419 F.3d 1052
EMPRESS LLC, a California Limited Liability Company; Vijay Patel; Ramilaben Patel, Plaintiffs-Appellants,v.CITY AND COUNTY OF SAN FRANCISCO; SAN FRANCISCO Planning Department; Lawrence Badiner, as San Francisco Zoning Administrator; Randall Shaw, as Executive Director of the Tenderloin Housing Clinic, Inc.; San Francisco Board of Appeals; Tenderloin Housing Clinic Inc., a California nonprofit corporation; San Francisco Zoning Administrator, Defendants-Appellees.
No. 03-16706.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 15, 2005.
Filed August 18, 2005.

Andrew M. Zacks (Argued) and James B. Kraus (On the Briefs), San Francisco, CA, for the plaintiffs-appellants.
Stephen L. Collier, Tenderloin Housing Clinic, Inc., San Francisco, CA, for the defendants-appellees.
Appeal from the United States District Court for the Northern District of California; Phyllis J. Hamilton, District Judge, Presiding. D.C. No. CV-02-01999-PJH.
Before: THOMAS and FISHER, Circuit Judges, and ROBART,* District Judge.
THOMAS, Circuit Judge:

1
The owners of the Empress Hotel brought this action against the Executive Director of the Tenderloin Housing Clinic, claiming that the City of San Francisco unlawfully delegated zoning decisions to him by taking official actions consistent with his requests on all zoning petitions affecting San Francisco's Tenderloin area. We conclude that the action is precluded by the Noerr-Pennington doctrine and affirm the judgment of the district court.

2
* The Empress Hotel is located in San Francisco's Tenderloin district, an area which in the past has conjured up images of salaciousness rather than steak. It has also recently been the subject of urban renewal efforts. Several decades ago, the City of San Francisco designated the Empress as a mixed-use hotel and issued a Certificate of Use that allowed the hotel to operate with 58 tourist rooms and 30 residential rooms. A Certificate of Use remains valid until revoked, but requires annual compliance with the City's Hotel Conversion Ordinance, which was designed to stop the depletion of housing for the poor, elderly and disabled after studies conducted by the City revealed that a substantial number of residential hotel units in the City had been converted from residential to tourist use. San Remo Hotel, L.P. v. San Francisco City & County, 364 F.3d 1088, 1091 (9th Cir.2004), aff'd, ___ U.S. ___, 125 S.Ct. 2491, ___ L.Ed.2d ___ (2005).

3
In the early 1980's, the Empress Hotel fell into disrepair, and the City issued a number of abatement orders in an attempt to remedy the conditions. In response, Vijay Patel's parents, who owned the Empress at the time, evicted its residents and closed the hotel. Some years later, Vijay and Ramilaben Patel purchased the Empress Hotel from Vijay Patel's parents and proceeded to redevelop the hotel, spending approximately $1.5 million in the process. As part of the re-development, the Patels applied for and received permits from the City authorizing the use of the Empress as a tourist hotel.

4
The Tenderloin Housing Clinic, Inc. is a California nonprofit corporation that seeks to preserve low-income housing in the Tenderloin district. Upon learning of the Patels' efforts to redevelop the Empress Hotel, Tenderloin Housing Clinic Executive Director Randall Shaw wrote a letter to San Francisco Zoning Administrator Lawrence Badiner requesting that he make a zoning determination regarding the Empress. Shaw contended in his letter that the Empress had been vacated and the authorized tourist use abandoned. As a result, Shaw argued, the entire hotel had reverted to purely residential use under restrictions of the North of Market Residential Special Use District, which had been created the year the Empress was shuttered. After receiving Shaw's letter, Badiner initiated an investigation and eventually concluded that the tourist use of the Empress Hotel had been discontinued for a continuous period of at least three years and therefore could not be reestablished except in compliance with the present applicable City codes. The Patels unsuccessfully appealed Badiner's zoning determination to the San Francisco Board of Appeals.

5
After rehearing was denied by the Board of Appeals, the Patels filed this 42 U.S.C. § 1983 action on behalf of themselves and Empress LLC (collectively "the Patels"), alleging that the government and individual governmental officials had unlawfully delegated zoning decisions to Shaw. The district court dismissed the claims against all defendants except Shaw. Initially, the district court, relying on Branch v. Tunnell, 937 F.2d 1382 (9th Cir.1991), applied a heightened pleading standard to the Patels' constitutional tort claim and dismissed the complaint with leave to amend. After the Patels filed their second amended complaint, the district court granted Shaw's motion to dismiss with prejudice on the grounds that Shaw's activities were protected under the Noerr-Pennington doctrine and that the Patels had failed to allege sufficient facts demonstrating that Shaw's activities were exempt from this protection. Although noting that in the time since the dismissal of the Patels' first complaint, we had decided in Galbraith v. County of Santa Clara, 307 F.3d 1119, 1123-26 (9th Cir.2002), to overrule Branch and eliminate the heightened pleading requirement for constitutional tort claims, the district court proceeded to apply a heightened pleading standard because the Patels' claim involved the right to petition governmental bodies immune from liability under the Noerr-Pennington doctrine. The district court also granted in part Shaw's motion for attorneys' fees under 42 U.S.C. § 1988, awarding Shaw $13,109. This timely appeal followed.

II

6
The district court erred in applying a heightened pleading standard to the Patels' claims. In Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), the Supreme Court rejected the application of a heightened pleading standard in § 1983 actions alleging municipal liability. Id. at 168, 113 S.Ct. 1160. The Supreme Court stated that the common-law-developed heightened pleading standard, which required a plaintiff's complaint to state with factual detail and particularity the basis for the claim, could not be reconciled with the Federal Rules' liberal system of notice pleading.1 Id. The Court stated that heightened pleading standards should only be applied when required by the Federal Rules. Id. at 168-69, 113 S.Ct. 1160.

7
Likewise, in Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998), the Court concluded that a heightened pleading standard was inapplicable to constitutional claims brought against individual defendants in which improper motive is a necessary element. Id. at 595-96, 118 S.Ct. 1584. The Court disapproved of the heightened pleading standard adopted and imposed by the Fifth Circuit, stressing that the Court's cases "demonstrate that questions regarding pleading, discovery, and summary judgment are most frequently and effectively resolved either by the rulemaking process or the legislative process." Id. at 595, 118 S.Ct. 1584 (citing Leatherman, 507 U.S. at 168-69, 113 S.Ct. 1160). As we noted in Galbraith, "[i]n light of Crawford-El, nearly all of the circuits have now disapproved any heightened pleading standard in cases other than those governed by Rule 9(b)."2 307 F.3d at 1125.

8
Most recently, in Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), the Supreme Court reversed the dismissal of a complaint that had been based on a heightened pleading standard applied by the Second Circuit in employment discrimination cases, id. at 514-15, 122 S.Ct. 992, and, in doing so, reiterated its position as set forth in Leatherman, id. at 512-15, 122 S.Ct. 992. The Court stated that "[a] requirement of greater specificity for particular claims is a result that `must be obtained by the process of amending the Federal Rules, and not by judicial interpretation.'" Id. at 515, 122 S.Ct. 992 (quoting Leatherman, 507 U.S. at 168, 113 S.Ct. 1160).

9
Although in Galbraith we held that a heightened pleading standard should not apply to constitutional tort claims in which improper motive is an element, we suggested that common-law-developed heightened pleading standards do not survive Leatherman, Crawford-El, and Swierkiewicz. 307 F.3d at 1124-26; see also Thomas v. Fry's Electronics, Inc., 400 F.3d 1206, 1207 (9th Cir.2005) ("Swierkiewicz merely stands for the proposition that federal courts may not impose a heightened pleading requirement in derogation of federal notice pleading rules."). Although we did not reach the question of whether a heightened pleading standard should be applied in other contexts in Galbraith, the logical conclusion of Leatherman, Crawford-El, and Swierkiewicz dictates that a heightened pleading standard should only be applied when the Federal Rules of Civil Procedure so require. Because the Rules do not require a heightened pleading standard for the claims advanced by the Patels, the district court erred in applying such a standard in considering the Rule 12(b)(6) motion to dismiss their complaint.

III

10
Even though the district court should have applied a notice pleading standard to the complaint pursuant to Fed.R.Civ.P. 8(a), the district court correctly granted the motion to dismiss because the Patels' complaint cannot survive application of the Noerr-Pennington doctrine even under notice pleading standards.3

11
"The Supreme Court has described the right to petition as `among the most precious of the liberties safeguarded by the Bill of Rights' and `intimately connected, both in origin and in purpose, with other First Amendment rights of free speech and free press.'" White v. Lee, 227 F.3d 1214, 1231 (9th Cir.2000) (quoting United Mine Workers of America, Dist. 12 v. Illinois State Bar Ass'n, 389 U.S. 217, 222, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967)). Under the Noerr-Pennington doctrine, those who petition all departments of the government for redress are generally immune from liability. Manistee Town Ctr. v. City of Glendale, 227 F.3d 1090, 1092 (9th Cir.2000). Although the Noerr-Pennington doctrine originally immunized individuals and entities from antitrust liability, Noerr-Pennington immunity now applies to claims under § 1983 that are based on the petitioning of public authorities. Id. "Noerr-Pennington is a label for a form of First Amendment protection; to say that one does not have Noerr-Pennington immunity is to conclude that one's petitioning activity is unprotected by the First Amendment." White, 227 F.3d at 1231 (footnote omitted).

12
Shaw contends that his letter to Badiner requesting a zoning determination and the enforcement of zoning laws in regards to the Empress Hotel, as well as his alleged conversations with Badiner, are petitioning activities protected under the Noerr-Pennington doctrine. The Patels assert that Shaw's conduct was, in actuality, "a wink" telling Badiner to make a certain zoning determination and enforce the zoning laws against the Patels. The Patels claim that because Shaw's activities constitute a part of a conspiracy to exercise an unlawful delegation of power, they are not immunized under the sham exception to the Noerr-Pennington doctrine. See Kottle v. Northwest Kidney Ctrs., 146 F.3d 1056, 1060-62 (9th Cir.1998) (discussing the sham exception to the Noerr-Pennington doctrine).

13
The Patels' complaint does not allege that Shaw used government processes, as opposed to the outcome of those processes, as a mechanism to injure the Patels, and that therefore his petitioning activity falls under the sham exception to the Noerr-Pennington doctrine. See Manistee, 227 F.3d at 1094-95. As such, no matter what Shaw's motives were, his petitioning activity as alleged in the Patels' complaint is immunized under the Noerr-Pennington doctrine. Id. at 1095 n. 4; Boone v. Redevelopment Agency of the City of San Jose, 841 F.2d 886, 894-95 (9th Cir.1988) (stating that private meetings between government officials and individuals seeking to lobby the government is a form of advocacy protected under Noerr-Pennington); United Mine Workers of America v. Pennington, 381 U.S. 657, 669, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965) (stating that illegal purposes and motivations behind petitioning do not illegalize the petitioning conduct).

14
Furthermore, there is no "conspiracy" exception to the Noerr-Pennington doctrine that applies when government officials conspire with a private party to employ government action as a means of depriving other parties of their federal constitutional or statutory rights. See City of Columbia v. Omni Outdoor Adver. Inc., 499 U.S. 365, 382-83, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991). In such circumstances, a remedy lies only against the conspiring government officials, not against the private citizens. Therefore, the Patels' allegation that Shaw conspired with the City to have the City unlawfully delegate its authority to him does not remove Shaw's petitioning activity from protection under the Noerr-Pennington doctrine.

15
Thus, based on the Patels' pleadings, it appears beyond a doubt that they can prove no facts demonstrating that Shaw's activities fall under the sham exception to the Noerr-Pennington doctrine and are therefore not immunized from liability. Although the district court should not have applied a heightened pleading standard, even under the pleading standard articulated in Fed.R.Civ.P. 8(a), the Patels have failed to state a claim upon which relief can be granted.

IV

16
The district court's determination that it may, under 42 U.S.C. § 1988, award attorneys' fees to Shaw, the prevailing defendant in a civil rights case, was necessarily based on its erroneous application of the heightened pleading standard, rendering the district court's determination an abuse of discretion.4 Under the notice pleading standard, the Patels' claims were not "unreasonable, frivolous, meritless, or vexatious," Margolis v. Ryan, 140 F.3d 850, 854 (9th Cir.1998) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978)) (internal quotation marks omitted). Therefore, we reverse the district court's award of attorneys' fees to Shaw.

V

17
In sum, we affirm the judgment of the district court dismissing the claims against Shaw, but reverse the award of attorney fees.

18
AFFIRMED IN PART; REVERSED IN PART.

Notes:

*
 The Honorable James L. Robart, United States District Judge for the Western District of Washington, sitting by designation

1
 The notice pleading standard is articulated in Fed.R.Civ.P. 8(a), which provides as follows:
Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded.

2
 Fed.R.Civ.P. 9(b) provides: "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally."

3
 We review a dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6) de novoMcGary v. City of Portland, 386 F.3d 1259, 1261 (9th Cir.2004). "Dismissal of the complaint is appropriate only if it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of the claim which would entitle [them] to relief." Id.

4
 We review the district court's award of attorneys' fees for an abuse of discretionHorphag Research Ltd. v. Pellegrini, 337 F.3d 1036, 1042 (9th Cir.2003).


People v Winfield (2019 NY Slip Op 05169)

People v Winfield

2019 NY Slip Op 05169

Decided on June 26, 2019

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 26, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P.
CHERYL E. CHAMBERS
JEFFREY A. COHEN
BETSY BARROS
FRANCESCA E. CONNOLLY, JJ.

2017-10482
 (Ind. No. 7634/16)

[*1]The People of the State of New York, respondent,
vAscir Winfield, appellant.

Paul Skip Laisure, New York, NY (Samuel R. Feldman of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Keith Dolan of counsel; Anna Arena on the memorandum), for respondent.

DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Suzanne Mondo, J., at plea; John T. Hecht, J., at sentencing), imposed August 2, 2017, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
The defendant's contention that the appeal waiver was imposed, sua sponte, by the Supreme Court as a condition of the plea agreement, without having been requested by the People, is not supported by the plea minutes. The defendant's valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v Bryant, 28 NY3d 1094; People v Sanders, 25 NY3d 337; People v Lopez, 6 NY3d 248; People v Batista, 167 AD3d 69).
BALKIN, J.P., CHAMBERS, COHEN, BARROS and CONNOLLY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                              No. 12-6603

BRADLEY SHANE SHEPPARD,

                Petitioner - Appellant,

          v.

WARDEN OF FCI ESTILL,

                Respondent – Appellee,

          and

UNITED STATES OF AMERICA,

                Respondent.

Appeal from the United States District Court for the District of
South Carolina, at Aiken. Richard Mark Gergel, District Judge.
(1:10-cv-03220-RMG)

Submitted:   July 26, 2012                  Decided:   August 2, 2012

Before MOTZ, DAVIS, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Bradley Shane Sheppard, Appellant Pro Se.

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

          Bradley   Shane      Sheppard,   a   federal   prisoner,    appeals

the district court’s order construing his post-judgment motion

as a Fed. R. Civ. P. 60(b) motion for relief from the district

court’s order dismissing his 28 U.S.C.A. § 2241 (West 2006 &

Supp. 2012) petition.       We have reviewed the record and find no

reversible error.    Accordingly, we affirm for the reasons stated

by the district court.         See Sheppard v. Warden of FCI Estill,

No. 1:10–cv–03220-RMG (D.S.C. Mar. 19, 2012).              Further, we deny

Sheppard’s motion for the appointment of counsel.                 We dispense

with oral argument because the facts and legal contentions are

adequately    presented   in    the   materials   before    the    court   and

argument would not aid the decisional process.

                                                                     AFFIRMED

                                      2


People v Wares (2018 NY Slip Op 07160)

People v Wares

2018 NY Slip Op 07160

Decided on October 24, 2018

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 24, 2018
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
SHERI S. ROMAN
COLLEEN D. DUFFY
VALERIE BRATHWAITE NELSON, JJ.

2013-05009
 (Ind. No. 12-103)

[*1]The People of the State of New York, respondent,
vClifford Wares, appellant.

John P. Savoca, Yorktown, NY, for appellant.
David M. Hoovler, District Attorney, Middletown, NY (Elizabeth L. Schulz and Robert Middlemiss of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Orange County (Jeffrey G. Berry, J.), rendered February 19, 2013, convicting him of assault in the second degree and resisting arrest, after a nonjury trial, and imposing sentence.
ORDERED that the judgment is affirmed.
On November 3, 2011, police officers conducted a search at a public park in Orange County for the defendant, who was wanted on pending criminal charges in Ulster County. The defendant was spotted in the park by officers in a helicopter. Other officers on the ground then pursued the defendant, who fled, on foot and caught him. One officer attempted to handcuff the defendant, who struggled and repeatedly tried to strike the officer. While subduing the defendant, the officer injured his hand and subsequently missed seven weeks of work due to his injury. After a nonjury trial, the defendant was convicted of assault in the second degree and resisting arrest.
The defendant failed to preserve for appellate review his present challenge to the legal sufficiency of the evidence (see CPL 470.05[2]; People v Hawkins, 11 NY3d 484, 492; People v Gray, 86 NY2d 10, 19). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish his guilt of the crimes of which he was convicted beyond a reasonable doubt. Specifically, there was ample trial evidence that the defendant committed the crime of assault in the second degree by causing physical injury to a police officer while intending to prevent the officer from performing a lawful duty in handcuffing the defendant and placing him under arrest (see Penal Law § 120.05[3]). Similarly, the evidence established the elements of the crime of resisting arrest by demonstrating that the defendant intentionally attempted to prevent his own authorized arrest by the police (see Penal Law § 205.30). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).
MASTRO, J.P., ROMAN, DUFFY and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


65 So.3d 523 (2011)
LIMA
v.
STATE.
No. 2D11-1411.
District Court of Appeal of Florida, Second District.
June 17, 2011.

DECISION WITHOUT PUBLISHED OPINION
Mandamus denied.


743 N.W.2d 530 (2007)
Marly ZIECKLER, Appellant,
v.
AMPRIDE, Dickinson County Memorial Hospital, Mutual Service Casualty Insurance Co., c/o Berkley Risk, and Iowa Insurance Guaranty Association, Appellees.
No. 05-1958.
Supreme Court of Iowa.
December 14, 2007.
Rehearing Denied January 17, 2008.
*531 E.W. Wilcke, Spirit Lake, for appellant.
Andrew D. Hall and Lisa R. Perdue of Grefe & Sidney, P.L.C., Des Moines, for appellees Ampride and Mutual Service Casualty Insurance Co.
Iris J. Post of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellees Dickinson County Memorial Hospital and Iowa Insurance Guaranty Association.
HECHT, Justice.
Marly Zieckler was awarded some, but not all, of the workers' compensation benefits she sought from her employers, Ampride and Dickinson County Memorial Hospital and their insurers (collectively, the defendants). She appealed the arbitration award to the commissioner who dismissed her appeal pursuant to Iowa Administrative Code rule 876-4.30 (2004). Zieckler sought judicial review of the agency's decision, and the district court affirmed the dismissal of the appeal. Zieckler now appeals the district court judgment affirming the workers' compensation commissioner's dismissal of her intra-agency appeal.
At the time of Zieckler's appeal, rule 876-4.30 provided:
The appealing party shall bear the initial cost of transcription on appeal and shall pay the certified shorthand reporter or service for the transcript. . . . In the event the cost of the transcript has been initially borne by a nonappealing party prior to appeal, the appealing party or parties within 30 days after notice of appeal or cross-appeal shall reimburse the cost of the transcript to the nonappealing party and if not so reimbursed the appeal shall be dismissed.
I. The Agency Proceedings.
The hearing officer, following the arbitration hearing, requested that the defendants furnish a transcript of the hearing to aid her in drafting the arbitration award. One of the defendants ordered the transcript and paid for it. Zieckler did not reimburse the defendant within thirty days of the appeal, as required by rule 876-4.30, and the defendants moved to dismiss the appeal. Zieckler, who claimed she did not know the amount of the bill or even who had paid it prior to the filing of the motion to dismiss, offered to reimburse the defendants, but they refused to accept payment.
The commissioner dismissed Zieckler's appeal, observing that
[n]othing in the rule requires that the party who initially paid the cost of the transcript make a demand for payment upon the appealing party or that the appealing party be given an opportunity to cure any defalcation. The rule does not contain any exceptions to the directive to dismiss the appeal or give the commissioner discretion to do anything other than dismiss the appeal. I conclude that this rule places an affirmative burden on the appealing party to inquir[e] regarding the cost and identity of the party who initially paid the cost of the transcript and to reimburse that nonappealing party within 30 days. Claimant did not do so in this case. An appealing party has had a "day in court" and the case has been decided on the merits. If an appealing party desires to have the case reviewed again by the agency, that party must comply with the rules governing intra-agency appeals.
On judicial review, the district court affirmed the commissioner's dismissal. On Zieckler's appeal to this court, she challenges both the commissioner's interpretation of administrative code rule 876-4.30 and the validity of the rule itself.
*532 II. Interpretation of the Rule.
We review a commissioner's interpretation of agency rules to determine whether the interpretation is irrational, illogical, or wholly unjustifiable. Iowa Code § 17A.19(10)(l) (2003). Rule 876-4.30 clearly states that, if the appealing party does not pay for the transcript within thirty days, the appeal shall be dismissed. There is no "play in the joints" in this rule, as there was in Marovec v. PMX Industries, 693 N.W.2d 779 (Iowa 2005), which involved the commissioner's interpretation of a rule allowing the commissioner some discretion to dismiss an appeal for failure to file a brief. In contrast to the rule involved in Marovec, rule 876-4.30 allows the commissioner no discretion to impose a sanction less severe than dismissal under the circumstances of this case. We therefore reject Zieckler's erroneous-interpretation argument.
III. Validity of the Rule.
As we have noted, Zieckler also assails the validity of rule 876-4.30. Generally, we review administrative action to determine if it is "[b]eyond the authority delegated to the agency by any provision of law or in violation of any provision of law," Iowa Code § 17A.19(10)(b), or is unreasonable, arbitrary, capricious, or an abuse of discretion. Iowa Code § 17A.19(10)(h)-(n). "In making the determination whether the agency's action is unreasonable, arbitrary, capricious, or an abuse of discretion, the court `[s]hall give appropriate deference to the view of the agency with respect to particular matters that have been vested by a provision of law in the discretion of the agency.'" Marovec, 693 N.W.2d at 782 (quoting Iowa Code § 17A.19(11)(c)).
The legislature has vested the commissioner with the authority to promulgate rules and procedures to implement Iowa Code chapter 85. Iowa Code § 86.8(1). Pertinent to this case, the legislature has authorized intra-agency appeals and directs that they be taken "as provided by rule." Iowa Code § 86.24(1).
While courts are required to give deference to the commissioner's promulgation of rules, that deference is not without limitation. We are required to give only "appropriate" deference under section 17A.19 (11) (c). The question presented here is whether "appropriate deference" will save the agency's rule that requires the dismissal of an intra-agency appeal as a sanction for failure within thirty days to reimburse a party who paid for a transcript of a workers' compensation hearing. Zieckler contends the commissioner's rule 876-4.30 imposes an unreasonable, arbitrary, and capricious penalty because such a failure does not impede the agency's processing of an appeal. We agree.
Under Iowa Code chapter 17A, an agency's authority is limited in several respects. A court on judicial review may reverse agency action if substantial rights of the person seeking relief have been prejudiced because the action is "unreasonable, arbitrary, capricious, or an abuse of discretion." Iowa Code § 17A.19(10)(n). Section 17A.19(10) identifies several subsets of unreasonable, arbitrary, and capricious agency action. One of these subsets is agency action that is "so grossly disproportionate to the benefits accruing to the public interest from that action that it must necessarily be deemed to lack any foundation in rational agency policy." See id. § 17A.19(10)(k); see also Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act, Report on Selected Provisions to Iowa State Bar Association and Iowa State Government 69 (1998) (noting paragraphs 17A.19(10) (h)-(m) "provide specific examples of agency action that any reviewing court should *533 overturn as unreasonable, arbitrary, capricious, or an abuse of discretion").
Zieckler has consistently argued before the agency and on judicial review that the commissioner's adoption of rule 876-4.30 constitutes unreasonable, arbitrary, and capricious agency action. The unmistakable essence of her argument is that the agency's rule mandating the imposition of the sanction of dismissal for a failure to make reimbursement within thirty days for a hearing transcript is outrageously unreasonable because, as is evidenced by the facts of this case, such a failure does not impede or delay the processing of an appeal or cause any other public detriment. Although Zieckler has not specifically cited section 17A.19(10)(k) in support of her argument, and she does not specifically employ the words "grossly disproportionate" in her brief on appeal, we believe the substance of her argument adequately implicates that paragraph's subset of unreasonable, arbitrary, and capricious agency action. We therefore conclude Zieckler's contention that the commissioner's rule 876-4.30 is an unreasonable, arbitrary, and capricious exercise of agency power gave sufficient notice to the agency, the district court, and this court of the substance of her argument: viz., that the negative impact of the rule is so grossly disproportionate to any resulting benefits accruing to the public, that it must necessarily be deemed to lack any foundation in rational agency policy. See Iowa Code § 17A.19(10)(k).
An agency's action may be reversed under section 17A.19(10)(k) only if the action is not required by law. Although the commissioner is required by statute to adopt rules to implement the workers' compensation system, see id. § 86.8(1), the commissioner is not required by law to adopt a rule mandating dismissal of an intra-agency appeal as a sanction for failing within thirty days to reimburse a nonappealing party for the cost of a hearing transcript. We therefore conclude the commissioner's adoption of a rule such as rule 876-4.30, providing for mandatory dismissal of an appeal under the circumstances of this case, is not "required by law," and may therefore be reversed under section 17A.19(10)(k).
The facts of this case illustrate the obvious disproportionality between the mandatory dismissal rule's negative impact on appealing parties and its benefit to the public. Unlike the rule at issue in Marovec, rule 876-4.30 is simply a cost-shifting provision that has no effect on the agency's ability to process the appeal. Thus, the public benefit of rule 876-4.30 rests solely on the fairness of shifting appeal costs to an appealing party during the pendency of an intra-agency appeal. Zieckler was unaware which defendant paid for the transcript or how much was paid for it. When she learned this information she immediately sought to reimburse the defendant who initially paid for the transcript. All the appeal briefs were on file with the commissioner before the payment issue arose. Nevertheless, the mandatory nature of rule 876-4.30 prevented any consideration of Zieckler's particular circumstances. She lost her right of appeal for a reason having nothing to do with the merits of her appeal or her willingness to bear the initial costs of the transcript. The public benefit of a mandatory dismissal under these circumstances is negligible, while the negative impact on Zieckler is extremely severe. We do not intend to suggest an agency may never mandate dismissal for violation of a procedural rule; however, section 17A.19 (10) (k) requires that there be a reasonable proportion between imposition of the ultimate sanction of dismissal and the party's transgression. *534 Rule 876-4.30 lacks any such proportion.[1]
We conclude the agency's action in adopting rule 876-4.30 was (1) not required by law; and (2) unreasonable, arbitrary, and capricious because its negative impact is so grossly disproportionate to the benefits accruing to the public interest from the rule. Therefore, rule 876-4.30 lacks adequate foundation in rational agency policy and must be invalidated. Accordingly, we reverse the judgment of the district court and remand to the agency for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
All justices concur except LARSON, J., who dissents.
LARSON, Justice (dissenting).
I dissent. The majority has reached out to decide this case on a theory that the appellant has not raised at any point in the history of the case  from her resistance to the motion to dismiss, through her petition for judicial review, and up to this court.
On appeal to this court, Zieckler complains that
[t]he Commissioner's actions in dismissing Zieckler's appeal were unreasonable, arbitrary and capricious, and deprived Zieckler of the opportunity to have her appeal decided on the merits. Moreover, rule I.A.C. 876-4.30, if interpreted to require dismissal in this case is an unreasonable exercise of the agency's rule-making authority. The Commissioner's actions violated Iowa Code § 17A.19, and the dismissal should be reversed and the appeal reinstated.
Zieckler's complaint that the commissioner's action "violated Iowa Code § 17A.19" is so general that it gives virtually no guidance to a court. Perhaps Zieckler intends to argue that the commissioner violated some provision of Iowa Code section 17A.19(10), which lists fourteen grounds for reversing agency action. Her brief does not specify on which of these grounds she relies. The majority, however, fills in the gap by expressly basing its holding on section 17A.19(10)(k), a statute that was not even cited by Zieckler. Despite the fact Zieckler does not even mention this section, the majority holds that its application mandates reversal. Under that section, if the action of the agency is "[n]ot required by law and the negative impact . . . is . . . grossly disproportionate to the benefits accruing to the public," the action lacks a rational basis. This section helps give meaning to one of the legislature's stated purposes for the administrative procedure act, which "is to increase the fairness of agencies in their conduct of contested case proceedings." Iowa Code § 17A.23.
However, this court's concern for reaching what it perceives to be a fair result in a particular case cannot trump well-established principles of appellate procedure. On of these principles is that we will not "assume a partisan role and undertake the appellant's research and advocacy." See Inghram v. Dairyland Mut. Ins. Co., 215 N.W.2d 239, 240 (Iowa 1974); accord In re Det. of Garren, 620 N.W.2d 275, 285 (Iowa *535 2000); State v. Stoen, 596 N.W.2d 504, 507 (Iowa 1999). The rationale for such a self-imposed rule is obvious. If a court fills in the gaps in an appellant's argument, it skews the judicial review process because it deprives opposing parties, and the district court, of an opportunity to meet the argument. Here, Zieckler does not argue that her right to appeal is grossly disproportionate to the public's benefit. She does not hint at such a theory. In fact, as already noted, she does not even cite Iowa Code section 17A.19(10)(k), the section on which the majority relies.
If we allow dissatisfied parties such as Zieckler to take a shotgun approach by claiming simply, as Zieckler does, that the agency's action was "unreasonable, arbitrary, and capricious" and leave it to a court to fill in the gaps, we will open the floodgates to judicial review proceedings.
I would hold Zieckler to the arguments she actually made in her appeal to this court, not her arguments as supplemented and embellished by the majority. I would, therefore, defer to the commissioner's rule-making authority and affirm the judgment of the district court.
NOTES
[1]  It should be noted that the commissioner recently eliminated the most unreasonable feature of rule 876-4.30 by amending it to read as follows:

In the event the cost of the transcript has been initially borne by a nonappealing party prior to appeal, the nonappealing party is entitled to reimbursement within 30 days after serving on the appealing party proof of the cost of the transcript. If not so reimbursed, the appeal may be dismissed.
Iowa Admin. Code r. 876-4.30 (2007) (emphasis added). Accordingly, the infirmity of the rule that requires us to reverse this case has been eliminated from the rule.


312 B.R. 368 (2004)
In re LINC CAPITAL, INC., Debtor.
Line Capital, Inc., Plaintiff,
v.
Interlink Electronics, Inc., Defendanant.
Bankruptcy No. 01 B 03320. Adversary No. 02 A 0007.
United States Bankruptcy Court, N.D. Illinois, Eastern Division.
July 21, 2004.
*370 Dennis A. Dressier, Askounis & Borst, Kansas City, MO, for Plaintiff.
Howard L. Teplinsky, Seidler & McErlean, Chicago, IL, for Defendant.

AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW
JACK B. SCHMETTERER, Bankruptcy Judge.
This adversary proceeding relates to the Chapter 7 bankruptcy case of Plaintiff Line Capital, Inc. ("Line"). It is a replevin action to recover manufacturing equipment leased by Line to Defendant Interlink Electronics, Inc. ("Interlink"). Count I was separately tried to money verdict covering rental of the equipment until July 1, 2001. On February 5, 2003 an Agreed Judgment Order was entered in Count II requiring Interlink to return all leased equipment by a specified date. Interlink returned one piece of equipment ("Joshua Machine") but not the rest.
Line requests recovery of $184,025 for value of the unreturned equipment, plus a fair market rental rate of the equipment of $25,307.92 from June 3, 2003 to January 6, 2003, plus prejudgment interest at a rate of 5% from June 3, 2003 until the date judgment is entered herein. Interlink agrees that Line is entitled to recover the value of the equipment not returned, but disputes that value and objects to any award of interest or fair market rental rate.
Based on Findings of Fact and Conclusions of Law made and entered below, *371 Line will recover $55,000 for the value of the unreturned equipment, plus a fair market rental of $5,032.79 for the unreturned equipment and $6,039 39 in fair market rent for the Joshua Machine, plus prejudgment interest.

FINDINGS OF FACT
Findings of Fact are based on evidence presented at trial.
1. Line Capital, Inc. is a Delaware corporation that provided specialty finance, asset-based financing, equipment leasing, and equipment rental and distribution services to high-tech companies. Line filed for bankruptcy protection under Title 11 of Chapter 11 of the United States Bankruptcy Code on March 2, 2001.
2. Interlink Electronics is a California Corporation with its principal place of business in Camarillo, California. Interlink designs and manufactures intuitive interface technologies and products.
3. Between May 30, 1995 to September 30, 1995 Interlink and Line entered into a series of lease agreements and schedules providing that Line would lease to Interlink computing and specially designed manufacturing equipment. (Compl. Exh. A-D; Compl. ¶ 6-9; Answ. ¶ 6-9)

Procedural History
4. Line filed for bankruptcy protection under Chapter 11 of the Bankruptcy Code on March 2, 2001 and has since continued possession of its property and managed its business as debtor-in-possession pursuant to §§ 1107 and 1108 of the Bankruptcy Code.
5. Line's confirmed plan of reorganization authorizes Line's Estate Administrator to prosecute this action in its name against Interlink. (Amended Joint Plan of Reorganization, Article VII, Sec. 2.)
6. On January 4, 2002 Line filed this two-count Adversary Complaint alleging breach of the lease agreement for nonpayment of rent for unreturned equipment in Count I, and seeking recovery of the leased equipment and damages for unreturned equipment in Count II.
7. Count I alleged breach of the lease agreements and schedules. The lease agreement required Interlink to exercise an end-of-lease-term option, choosing (1) to continue to pay rent equal to a fair rental value for any equipment not returned, or (2) to purchase the equipment for a price calculated at the fair market value, or (3) to return the equipment. Compl. Exh. A.
8. The leased equipment was neither returned nor purchased. Following trial, judgment was entered in favor of Line on Count I against Interlink in the amount of $128,429.76, calculated by the Court as the fair market rental value of the equipment from the end of the rental leases until July 1, 2001.
9. The parties agreed on a Judgment Order of Replevin which was entered in Count II ("Judgement Order" or "Order") requiring Interlink to return all the leased equipment (described below as Findings 13, 14, and 15) within a specified period. (Plaintiffs Am. Exh. 1, Agreed Judgment of Replevin Under Count II)[1] The parties subsequently agreed to extend the deadline to May 5, 2003. (Testimony of Mark Arvin, Arvin Tr. at 56)[2] The Count II Judgment Order provided that if the equipment was not returned to Line "this Court retains jurisdiction to rule on Linc *372 Capital Inc.'s prayer for monetary relief for the value of Equipment not returned." (Plaintiffs Am. Exh. 1, Agreed Judgment of Replevin Under Count II)
10. Following entry of that Judgment Order, the parties attempted to negotiate a purchase price for the equipment, but ultimately failed to reach an agreement. By the May 5, 2003 deadline, Interlink had not returned the equipment. (Arvin Tr. at 110)
11. Line demanded return of the equipment from Interlink but Interlink failed to return it. (Arvin Tr. at 99)
12. On June 30, 2003 Line filed a motion to enforce the Judgment Order. (See Motion for Judgment for the Value of Equipment Not Returned Pursuant to Agreed Judgment of Replevin Under Count II, June 30, 2003.)
13. In late August of 2003, Interlink returned one piece of the leased equipment, a Joshua 12 Station Assembly System ("Joshua Machine"). However, the Joshua Machine was not returned pursuant to terms of the lease agreement which required Interlink upon its return to furnish a letter from the manufacturer of the Joshua Machine or another service organization certifying that the Machine was in good working order, subject only to reasonable wear and tear resulting from proper use thereof, and that such Machine was eligible for a maintenance agreement by its manufacturer. All related software was also not returned. Compl. Exh. A.
14. Interlink did not return any of the other leased equipment specified in the Judgment Order, which consisted of the following:
Rol-Lift 1,500 Lbs Electric Pallet Lift Rosenthal 30" Model Master Sheet Cutter
Branson Model 941AE Ultrasonic Welder Model 943 controls
Inventek Circuit Board Laminator 2 1/2 x 3/4)
Inventek Circuit Board Laminator (2 1/2 x 2)
Inventek Circuit Board Laminator (1 1/2 x 2)
Inventek Circuit Board Laminator (1 1/2 x 2)
  Innovate Model 300 Laminator
  Light Table 40 x 60
  Millington Model Light Table
  Assorted Lockers
  LeCroy 930M Oscilloscope
  Hewlett Packard 34401 Multimeter
  Assorted Molds and tooling
  Exabyte Tape Drive Back-up
  (2) Intel Print Server Switch
  Hewlett Packard 48 Port Hub
  Lap Top Computer
  Zip Drive
  Hewlett Packard Model 5 Laser Printer
  Lumina Fax Machine
  IBM Think Pad Lap Top
  Telephone System
  Parts Bin System
  Eagle Carts
  Setra Super Scale
  Steel Rule Die Cutting & Bending
  Schwab 4 drawer file cabinet
  (5) 15" SVDA Monitors
  Personal Computers
  Display Booth
  Shop Stools
  Trade Show Signs
15. Prior to trial on Count I, Interlink transferred the leased molds and tooling to its wholly owned subsidiary in China. (Testimony of Barry Hurwitz, Hurwitz Tr. *373 at 49)[3] Interlink or its China subsidiary has continued to use portions of the unreturned leased equipment throughout these proceedings.
16. Since the Replevin Judgment on Count II was not complied with, a trial was held to determine value of the unreturned equipment and Joshua Machine and to award damages under the Illinois Replevin Act. That trial started in January 2004 and ended February 2, 2004.

Valuation of the Equipment
17. Interlink retained Mr. Barry Hurwitz ("Hurwitz") of R.M.C. Industrial Services to give three separate appraisals of the equipment, including the Joshua Machine:
(a) The first Hurwitz appraisal valued all the leased equipment utilizing "inplace" value methodology in the amount of $132,025. That amount included the value of the Joshua Machine separately appraised (also at "in-place" value) at $75,000. (PL's Am. Exh. 5)
(b) The second of Hurwitz's appraisals valued all the leased equipment using a fair market methodology in the amount of $70,750. That amount included the value of the Joshua Machine, appraised at $40,000. (PL's Am. Exh. 5)
(c) The third of Hurwitz's appraisals valued the leased equipment using an auction value methodology, valuing all the leased equipment at $32,875, including the value of the Joshua Machine appraised at $10,000. (Def.'s Exh. 2)
18. Line retained the services of Mr. Stan Curtis ("Curtis") to conduct a physical inspection, appraise the equipment, prepare the equipment for sale under the presumption that it would be returned.[4]
(a) Curtis testified that he had been in the professional appraising business since 1966 and was certified by the Certified Appraiser's Guild of America. Curtis is a member of the Association of Professional Auctioneers, the Indiana Auctioneers' Association, the National Auctioneers' Association, the National Association of Public Auto Auctioneers and is licensed in the State of Indiana. (Pl.'s Am. Exh. 14)
(b) Curtis also testified that he owned a company that used a piece of equipment that was very similar to the Joshua Machine at issue in this case and that he sold Joshua Machines in the past. (PL's Am. Exh. 14)
(c) Curtis testified based on his years of experience in the industry and sales of the same type of equipment that the unreturned equipment other than Joshua Machine had a liquidation value of $15,000 to $35,000. He separately valued the Joshua Machine as between $50,000 to $150,000. (PL's Am. Exh. 14)
19. Facts set forth in the Conclusions of Law will stand as additional Findings of Fact.

CONCLUSIONS OF LAW

JURISDICTION AND VENUE
The Judgment Order in Count II stated that "this Court retains jurisdiction to rule on Line Capital Inc.'s prayer for monetary relief for the value of equipment *374 not returned." PL's Am. Exh. 1, Agreed Judgment of Replevin Under Count II. A bankruptcy court maintains core jurisdiction to interpret and enforce its orders. Cox v. Zale Delaware, Inc., 239 F.3d 910, 917 (7th Cir.2001); In re Weber, 25 F.3d 413, 416 (7th Cir.1994) (bankruptcy court's interpretation of its own confirmation order is entitled to the same deference as accorded any court construing its own judgments). Thus, core jurisdiction lies to determine that the prayer for relief pleaded under Count II of the Complaint included the statutory relief provided in the Illinois Replevin Act under 28 U.S.C. §§ 1334 and 157(b)(2)(E), and it is clear that jurisdiction was indeed reserved in the Count II Judgment to provide such relief. Moreover, core jurisdiction lies under Count II as it relates to recovery of estate property. 28 U.S.C. § 157(b)(2)(E).
The matter is referred here under District Court Internal Operating Procedure 15(a). Venue lies under 28 U.S.C. § 1409(a).

APPLICABILITY OF THE ILLINOIS REPLEVIN ACT
Interlink disputes full applicability of the Illinois Replevin Act, 735 ILL. COMP. STAT. 5/19-101 et seq., arguing that the Judgment Order limited Line's relief only to the value of equipment not returned. Def.'s Am. Concl. of Law 113 at 11.
This argument is without merit. The Agreed Judgment Order did not limit or modify the relief pleaded in the Complaint for replevin but reserved jurisdiction to adjudicate monetary damages sought under the Complaint. Count II of the Complaint complied with pleading requirements of the Illinois Replevin Act which sets forth requirements for a replevin cause of action under Illinois law. See 735 ILL. COMP. STAT. 5/19-104. A replevin complaint must describe the property to be replevied; state that the plaintiff is the owner of the property or in legal possession; that the property is wrongfully detained by the defendant; and that the property has not been taken for any tax, assessment, or fine or seized under any lawful process or held by virtue of any order for replevin. Id. Line pleaded and proved those facts. The lease agreement and schedules entered into by both parties provided that Illinois law applies. Compl. Exh. A. The Illinois Replevin Act and all of its statutory remedies therefore applies to the present dispute. See Combined Metals of Chicago Ltd. Partnership v. Airtek, Inc., 985 F.Supp. 827 (N.D.Ill.1997) (holding that federal courts must determine if a verified pleading and proof is consistent with [the Replevin Act] before relief may be granted.)

DAMAGES
The Illinois Replevin Act authorizes damages both for property that is not returned and also for wrongful detention of property. 735 ILL. COMP. STAT. 5/19-101 et seq.

Damages for the Undelivered Leased Equipment (Value and Lost Rent)
When property due to be returned is not delivered, the owner may recover damages sustained by reason of the wrongful detention. 735 ILL. COMP. STAT. 5/19-120 (2004).
With the exception of the Joshua machine, Interlink never returned the leased equipment. Line is entitled to the unreturned equipment's value. Line's expert witness, Mr. Stan Curtis ("Curtis"), testified to the fair market value of the equipment in a deposition admitted into evidence without objection. See Pl.'s Am. Exh. 14.
*375 Interlink objects to the use of Curtis as an expert witness. Line responds that since Interlink did not object to the admissibility of Curtis' deposition testimony as an exhibit, Interlink waived its right to object. Interlink replies correctly that it objected during the deposition and that admission of the deposition into evidence preserved its deposition objections.
Even without an objection being made, and certainly when it is made, a court must adequately demonstrate by findings on the record that it has performed its duty as "gatekeeper" before accepting expert testimony. 4-702 Weinstein's Federal Evidence § 702.02 (2003) (citing Goebel v. Denver & Rio Grande Western R.R., 215 F.3d 1083, 1088 (10th Cir., 2000)); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
An expert may be qualified by "knowledge, skill, experience, training, or education." Fed.R.Evid. 702; Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir.2000) ("a court should consider a proposed expert's full range of practical experience as well as academic or technical training when determining whether that expert is qualified to render an opinion in a given area.")
Further, a witness may qualify as an expert based on reliable evidence, including deposition testimony. See, e.g. 4-702 Weinstein's Federal Evidence § 702.02 ("An evidentiary hearing is not required if the information before the court is sufficient to support a ruling on the reliability of the proposed evidence.")
Curtis' deposition testimony established that he has been a certified professional appraiser since 1994. He is also a member of various professional associations and has appraised and valued equipment for almost 30 years. Also, Curtis currently owns his own appraisal company and has previously valued Joshua Machines. Curtis is therefore qualified to testify as an expert in appraisals of machinery and equipment.
Curtis' appraisal in this case regarding value of the leased equipment used proper methodology and relied on his training as an appraiser and past experience. His opinion regarding the value of the leased equipment is certainly relevant and necessary to assist the valuation determination in issue here. See Walker v. Soo Line R.R., 208 F.3d 581, 586 (7th Cir.2000). Curtis was therefore qualified as an expert and his opinion of the value of the leased equipment was properly admissible as an opinion useful to the court.
Curtis appraised the fair market value of the underlying equipment within the range of $15,000 to $35,000. PL's Am. Exh. 14. The basis of his appraisal was his past experience valuing similar types of equipment. Interlink's appraiser Hurwitz used different valuation methodologies (Finding No. 17), but Curtis' appraisal corresponded closely with the auction value opined by Hurwitz. The Hurwitz "inplace" value method was not related to the equipment included here; that equipment if returned would not have been "in-place" at all but would have had to be sold as is on an auction basis, or else installed for some new use at great expense. For the same reasons the "fair market" method requiring long marketing effort and some servicing expenses would not be applicable. Line will therefore be awarded $25,000 for liquidation value of the unreturned equipment based on guidance from the Curtis and Hurwitz appraisals.
Line also seeks rental value of the unreturned equipment from June 3, 2003 until the end of trial. PL's Concl. of Law ¶¶ 36-43 at 11-13. Interlink disagrees, asserting *376 that Line did not present evidence that it could have leased the equipment to a third party. Def.'s Concl. of Law ¶ 4 at 11. However, the record does contain evidence of at least one lost sale. Curtis testified that he had located a buyer for the equipment but was unable to complete the transaction since the equipment remained in Interlink's possession. Pl.'s Am. Exh. 14. Moreover, Interlink deprived Line of any opportunity to lease the equipment, for it is impossible to offer something to lease if one does not have possession or control of it. By shipping most of the equipment to its subsidiary in China, Defendant prevented any leasing of it and is hardly in a position to complain that the consequence of its conduct prevented Plaintiff from proving rental value. Line is entitled to rental value of the equipment.
The lease agreement provided that rental value was to be calculated based on the lease rate factor stated in the lease agreement and schedules, multiplied by the value of equipment. Compl. Exh. B; PL's Am. Exh. 15, Pg. 17.[5] Line will therefore be awarded $718.97 a month during the period Interlink violated the judgment order until trial, from June 3, 2003 to January 6, 2004, for a total of $5,032.79, based on the following calculation: $25,000 (value) x 2.8759 (lease rate factor) x 7 (months) = $5,032.79.

Damages for the Joshua Machine
Section 19-125 of the Illinois Replevin Act authorizes recovery for wrongful detention of property. 735 ILL. COMP. STAT. 5/19-125 (2004). Damages awarded under this section are intended to provide full indemnity for damages suffered, Culligan Rock River Water Conditioning Company v. Gearhart III, 111 Ill. App.3d 254, 258, 66 Ill.Dec. 902, 443 N.E.2d 1065 (Ill.App.Ct. 2nd Dist.1982), and are measured from the time the property was taken until its return, Internat'l Harvester Credit Corp. v. Helland, 130 Ill.App.3d 836, 85 Ill.Dec. 922, 474 N.E.2d 882 (Ill.App.Ct. 2nd Dist.1985).
Damages include depreciation in value during the period of wrongful detention and reasonable value of the use of the property during the period of wrongful detention. International Harvester Credit Corp. v. Helland, 130 Ill.App.3d 836, 840, 85 Ill.Dec. 922, 474 N.E.2d 882 (Ill.App.Ct. 2nd Dist.1985).
Interlink wrongfully detained the Joshua Machine from May 5, 2003 to late August 2003. Before damages can be awarded, the value of the Joshua Machine must be determined.
The parties vigorously dispute the value of the Joshua Machine. Interlink's expert, Hurwitz, inspected the machine in October of 2002 and submitted three appraisal reports. The first was conducted in October 14, 2002 and used a fair market methodology, defined as an opinion of the expected gross dollar amount that the machine could realize if exposed for sale in the open market by a willing seller and willing buyer. PL's Am. Exh. 5, Fair Market Report, October 14, 2002. Hurwitz's first appraisal estimated the fair market value of the Joshua Machine to be $40,000.
Hurwitz's second appraisal was conducted in October 14, 2002 and used an in-place value methodology. He defined in-place value as the worth of the machine to a new buyer in place where the machine is installed and assuming it is operating. PL's Am. Exh. 5, In-Place Report, October 14, *377 2002; Hurwitz Tr. at 51. "In-place" value includes the costs of set up and transportation to a new buyer. Hurwitz estimated that the Joshua Machine had an in-place value of $75,000. Of course Line did not have the machine, let alone have it installed somewhere for sale in place, so this valuation carries little weight here.
Hurwitz's last appraisal was conducted in August 2003. This appraisal used an auction value methodology, defined as the amount realized at a properly prepared and conducted public auction sale, held under forced sale conditions. Although he had inspected the machine for his first two appraisals, Hurwitz did not physically inspect the machine when calculating its auction value. He estimated that the Joshua Machine had an auction value of $10,000, concluding that the machine as currently configured, could only produce Interlink's product and therefore was not marketable. Hurwitz reasoned that the machine would need extensive retooling and engineering before it could be sold for use by anyone other than Interlink.
Linc's expert Curtis inspected the Joshua Machine in February of 2003. Based on his past experience of selling the Joshua Machine and inquiries from prospective buyers, he estimated the value of Line's Joshua Machine to be between $50,000$150,000.
Of the evidence in the record, the fair market value for this machine appears to be the most reliable because the Joshua Machine if properly returned could have been marketed to obtain that value. See Curtis Testimony, Pl.'s Am. Exh. 14.
Since Interlink returned the Joshua Machine, Line will not recover the Machine's full value. The full value of property may be recovered only when the property is not found or returned. 735 ILL. COMP. STAT. 5/19-120 (2004); Wilson v. M & W Gear, 110 Ill.App.3d 538, 66 Ill.Dec. 244, 442 N.E.2d 670 (Ill.App.Ct. 3rd Dist.1982).
The fair market methodology submitted by Hurwitz is the most accurate indicator of the Machine's value. Hurwitz appraised the Joshua Machine's fair market value as $40,000. That would have been the value awarded to Plaintiff had the Machine not been returned. While that Machine was returned, Interlink did not return the Machine pursuant to the terms of the Lease Agreement and with proof that it was in good working order, depreciating its value to Plaintiff down to the Machine's auction value, $10,000. The reduction in value of $30,000 is what Plaintiff may recover. Line may also recover the lost rental value for that Machine.
Using the lease rate factor provided in the lease agreement, Line will be awarded $862.77 for each month Interlink wrongfully detained the machine in violation of the Agreed Replevin Judgment, from June 3, 2003 to January 6, 2004, for a total of $6,039.39 calculated as follows: $30,000 (value) x 2.8759 (lease rate factor) x 7 (months) = $6,039.39.

Mitigation Issue
Interlink argues in its post trial brief that any damage award should be reduced since Line failed to mitigate damages. Culligan, 111 Ill.App.3d at 258, 66 Ill.Dec. 902, 443 N.E.2d 1065 (holding that under Illinois law "mitigation of damages applies in virtually every type of ease in which the recovery of a money judgment or award is authorized.") However, Interlink did not plead the affirmative defense of failure to mitigate damages in its Answer to Complaint, and that failure on Interlink's part represents a waiver of that defense. See Stanley Gudyka Sales Co. v. Lacy Forest Products Co., No. 84 C 5165, 1989 WL 32892 at *2-3, 1989 U.S. Dist. LEXIS 3558 at *6-7 (N.D. Ill. April 6, 1989) (citing A.D.E., Inc. v. Louis Joliet *378 Bank and Trust Co., 742 F.2d 395, 397 (7th Cir.1984)). Since Interlink did not plead this affirmative defense in its Answer or any other pleading, it is now barred from arguing that affirmative defense.

Prejudgment Interest
Line claims prejudgment interest under the Illinois Interest Act, which provides that:
creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing;....
815 ILL. COMP. STAT. 205/2 (2004). See, e.g. Krantz v. Chessick, 282 Ill.App.3d 322, 327, 668 N.E.2d 77, 80, 217 Ill.Dec. 892 (1996) (an instrument of writing under the statute is one that sets up a creditordebtor relationship); See also Plasti-World Prods, v. Burgundy Prods. Mfg., No. 98 C 4348, 2000 WL 198909 at *l-2, 2000 U.S. Dist. LEXIS 1754 at *4-5 (N.D.Ill. February 15, 2000).
The Act mandates prejudgment interest when a creditor seeks payment of a fixed sum on an instrument of writing. Milligan v. Gorman, 284 Ill.Dec. 747, 810 N.E.2d 537 (Ill.App.Ct. 1st Dist. 2004) Line seeks to recover for breach of the lease agreement and schedules. These contracts are sufficient instruments of writing to support an award of prejudgment interest. Line will be awarded prejudgment interest at a rate of 5% from June 3, 2003 (when the equipment should have been returned or its value paid) until the date judgment is entered.
CONCLUSION
Judgment will enter separately granting Line damages under the Illinois Replevin Act. Line will recover $55,000 for the value of the unreturned equipment ($25,000), and for the Joshua Machine not returned according to contract requirements ($30,000), plus $6,039.39 rental value for the Joshua Machine, plus $5,032.79 for rental value of the other equipment. Line will also be awarded prejudgment interest as requested.
NOTES
[1]  "Pl.'s Am. Exh." refers to the Plaintiff's Amended Exhibits admitted at trial. "Def.'s Exh." refers to the Defendant's exhibits admitted at trial.
[2]  "Arvin tr." here and similar references below refer to the transcript of Mr. Arvin's testimony at the trial proceeding on January 6, 2004.
[3]  "Hurwitz tr." here and similar references below refer to the transcript of Mr. Hurwitz's testimony at the trial proceedings on January 6, 2004."
[4]  In connection with the trial of Count I, Line retained the services of Steven Tatro. Mr. Tatro submitted an appraisal report, but that report was admitted into evidence for the limited purpose of showing Interlink's motive and intent for failing to return the equipment. Tatro's appraisal report therefore will not be considered as substantive evidence of the equipment's value.
[5]  The lease rate factor is 2.8759% of the estimated equipment cost per month. Compl. Exh. A.


82 Ga. App. 743 (1950)
62 S.E.2d 620
SEABOARD AIR-LINE RAILROAD CO.
v.
STODDARD, administratrix.
33145.
Court of Appeals of Georgia.
Decided December 5, 1950.
*747 Anderson, Connerat, Dunn & Hunter, B. B. Cubbedge, for plaintiff in error.
Gazan, Walsh & Bernstein, Julian Hartridge, contra.
WORRILL, J.
1. The defendant demurred generally to the petition on the ground that no cause of action was set forth against the defendant; and also on the ground that the facts alleged in paragraph 6 show upon their face that the plaintiff has no knowledge of the origin of the fire, or from what source the fluid was expelled, or what caused the same to escape from the tank or container, or what or who caused the accident, and thus the petition fails to set forth a cause of action against the defendant.
While we recognize the rule that on demurrer a plaintiff's petition will be construed most strongly against him and that if there is any inference which may reasonably be drawn from the petition against his right to recover such inference will prevail; and that a demurrer admits only well-pleaded facts and not conclusions, and while we also recognize that the Federal Employers' Liability Act does not create liability on the part of the railroad without fault (Jamison v. Encarnacion, 281 U. S. 635, 640, 641 (50 Sup. Ct. 440, 74 L. ed. 1082), nevertheless, we think that the petition as amended, set forth a cause of action good as against a general demurrer. Much is made by the plaintiff in error of the fact that the plaintiff pleads in her petition that because of the failure or refusal of the defendant's agents to divulge the exact cause of the inflammable fluid escaping from the tank which resulted in the fire which killed her husband that she cannot allege such cause and that therefore her petition shows that she is unable to prove negligence on the part of the defendant, and that the necessity that she allege negligence under the act is not met by her petition. Putting aside for the moment any consideration of the allegations of subparagraphs (a), (b) and (c) of paragraph 7, and of the special demurrer attacking them, let us examine the allegations of the petition as a whole respecting the manner in which the injury and death occurred. The plaintiff sets out in considerable *748 detail a description of the place in which the deceased was working, that he was engaged in work in the furtherance of interstate commerce thus bringing him within the Federal Employers' Liability Act, and that while he was thus engaged in the performance of his duties and without any contributory negligence on his part he was suddenly enveloped in flames resulting from kerosene or some other inflammable liquid being ejected from a tank or hose connected therewith and thrown into or on the stove over which deceased was working, and that he died as a result of that occurrence. We think that these facts which are plainly alleged in the petition are sufficient to raise an inference of negligence on the part of the defendant in failing to maintain some part of the equipment of its shop in a reasonably safe condition or in furnishing the deceased with a reasonably safe place in which to work, and sufficient to bring the plaintiff within the purview of the Federal Employers' Liability Act. It is not necessary that the plaintiff set forth in explicit detail wherein or how such defect existed or contributed to the injury, but she would seem to be relieved of this requirement when she alleges in paragraph 6 that despite diligent efforts on her part she has been unable to ascertain the exact cause of the fire.
Certainly, it is a most unusual, out of the ordinary and unexpected thing for a workman to be burned or, as alleged in the petition here, "cooked" alive while performing his ordinary duties for an employer, and we think that the petition sufficiently alleges that the deceased met his death as the result of the employer's negligence. While there is no presumption of negligence against the railroad, it would be a most curious anomaly to hold that where because of the concealment of the employer, or from some other cause, the plaintiff could not obtain the facts, she could not proceed to assert her rights against the defendant. Furthermore, the important fact in this case is not what caused the fluid to escape from the tank or hose or nozzle, but that it did so, and that the plaintiff's husband was injured and died as a result of the fire that ensued, and, where as here, after alleging the fact of the occurrence, the petition alleges that the death of the petitioner's husband was caused by an instrumentality of the defendant under its management *749 and control and as a result of the negligence of the defendant, such allegations, we think, are sufficient to raise an inference of a breach of duty on the part of the defendant and of legal liability to the plaintiff. For these reasons the petition was not subject to the general demurrer and the trial court did not err in overruling it. See Miller v. Ben H. Fletcher Co., 142 Ga. 668 (5) (83 S. E. 521).
2. The first ground of special demurrer attacks the last sentence of paragraph 6 of the petition, as amended, and the allegation that whatever condition or event resulted in the fire and fatal burning of the petitioner's husband was not in any wise caused or contributed to by any act of the deceased who, at the time he received his injuries, was where he had a right to be and in the discharge of his duties, on the ground that it is a conclusion of the pleader not borne out by other allegations in said paragraph and should be stricken. This ground of demurrer is without merit. The allegation that the deceased was without fault is an allegation of fact (Charleston & Western Carolina Ry. Co. v. Lyons, 5 Ga. App. 668 (2), 673, 63 S. E. 862), and this rule is not changed by the fact that elsewhere in the petition the plaintiff alleges that she does not know exactly the facts which contributed to cause the fire which resulted in the death of her husband.
3. The second ground of special demurrer is as follows: "Defendant demurs specially to the allegations contained in said petition as amended as a whole and particularly to the allegation contained in paragraph 7 of the petition as amended which alleges that the burns inflicted upon petitioner's late husband and his death were due solely and entirely to the negligence of the defendant, its agents, servants and employees, upon the ground that said allegation is a conclusion of the pleader, is contradictory, vague, indefinite, when considered together with other allegations in said paragraph and in said petition, and said allegation should therefore be stricken from the petition." Granting that the allegation so attacked is a conclusion of the pleader, we think that in this regard it is properly pleaded. "Legal results arising from the facts alleged may be pleaded in general terms or in the form of a legal conclusion." Southern States Portland Cement Co. v. Helms, 2 Ga. App. 308 (1) (58 *750 S. E. 524). This view is strengthened, we think, by what is said in the first division of this opinion regarding the general demurrer. As to the contention that such allegation is contradictory, vague, and indefinite when considered in connection with the other allegations of the paragraph and of the petition, the demurrer fails to point out wherein or how such allegations are so defective, and it is not apparent to us that they are. A special demurrer must put its finger on the exact point of weakness. A demurrer being a critic must itself be free from imperfections. Southern States Portland Cement Co. v. Helms, supra, p. 314, 315.
4. The third, fourth and fifth grounds of special demurrer attack the allegations of the amendment to the petition relating to the violation of Rule 47 of the agreement between the union and the company upon the ground that it seeks to add a new cause of action not set forth in the original petition; that it injects into the case a violation of a written contract as the basis of the cause of action and that this results in a misjoinder of causes of action in tort and contract, seeks to join in one action a cause of action arising under Federal statutes, and a cause of action arising under the common law and the statutes of the State of Georgia and further upon the ground that the rule is in conflict with the Federal Employers' Liability Act.
We think that the third objection raised by special demurrer is well taken, and that the court erred in refusing to strike these allegations of the petition. An action under the Federal Employers' Liability Act is an exclusive remedy for a party who, by reason of his employment or injury in his employment is entitled to the benefits of the act and for this reason these allegations respecting Rule 47 should have been stricken from the petition.
5. Grounds 10, 11 and 12 of the demurrer attack the allegations of paragraph 7 of the petition as amended, on the ground that the allegations of subparagraphs (a), (b) and (c) are mere conclusions of the pleader not borne out by the other facts pleaded, that the allegations are in the alternative, are vague, indefinite, contradictory, and do not put the defendant upon sufficient notice as to what it is called upon to defend; and that subparagraph (b) attempts to add a new cause of action not *751 set forth in the original petition insofar as it complains of the action of a fellow servant. We think that the demurrer attacking these allegations as contradictory and not borne out by the other facts pleaded, should have been sustained. The allegations of these subdivisions are clearly contradictory and inconsistent with each other. If the injury occurred as a result of any one of these conditions or actions so alleged, it clearly did not result at the same time from one or both of the other situations alleged, and if it occurred in one of these three ways and the plaintiff chooses to allege that it did, she should not allege in the same count that because of her inability to ascertain the facts she cannot allege them. As was said in Central of Georgia Ry. Co. v. Prior, 142 Ga. 536, 537 (83 S. E. 117): "Certainty of statement is one of the great aims of pleading; and this can not be attained if the plaintiff in the same count be permitted to base his case upon inconsistent allegations. A defendant is entitled to be informed of the facts upon which the plaintiff bases his action. Where the cause of action arises out of a single transaction, the details of the transaction should not be alleged so as to be contradictory. A plaintiff can not always anticipate what the testimony in a case may develop, and to meet the possible phases of the evidence he may state his cause of action in separate counts." It is clear that no attempt is made by the amendment to set up separate and distinct counts. For these reasons the allegations of paragraph 7 and of the petition as a whole were subject to attack by special demurrer on this ground, and the trial court erred in overruling the ground of the demurrer pointing out this defect and in failing to require the plaintiff to strike these inconsistent and contradictory allegations or to set them up in separate and distinct counts. L. & N. R. Co. v. Shelton, 20 Ga. App. 295 (1) (93 S. E. 41); Miller v. Southern Ry. Co., 21 Ga. App. 367 (5a) (94 S. E. 619); Kiser v. Pollard, 55 Ga. App. 697 (191 S. E. 179); Jones v. Hall, 57 Ga. App. 477, 478 (4) (195 S. E. 879); Girvin v. Georgia Veneer & Package Co., 143 Ga. 762 (5) (85 S. E. 922).
6. The final special demurrer attacks the allegations of paragraph 7 as amended relating to the deceased's being in the exercise of ordinary care and not having anticipated the danger and his inability to avoid its consequences, on the ground that the *752 allegations relating thereto are conclusions of the pleader and not borne out by the other facts pleaded in the paragraph and in the petition as a whole. This demurrer is without merit. It does not point out wherein such allegations are conclusions and not borne out by the facts pleaded, and it is not plain that such criticism is well founded.
The judgment is affirmed upon condition that within ten days from the receipt of the remittitur in the trial court the plaintiff amend her petition so as to remove therefrom the contradictory and inconsistent allegations as pointed out in division 5 of this opinion, and the irrelevant allegations as pointed out in division 4.
Judgment affirmed on condition. Sutton, C.J., and Felton, J., concur.


674 F.2d 595
28 Fair Empl.Prac.Cas.  40, 28 Empl. Prac.Dec. P 32,440,10 Fed. R. Evid. Serv. 1047John BUGG, Jr., Plaintiff-Appellant,v.INT'L UNION OF ALLIED INDUSTRIAL WORKERS OF AMERICA, LOCAL507 AFL-CIO and Kunkle Valve Company, Defendants-Appellees.
No. 80-1909.
United States Court of Appeals,Seventh Circuit.
Submitted on Record and Briefs Feb. 3, 1982.*Decided Feb. 18, 1982.

John Bugg, Jr., Fort Wayne, Ind., pro se.
Richard G. McCracken, Indianapolis, Ind., Richard E. Fox, Fort Wayne, Ind., for defendants-appellees.
Before PELL, BAUER and POSNER, Circuit Judges.
PELL, Circuit Judge.

1
This is an appeal from the district court's dismissal of the plaintiff's employment discrimination suit.

2
The plaintiff, John Bugg, Jr., filed this suit, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., against the defendants, International Union of Allied Industrial Workers of America, Local 507, AFL-CIO (the Union) and Kunkle Valve Company, Inc.  (the Company), on January 13, 1978.  He alleged that the Company discriminated against him because of his race on four occasions: (1) on March 3, 1975, by transferring the plaintiff from his job on a New Britain machine to deburring; (2) on May 19, 1975, by transferring the plaintiff from his job on a Goss machine to deburring; (3) on September 15, 1975, by transferring the plaintiff from deburring to janitor/chip puller; and (4) by penalizing the plaintiff with a three-day suspension for taking a ten minute break.  He also charged the Union with racially motivated breach of its duty of fair representation regarding the four incidents.

3
On May 19, 1979, the district court entered an order that dismissed the plaintiff's fourth claim against the Union because of his failure to file a proper EEOC charge.  All other claims were scheduled to go to trial.

4
On December 19, 1979, the district court appointed counsel for the plaintiff.  However, after counsel made a preliminary evaluation of the case, he moved for leave to withdraw on the ground that the plaintiff's claims were meritless.  The court granted that motion.

5
Finally, on April 14, 1980, the trial was held.  Thereafter, the court entered an order that (1) dismissed the plaintiff's first claim against both parties on the ground that it was time barred, and (2) dismissed the plaintiff's remaining claims under Fed.R.Civ.P. 41(b).1  The court also awarded attorney's fees to the defendants.  This appeal followed.

6
After filing his notice of appeal, the plaintiff made five separate motions in this court for modification of the record.2  Each of those motions required the defendants to respond.  Although his first motion was initially granted, that order was later vacated.3  His subsequent motions were all denied.  We also denied the plaintiff's motion for appointment of counsel.

7
* In this appeal, the plaintiff challenges the district court's dismissal of his substantive claims in several respects: (1) he argues that his first charge against both parties was in fact timely; (2) he questions the propriety of the court's Rule 41(b) dismissal on the grounds that there is evidence in the record inconsistent with that result, and that the defendants failed to present sufficient evidence to defeat his claims; (3) he raises an objection to the admission of an exhibit accepted by the district court; and (4) he states that he had difficulty discovering certain documents from the Union.4  We reject each of these claims.

Time Bar

8
Under 42 U.S.C. § 2000e-5(e), an applicant must file a charge of racial discrimination with the Equal Employment Opportunity Commission "within three hundred days after the alleged unlawful employment practice occurred."  The filing of such a charge within the statutory time limit is a jurisdictional prerequisite to the commencement of a Title VII action in district court.  Patterson v. General Motors Corp., 631 F.2d 476, 483 (7th Cir. 1980), cert. denied, 451 U.S. 914, 101 S.Ct. 1988, 68 L.Ed.2d 304 (1981).

9
The incident underlying the plaintiff's first claim, i.e., his transfer from a job on a New Britain machine to deburring, occurred on March 3, 1975.  His first EEOC charge was not filed until February 3, 1976.  Clearly it was out of time.

Rule 41(b) Dismissals

10
Fed.R.Civ.P. 41(b) provides that, at the close of a plaintiff's presentation of evidence, a district court may involuntarily dismiss his action if he has shown no right to relief under the facts and law.  The court must make factual findings as provided in Fed.R.Civ.P. 52(a) to support such a judgment.  In this instance, the district court's disposition conformed to that standard.  The court articulated the requirements for establishing a prima facie case of discrimination against each of the defendants.5  It then made findings indicating that, for each claim, the plaintiff failed to meet his burden of proof.  The plaintiff now points to several isolated passages in the record that he alleges are inconsistent with that result.  His showing is inconsequential.  We cannot conclude that the district court's findings were clearly erroneous, and thus we affirm the court's dismissal.  Patterson v. General Motors Corp., 631 F.2d at 487; Penn-Texas Corporation v. Morse, 242 F.2d 243, 246 (7th Cir. 1957).

11
In addition, the plaintiff's charge that the defendants failed to submit evidence of non-discrimination does not compel a different result.  Because the plaintiff did not establish a prima facie case of discrimination, the burden never shifted to the defendants to respond.  Donaldson v. Taylor Product Div. of Tecumseh, 620 F.2d 155, 159 (7th Cir. 1980).6

Admissibility of Exhibit

12
During the trial, the district court accepted Exhibit E, a foreman's report relating to the plaintiff's work on the Goss machine, submitted by the Company.  At the time of its offer, the trial judge specifically asked the plaintiff if he had any objections to the admission of the exhibit.  The plaintiff replied that he did not.  Thus, the plaintiff is precluded at this stage from challenging the admissibility of the exhibit.  Fed.R.Evid. 103(a); United States v. Baskes, 649 F.2d 471, 480 n.8 (7th Cir. 1980).

Problems of Discovery

13
In an order dated February 29, 1980, the district court granted the plaintiff a trial continuance on this same ground: that the defendants had not supplied him with requested information.  Even at that time, however, the court noted that its response was prompted "out of an abundance of caution and because the plaintiff is acting pro se."  Regarding the substantive claim, the court observed:

14
(The plaintiff's complaint) is simply inaccurate, as the record reveals.  The information has been made available to the plaintiff, and he was so advised.  He has simply failed to pursue the availability of the information.

15
The plaintiff has made no showing to refute that finding.  Thus, this final argument must also fail.

II

16
Beyond the plaintiff's substantive challenges, this appeal also presents a somewhat novel attorney's fees question.  As noted earlier, the district court allowed the defendants attorney's fees for their trial work.  That award is not contested.  However, the Company requests this court to allow an additional award for its efforts in this appeal.  This court has never analyzed the question of whether attorney's fees may be awarded to a defendant-appellee who prevails on appeal in a Title VII case.  Thus, before responding to that request, we must examine our power in this area.

17
* 42 U.S.C. § 2000e-5(k) provides:

18
In any action or proceeding under (Title VII) the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs....

19
The statute, on its face, does not make distinctions on the basis of the alignment of the prevailing party or the nature of the court.  We must ask whether there are reasons to read such distinctions into the section.

20
As to the question of whether a party's alignment is significant, the answer is clearly no.  In Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), the Supreme Court held that, under the statute, "a district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith."  Id. at 421, 98 S.Ct. at 700.  The Court noted that although some of the "strong equitable considerations counseling an attorney's fee award to a prevailing Title VII plaintiff ... are wholly absent in the case of a prevailing Title VII defendant,"7 nevertheless, in enacting the statute, Congress "wanted to protect defendants from burdensome litigation having no legal or factual basis."  Id. at 418, 420, 98 S.Ct. at 698, 699.  Thus, the Court affirmed the power of the district court to make the award.

21
There also appears to be no reason to impose a trial-appellate distinction in this scheme.  The Fifth Circuit, in granting appellate attorney's fees to a prevailing Title VII plaintiff, has refused to make such a demarcation.  Marks v. Prattco, Inc., 633 F.2d 1122 (5th Cir. 1981).  Although we have not had occasion to discuss this question under Title VII, we have rejected the distinction in an analogous context.  In Bond v. Stanton, 630 F.2d 1231 (7th Cir. 1980), we found that 42 U.S.C. § 1988, a statute that also authorizes "a court to allow a reasonable attorney's fee to a prevailing party,"8 could support an award of attorney's fees for appellate work to a prevailing civil rights plaintiff.  Thus, we find that section 2000e-5(k) does confer power on an appellate court to allow a reasonable attorney's fee for appellate work to a prevailing Title VII defendant-appellee.

22
Returning to the teaching of Christiansburg Garment Co., however, we also recognize that the Court cautioned that the exercise of the power to grant fees to a prevailing defendant must be made under a much stricter standard than is applied when considering awards to prevailing plaintiffs.9  Logically, this limitation should also extend to a defendant-appellee.  Thus, we find that an appellate court may exercise its power to award attorney's fees to a prevailing defendant-appellee only if the plaintiff's appeal is "frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith."10

B

23
Evaluating the circumstances of this case, it is apparent that an award of attorney's fees to both defendants for appellate work is appropriate.  In its order dismissing the case, the district court explicitly found that the "plaintiff's claims against (the defendants) were entirely groundless."  Moreover, the court noted that the plaintiff "knew or should have known (that his claims were frivolous) long before trial," and that court-appointed counsel clearly informed the appellant that the "case was wholly lacking in merit."11

24
In this appeal, the plaintiff, in a perfunctory brief, has failed to present any arguable reason why the district court erred in its disposition.  He basically restates arguments that the lower court properly rejected.  His additional allegations are either collateral or meritless.  The plaintiff has also consumed considerable time and energy of both this court and the appellees by repeatedly attempting to modify the record on appeal.  Finally, this court explicitly rejected the plaintiff's motion for appointment of counsel for this appeal.  That should have served as a further indication that his objections were misguided.

25
We share the district court's "reluctance to award a defendant attorney's fees in any civil rights case, especially in an employment discrimination case, because of the danger of discouraging persons with valid claims from pursuing them."  However, in view of the frivolity, unreasonableness, and lack of foundation that mark this appeal, we find that it is one of those "few troubling cases" in which Title VII defendants-appellees are entitled to attorney's fees for appellate work.

26
Accordingly, we affirm the judgment of the district court and remand for entry of an appropriate award of attorney's fees to the defendants-appellees for their appellate work in this matter.  Bond v. Stanton, 630 F.2d at 1236.

*
 After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that argument would not be helpful to the court in this case.  The notice provided that any party might file a "Statement as to Need of Oral Argument."  The plaintiff-appellant has filed such a statement and requested oral argument.  Upon consideration of that statement, the briefs, and the record, the request for oral argument is denied and the appeal is submitted on the briefs and record

1
 The court also noted that "even if the plaintiff had established a prima facie case on any or all of the charges, it is clear from the evidence that the Company had sufficient, non-discriminatory reasons (for its actions)."

2
 Motion to Supplement the Record (3/23/81); Motion to Supplement the Record (4/3/81); Motion to Supplement the Record (5/1/81); Motion to Correct or Modify the Record (7/8/81); and Motion to Strike Matter from the Record (7/20/81)

3
 In an order issued June 9, 1981, this court explained that because the subject matter of the initial motion to supplement-a deposition of Bugg and copies of grievances-had never been filed in the district court, the original modification was improvidently granted

4
 The plaintiff, in his reply brief, also urges that a certain deposition should be added to the record, and that the Company is liable to him for breach of a commitment to repay past wages.  Because these issues were not presented in the plaintiff's initial brief, they are not properly before this court.  Fed.R.App.P. 28(a); American Meat Institute v. Environmental Protection Agency, 526 F.2d 442, 459 (7th Cir. 1975)

5
 To establish a claim against the Union, the plaintiff was required to show: (1) that the company committed a violation of the collective bargaining agreement with respect to the plaintiff; (2) that the Union permitted that breach to go unrepaired, thus breaching its own duty of fair representation; and (3) that there was some indication that the Union's actions were motivated by racial animus.  Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)
To establish a claim against the Company, the plaintiff was required to show: (1) that he belongs to a protected class; (2) that he was qualified for the job from which he was transferred; (3) that, despite his qualifications, he was transferred; and (4) that, after his transfer, the job was filled by someone of the same qualifications as plaintiff, but not by a member of a protected class.  McDonnell Douglas Corp. v. Green, supra; Davis v. Weidner, 596 F.2d 726 (7th Cir. 1979).

6
 Even assuming arguendo that the plaintiff established a prima facie case, the court also found that the Company articulated a legitimate, non-discriminatory reason for its actions.  The plaintiff did not answer that rebuttal.  Gaballah v. Johnson, 629 F.2d 1191, 1200 (7th Cir. 1980)

7
 Namely: (1) the plaintiff is the chosen instrument of Congress to vindicate the policy of anti-discrimination in this context, and (2) when a district court awards counsel fees to a prevailing plaintiff, it is awarding them against a violator of federal law

8
 Thus, both sections belong to that more "flexible" class of attorney's fees statutes that neither mandate an award nor restrict an award to certain parties.  See Christiansburg Garment Co. v. EEOC, 434 U.S. at 415-16, 98 S.Ct. at 697

9
 A prevailing Title VII plaintiff should normally recover an attorney's fee unless special circumstances render such an award unjust.  Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975)

10
 Note that the standard focuses on the frivolity of the plaintiff's appeal.  Although a district court's determination that the plaintiff's original action was frivolous or meritless may be probative of the efficacy of the appeal, such a determination is neither necessary nor sufficient to support an appellate award

11
 See note 10, supra