occurrence” to cover damages to property that
was not the insured’s work product. In National Union Fire Insurance Co. v. Terra
Industries, Inc., contaminated carbon dioxide was sold to third party manufacturers
and incorporated into consumer beverages. 346 F.3d 1160, 1164-65 (8th Cir. 2003).
Applying Iowa law, we concluded that the incorporation of the contaminated product
into a third-party product “constituted an occurrence resulting in property damage.”
Id. at 1165 (quotations omitted). In Ferrell v. West Bend Mutual Insurance Co., a case
factually similar to this, we held that the deterioration of defective protective film that
caused damage to the customer’s tomato plants was a covered occurrence. 393 F.3d
786, 795 (8th Cir. 2005) (applying Wisconsin law). Perhaps most tellingly, in
Lexicon, Inc. v. ACE American Insurance Co., we applied Arkansas law that included
the same definition of “occurrence” as Pursell and held that the collapse of a defective
silo causing damage to the purchaser’s contents and equipment was a covered
occurrence, but the damage to the insured’s work product -- the silo -- was not. 634
F.3d 423, 425-27 (8th Cir. 2011). We predict that the Supreme Court of Iowa would
follow the reasoning of these cases and limit its holding in Pursell to cases where the
alleged “occurrence” is “defective workmanship standing alone, that is, resulting in
damages only to the work product itself.”

        For these reasons, we reverse the district court’s ruling that there was no
“accident,” therefore no “occurrence,” and therefore no coverage of Decker’s claim.
On appeal, West Bend urges us to affirm on the additional alternative grounds it
argued to the district court -- that there was no “property damage” triggering coverage,
and that A1’s claims against Decker are excluded from coverage by the contractual-
liability exclusion, the “your product” exclusion, and the impaired-property exclusion.
However, as in Lexicon, 634 F.3d at 428, we conclude that these issues should
initially be considered by the district court. Accordingly, the judgment of the district
court is reversed, and the case is remanded for further proceedings not inconsistent
with this opinion.
                          ______________________________

                                           -4-