Filed 12/13/18
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                         DIVISION EIGHT

W.M.,                                   B287735

        Plaintiff and Appellant,       (Los Angeles County
                                       Super. Ct. No. 17STPT00486)
        v.

V.A.,

     Defendant and Respondent.

     APPEAL from an order of the Superior Court of Los
Angeles County. Mark H. Epstein, Judge. Reversed and
remanded.
     Walzer Melcher, Christopher C. Melcher and Alan
Dershowitz for Plaintiff and Appellant.
     Law Offices of Honey Kessler Amado, Honey Kessler
Amado, James A. Karagianides, Ivan B. Perkins; Wasser
Cooperman & Mandles, Laura A. Wasser, Jon L. Henningsen,
Ashley L. Montgomery; Law Offices of Sara A. Weinstein and
Sara A. Weinstein for Defendant and Respondent.

                     __________________________
                           SUMMARY
     This is a child custody proceeding arising under the
Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA, Fam. Code, § 3400 et seq.).1 The proceeding raises
questions of jurisdiction as between California and Belarus.
Under the UCCJEA, a California court otherwise having
jurisdiction cannot exercise its jurisdiction if a child custody
proceeding has already been commenced in a court of another
state “having jurisdiction substantially in conformity with” the
UCCJEA. (§ 3426, subd. (a), hereafter section 3426(a),
sometimes referred to as the “simultaneous proceedings” statute.)
       On June 7, 2017, a Belarus court issued a decree finding
the place of residence of baby L. to be the place of residence of the
baby’s mother, V.A., in Belarus. On July 20, 2017, baby L.’s
father, W.M., who was unaware of the Belarus decree, filed a
petition in the superior court, seeking legal and physical custody
of baby L. A few days later, the trial court granted father’s ex
parte request for temporary emergency orders on child custody
and visitation. Mother responded with a motion to quash the
orders on the ground that California does not have jurisdiction to
issue child custody orders in this case.
       The trial court granted mother’s motion to quash. The
court found the Belarus residency action was a child custody
proceeding within the meaning of the UCCJEA, and the Belarus
court had jurisdiction “substantially in conformity with” the
UCCJEA. Based on these findings, the court found it could not
exercise its jurisdiction.
       We conclude the trial court erred. The UCCJEA mandates
that “[b]efore a child custody determination is made,” notice and

1     Further statutory citations are to the Family Code.

                                  2
an opportunity to be heard must be given to all persons entitled
to notice. (§ 3425, subd. (a).) Because father received no notice of
the Belarus action, and because notice was not given “in a
manner reasonably calculated to give actual notice” (§ 3408,
subd. (a)), the Belarus court did not have jurisdiction in
conformity with UCCJEA standards. The trial court therefore
erred in granting mother’s motion to quash and refusing to
exercise its jurisdiction.
            FACTUAL AND LEGAL BACKGROUND
      Mother is a professional tennis player who was born in
Belarus and is a resident of Belarus and Monaco. Since the
beginning of her career in 2003, she has spent much of her time
travelling and competing in international tennis tournaments.
Mother and father met in late 2015 in Hawaii, where father, a
United States citizen, then lived. Their relationship produced
baby L., who was born in Santa Monica in December 2016.
      In March 2017, when baby L. was 10 weeks old, the family
travelled to Belarus, where they stayed until June 7, 2017, when
they travelled to Mallorca for a tennis tournament and then on to
London where mother competed at Wimbledon.
      On May 25, 2017, while the parties were together in
Belarus, mother filed an application in the Belarus courts to
determine baby L.’s place of residence. The application stated
that mother’s relationship with father was “in decline, the
defendant scandalized, raised his voice, threatened to take away
the child,” and “[n]ow we have a dispute about the place of
residence of the child.” She asked the court to determine
baby L.’s residence “by my place of residence” at an apartment in
Minsk.

                                 3
       On May 29, 2017, the Belarus court issued a letter
addressed to father at the Minsk apartment. (Father had a visa
allowing him to be in Belarus, and the Minsk apartment was
father’s registered address in Belarus.) The court’s May 29 letter
advised father of mother’s claim “regarding determination of
place of residence of [baby L.]” and that a hearing would be held
on June 7, 2017.
       On June 7, 2017, the Belarus court held a hearing. Neither
mother nor father attended, having left early that morning for
Paris. Baby L.’s maternal grandmother, A.V.A., appeared at the
hearing for mother, and no one appeared for father. (Father
claimed he was completely unaware of the hearing, while mother
says she told father about it. The trial court credited father’s
testimony, and concluded father “was unaware of the application,
the hearing, or the decree until August 2017, when it came to
light in the California action.”)
       The June 7, 2017 Belarus decree found that plaintiff
(mother) “takes care of the child herself from the moment of his
birth”; “in spite of the itinerant nature of work, the child is
always with her”; and in addition, A.V.A. “helps her to care for
her child.” The court found mother was a Belarus citizen, had a
permanent place of residence in Minsk, and the child was
documented by a Belarusian passport, registered at the mother’s
place of residence. The court found defendant (father) owned no
housing accommodation himself, and was registered at mother’s
place of residence. The court found mother and father “have a
dispute about the place of residence of the child.” The court
decided “[t]o determine the place of residence of [baby L.], born
[in December 2016], by the place of residence of his mother, at
the address [in Minsk].”

                                4
       In July 2017, while in London, mother and father had “an
awful disagreement” and ended their relationship. Father
returned to the United States on July 12, 2017, and mother
travelled to the United States with baby L. a few days later, to
prepare and train for the U.S. Open in August. (Mother owns a
single-family home in Manhattan Beach. She has a P1 visa for
athletes that authorizes her presence in the United States to
compete and for other related activities; she is not a permanent
resident.)
       On July 20, 2017, father filed his petition in Los Angeles,
and on July 26, 2017, he sought temporary emergency orders on
child custody and visitation. That day, mother responded by
arguing the court did not have jurisdiction over child custody
because neither of the parties (nor baby L.) resided in California,
and all issues should be determined in Belarus. The court issued
temporary orders that day, preventing the parties from removing
baby L. from Los Angeles County, requiring surrender of
baby L.’s passports, and giving father temporary physical custody
with visitation for mother.
       On July 28, 2017, mother filed her motion to quash, stating
she had filed a court action in Belarus in May 2017; the court had
already determined, on June 7, 2017, that baby L. was a resident
of Belarus; and mother was “in the process of initiating custody
proceedings there.”
       Also on July 28, 2017, mother filed a statement of claim in
the Belarus court (referred to as the visitation action), asking the
court to allow father to visit his son once a month at the address
of the baby’s residence in Belarus in the presence of mother.
       On July 31, 2017, the Belarus court issued a letter
addressed to father at the Minsk apartment, notifying him of

                                 5
mother’s claim “regarding definition of order of communication
with the child,” and that a hearing would be held on August 3,
2017.
       On August 3, 2017, the Belarus court held a hearing and
decided that father could “communicate[] with [baby L.] once a
month in the presence of [mother] at the address of [baby L.’s]
residence” in Minsk, or in any other place as agreed by the
parties.
       On August 9, 2017, the California court made various
orders setting discovery, briefing and hearing schedules on the
jurisdiction issue, and temporary orders that alternated physical
custody of baby L. between mother and father (with security
guard monitors outside mother’s home during nights when she
had custody of baby L.).
       On August 15, 2017, the parties stipulated to a temporary
order detailing the terms of their shared physical custody of
baby L. and various child abduction prevention orders, including
security guard monitoring and surrender of baby L.’s passports.
This order was renewed several times during the litigation.
       On January 12, 2018, the trial court granted mother’s
motion to quash. The trial court found, among other things, the
Belarus residency action was a child custody proceeding, and the
Belarus court had jurisdiction “substantially in conformity with”
the UCCJEA. The court vacated its orders concerning mother’s
right to travel out of the jurisdiction with baby L. and other
orders restraining mother and baby L., but stayed the effect of its

                                 6
order for three weeks, allowing father time to seek an additional
stay from this court.2
       Father filed a timely notice of appeal, and then a petition
for writ of supersedeas. We granted the writ (over a dissent),
staying the trial court’s order pending resolution of the appeal.
Our order, however, vested the superior court with jurisdiction to
grant any subsequent temporary custody, visitation, or support
orders, including travel orders for the removal of baby L. from
California for domestic or international travel.

2
      The court also ruled on many other contested issues. None
of these has been challenged on appeal. Thus, the court found
Belarus is a “state” for purposes of the UCCJEA (§ 3405,
subd. (a)), and its child custody law does not violate fundamental
principles of human rights (§ 3405, subd. (c)). Neither California
nor Belarus is the “home state” of baby L. (§ 3421, subd. (a)(1).)
Both California and Belarus meet the jurisdictional standards of
section 3421, subdivision (a)(2) (the child and at least one parent
have a significant connection with the state, and substantial
evidence is available in the state concerning the child’s care and
protection). And, although the court concluded Belarus had
jurisdiction substantially in conformity with the UCCJEA, the
court declined to enforce the Belarus decrees, because they were
both made without giving father notice and an opportunity to be
heard. The court also ruled on the alternative issue mother
raised of inconvenient forum, “in the event that its jurisdictional
determination is reversed.” On the forum issue, the court
concluded that “on balance it would exercise its jurisdiction.” The
factor tipping the scales was California’s procedural safeguards
ensuring “that both sides are heard, and therefore that the best
decision is ultimately made.”

                                 7
                          DISCUSSION
      We begin with a description of the statutory background
and pertinent provisions of the UCCJEA, and then turn to its
application in this case.
1.    The UCCJEA
      The statutory background of the UCCJEA is described in In
re Marriage of Paillier (2006) 144 Cal.App.4th 461, 469 (Paillier).
In 1973, California adopted a predecessor statute.3 (Ibid.) In
1997, the National Conference of Commissioners on Uniform
State Laws approved a revised version, the UCCJEA.
(10 Witkin, Summary of Cal. Law (11th ed. 2017) Parent & Child,
§ 308, p. 402.) California adopted the UCCJEA in 1999. (Ibid.)
“Its purpose, in addition to harmonizing inconsistent case law
under the [predecessor act], was to ‘bring[] a uniform procedure
to the law of interstate enforcement’ by ‘provid[ing] . . . a
remedial process to enforce interstate child custody and visitation
determinations.’ ” (Paillier, at p. 469.)
       “The UCCJEA takes a strict ‘first in time’ approach to
jurisdiction.” (Paillier, supra, 144 Cal.App.4th at p. 469.) In
general, once the court of an “appropriate state” – one having
jurisdiction under section 3421, subdivision (a) – has made a
child custody determination, “that court obtains ‘exclusive,
continuing jurisdiction . . . .’ ” (Paillier, at p. 469.)
       Under section 3421, a court “has jurisdiction to make an
initial child custody determination” if it is the child’s home state
(id., subd. (a)(1)). If there is no home state (as in this case), the
court has jurisdiction to make an initial child custody

3     Civil Code former section 5150 et seq., added by Statutes
1973, chapter 693, section 1, pages 1251-1259.

                                  8
determination if the child and at least one parent “have a
significant connection with this state other than mere physical
presence,” and “[s]ubstantial evidence is available in this state
concerning the child’s care, protection, training, and personal
relationships.” (§ 3421, subd. (a)(2)(A)&(B).) And, under
section 3425, “[b]efore a child custody determination is made
under [the UCCJEA], notice and an opportunity to be heard in
accordance with the standards of Section 3408 must be given to
all persons entitled to notice . . . .”4 (§ 3425, subd. (a), hereafter
section 3425(a).)
        The notice required for the exercise of jurisdiction when a
person is outside the state “may be given in a manner prescribed
. . . by the law of the state in which the service is made. Notice
must be given in a manner reasonably calculated to give actual
notice but may be by publication if other means are not effective.”
(§ 3408, subd. (a), hereafter section 3408(a).)5
       California courts must treat a foreign country as if it were a
state for purposes of applying the general and jurisdictional
provisions (§§ 3400-3430) of the UCCJEA. (§ 3405, subd. (a).) A
California court need not apply the UCCJEA if the child custody
law of a foreign country violates fundamental principles of
human rights. (§ 3405, subd. (c).) With that exception, “a child
custody determination made in a foreign country under factual

4     The UCCJEA “does not govern the enforceability of a child
custody determination made without notice or an opportunity to
be heard.” (§ 3425, subd. (b).)

5     “Proof of service may be made in the manner prescribed . . .
by the law of the state in which the service is made.” (§ 3408,
subd. (b).)

                                  9
circumstances in substantial conformity with the jurisdictional
standards of [the UCCJEA] must be recognized and enforced
under Chapter 3 [enforcement].”6 (Id., subd. (b).)
       Finally, a California court “may not exercise its jurisdiction
under this chapter [§§ 3421-3430] if, at the time of the
commencement of the proceeding, a proceeding concerning the
custody of the child has been commenced in a court of another
state having jurisdiction substantially in conformity with [the
UCCJEA] . . . .” (§ 3426(a).)
2.     This Case
       We preface our discussion with some observations that may
facilitate an understanding of the error that undermined the trial
court’s otherwise thorough and lucid resolution of the many
issues and arguments the parties raised in this case.
       The flaw in the trial court’s analysis was the failure to
consider section 3425 – the jurisdictional provision requiring
notice and an opportunity to be heard “[b]efore a child custody
determination is made under [the UCCJEA].” (§ 3425(a), italics
added.) Instead, the trial court apparently concluded that so long
as the Belarus court “ha[d] jurisdiction to make an initial child
custody determination” under the section 3421 standards – that
is, “a significant connection” of the child and a parent to Belarus,
and substantial evidence in Belarus concerning the child – then

6      Under section 3443, a California court “shall recognize and
enforce a child custody determination of a court of another state
if the latter court exercised jurisdiction in substantial conformity
with [the UCCJEA] or the determination was made under factual
circumstances meeting the jurisdictional standards of [the
UCCJEA] . . . .” (Id., subd. (a).)

                                 10
no more was required to conclude that Belarus “ha[d] jurisdiction
substantially in conformity with [the UCCJEA].” (§ 3426(a).)
      As we explain further post, that is not correct. Adequate
notice is always a factor fundamental to jurisdiction, and custody
proceedings under the UCCJEA are no exception to that
principle.
      a.     The standard of review
      The role of the appellate court, “once the [trial] court has
evaluated witnesses’ credibility, resolved conflicts in the evidence
and made its findings, is to ensure that the provisions of the
UCCJEA have been properly interpreted and that substantial
evidence supports the factual basis for the [trial] court’s
determination whether California may properly exercise subject
matter jurisdiction in the case.” (In re Aiden L. (2017)
16 Cal.App.5th 508, 520.) Accordingly, we review matters of
statutory construction de novo, and review the trial court’s
factual findings for substantial evidence.
      b.     Contentions and conclusions
      Father raises only two issues on appeal: whether the
Belarus residency action was a child custody proceeding as
defined in the UCCJEA, and whether Belarus had jurisdiction
substantially in conformity with the UCCJEA. We need not
examine the first point, because the jurisdictional point is
dispositive. Belarus did not have jurisdiction to make a child
custody determination because it did not give father “notice and
an opportunity to be heard” (§ 3425(a)) in a manner “reasonably
calculated to give actual notice” (§ 3408(a)).
             i.    The law on jurisdiction
      The fundamental principle here is simple. A court cannot
make a child custody determination without first having the

                                 11
jurisdiction to do so. That is so generally, and it is so under the
UCCJEA. There is no authority to the contrary.
        Jurisdiction does not consist only of so-called “subject
matter” jurisdiction. Venerable authorities explain that, unless a
defendant submits to the court’s jurisdiction, “a court’s power,
i.e., jurisdiction to render judgment in an action, requires . . .
jurisdiction of the subject matter of the action, territorial
jurisdiction of the action, and adequate notice to the defendant.”
(2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 7, p. 580,
citing Rest.2d, Judgments, § 1; cf. Gamet v. Blanchard (2001) 91
Cal.App.4th 1276, 1286 [“A judgment entered without notice is
void and can be attacked at any time.”].)
        The same principles govern under the UCCJEA: “Even
though the court has jurisdiction of the subject matter under the
traditional bases (domicile or physical presence [citation]) or
under the alternative bases prescribed by the [UCCJEA],
jurisdiction of the parties depends upon sufficient notice. A
custody proceeding is in personam, not in rem; hence, the process
requirements of personal actions apply, and notice of the
proceeding must be given to the parents.” (2 Witkin, Cal.
Procedure, supra, § 279, p. 886, italics added.) Further: “[A]
parent’s right to notice of custody proceedings affecting his or her
child is constitutionally compelled, and a custody order made in
the absence of such notice is invalid.” (2 Cal. Fam. Law Prac. &
Proc. (2d ed. 2017) § 32.40[1].)
        The principle is likewise clear from the UCCJEA on its
face: “Before a child custody determination is made under [the
UCCJEA], notice and an opportunity to be heard in accordance
with the standards of Section 3408 must be given to all persons
entitled to notice . . . .” (§ 3425(a).)

                                 12
             ii.   The facts in this case
       That brings us to the factual question in this case: Did the
Belarus court give father notice and an opportunity to be heard
at the June 7, 2017, hearing in accordance with the standards of
section 3408? Those standards require that notice be given to
father “in a manner reasonably calculated to give actual notice.”
(§ 3408(a).)
       On this point, the trial court – applying the section 3408
standard and recognizing that actual notice is not required –
expressly stated that it would not enforce the June 7, 2017
decree. After first stating it would not enforce the Belarus court’s
August 3, 2017 visitation decree (“[t]he process went from
application [mailed July 31] to judgment [August 3] in record-
breaking time”), the court stated:
       “The Court also will not enforce the June 7, 2017 decree
either, although the question is a closer one. . . . [I]t remains the
case that the order was made without notice or an opportunity to
be heard.”
       Substantial evidence supports the trial court’s conclusion
that the June 7, 2017 decree was made without notice to father.
That evidence consists of father’s testimony that he had no notice
of the June 7, 2017 hearing, and the testimony of father’s expert
on Belarusian law, Dr. Aliaksandr Danilevich. The trial court
stated that it “credit[ed] [father’s] testimony that he had no
notice and Dr. Danilevich’s testimony concerning Belarus law.”
The court described Dr. Danilevich’s testimony:
       “Dr. Danilevich testified that under Belarus law, notice is
typically made by registered mail (sent by the court) with a
return receipt.” While that manner of notice was “certainly
reasonable,” the trial court found that “[t]he problem here is that

                                 13
there is absolutely no evidence that any return receipt was
submitted for either application [referring to the applications
resulting in the June 7 and the August 3 decrees].” And:
“Dr. Danilevich also testified that where the registered mail
option was uncertain, the court had the ability to give notice by
email, fax, or other means. However, again, there is no evidence
that the Belarus court made any attempt to do so. And, while it
is true that the Belarus court likely did not have [father’s] email
address, [mother] had it. She could have provided that
information to the Belarus court, especially given that she knew
for a certainty that the mailed notice addressed to an apartment
in Minsk where [father] had never actually lived would never
reach [father].”7

7      While the trial court did not specifically cite it,
Dr. Danilevich also testified that under Belarus law, the
petitioner in a case “has to provide the court with all contacting
[data], all possible contacting data, phone number, e-mails, all
the – of the party to give to the court the possibility [to] contact
him or her in any way. Different ways.” Mother’s expert,
Dr. Alena Babkina, testified to the contrary, that under Belarus
law mother had no obligation to provide the court with father’s e-
mail address, and she complied with her duty to provide
information about father by providing his official address. But as
mother herself tells us, the disputed meaning of a foreign law is a
question of fact for determination by the trial court. (See, e.g.,
Estate of Schluttig (1950) 36 Cal.2d 416, 424 [where “the issue to
be determined involved questions as to the existence, translation,
interpretation and effect of [foreign] laws,” and the trial court
heard “highly conflicting testimony by experts upon the laws of
those countries and their application under given circumstances,”
the determination of the issue “was one of fact, and the finding of
the trial court, if supported by substantial evidence, will not be
disturbed on appeal”].)

                                 14
      The trial court also described father’s testimony. Father
stated, among other things, “that he had no idea there was going
to be a hearing on June 7, 2017, which was the day that he and
[mother] left Belarus for Paris.”8 The court stated it “believes
[father] when he states that he would not have left the country on
the same day as a court hearing involving his son was going to go
forward.”
      Mother recognizes that section 3425(a) “requires notice and
opportunity to be heard before a court may exercise its
jurisdiction to make a custody order.” She does not dispute that
father and Dr. Danilevich testified as described by the trial court.
Nor does she suggest that their testimony is not substantial
evidence father had no notice of the June 7, 2017 proceeding.
Mother also acknowledges that a determination of “substantial
conformity” with the UCCJEA “requires analyzing the facts and
circumstances under which the sister-state [here, Belarus]
exercised jurisdiction.”
      Despite her understanding of these principles, mother
contends that “Belarus procedures satisfy the notice
requirements for an exercise of jurisdiction,” and the trial court
determined that “the notice procedures under Belarusian law”
were reasonably calculated to give actual notice. Neither claim
has merit.

8     The court also described father’s testimony as stating “that
he never got the notice in the mail at the apartment in Minsk,”
that he was “given a different, and innocuous reason” for the fact
that baby L.’s maternal grandmother (who attended the hearing
for mother) was staying behind in Belarus, and that father
“produced a contemporaneous email that supports his version of
events.”

                                15
       The fundamental flaw in mother’s analysis is her reliance
on Belarus procedures, rather than on whether and how the
procedures were employed in the particular case. Yes, the trial
court found that Belarus procedures could theoretically be applied
so that notice is given “in a manner reasonably calculated to give
actual notice.” (§ 3408(a).) But theory does not satisfy section
3408. As the trial court put it, “as a theoretical matter,” both of
the notice methods to which Dr. Danilevich and Dr. Babkina
testified “at least potentially on their face may satisfy section
3408. But that does not answer the question when applied to this
specific case.” We agree, it does not.
       Section 3408 expressly states that notice “must be given in
a manner reasonably calculated to give actual notice.” (§ 3408(a),
italics added.) The trial court found that notice compliant with
section 3408 standards was not given. The court quoted the
section 3408 standards at the beginning of its notice discussion,
and in the end, after again referring to section 3408, stated that
“it remains the case that the [June 7, 2017] order was made
without notice or an opportunity to be heard.” That being so, the
Belarus court had no jurisdiction to make a child custody
determination.
       We note two further points. Mother tells us that
jurisdiction is “a separate concept from enforcement,” so while
notice “was insufficient for enforcement purposes,” there were
“sufficient standards for due process under the Belarusian legal
system” for jurisdictional purposes.9 This is just another way of

9     The trial court also distinguished between the
jurisdictional provisions of the statute (ch. 2) and its enforcement
provisions (ch. 3), stating that “the additional notice
requirements are found exclusively in the chapter dealing with

                                 16
saying that if notice procedures are theoretically adequate, a
court may exercise jurisdiction in a particular case despite a lack
of notice. As we see it, that is not correct. Moreover, basic
principles of statutory construction do not allow us to construe
provisions of the same statute without regard to the statute as a
whole. “[A]ll parts of a statute should be read together and
construed in a manner that gives effect to each, yet does not lead
to disharmony with the others.” (City of Huntington Beach v.
Board of Administration (1992) 4 Cal.4th 462, 468.) To suggest
that a court may make a child custody determination under
lesser notice standards than those required for enforcement of a
sister state’s custody determination would not comport with this
principle of statutory construction.
       Finally, mother relies heavily on AO Alfa-Bank v. Yakovlev
(2018) 21 Cal.App.5th 189 (AO Alfa-Bank). That case states the
principle that “due process does not require actual notice; it
requires only a method of service ‘reasonably calculated’ to
impart actual notice under the circumstances of the case.” (Id. at
p. 195, italics added.) That is undoubtedly so; indeed, that
principle is the same principle stated in section 3408, and the
trial court here recognized and applied that principle. AO Alfa-
Bank – which is not a child custody case – does nothing to
advance mother’s position.
       In AO Alfa-Bank, the parties, in the surety agreement that
generated the lawsuit, agreed that notices would be sent to the

the enforcement of a foreign decree.” That is simply not so – the
section 3425 notice requirement is a chapter 2 jurisdictional
provision and an express precondition for making a child custody
determination under the UCCJEA.

                                17
defendant at his residence in Russia (the same address as the
address he registered with the government), and he was
contractually obligated to notify the plaintiff of any new address
within five days. He did not do so before (or after) he fled the
country to seek asylum in the United States, and the plaintiff did
not know he had fled the country until years after it filed suit.
(AO Alfa-Bank, supra, 21 Cal.App.5th at pp. 195-196.) The
Russian court file showed, among other things, two summons
letters in succeeding months, as well as two telegrams sent from
the court to the defendant’s Moscow residence in later months.
(Id. at pp. 204-205.) The court found that “[u]nder these
circumstances, we conclude the procedure used was reasonably
calculated to apprise [the defendant] of the pendency of the action
and afford him an opportunity to respond.” (Id. at p. 209, italics
in original; id. at p. 210 [“Critical to our conclusion is the fact
that under the surety agreement, [the defendant] was required to
keep his official registered address up to date.”].) In short, under
those circumstances, notice was reasonably calculated to give
actual notice. (Id. at p. 202.)
       There is no similarity with the circumstances in this case.
Moreover, AO Alfa-Bank demonstrates the proper approach to
the issue: “We first consider whether the evidence establishes
proper service under Russian law. [Citations.] If it does, we then
consider whether such service was reasonably calculated, under
all the circumstances, to impart actual notice.” (AO Alfa-Bank,
supra, 21 Cal.App.5th at p. 203.) Here, substantial evidence
clearly supports the trial court’s finding that the notice standards
in section 3408 of the UCCJEA were not met.
       Because the Belarus court did not provide notice to father
consistent with the standards specified in section 3408, and

                                18
because notice is required before a court may make a child
custody determination (§ 3425(a)), the Belarus court did not
“hav[e] jurisdiction substantially in conformity with [the
UCCJEA]” under section 3426(a). Accordingly, the California
court has “first in time” jurisdiction, and the trial court erred in
ceding jurisdiction to the Belarus court under section 3426(a).
Mother’s motion to quash the trial court’s orders on the ground
that California does not have jurisdiction to issue child custody
orders in this case should have been denied.
                           DISPOSITION
      The order refusing to exercise jurisdiction and granting
mother’s motion to quash is reversed, and the matter is
remanded to the trial court for further proceedings. Father shall
recover his costs on appeal.

                                      GRIMES, J.
      WE CONCUR:

                         BIGELOW, P. J.

                         STRATTON, J.

                                 19


833 F.2d 925
9 Fed.R.Serv.3d 891
H.R. Ambrose TESSMER, Plaintiff-Appellant,v.Rebecca WALKER, Individually and in her capacity as PropertyAppraiser of Palm Beach County, Defendant-Appellee.
No. 86-5147.
United States Court of Appeals,Eleventh Circuit.
Dec. 7, 1987.

Lynn E. Szymoniak, Cullen & Szymoniak, P.A., Mark A. Cullen, Lake Worth, Fla., for plaintiff-appellant.
Gaylord A. Wood, Jr., Ft. Lauderdale, Fla., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before RONEY, Chief Judge, HATCHETT, Circuit Judge, and TUTTLE, Senior Circuit Judge.
PER CURIAM:

1
H.R. Ambrose Tessmer appeals from the district court's order denying postjudgment relief under Rule 60(b) of the Federal Rules of Civil Procedure.  In the circumstances of this case, the district court should have vacated and reentered its judgment on the merits to restart the period for filing a notice of appeal.

2
The issue in the case is whether plaintiff Tessmer's attorney acted reasonably in trying to determine when the judgment was filed so that an appeal could be taken.  The facts are not in dispute.  After a bench trial in this Title VII employment discrimination suit concluded on May 23, 1985, the district court entered judgment in favor of the defendant on June 12, 1985.  The district court clerk did not send notice of the entry of the order to either party as required by Fed.R.Civ.P. 77(d).

3
Within two weeks after the trial, however, Tessmer's counsel telephoned the trial judge's chambers to determine if judgment had been entered.  Tessmer's counsel was told to direct all inquiries to the clerk's office.  The clerk's office, in turn, told counsel that no final judgment had been entered, stating that "the last matter entered on the docket sheet was the summary judgment."    Tessmer's counsel telephoned the clerk's office every month to insure that Tessmer would be able to file a timely notice of appeal, but was told consistently that no final judgment had been entered.  In December 1985, Tessmer's counsel again called the district judge's chambers and was informed that a final judgment had been entered nearly six months earlier.  Apparently the clerk's office had lost the second page of the docket sheet showing the entry of the final judgment.

4
Promptly after learning of the entry of the final judgment, Tessmer filed a motion under Fed.R.Civ.P. 60(b)(1) and (6) requesting the district court to vacate and reenter the June 12 order to restart the time for perfecting an appeal.  At this time, defendant Walker filed a motion to recover attorney's fees and costs.  On January 27, 1986, the district court denied Tessmer's Rule 60(b) motion, refused to award Walker attorney's fees, but awarded her costs.

5
In denying Tessmer's Rule 60(b) Motion for Relief From Judgment, the district court found that Tessmer's counsel had not exercised due diligence in monitoring the status of the case because the clerk's office had told Tessmer's counsel that "the last matter entered on the docket sheet was the summary judgment."    The last entry on the first page of the docket sheet was Tessmer's April 17, 1985 Memorandum of Law in Opposition to Walker's Motion for Summary Judgment.  On the missing second page, there were eleven subsequent docket entries before the June 12 judgment.  These docket entries included Tessmer's Proposed Findings of Fact and Trial Memorandum.  Thus, the district court concluded that Tessmer's counsel should have been on notice of a possible docketing error and should have examined the court records rather than relying on telephone information.

6
On February 24, 1986, Tessmer filed a notice of appeal from both the June 12, 1985 judgment and the January 27, 1986 order.  Another panel of this Court granted Walker's motion to dismiss the appeal of the first judgment which dealt with the merits of the claim, on the ground that the appeal was untimely.  Therefore, only the appeal of the January 27 order denying Rule 60(b) relief is before this Court.

7
Rule 60(b) authorizes the district court to grant a party relief from a final judgment, upon such terms as are just, for "(1) mistake, inadvertence, surprise, or excusable neglect ... or (6) any other reason justifying relief from the operation of the judgment."    Fed.R.Civ.P. 60(b).  Motions under this rule are directed to the sound discretion of the district court.  Appellate review, therefore, is limited to whether the district court abused its discretion in denying the motion.    Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir.1984);  Phillips v. Insurance Co. of North America, 633 F.2d 1165, 1167 (5th Cir. Unit B 1981).  Despite this deferential standard, this Court has observed:

8
The provisions of this rule must be carefully interpreted to preserve the delicate balance between the sanctity of final judgments and the 'incessant command of the court's conscience that justice be done in light of all the facts.'    Banker's Mortgage Co. v. United States, 423 F.2d 73, 77 (5th Cir.), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970) (emphasis in original).

9
Swim-Tech, 772 F.2d at 680.  See also 11 C. Wright & A. Miller, Federal Practice and Procedure, Sec. 2872 at 261-62 (1973).

10
This Court has held consistently that the clerk's failure to provide notice of the entry of a judgment is not itself sufficient grounds for the vacation of that judgment under Rule 60(b).    See, e.g., Tucker v. Commonwealth Land Title Insurance Co., 800 F.2d 1054, 1056 (11th Cir.1986).  Indeed, Fed.R.Civ.P. 77(d) expressly states that "lack of notice by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed."

11
While nonreceipt of notice from the clerk is thus not a dispositive factor in a Rule 60(b) inquiry, it is nevertheless a circumstance which may militate in favor of granting such a motion, when coupled with certain other considerations.  These include lack of prejudice to nonmoving party, prompt filing of the Rule 60(b) motion after actual notice of the entry of judgment, and due diligence by counsel in seeking to be informed of the entry of judgment.    Harnish v. Manatee County, 783 F.2d 1535 (11th Cir.1986).  Rule 60(b) relief is appropriate when "unusual" or "exceptional" circumstances are created by a combination of the above-factors.    Fidelity & Deposit Company of Maryland v. USAFORM Hail Pool, Inc., 523 F.2d 744 (5th Cir.1975), cert. denied, 425 U.S. 950, 96 S.Ct. 1725, 48 L.Ed.2d 194 (1976);  Smith v. Jackson Tool & Die, Inc., 426 F.2d 5 (5th Cir.1970).

12
Tessmer promptly filed the motion to vacate and reenter judgment after receiving notice of the June 12 judgment.  Walker can make no claim of prejudice because she did not know the judgment had been entered.

13
It can hardly be disputed that Tessmer's counsel was diligent in monitoring the status of this case through monthly telephone inquiries to the clerk.    Cf. Case v. BASF Wyandotte, 737 F.2d 1034 (Fed.Cir.)  (where counsel failed to make inquiries on case in 30-day intervals, Rule 60(b) motion properly denied), cert. denied, 469 U.S. 982, 105 S.Ct. 386, 105 S.Ct. 386 (1984).  The question is whether counsel should have guessed that the judgment had been entered when the clerk stated otherwise.

14
This is not simply a case of the clerk's failure to advise counsel of the entry of the judgment as required by Rule 77(d).  The clerk gave inaccurate information to Tessmer's counsel.  There seems to be no plausible argument why counsel should not be able to rely on the positive statement of the clerk's office.  Telephone inquiry would seem to be a reasonable way to monitor the case because the distance between counsel's law office and the clerk's office was over 100 miles, round trip.  Even if counsel had looked at the clerk's available records, counsel could not have learned of the critical date upon which judgment was entered until the lost docket sheet was found.  Finding the docket sheet was the clerk's responsibility, not counsel's.

15
It appears that in deciding that counsel should have personally inspected the docket sheet, and should have somehow found the lost docket sheet, the district court required a higher standard of diligence than usual for Rule 60(b) relief.

16
Tessmer also argues that this Court has jurisdiction to review the merits of her Title VII suit because the January 27 order denying Walker's motion for attorney's fees, and not the June 12 order, constituted the true final, appealable judgment.  Whether the June 12 judgment or the January 27 order constituted the final decision of the district court depends on whether attorney's fees are collateral to or an integral part of the merits of the case.    See McQurter v. City of Atlanta, 724 F.2d 881, 882 (11th Cir.1984).  In light of the disposition of Tessmer's Rule 60(b)(6) contention, however, the Court need not reach this issue.

17
REVERSED and REMANDED.


93 Ariz. 384 (1963)
381 P.2d 107
Ernest STONE, individually and as surviving spouse of Hathaway Stone, deceased, Darrell Stone and Denise Stone, by their Guardian ad Litem, Ernest Stone, Appellants,
v.
The ARIZONA HIGHWAY COMMISSION and Fred D. Schemmer, Frank E. Moore, Grover J. Duff, William P. Copple, and James R. Heron, members thereof, William E. Willey, individually and as State Highway Engineer, C.B. Browning, individually and as Deputy State Engineer, J.R. Van Horn, individually and as District Engineer, American Employers' Insurance Company, a corporation, Appellees.
No. 6936.
Supreme Court of Arizona. En Banc.
April 25, 1963.
Rehearing Denied May 28, 1963.
*386 Udall & Udall, Tucson, for appellants.
Wade Church, former Atty. Gen., Robert W. Pickrell, Atty. Gen., Phoenix, Ralph L. Fenderson, Jr., former Asst. Atty. Gen., Scottsdale, for Arizona Highway Commission and others.
Jennings, Strouss, Salmon & Trask, Phoenix, for appellee, American Employers' Ins. Co., a corporation.
LOCKWOOD, Justice.
Ernest Stone, individually and as surviving spouse of Hathaway Stone, deceased, and as guardian ad litem of Darrell and Denise Stone, sued Wallace & Wallace Construction Company (a road construction contractor); the Arizona Highway Commission and the members constituting the Commission; William E. Willey, individually and as State Highway Engineer; F.S. Berg, individually and as Deputy State Engineer; and J.R. Van Horn, individually and as District Engineer; and the bonding companies for the road construction contractor and for the State and Deputy State Engineers. The appeal is from orders dismissing as against all defendants except the contractor and his bonding company (judgment having been granted for the latter *387 with no appeal therefrom). The dismissal was on the ground that the complaint failed to state a claim against the Highway Commission and the named State employees for the reason that the Commission and the named engineers, being state employees, are exempt under the doctrine of governmental immunity from tort liability. See Larsen v. County of Yuma, 26 Ariz. 367, 225 P. 1115 (1924).
Taking as true the facts pleaded by plaintiff, Young v. Bishop, 88 Ariz. 140, 353 P.2d 1017 (1960); State ex rel. Morrison v. McCarrell, 80 Ariz. 243, 295 P.2d 1088 (1956), the case arose as follows: On the morning of September 27, 1955, Ernest Stone, his wife and two children were traveling east out of Tucson toward Benson, Arizona, along U.S. Highway 80, an interstate and much-traveled highway. As they approached Mountain View, Arizona, they came to a point at the crest of a hill where the newly built portion of the highway intersects with the old road. Certain markings and signs located at that spot directing traffic to turn left on a curve in the old road had not been removed. Actually, the new road had no such curve. Mr. Stone was misled by those markings into turning left into the path of an oncoming car which could not be seen as it was approaching from the east over the rise of the hill. The two vehicles collided, causing the death of Mrs. Stone and various injuries to Mr. Stone and the two children.
The plaintiff claimed that the defendants had failed to keep the highway at that place in a safe and proper condition for travel by failing to maintain and provide any warning to drivers of automobiles of the dangerous nature of the highway and by not removing markings and signs on the highway which were misleading to a driver. Plaintiff also claimed that the defendants had actual knowledge, or in the exercise of reasonable precautions should have known of this condition as it had existed for several months prior to the happening of the accident.
We are of the opinion that when the reason for a certain rule no longer exists, the rule itself should be abandoned. After a thorough re-examination of the rule of governmental immunity from tort liability, we now hold that it must be discarded as a rule of law in Arizona and all prior decisions to the contrary are hereby overruled. We recently stated in Hernandez v. County of Yuma, 91 Ariz. 35, 36, 369 P.2d 271, 272 (1962):
"It requires but a slight appreciation of the facts to realize that if the individual citizen is left to bear almost all the risk of a defective, negligent, perverse or erroneous administration of the state's functions, an unjust burden will become graver and more frequent *388 as the government's activities are expanded and become more diversified."[1]
Because this rule is so deeply entrenched in our case law, we feel it is important and necessary to herein set out its evolution from its medieval English background to our present day Arizona law. Sovereign or governmental immunity began with the personal prerogatives of the King of England upon the theory that "the King can do no wrong," and even though at a very early date in American history we overthrew the reign of the English King the doctrine somehow became entrenched in our judicial code. Professor Borchard has termed this phenomenon as "one of the mysteries of legal evolution." Borchard, Governmental Liability in Tort, 34 Yale L.J. 1, 4. Its survival for such a great period of time in this country, where the royal prerogative is unknown, has perhaps been even more remarkable, considering it has been universally criticized as an anachronism without rational basis. Most writers and cases considering this fact have claimed that its only basis of survival has been on grounds of antiquity and inertia. Hernandez v. County of Yuma, supra; Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal. Rptr. 89, 359 P.2d 457 (1961); Borchard, supra.[2]
The rule of sovereign immunity had its judicial genesis in the case of Russell v. Men of Devon, 100 Eng.Rep. 359, 2 T.R. 667 (1788).[3] That case involved a suit against all the male inhabitants of the County of Devon for damages occurring to Russell's wagon by reason of a bridge being out of repair. The court disallowed the action mainly on the grounds that there was no fund out of which any judgment could be paid and "it is better that an individual should sustain an injury than that the public should suffer an inconvenience."[4] The court concluded by saying that the suit should not be permitted because *389 the action must be brought against the public.[5] No rational or legal reason was expressed to sustain the decision except the practical problem of assessing damages against individual defendants. It should be noted, however, that the court did suggest that the plaintiff could sue the county itself instead of the individual inhabitants thereof.
This doctrine of the English common law seems to have been windblown across the Atlantic as were the pilgrims on the Mayflower and landed as if by chance on Plymouth Rock, for the first American case arose in Massachusetts. Mower v. Inhabitants of Leicester, 9 Mass. 247 (1812). The Massachusetts court held that even though the town was incorporated and had a treasury out of which to satisfy a judgment, the town was not liable under the common law. These two cases seem to have set the tumbleweed in motion and nearly every state adopted this same theory as to sovereign liability for torts of its agents or employees. State v. Sharp, 21 Ariz. 424, 189 P. 631 (1920); 81 C.J.S. States §§ 130, 131; 20 C.J.S. Counties §§ 215-221. Even though this doctrine has subsequently been overruled in England, the rule still exists in most of the states of this country. Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11, 163 N.E.2d 89, 86 A.L.R.2d 469 (1959).
The first case in Arizona which held that the sovereign was immune from tort liability occasioned by the negligence of its agents was State v. Sharp, supra. Without examining any real basis or reason for sustaining the doctrine this court stated:
"As to this question it is well settled by the great weight of authority that the state, in consequence of its sovereignty, is immune from prosecution in the courts and from liability to respond in damages for negligence, except in those cases where it has expressly waived immunity or assumed liability by constitutional or legislative enactment."[6]
This case set a precedent and other Arizona cases have since followed the rule without arriving at any basis other than that of stare decisis.[7] The case of Larsen v. County of Yuma, supra note 7; should be particularly noted at this juncture inasmuch as the defendants were almost identical with the case at bar and the facts were also very similar. In the Larsen case a *390 demurrer was sustained on a suit by plaintiff for damages arising by reason of the alleged negligence of both State and County Highway officers in maintaining a bridge. The Court affirmed the decision of the lower court by reference to the Sharp case and stating that neither the state nor its subdivisions, i.e. counties, may be sued for the negligence of their employees. This same rule has been relied on in cases dealing with cities,[8] county hospitals,[9] and school districts.[10] However, the rule has not been applied as stringently when dealing with cities. It has generally been held both in this state and elsewhere that a city is liable for injury to a person occasioned by the failure of the city to maintain its streets and sidewalks in proper condition.[11] The reason generally given for this variance is that the municipality's duty in this regard is considered ministerial and corporate rather than judicial and governmental.[12]
The strict rule as to liability of county hospitals also has undergone some change in Arizona. In 1962, the twin cases of Hernandez v. County of Yuma, supra, and McQueary v. County of Yuma, 91 Ariz. 37, 369 P.2d 273 (1962), were decided by this court. Therein we held that the county hospital would be liable for an employee's negligence which resulted in injury to a "paying patient." "If the government is to enter into businesses ordinarily reserved to the field of private enterprise, it should be held to the same responsibilities and liabilities."[13]
This trend to restrict the application of the theory of governmental immunity of states and their subdivisions has not been limited to Arizona alone. Several other states have made inroads on the doctrine, some to the extent of abandoning it completely. In a 1957 case, the Colorado court stated: "In Colorado `sovereign immunity' may be a proper subject for discussion by students of mythology but finds no haven *391 or refuge in this Court."[14] However, this feeling was short-lived for three years later the same court invoked the immunity theory as to the governmental functions of a county.[15] The Florida court emulated Colorado, abolishing immunity as to governmental functions of municipalities on the ground that the Revolutionary War abrogated the doctrine that "the king can do no wrong,"[16] and thereafter retreating to say that this did not apply to the state, its counties, or its county school boards.[17]
Michigan followed the same course as Colorado and Florida. The City of Detroit was held not liable in a personal injury suit, but the court prospectively overruled governmental immunity from tort liability. See Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1 (1961). The court quoted Mr. Justice Holmes in stating that the reason for the rule of law laid down in the time of Henry IV had long since vanished and that it "simply persists from blind imitation of the past."[18] Subsequent opinions made clear that the above case only affected municipal corporations.[19]
Illinois, Wisconsin, Minnesota, and California seem to have been more adept in accomplishing abolition of this outmoded rule of law. In Molitor v. Kaneland Community Unit District No. 302, supra, the Illinois Supreme Court said that it "is unjust, unsupported by any valid reason, and has no rightful place in modern day society."[20] That court allowed recovery for the plaintiff in the particular case before the court but abolished sovereign immunity prospectively, as affecting future cases. Their legislature reacted to the situation by promptly reinstating tort immunity with respect to a number of government subdivisions.[21]
Wisconsin[22] and Minnesota[23] used the same technique for abolishing the immunity as did the Michigan court,[24] i.e. prospective abandonment. This therefore made the bulk of the decision in each case dictum. The City of Milwaukee case stated that even though the principal case only related specifically to a city, the abrogation of the doctrine should be considered as total:

*392 "to all public bodies within the state: the state, counties, cities, villages, towns, school districts, sewer districts, drainage districts, and any other political subdivisions of the state  whether they be incorporated or not."[25]
The Minnesota Court was not quite so bold, for while abolishing tort immunity as a defense for school districts, municipal corporations, and other subdivisions of government, it expressly excluded the state itself on the theory "that a suit by an individual cannot be maintained against a sovereign state without its consent."[26]
After considering all the facets of the problem, we feel that the reasoning used by the California court in Muskopf v. Corning Hospital District, supra, has more validity and therefore we adopt it. The substantive defense of governmental immunity is now abolished not only for the instant case, but for all other pending cases, those not yet filed which are not barred by the statute of limitations and all future causes of action. All previous decisions to the contrary are specifically overruled.
There is perhaps no doctrine more firmly established than the principle that liability follows tortious wrongdoing; that where negligence is the proximate cause of injury, the rule is liability and immunity is the exception. By statute certain state officers have the duty of maintenance and upkeep of all state highways and routes.[27] This duty has been described as a:
"duty to construct and maintain its highways in a reasonably safe condition, in accordance with the terrain encountered and traffic conditions to be reasonably apprehended. * * * A highway may be said to be reasonably safe when people who exercise ordinary care can and do travel over it safely." Boyce Motor Lines v. State, 280 App.Div. 693, 117 N.Y.S.2d 289, 292 (1952).[28]
Many inequalities are created through the application of the sovereign immunity doctrine and in the instant case the illogical extreme is reached. We are asked to affirm a rule that denies recovery to one injured by reason of negligence of maintenance *393 of the highway by certain state officers, although recovery may be had by one injured in a city, which has failed to maintain its own streets.[29] We have also held that under similar circumstances as these a highway construction contractor who is in the process of working on a highway and who is in control of it is liable:
"The rule seems to be settled that when a public highway is abandoned, travelers must be protected at least to the extent of being notified in some adequate way of the fact that the old road has been abandoned. Barricades or notices warning the public of the danger of continuing to use the old way must be so placed as to put an unwary and unsuspecting traveler upon his guard." Breedon v. White, 62 Ariz. 256, 259, 156 P.2d 904, 906 (1945).[30]
It has been urged by the adherents of the sovereign immunity rule that the principle has become so firmly fixed that any change must come from the legislature. In previous decisions (the latest being Lee v. Dunklee, supra)[31] this court concurred in this reasoning. Upon reconsideration we realize that the doctrine of sovereign immunity was originally judicially created. We are now convinced that a court-made rule, when unjust or outmoded, does not necessarily become with age invulnerable to judicial attack. This doctrine having been engrafted upon Arizona law by judicial enunciation may properly be changed or abrogated by the same process.[32]
In the instant case the defendants were employees of the State Highway Department, accused of tortious conduct apparently upon the theory of respondeat superior and also in some instances upon the theory of personal negligence. Employers or principals, individual, corporate or governmental, are responsible for the tortious wrongdoing when committed by agents and employees acting within the scope of their *394 employment. However not all of the officers or employees in the chain of command, from the State itself, on down to the personally negligent employee, are necessarily liable. Liability may attach only to those individual employees who actually were guilty of some tortious conduct or, as in this case, to those individual employees who were in sufficient control of the highway or the particular job as to be in fact responsible therefor. Under the theory of respondeat superior, the State itself as employer would also be liable. It is not our concern at this time to determine which individual employees, if any, of the highway department may have been liable in the instant case. That is for the determination of the trial court. We do, however, say that defendant's motion to dismiss was properly sustained (although for a different reason than that given by the lower court) as to those defendants who were not directly supervising or in control of the portion of the state highway in issue.
The Arizona Statutes dealing with highways and the State Highway Commission[33] do not contemplate that the commission or any member thereof, should be at the place where work was being prosecuted and personally superintend the manner in which it was being done, or have actual or physical supervision of the repair and maintenance of roads. The law contemplates that state highways should be established under their general supervision, and expressly provides for a state engineer and other subordinates who are to handle the details of such work.[34] We feel that inasmuch as the Highway Commission was compelled by physical necessity and statutory mandate to appoint subordinates to perform and supervise the actual work, the members of the commission cannot, in the absence of misfeasance or actual negligence on their part, be held liable for the negligence of such subordinates. Coldwater v. State Highway Commission, 118 Mont. 65, 162 P.2d 772 (1945); Corliss v. Van Duzer, 132 Or. 265, 285 P. 253 (1930). The doctrine of respondeat superior as to the Commissioners is not applicable. Public officers are responsible only for their own misfeasance and negligence, and not for the negligence of those who are employed under them, if they have employed persons of suitable skill. Coldwater v. State Highway Commission, supra; Fernelius v. Pierce, 22 Cal.2d 226, 138 P.2d 12 (1943); Corliss v. Van Duzer, supra.
Under this same reasoning, it should be apparent that the State Highway Engineer could not personally be present at every place where construction or repair work on the highways of the state was to be performed. The State Highway Engineer and the Deputy State Engineer,[35] are to *395 provide "assistant engineers and district engineers necessary to perform the work of the department."[36] Plaintiffs do not allege that the State Engineer and his Deputy were in fact actively supervising or in control of the highway construction and maintenance and hence they could not be liable under the facts pleaded in the plaintiff's complaint.
The lower court struck from plaintiff's first amended complaint Paragraphs V and VIII. Paragraph V set out in haec verba a portion of the Highway Department's Standard Specifications which was incorporated in the state contract under which the construction work on the highway involved was done. Paragraph VIII contained the statutory duties of the defendant engineers by reference to A.R.S. § 18-109, and alleged that these duties had been breached. Plaintiff contends these should be restored. Inasmuch as Paragraph V dealt almost totally with the contractor's duty to the traveling public, it is now moot, as the dismissal of the contractor as a defendant was not appealed.
Paragraph VIII does have some relation to the issues involved in this case, and does not prejudice the defendants. While under Rule 12(g) of the Arizona Rules of Civil Procedure, 16 A.R.S. a court may order stricken from a pleading "any redundant, immaterial, impertinent, or scandalous matter," such motion is not favored and should "not be stricken from a pleading unless it is clear that it can have no possible relation to the subject matter of the litigation"[37] and the movant can show he is prejudiced by the allegations.[38] Paragraph VIII should therefore be reinstated in plaintiff's pleadings.
Affirmed in part, reversed in part. Case remanded for further proceedings in accordance with this decision.
BERNSTEIN, C.J., UDALL, V.C.J., and STRUCKMEYER, J., and R.C. STANFORD, Jr., Superior Court Judge, concur.
NOTE: Justice RENZ L. JENNINGS having disqualified himself, the Honorable R.C. STANFORD, Jr., Judge of the Superior Court of Maricopa County, was called in to sit in his stead and participate in the determination of this appeal.
NOTES
[1]  In 75 A.L.R. 1196, a classic observation as to the sociological aspects of soveign immunity appears which has since been quoted with approval in several jurisdictions; "* * * The whole doctrine of governmental immunity from liability for tort rests upon a rotten foundation. It is almost incredible that in this modern age of comparative sociological enlightenment, and in a republic, the medieval absolutism supposed to be implicit in the maxim, `the King can do no wrong,' should exempt the various branches of the government from liability for their torts, and that the entire burden of damage resulting from the wrongful acts of the government should be imposed upon the single individual who suffers the injury, rather than distributed among the entire community constituting the government, where it could be borne without hardship upon any individual, and where it justly belongs."
[2]  See also Spanel v. Mounds View School District No. 621, 118 N.W.2d 795 (Minn. 1962); Carlisle v. Parish of Baton Rouge, 114 So.2d 62 (La. App. 1959), which stated that the doctrine has little practical basis in this age when liability insurance is universally available.
[3]  See Spanel v. Mounds View School Dist. No. 621, supra.
[4]  100 Eng.Rep. 362, 2 T.R. 673.
[5]  100 Eng.Rep. 363, 2 T.R. 673
[6]  21 Ariz. 426, 189 P. 632.
[7]  Lee v. Dunklee, 84 Ariz. 260, 326 P.2d 1117 (1958); Grande v. Casson, 50 Ariz. 397, 72 P.2d 676 (1937); Larsen v. County of Yuma, 26 Ariz. 367, 225 P. 1115 (1924); State v. Dart, 23 Ariz. 145, 202 P. 237 (1921). But see Ruth v. Rhodes, 66 Ariz. 129, 185 P.2d 304 (1947), wherein we held that a state highway patrolman would be liable for injuries resulting from negligence in driving automobile in response to a radio order.
[8]  City of Phoenix v. Greer, 43 Ariz. 214, 29 P.2d 1062 (1934); Jones v. City of Phoenix, 29 Ariz. 181, 239 P. 1030 (1925).
[9]  Lee v. Dunklee, supra note 7.
[10]  School Dist. No. 48 of Maricopa County v. Rivera, 30 Ariz. 1, 243 P. 609, 45 A.L.R. 762 (1926).
[11]  Harlan v. City of Tucson, 82 Ariz. 111, 309 P.2d 244 (1957); City of Phoenix v. Mayfield, 41 Ariz. 537, 20 P.2d 296 (1933); Strickfaden v. Greencreek Highway Dist., 42 Idaho 738, 248 P. 456, Anno., 49 A.L.R. 1057, 1075 (1926); 63 C.J.S. Municipal Corporations § 782, p. 88.
[12]  Ibid.
[13]  Hernandez v. County of Yuma, supra at 91 Ariz. 37, 369 P.2d 272. See also Fordham and Peques, "Local Government Responsibility in Tort in Louisiana," 3 La.L.Rev. 720 (1941); "That government is above the law is a notion that is hardly consistent with the doctrine of supremacy of law which has so long been taken as a basic tenet in our democratic faith."
[14]  Colorado Racing Com'n v. Brush Racing Ass'n, 136 Colo. 279, 284, 316 P.2d 582, 585 (1957).
[15]  Liber v. Flor, 143 Colo. 205, 353 P.2d 590 (1960).
[16]  Hargrove v. Town of Cocoa Beach, 96 So.2d 130, 60 A.L.R.2d 1193, (Fla. 1957).
[17]  Kaulakis v. Boyd, 138 So.2d 505 (Fla. 1962); Buck v. McLean, 115 So.2d 764 (Fla.App. 1960).
[18]  364 Mich. 257, 111 N.W.2d 24.
[19]  Stevens v. City of St. Clair Shores, 366 Mich. 341, 115 N.W.2d 69 (1962); Sayers v. School Dist. No. 1, 366 Mich. 217, 114 N.W.2d 191 (1962); McDowell v. Mackie, 365 Mich. 268, 112 N.W.2d 491 (1961).
[20]  18 Ill.2d 25, 163 N.E.2d 96. This case discarded the rule of school district tort immunity.
[21]  9 De Paul L.Rev. 39, Comment (1959).
[22]  Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962).
[23]  Spanel v. Mounds View School District No. 621, supra.
[24]  Williams v. City of Detroit, supra.
[25]  115 N.W.2d 625.
[26]  118 N.W.2d 803, n. 42.
[27]  A.R.S. § 18-109:

"The state engineer shall have charge of all highway work and maintenance authorized by the commission, with power and duty to:
1. * * *
2. * * *
3. Supervise all construction work on state highways and state routes authorized by the commission, and have charge of the maintenance and upkeep of all such highways and routes." See also A.R.S. § 18-111, which gives the state engineer authority to appoint a deputy and assistant engineers necessary to perform the work of the department.
[28]  It might be noted at this time that New York has explicit statutory authority for recovering from the state damages sustained by the negligent construction and maintenance of its highways. See 2 Antieau, Municipal Corporation Law 117, § 1205 (1958).
[29]  Harlan v. City of Tucson, supra; City of Phoenix v. Mayfield, supra.
[30]  See also Edmunds v. Germer, 12 Utah 2d 215, 364 P.2d 1015 (1961).
[31]  See also Larsen v. County of Yuma, supra. Several of the cases relied on in Dunklee have been overruled by the Muskopf v. Coming Hospital District decision, supra.
[32]  The reasoning advanced for abandonment of an analogous policy i.e. the doctrine of charitable immunity from tort liability is persuasive. The Washington Supreme Court considered this issue in Pierce v. Yakima Valley Memorial Hospital Ass'n, 43 Wash.2d 162, 260 P.2d 765, 774 (1953), and stated "We closed our courtroom doors without legislative help, we can likewise open them." In holding a charitable institution liable for tortious conduct of an employee we stated: "The declaration of `public policy' is primarily a legislative function. The courts unquestionably have authority to declare a public policy which already exists and to base its decisions upon that ground. * * * It is equally true that when the reason for the existence of a declared public policy no longer obtains that the courts should without hesitation declare that such public policy no longer exists." Ray v. Tucson Medical Center, 72 Ariz. 22, 35-36, 230 P.2d 220, 229 (1951).
[33]  A.R.S. §§ 18-106, 107, 109, 110, 111.
[34]  A.R.S. §§ 18-107, 109, 111.
[35]  See A.R.S. § 18-111(A).
[36]  A.R.S. § 18-111(B).
[37]  Moore's Federal Court Practice, Vol. 2 § 12.21(2), p. 2317.
[38]  Goldberg v. Amalgamated Local Union No. 355, 202 F. Supp. 844 (D.C.E.D.N.Y. 1962); See also Budget Dress Corp. v. International Ladies' Garment Workers' Union, 25 F.R.D. 506 (D.C.S.D.N.Y. 1959).


897 F.2d 268
15 Fed.R.Serv.3d 1455
Dragon MRAOVIC, Plaintiff-Appellant,v.ELGIN, JOLIET & EASTERN RAILWAY COMPANY, Defendant-Appellee.
No. 89-1049.
United States Court of Appeals,Seventh Circuit.
Argued Oct. 26, 1989.Decided March 8, 1990.

John C. Sands, Saul R. Leibowitz, Chicago, Ill., for plaintiff-appellant.
George W. Gessler, William P. Jones, Gessler, Flynn, Fleischmann, Hughes & Socol, Chicago, Ill., for defendant-appellee.
Before CUMMINGS, COFFEY and MANION, Circuit Judges.
MANION, Circuit Judge.

1
Dragon Mraovic was an employee of Elgin, Joliet & Eastern Railway (Elgin).  While on duty, he injured his arm shutting a glass window in the lunchroom.  He sued the railroad under the Federal Employers' Liability Act.  A jury found the railroad not liable for Mraovic's injuries.  He appeals the district court's denial of his motion for a new trial.  We affirm.

I. BACKGROUND

2
Elgin employed Mraovic as an electrician.  On a cold day in March 1984, he arrived for work and entered the employees' lunchroom.  There he found an open window of the type used in schools--high in a wall, to be opened and closed only by a long pole.  When Mraovic tried to close the window it shattered, cutting him severely.  Over the next few years he was treated by several doctors and had surgery on the arm three times.  He attempted but was unable to return to work in 1986.

3
Although those facts are the reason Mraovic initially filed this lawsuit, his appeal is based less on what happened to him in the lunchroom than on what happened to his attorney before and during trial.  This case was more than two years old when the trial judge set dates for close of discovery (July 8, 1987), the final pretrial order (August 3, 1987), and a firm trial date (August 26, 1987).

4
On July 30--three weeks after discovery closed--Mraovic's attorney, John C. Sands, met with Elgin's attorney to prepare the final pretrial order.  For the first time Sands identified two non-medical witnesses that he wanted to list as experts.  Elgin's attorney objected to these witnesses because they were not named until after discovery had closed.  Elgin included the objection in the pretrial order and later filed a written motion seeking to have the proposed witnesses barred.  At that same meeting, the parties agreed Elgin's expert doctor could examine Mraovic before trial, because Elgin was entitled to a medical evaluation of the injury and all the medical evidence to that point was in Mraovic's exclusive control.  The parties further agreed that Elgin's examining doctor would promptly furnish a report to Sands, and that Sands would have the right to depose the doctor before trial.  These agreements were part of the final pretrial order prepared by the attorneys, and became the court's order when signed by the district court judge on August 7, 1987.

5
On August 14, the day the medical examination was scheduled, Sands called Elgin's attorney and told him Mraovic would not appear for the exam unless Elgin signed a stipulation withdrawing its timeliness objection to Mraovic's proposed expert witnesses.  Elgin refused, and Mraovic deliberately skipped the appointment on Sands' advice.  Sands instead arranged for Mraovic to be examined by a doctor Sands hoped to call as an expert witness.

6
At the final pretrial conference, 19 days before the firm trial date, Sands moved for a continuance because he had not arranged for his medical experts to be available for the trial.  The district court denied the motion because it believed Mraovic had made no effort to prepare himself for trial on the scheduled date, and because the court had previously admonished Sands on numerous occasions to be prepared on the firm trial date.  A written continuance motion followed, which the court also denied.

7
On the day of trial, the district court denied Elgin's motion to bar testimony from Mraovic's two non-medical expert witnesses who were revealed after discovery.  Even though Sands had not identified the witnesses on time, the court ruled that Elgin's attorney would be allowed to depose them that night or during the trial before their testimony.  (Yet after all that, Mraovic did not use either witness.)

8
The court then considered what it termed a "more serious matter"--the railroad's motion for sanctions based on the deliberate violation of the August 7 court order providing for Mraovic to be examined by defendant's doctor.  After granting the motion for sanctions, and with the jury waiting outside the courtroom, the judge asked both sides to submit proposed sanctions.  Elgin suggested that Mraovic should be precluded from presenting expert medical testimony, since his violation of the court order put Elgin at a disadvantage by not having testimony from its medical expert.  Sands then revealed that he had not been able to arrange for the testimony of Mraovic's treating physician, and again requested a continuance, but proposed no alternative sanctions.  The judge reiterated his request for Sands to provide a specific proposal on lesser, alternative sanctions.  After consulting with his client, Sands suggested that he personally be assessed court costs for the three days the jury was to have sat, and again requested that the court grant a continuance.  Having already rejected several motions for continuance, and having a full calendar for the next few weeks, the district court granted the railroad's motion to prevent Mraovic from introducing any expert medical testimony related to his injury, and reiterated that the scheduled three-day trial would begin that day.

9
At trial, Mraovic was allowed to present testimony showing that an injury occurred, and that the injury caused pain and suffering.  He was not restricted in any way from presenting evidence that Elgin was responsible for his injuries.  After trial, the jury concluded that Elgin was not liable, and thus never reached the issue of damages.

10
Mraovic appeals:  1) the district court's refusal to grant a continuance because his medical experts were unavailable;  2) the district court's sanction preventing Mraovic from presenting any expert medical testimony instead of a lesser sanction such as assessing court costs to Mraovic's attorney;  and 3) certain of the district court's evidentiary and procedural rulings.  Mraovic also presents the issue whether he was denied a fair trial by the district court judge's "continued disparagement" of his attorney Sands.

II. DISCUSSION
A. Mraovic's Motion for Continuance

11
District courts have wide discretion to control their docket by granting or denying motions to continue.  Northern Indiana Public Service Co. v. Carbon County Coal Co., 799 F.2d 265, 269 (7th Cir.1986).  When reviewing challenges for abuse of discretion in district court scheduling, we have concluded that "[m]atters of trial management are for the district judge; we intervene only when it is apparent that the judge has acted unreasonably.  The occasions for intervention are rare."    Id.

12
In this case, the district court's refusal to postpone the trial because Mraovic's medical experts were unavailable was not unreasonable.  Mraovic had more than two-and-a-half months to arrange testimony from his doctors after the district court set a firm trial date.  Mraovic had almost three more weeks to arrange their testimony after the court denied his motion for continuance.  Yet he made no effort to arrange their testimony until the week before trial.  Further, the district court made painstakingly clear that the trial would go forward on the scheduled date, and Mraovic promised to be ready.  Under Fed.R.Civ.P. 16(b), district courts need not tolerate undue delay.  G. Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648 (1989) (en banc) (district courts have inherent authority "to promote the just, speedy, and inexpensive determination of every action");  see also 6 C. Wright and A. Miller, Sec. 1522, at 572 (1971).  This case was already more than two years old.  Mraovic puts forward no compelling reasons why we should find the district court's action to be unreasonable.  The refusal to grant a postponement is not reversible error.

B. Sanctions

13
Mraovic's challenge to the district court's sanction prohibiting him from presenting expert medical testimony is without merit.  First, presentation of evidence regarding the scope and effect of Mraovic's injuries assists the jury only in determining damages.  See Rosenburg v. Lincoln American Life Ins. Co., 883 F.2d 1328, 1337 (7th Cir.1989) (comments and evidence regarding damages cannot be considered by the jury when it is deciding the question of liability).  As a matter of law, such testimony cannot be presumed to have any material effect on the jury's ruling on liability.  Because the jury found Elgin not liable, the jury never reached the damages issue and the sanction was irrelevant.

14
Our review of sanctions is limited.  "Absent an abuse of discretion, we may not disturb a district court's imposition of sanctions for failure of a party to comply with a pretrial order.  The issue on review is not whether we would have imposed [this sanction], but whether the district court abused its discretion in doing so."    G. Heileman Brewing Co. v. Joseph Oat Corp., supra, 871 F.2d at 655, citing National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976).

15
The district court's sanction was a reasonable and proportional response to Mraovic's willful violation of a court order.  The effect of Mraovic's failure to attend the court-mandated examination by Elgin's expert doctor was to deny Elgin a chance to prepare its case on the scope and effect of Mraovic's injuries.  This put Elgin at a distinct disadvantage.  Federal Rule of Civil Procedure 37, which provides for imposition of "just" sanctions for violations of court orders regarding discovery, specifically allows district courts to exclude certain matters from being introduced into evidence.1   Sanctions directed only at Mraovic's attorney would not have corrected the injustice and unfairness created by Mraovic's violation of the court order.  We note that this sanction is separate from the court's denial of a continuance as discussed above.  Mraovic wanted the continuance because he couldn't get his own medical witnesses scheduled.  The sanction, however, focuses on his blatant refusal to allow Elgin to perform a medical exam as the court had ordered.  The district court did not abuse its discretion in excluding Mraovic's expert medical testimony.

C. Denial of Fair Trial

16
Mraovic attacks a number of other rulings of the district court in a scatter-gun approach.  He doesn't hit anything.  Mraovic's main contention among these seems to be that he was denied a fair trial by the district court's treatment of his attorney.  A review of the transcripts reveals a judge sorely tested by an attorney's dilatory tactics and lack of preparedness.  Perhaps some impatience with Mraovic's attorney was communicated to the jury, but that does not rise anywhere near the level of reversible error.  It is unfortunate that on occasion the court had to orally reprimand Mraovic's attorney.  However, our review of the record reveals no incidents that were not justified by the attorney's own admittedly improper conduct--conduct the court believed was impeding the trial's progress.

D. Other Rulings

17
Mraovic additionally offers superficial objections to adverse trial rulings and the jury's contrary verdict.  He also complains about a jury instruction stating that the absence of medical evidence was not the responsibility of Elgin.  The jury instruction was accurate and not an abuse of discretion.  As to the other arguments, all are without merit and border on the frivolous.  Furthermore, Mraovic's failure to support these conclusory statements with argument and case citations effectively waives these arguments on appeal.  In Bonds v. Coca-Cola Co., 806 F.2d 1324, 1328 (7th Cir.1986), we held that "collateral allusions to a legal issue do not require the court to decide difficult questions....  [E]ven an issue expressly presented for resolution is waived if not developed by argument ..."  (Citations omitted.)    Unlike Bonds, none of the issues briefly mentioned by Mraovic present difficult questions.  We need not consider them.

III. CONCLUSION

18
The district court did not abuse its discretion by denying Mraovic's frequent motions for continuance, and by imposing a proportional sanction for his failure to appear for a medical examination.  Mraovic was not denied a fair trial, and the judgment of the district court rejecting Mraovic's motion for a new trial is affirmed.

19
AFFIRMED.

1
 "If a party ... fails to obey an order to provide or permit discovery ... the court in which the action is pending may make such orders in regard to that failure as are just....  [The court may prohibit] that party from introducing designated matters in evidence...."  Fed.R.Civ.P. 37(b)(2)(B)


Attorneys for Appellant

Robert L. Nicholson
Sarah A. Hiestand
Beckman Lawson, LLP
Fort Wayne, Indiana

Attorneys for Appellee

James T. Hodson
Cheryl M. Knodle
Ball, Eggleston, Bumbleburg, McBride, Walkey & Stapleton, PC
Lafayette, Indiana

      IN THE
      INDIANA SUPREME COURT

INDIANA LAWRENCE BANK,
        Appellant (Defendant below),
        v.
PSB CREDIT SERVICES, INC.,
        Appellee (Plaintiff below),
      and
JAMES W. ZIMMERMAN, and
SALIN BANK & TRUST COMPANY,
        Appellees (Defendants below).

INDIANA LAWRENCE BANK,
        Appellant (Plaintiff below),
      v.
UNITED STATES OF AMERICA,
        Appellee (Defendant below).

)
)
)
)     Court of Appeals No.
)     25A03-9801-CV-00024
)
)
)
)
)
)
)
)
)
)
)
)

      APPEAL FROM THE FULTON CIRCUIT COURT
      The Honorable Douglas B. Morton, Judge
      Cause Nos. 25C01-9607-CP-202 & 25C01-9704BCP-109

      DISSENT FROM DENIAL OF PETITION TO TRANSFER

      March 7, 2000

SULLIVAN, Justice, dissenting from denial of petition to transfer.
        In this case, the Court of Appeals affirmed an order of  the  trial
court to marshal assets, and the majority of this Court has  voted  to  deny
transfer.  I dissent from the denial of transfer  because  I  conclude  that
the marshaling request was untimely.

        Indiana Lawrence Bank ("Bank") had a first lien and a third lien on
an  office  building  ("Office")  owned  by  James  and  Merilee   Zimmerman
("Debtors").  Sandwiched between these liens was a second lien in  favor  of
PSB Credit Services ("PSB").  The Bank also had a first lien  and  a  second
lien  on  a  duplex  ("Duplex")  owned  by  the  Debtors.  These  liens  are
summarized as follows (amounts are approximate):

|                                 |              |           |
|                                 |Date          |Amount     |
|                                 |              |           |
|Bank's lien on Office and Duplex |1988          |$70,000    |
|                                 |              |           |
|PSB's lien on Office only        |1991          |$178,000   |
|                                 |              |           |
|Bank's lien on Office and Duplex |1993          |$77,000    |
|                                 |              |           |

        After the Debtors defaulted, PSB brought an action to foreclose its
lien on the Office ("Office Foreclosure Case"), naming the Bank as a  party.
 The Bank then filed a separate action to foreclose only its  1993  lien  on
the Duplex ("Duplex Foreclosure Case").  The Bank bought the Duplex  at  the
eventual sheriff's sale for about $66,000, which  it  applied  to  the  1993
lien, leaving its 1988 lien wholly unsatisfied.  PSB then filed a motion  in
the Office Foreclosure Case to marshal the Debtors' assets, which the  trial
court granted in part, ordering that the proceeds of the sale of the  Duplex
be prorated between Bank's 1988 and 1993 liens on the Duplex  in  proportion
to the amounts of the liens on the date of sale.  If,  as  it  appears,  the
proceeds from selling the Office will be insufficient to pay all  the  liens
against it, the Bank will probably realize about $32,000 less on  its  liens
than it would in the absence of  the  marshaling  order.   A  more  complete
description of the liens and events leading up to this  appeal  is  provided
by the Court of Appeals.  See Indiana Lawrence Bank v.  PSB  Credit  Servs.,
Inc., 706 N.E.2d 570, 571-72 (Ind. Ct. App. 1999).

        Marshaling of assets is an equitable remedy that may be appropriate
when a senior creditor has access to two funds or  properties  of  the  same
debtor for payment of its claims and a junior creditor has  access  to  only
one of those funds or properties.  Marshaling requires the  senior  "double-
funded" creditor to exhaust  the  source  that  the  junior  "single-funded"
creditor cannot access ("singly-charged property") before resorting  to  the
source that both  can  access  ("doubly-charged  property").   See  Bank  of
Commerce v. First Nat=l Bank,  150  Ind.  588,  590-91,  50  N.E.  566,  567
(1898); 53 Am.Jur.2d Marshaling Assets and Inverse Order  of  Alienation  ''
1, 10 (1996) (hereinafter Marshaling Assets).

        The Bank raises several challenges to  the  ordered  marshaling  in
this case, including that  the  marshaling  order  improperly  modified  the
final judgment in the Duplex Foreclosure  Case,  that  the  Office  and  the
Duplex were not in the hands of a common debtor when PSB  sought  marshaling
because the Bank had already bought the Duplex  in  the  Duplex  Foreclosure
Case, and that marshaling is improper because it will harm the Bank.   While
the Bank might be entitled to prevail on some or all of these arguments,  it
is not necessary to reach these points to resolve this  case  because  PSB's
request for marshaling was untimely.

        The doctrine of marshaling may be enforced  by  (1)  enjoining  the
double-funded creditor from proceeding against the  doubly-charged  property
until it exhausts  the  singly-charged  property,  or  (2)  subrogating  the
single-funded creditor to the  double-funded  creditor's  lien  against  the
singly-charged property.  See Bank of Commerce, 150 Ind. at 591, 50 N.E.  at
567; 53 Am.Jur.2d Marshaling Assets ''  29-32.   In  this  case,  the  trial
court did not enjoin the Bank from proceeding against the  Office  until  it
exhausted the Duplex as a source of payment, nor did  it  subrogate  PSB  to
the Bank's interests in the Duplex.   Indeed,  by  the  time  PSB  requested
marshaling, the trial court could do neither because the Bank's  foreclosure
on the Duplex was complete.  The trial court  instead  ordered  reallocation
between the Bank's 1988 and 1993 liens of  the  proceeds  from  the  already
completed Duplex foreclosure C relief that is not  a  recognized  method  of
effectuating marshaling.

        The doctrine of marshaling does not give the single-funded creditor
a lien on or a vested interest  in  the  singly-charged  property,  and  the
right to invoke marshaling may be lost by failure to invoke the doctrine  in
a timely manner.  See 53 Am. Jur. 2d Marshaling Assets ' 9;  cf.  Louden  v.
Ball, 93 Ind. 232, 238 (1884) (The right  to  marshaling  must  be  asserted
"promptly and before  sale"  of  the  doubly-charged  property.).   Although
equity involves some flexibility,  it  is  not  an  unbridled  free-for-all.
Predictability and  finality  are  important,  especially  in  a  commercial
context.  There are limits on the equitable relief a court may fashion,  and
at some point requests for such  relief  become  untimely.   In  this  case,
PSB's request for marshaling simply came  too  late,  and  the  trial  court
exceeded its equitable powers in reallocating the proceeds  of  the  already
completed Duplex foreclosure.  I would therefore grant transfer and  reverse
the trial court's marshaling order.

        SHEPARD, C.J., concurs.


845 So.2d 1066 (2003)
STATE ex rel. Kendrick JOHNSON
v.
STATE of Louisiana.
No. 2002-KH-1368.
Supreme Court of Louisiana.
May 30, 2003.
Denied.


360 So.2d 642 (1978)
PAR-CO DRILLING, INC., Plaintiff-Appellee,
v.
FRANKS PETROLEUM INC., et al., Defendants-Appellants.
No. 6530.
Court of Appeal of Louisiana, Third Circuit.
June 28, 1978.
Hargrove, Guyton, Ramey & Barlow, Thomas J. Wyatt and Ray A. Barlow, Shreveport, for defendants-appellants.
Brouillette & Kelly, Michael F. Kelly, Marksville, for plaintiff-appellee.
Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
GUIDRY, Judge.
In this suit plaintiff, hereafter Par-Co, seeks a money judgment against defendant, Franks Petroleum Inc., hereafter Franks, in the principal sum of $61,901.00 and recognition of a lien and privilege (LSA-R.S. 9:4862), on all oil or gas produced and accruing to the working interest in a certain well designated as the "Franks Petroleum, Inc. Southwestern Improvements No. 1 Well in Section 7, T. 2 N., R. 7 E., Avoyelles Parish, Louisiana". The sum sued for, plus ten percent attorney's fees, is the balance allegedly due plaintiff under a certain drilling contract dated August 4, 1976 entered into between Par-Co, as contractor, and Franks, as operator. Franks resists! payment of the amount claimed urging that plaintiff is not entitled to be paid such sum under the terms of the contract and in the alternative that the sum claimed represents expenses incurred as a result of plaintiff's negligence in the drilling of the aforesaid well for which plaintiff cannot claim reimbursement. The trial court rendered judgment in favor of plaintiff and defendants have suspensively appealed. On appeal defendants assert error in the trial court's construction of the contract and in the alternative urge that the trial court erred in not finding plaintiff's performance under the contract unworkmanlike.
We have carefully reviewed the record and conclude that the able trial judge, in his written reasons, accurately set forth the facts of this case and correctly disposes of all of the issues presented. Accordingly, we *643 take the liberty of adopting as our opinion the excellent reasons of the trial court:
"The Plaintiff filed this suit to enforce a privilege on certain properties in Avoyelles Parish, arising out of its drilling an oil and gas well on the property of Defendants. The Plaintiff claims the sum of SIXTY-ONE THOUSAND, NINE HUNDRED ONE and 00/00 ($61,901.00) DOLLARS as a balance due. The work and labors of Plaintiff were performed under a written contract signed by the original owner of the property who subsequently assigned its rights to other owners. All are joined as Defendants.
The court finds from the agreement, that Plaintiff was to drill to a certain depth, 7900 feet, at which time the well was to be logged and side-wall cores made. After this, the Defendant owners would have twenty-four hours to decide whether to set pipe in the hole for production, or to plug and abandon the hole. There seems to be no argument between the parties, that up to this decision point, the hole was at the risk and expense of Plaintiff. The argument here, arises in what took place after Defendants made the election to set pipe or production casing in the hole, and so notified Plaintiff.
In this case, as Plaintiff proceeded to go back into the hole, which had been drilled to 7916 feet, in order to condition it to set production casing, the drill pipe got stuck; the amount of money herein claimed by Plaintiff, is the total of the additional expenses, incurred in getting the drill pipe `unstuck' and other expenses leading to the making of a producing oil well.
The Plaintiff contends that after the defendants made the decision to set pipe for production, the day rate specified in the contract applied, and all expenses thereafter were to be paid by Defendants. On the other hand, Defendants contend, that under the contract, this well was to be a so-called "turn key" job, and all expenses were to be paid by Plaintiff, excepting the costs of the production casing.
The written contract used is apparently standard in the industry for this area. The testimony supports this view. The great preponderance of the evidence is to the effect that the risk of the hole shifts to the operator-owner once the last core provided for by the contract is furnished. At that point, in time the only other service to be provided is daywork rental of rig and equipment. The operator-owner may take 100 sidewall cores if he wants. He may want to drill deeper, or, he may decide to abandon the hole, in which case, the contractor-driller is to plug and abandon. But, if it takes the operator-owner three days to decide, he gets the first 24 hours of rig time `free'. If it takes three days or 30 days to run production casing, the first day only is `free'.
The control of the hole shifts as well. Prior to reaching contract depth the contractor-driller `controls' the hole, and the risks to be taken. Once the last core is furnished, the operator-owner makes all decisions. As Mr. Whitehead so convincingly testified, the contractors absolutely will not place the drill pipe back in the hole unless directed to do so by the operator-owners.
The risks encountered once the drill string is placed back in the hole are enormous. The purpose of doing so is to `condition' the hole. The logging tool and the sidewall cores scar and break the mud cake which supports the hole. At this time it may be 12-16 hours since the hole has been circulated with mud.
Nowhere does the contract state that the drilling contractor turnkeys a hole conditioned to accept production casing. Clearly the custom of the industry is that such a risk is the operator's unless the drilling contractor expressly assumes the risk. The contractor has the duty to condition the hole if instructed to do so by the operator but only on a daywork basis with all risk of the operation to be borne by the operator.
There is an additional defense made here, and that is that the contractor-driller was negligent in conditioning the hole *644 for the production casing. Therefore, under the contract the additional expenses claimed by Plaintiff are to be its loss. This is not supported by the evidence and the court finds no negligence here.
The various items claimed by Plaintiff are supported by cancelled checks which it paid. Defendant agrees (sic) in brief, that Plaintiff's paying these, without first submitting same to the defendant operator-owners, show that Plaintiff considered this as its obligations under the contract. The Court cannot accept this view. Plaintiff is in the business of drilling for oil. It contacted other specialists to get the drill pipe free. Its credit and reputation must be maintained. To make these subs wait for their money would be grossly unfair to them. They had a right to look for payment from the one who contacted and employed them. To conclude that these prompt payments by the contractor-driller, of the people whom he contacted for work, is an indication that it considered this its obligation under the contract with Defendants, is not a fair or legal conclusion.
The court believes and holds that Plaintiff has made due proof of its demands and is entitled to judgment as prayed for by it."
We consider it necessary to amplify the trial court's excellent reasons in order to dispose of certain arguments made by able counsel for appellants on appeal.
Appellants argue that since the drill pipe became stuck during the 24 hour period for which Par-Co was to furnish "free rig time to run casing or to P & A" under the contract, that the sum sued for is an expense incurred while the risk of the hole was Par-Co's. We discern no merit in this contention. There is no relationship between the provision allowing 24 hours free rig time and "risk of the hole". The 24 hours free rig time is simply a credit which is allowed under the contract to the Operator on any subsequent daywork charges incurred while the Operator is making a decision to run production casing or plug and abandon the well and/or while either of the latter tasks are in progress. The contract in question is not specific as to precisely when the "risk of the hole" shifts from the Contractor to the Operator. To that extent the contract is ambiguous. The trial court concluded, on the basis of clear, convincing and uncontradicted evidence, that according to custom in the industry, the risk of the hole shifts from the contractor to the operator once the last core provided for by the contract is furnished unless the contract specifically provides otherwise. Accordingly, he determined that the additional expenses were incurred at a time when the risk of the hole was the Operator's. We discern no error in this conclusion. It is well settled that custom of the place and the usual and customary manner of fulfilling like contracts is persuasive in determining the intention of the parties under a contract not specific in its wording. Terrell v. Alexandria Auto Co., 12 La.App. 625, 125 So. 757 (La.App.2nd Cir. 1930); Fontenot's Rice Drier, Inc. v. Farmers R. Mill Co., Inc., 329 So.2d 494 (La.App.3rd Cir. 1976); R.C.C. Article 1964. Additionally, in this connection we observe that, according to the evidence, the phrases in the contract giving rise to this ambiguity were authored by Frank's or its representative and accordingly, any doubt arising therefrom for want of necessary explanation must be resolved in favor of Par-Co. R.C.C. Article 1958.
In the alternative appellants argue that the "risk of the hole" was impliedly on Par-Co until such time as the hole is conditioned to receive production casing. In support of this contention appellants cite the case of J. C. Trahan Drilling Contractor, Inc. v. Cockrell, 225 So.2d 599 (La.App.1st Cir. 1969), writ refused 228 So.2d 482, 254 La. 922. The cited case is not authority for the contention espoused. In Trahan, unlike the instant case, the contract specifically imposed upon the contractor the obligation to produce a well bore capable of accepting casing.
Finally, with regard to appellants contention that plaintiff performed in an unworkmanlike manner, suffice it to say that we discern no error in the trial court's conclusion on this purely factual issue.
*645 For the above and foregoing reasons the judgment appealed from is affirmed at appellants' costs.
AFFIRMED.