Filed 8/19/14 Galligan & Biscay v. Galligan CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE

GALLIGAN & BISCAY,
         Plaintiff and Appellant,
                                                                     A138617
v.
JOSEPH GALLIGAN et al.,                                              (San Mateo County
                                                                     Super. Ct. No. CIV 509754)
         Defendants and Respondents.

         Galligan & Biscay (G&B) appeals from a judgment in favor of defendants Joseph
Galligan and Maureen Pollard James1 awarding $112,646.25 in contractual, prevailing
party attorney fees to defendants following their successful motion for summary
judgment. We affirm the summary judgment in favor of defendants, but reverse the
award of attorney fees to them.
                                               I. BACKGROUND
A. The Prior Litigation
         On October 29, 2008, Joseph A. Galligan and Gail M. Galligan executed a trust
declaration establishing The Joseph A. Galligan and Gail M. Galligan 2008 Living Trust
(Trust). Joseph died on July 16, 2010, leaving Gail as the sole trustee. Gail resigned as

         1
         Because this litigation involves multiple members of the Galligan family, some
with the same surname, we refer to defendant siblings individually as Joe and Maureen,
and to their brother Patrick by his surname, to avoid confusion, meaning no disrespect to
the parties.
trustee on August 6, 2010, and Bruce Van Alstyne, the named successor trustee,
consented to serve (trustee). On September 5, 2010, Gail died.
       The Trust provided that upon the deaths of Joseph and Gail, their estate would be
divided for the benefit of six of their eight surviving children (including defendants Joe
and Maureen) and four of their grandchildren, and specifically disinherited Joseph and
Gail’s other two children, Patrick and Timothy.
       Joseph was a shareholder in G&B during his lifetime. G&B was formed on or
about August 31, 1976. Under the terms of Joseph’s pour-over will, his interest in the
law firm was to be distributed to the trustee of the Trust upon his death. The trustee was
informed that in the years preceding Joseph’s death, the firm had been informally
winding down, with Joseph performing little, if any, legal work on client matters, and
referring most active engagements to other attorneys. By the time Joseph died, the
trustee was informed, G&B was essentially a dormant law practice with little or no
economic value.
       In a letter to the trustee dated September 24, 2010, Patrick, an attorney, asserted he
was a 50 percent owner of the firm. To substantiate his claim, Patrick presented a copy
of what purported to be a duly signed stock certificate, dated May 6, 1977, representing
100 shares of capital stock in the firm. On February 15, 2011, the trustee filed a petition
for instructions with the San Mateo County Superior Court (case No. 120876) seeking,
among other things, guidance as to how to resolve Patrick’s claims. On March 4, 2011,
Patrick filed an “Opposition and Joinder” to the petition, to which Maureen filed an
opposition on March 14, 2011. Maureen objected to Patrick’s claim he owned half of the
firm. She asserted Patrick’s supposed stock certificate was intentionally altered, and their
father Joseph was the sole owner of the law firm at the time of his death.
       Before Patrick’s claim of ownership of G&B was adjudicated, he filed a creditor’s
claim against Joseph’s estate and Gail’s estate for $800,000, alleging, inter alia, (1) “[t]he
assets of [G&B] . . . was allowed to be dissipated in breach of trust and fiduciary duties
owed to the owners of [G&B], or otherwise[] allowed to be converted to the use of [Joe]
Galligan and others”; (2) Joseph Galligan under the influence of Joe Galligan had caused

                                              2
Patrick to contribute over $200,000 to G&B “which was thereafter unjustly taken and
used for the benefit of [Joe] Galligan, by the use of fraud and deceit, in that they failed to
disclose that they would not recognize Patrick Galligan’s ownership interest in [G&B], or
that [Joe] Galligan otherwise controlled [G&B] . . .”; and (3) Joe and Maureen exercised
undue influence over their parents causing two of their brothers to be disinherited.
       On May 6, 2011, with the trustee’s petition for instructions still pending, Patrick
filed a separate civil lawsuit (case No. CIV 505394) against the Trust, alleging Joe and
Maureen had committed intentional torts resulting in financial losses to him, G&B, and
his parents’ estates, as particularly described in the earlier-served creditor’s claims, which
Patrick attached to his complaint and expressly incorporated by reference.
B. The 2011 Settlement Agreement
       Subject to the approval of the trial court after a noticed hearing, the trustee and
Patrick negotiated and executed a settlement agreement and release in May 2011, under
which Patrick would receive full ownership of G&B and a $30,000 cash payment in
return for his very broad release of all claims he had—known or unknown, disclosed or
undisclosed, suspected or unsuspected—against, inter alia, the Trust, the trustee, and the
Trust beneficiaries “arising out of or in any way related to agreements, relationships,
events, acts or conduct of, between or among the parties, including, but not limited to
matters expressed or implied in or in any way related to the matters described herein,
including, but not limited to, the Trustee’s acts as trustee of the Trust, the allegations of
the pleadings referred to herein, or anything directly or indirectly related thereto, and any
claims between or among any of the parties arising from or relating to the administration
and distribution of the Trust, Joseph’s estate, Gail’s estate, and G&B, and any property of
or entitlement or rights to or under the Trust, Joseph’s estate, Gail’s estate, and G&B.” 2

       2
         For the express purpose of “clarify[ing] the scope of this Agreement and the
releases provided herein,” the agreement included and incorporated 20 paragraphs of
recitals concerning the Trust, the beneficiaries, the dispute over the ownership of G&B,
and the filing and allegations of Patrick’s creditor’s claim and civil action (case No.
CIV 505394).

                                               3
       By amendment to the petition for instructions, the trustee submitted the proposed
settlement to the trial court for approval. On June 6, 2011, the beneficiaries filed an
objection to the amendment to the petition for instructions, requesting specified changes.
Insofar as relevant here, they asked for language to be added to the release to prevent
G&B, a separate legal entity to be controlled by Patrick, from litigating any of the issues
covered by the release against the beneficiaries. The beneficiaries insisted on such
language as a condition for their approval of the settlement: “Unless and until Patrick
and the Trustee both agree that G&B is bound by the same terms and conditions of the
proposed settlement agreement, this proposal will not be acceptable to the beneficiaries
of the Trust.” The beneficiaries proposed that the release provision of the settlement
agreement, paragraph 26, be amended to include wording to the effect that Patrick, on
behalf of G&B as well as himself, was accepting the provisions concerning ownership of
G&B in full satisfaction of any claims he might have, and was also releasing the claims
described in paragraph 26 on behalf of himself and G&B.
       After the beneficiaries’ proposed language was added to paragraph 26, and other
changes were made, Patrick and the trustee resubmitted their agreement to the court, this
time without objection. Before issuing its order approving the settlement agreement, the
trial court required all the beneficiaries to confirm their approval by signing the
agreement in its final form along with Patrick and the trustee, affirming they approved
the agreement as to form and content.
       The final settlement agreement included the following relevant paragraphs,
italicized to highlight pertinent language added to the final agreement before it was
approved by the parties, the Trust beneficiaries, and the court:
       “23.   The Parties agree that the Trust has a 50% ownership interest in
G&B and Patrick has a 50% ownership interest in G&B.
       “24.   With respect to G&B, the Parties agree to the following, which will be
completed within a reasonable time after court approval:

                                              4
              “a. The Trustee will distribute to Patrick the Trust’s 50% ownership
interest in G&B and Patrick will be responsible for all G&B expenses as of the date of
this agreement.
              “b. The Trustee will deliver to Patrick all G&B files and records in the
possession of the Trustee or its agents.
              “c. The Trustee will transfer to Patrick the G&B bank account and the
balance remaining therein after payment of all legal and other expenses incurred to
transfer the Trust’s G&B shares and deliver the G&B files and records to Patrick. Patrick
waives an accounting of the G&B bank account. The Trustee will make an additional
cash payment to Patrick of the amount necessary to make a total cash distribution to
Patrick of Thirty Thousand Dollars ($30,000).
              “d. The Trustee hereby assigns all other rights and assets of
G&B, if any there are, to Patrick[.]
       “25.   Patrick agrees to dismiss Patrick’s Civil Action with prejudice within 5
days after court approval.
       “26.   Patrick for himself and on behalf of G & B, hereby agrees and
acknowledges that the provisions of paragraphs 23, 24 and 25 above are in full
satisfaction of any and all claims he has against the Trustee, the Trust, the beneficiaries of
the Trust, the executor of Joseph’s Will, Joseph’s estate, Joseph’s heirs, the executor of
Gail’s Will, Gail’s estate, Gail’s heirs, G&B, the shareholders of G&B, the officers,
directors and employees of G&B, Galligan, Thompson, & Flocas LLP, the partners and
employees of Galligan, Thompson, & Flocas LLP, Galligan Professional Building, the
employees of Galligan Professional Building, the heirs, successors and assigns of each of
the foregoing, and the counsel and advisors of each of the foregoing. In consideration of
the terms, conditions, and covenants contained herein, and effective upon this Agreement
becoming effective, Patrick, for himself and on behalf of G & B, and for himself and for
and on behalf of each of his successors, heirs and assigns, hereby releases, acquits and
forever discharges the Trustee, the Trust, the beneficiaries of the Trust, the executor of
Joseph’s Will, Joseph’s estate, Joseph’s heirs, the executor of Gail’s Will, Gail’s estate,

                                              5
Gail’s heirs, G&B, the shareholders of G&B, the officers, directors and employees of
G&B, Galligan, Thompson, & Flocas LLP, the partners and employees of Galligan,
Thompson, & Flocas LLP, Galligan Professional Building, the partners and employees of
Galligan Professional Building, the heirs, successors and assigns of each of the foregoing,
and the counsel and advisors of each of the foregoing, from any and all claims, liabilities,
demands, causes of action, costs, expenses, attorneys fees, damages, indemnities and
obligations of every kind and nature, in law, equity, or otherwise, known and unknown,
suspected and unsuspected, disclosed and undisclosed, arising out of or in any way
related to agreements, relationships, events, acts or conduct of, between or among the
parties, including, but not limited to matters expressed or implied in or in any way related
to the matters described herein, including, but not limited to, the Trustee’s acts as trustee
of the Trust, the allegations of the pleadings referred to herein, or anything directly or
indirectly related thereto, and any claims between or among any of the parties arising
from or relating to the administration and distribution of the Trust, Joseph’s estate, Gail’s
estate, and G&B, and any property of or entitlement or rights to or under the Trust,
Joseph’s estate, Gail’s estate, and G&B.
       “[¶] . . . [¶]
       “35. In the event that either of the Parties commences any action or proceeding
before any tribunal against the other party to enforce or interpret any provision of this
Agreement or is required to defend any such action or proceeding based on, arising from,
or related to this Agreement, the prevailing party shall be entitled to recover his or her
attorneys’ fees and costs incurred.” (Italics added.)
C. The Present Litigation
       G&B, represented by Patrick, sued Joe and Maureen in November 2011, alleging
defendants diverted property and money belonging to G&B from and after January 2007,
by tortious means, and interfered with G&B’s prospective economic advantages for
purposes of destroying the business. The operative first amended complaint alleged
causes of action for (1) common counts (money, goods, client files, and other assets of
G&B taken by defendants and not returned after demand); (2) fraudulent concealment (of

                                              6
books, bank statements, records, and activities of G&B which would have disclosed
defendants were wrongfully diverting G&B funds to themselves from and after
November 2008); (3) conversion of personal property (including cash, client fees,
computer goods and accessories, computer disks, law books, banking and brokerage
statements, corporate files, books and records, client files, and miscellaneous office
equipment from and after November 2008); (4) conversion/embezzlement of funds for
personal use (by means of fraudulent alteration or forgeries, and writing of checks drawn
on G&B’s accounts, occurring between November 2008 and December 2010); (5)
constructive fraud (diverting G&B funds for personal use by, inter alia, forging checks,
charging business credit cards for personal expenses, removing tangible property, and
diverting clients and cases to others or themselves, prior to July 2010, when G&B learned
the true facts); and (6) intentional interference with contractual relations (including
diversion of G&B funds in trustee accounts, and hiding or destroying client files and
mail, occurring between 2006 and December 2010).
       Joe and Maureen moved for summary judgment in December 2012, asserting the
2011 settlement agreement barred all of G&B’s claims. The trial court granted the
motion, finding the settlement agreement and release afforded the defendants a complete
defense in this action.
       Joe and Maureen thereafter moved for an award of $112,646.25 in contractual
attorney fees against G&B, citing evidence that G&B was bound by the fee clause in the
settlement agreement as Patrick’s alter ego, and that Joe and Maureen were entitled to
fees as de facto parties to the settlement agreement or third party beneficiaries of it. The
trial court granted the amount requested in full, and specified that “the fee award may be
made jointly and severally” against G&B and Patrick on the grounds that G&B was
Patrick’s alter ego.
       Judgment in favor of Joe and Maureen was entered on April 11, 2013, and this
timely appeal followed.

                                              7
                                      II. DISCUSSION
       G&B contends the trial court erred in finding the settlement agreement released
the claims asserted in its first amended complaint. With regard to the attorney fee award,
G&B contends (1) the trial judge was properly challenged by G&B under Code of Civil
Procedure section 170.6 after deciding the summary judgment motion and should not
have heard or ruled on defendants’ motion for fees, (2) there was no contractual or legal
basis for the fee award granted, (3) the finding and order that Patrick is jointly and
severally liable were entered without proper notice to Patrick, and (4) the fee award was
excessive and unreasonable.
A. Summary Judgment Ruling
       On appeal we review de novo an order granting summary judgment. (Multani v.
Witkin & Neal (2013) 215 Cal.App.4th 1428, 1443.) “ ‘ “A defendant moving for
summary judgment has the burden of producing evidence showing that one or more
elements of the plaintiff’s cause of action cannot be established, or that there is a
complete defense to that cause of action. [Citations.] The burden then shifts to the
plaintiff to produce specific facts showing a triable issue as to the cause of action or the
defense. [Citations.] Despite the shifting burdens of production, the defendant, as the
moving party, always bears the ultimate burden of persuasion as to whether summary
judgment is warranted.” ’ ” (Ibid.)
       Summary judgment is appropriate when a settlement agreement and release
forecloses claims coming within its scope. (Winet v. Price (1992) 4 Cal.App.4th 1159.)
The release in this case was extremely broad in scope. It released a sweeping array of
potential claims that could be made against the “beneficiaries of the Trust” as well as
against the “officers, directors and employees of G&B,” both categories which would
unambiguously include Joe and Maureen. The claims released included “any and all
claims . . . of every kind and nature . . . , known and unknown, suspected and
unsuspected, disclosed and undisclosed, . . . in any way related to . . . the allegations of
the pleadings referred to herein . . . , and any claims between or among any of the parties
arising from or relating to the administration and distribution of the Trust . . . and G&B,

                                              8
and any property of or entitlement or rights to or under the Trust, Joseph’s estate, Gail’s
estate, and G&B.” The types of claims asserted in the first amended complaint do come
within this description in multiple respects. They echo, enlarge upon, and directly relate
to “the allegations of the pleadings” in case No. CIV 505394 that are referenced in
paragraph 26. They are also claims “arising from or relating to the administration . . . of
. . . G&B,” and involve “entitlement or rights” pertaining to G&B. The only arguable
issue in this case is whether the release unambiguously included claims by G&B or
whether certain language in paragraphs 24.d. and 26 created an ambiguity requiring resort
to assertedly conflicting extrinsic evidence of the parties’ intent to bar claims by G&B.
       As part of their motion for summary judgment, defendants sought and obtained
judicial notice of the initial and final versions of the settlement agreement, and of the
beneficiaries’ objection to the initial version of paragraph 26 on the grounds that it did
not preclude G&B from filing suit against them. This evidence showed (1) the
beneficiaries openly and expressly conditioned their approval of the settlement on G&B
being bound by the release and acknowledgement of satisfaction of claims to the same
extent as Patrick, and (2) the language they proposed to accomplish that result was added
to the agreement and accepted by Patrick without apparent objection. The final
settlement agreement does in fact provide that Patrick “for himself and on behalf of
G & B” agreed to accept the provisions concerning ownership of G&B in full satisfaction
of any and all claims he had against defendants and agreed to release them from any
claims, known or unknown, in any way related to the allegations made in Patrick’s
creditor’s claim or to the administration of G&B. Taken together, this evidence was
sufficient to shift to G&B the burden of establishing there was any triable issue of
material fact concerning whether the settlement agreement provided a complete defense
to its first amended complaint.
       As an initial matter, we reject G&B’s assertion the release was limited to Patrick’s
claims against the trustee and beneficiaries. G&B cites wording in the first sentence of
paragraph 26 stating the transfer of the Trust’s interest in G&B to Patrick is in “full
satisfaction of any and all claims he has against the Trustee, the Trust, the beneficiaries

                                              9
of the Trust . . . .” (Italics added.) G&B then asserts without substantiation that the
general release that follows in the second sentence of paragraph 26 “has a similar
limitation.” Not so. Even assuming the “he has” language in the first sentence was not
simply an inadvertent grammatical construction error that was overlooked when the
words “for himself and on behalf of G & B” were added to the sentence, the release
language in the second sentence contains no language arguably limiting it to claims by
Patrick. By its own terms, the second sentence releases any claims Patrick or G&B might
assert against the Trust, the beneficiaries of the Trust, or the officers, directors, or
employees of G&B (among other releasees), pertaining in any way to G&B or to the
allegations in Patrick’s creditor’s claim. As we read it, the release language in the second
sentence of paragraph 26 applies unambiguously to all of the claims G&B makes in the
first amended complaint without regard to any purported ambiguity in the drafting of the
first sentence of the paragraph.
       G&B further claims the language added by paragraph 24.d. to the final
agreement—“Trustee hereby assigns all other rights and assets of G&B, if any there are,
to Patrick”—independently creates ambiguity as to the scope of the release. He
maintains this provision “implies” that whatever rights he was foregoing, the parties to
the settlement intended to preserve G&B’s rights against defendants. We do not agree,
and we find no conflict or ambiguity created by the language of paragraph 24.d.
       First, the phrase “other rights and assets of G&B” apparently refers to such other
rights and assets as G&B might have had in addition to those specified in
subparagraphs b. and c. of paragraph 24 (the files and records in the Trustee’s possession,
and a right to a portion of the G&B bank account remaining after payment of specified
expenses). The phrase does not affirm any such rights or assets actually exist, or specify
what they might be. What we can say, however, is whatever “other” rights or assets
G&B had could not have included rights it had lost (due, for example to the passage of
time) or rights it had given up (by express waiver, settlement and release, or otherwise).
The right to pursue defendants on behalf of G&B for money, assets, records or anything
else—if it had ever existed—was one such right. Under paragraph 26, Patrick expressly

                                               10
agreed on behalf of himself and G&B to “release[], acquit[] and forever discharge[]”
defendants from claims pertaining to G&B. This extinguished any such right G&B might
have had against defendants. Thus, whatever else paragraph 24.d. refers to, it does not
include any right to make claims or demands on defendants or the other persons or
entities mentioned in the release pertaining to G&B (or to many other matters). We
therefore reject G&B’s claim that paragraph 24.d. “appears, on its face, to preserve
G&B’s right to pursue [defendants].” (Italics omitted.)
       Second, G&B failed to come forward with any evidence showing its current
interpretation of paragraph 24.d. or paragraph 26 was communicated to the trustee, the
beneficiaries, or the court at any time before the parties all signed off on the agreement.
Given the clarity of the beneficiaries’ insistence that the settlement bind both Patrick and
G&B equally, and preclude any further litigation against them by either, it is plain no
such communication could have occurred—or the beneficiaries most certainly would not
have signed off on the settlement agreement. Patrick’s unexpressed intentions are
immaterial to the interpretation of the settlement agreement. Mutual assent to a
settlement agreement is determined from the reasonable meaning of the words and acts of
the parties, not from their unexpressed intentions or understanding. (Weddington
Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810–811.)
       Finally, G&B points to an e-mail Joe sent to Patrick before the settlement
agreement was finalized in which Joe states: “You want to agree that you won’t come
after Maureen and me, but you won’t agree that [G&B] can’t come after us, and you
won’t agree that you can’t participate in turning over [G&B] information. [¶] Go to court
tomorrow with your stock certificate and prove you own it and you don’t need an
agreement.” If anything, the e-mail merely serves to confirm the position taken by Joe
and the other beneficiaries in their objection to the initial agreement—the agreement
either had to preclude suit by G&B as well as Patrick or there would be no agreement and
Patrick would have to prove his asserted ownership of G&B in court. Whatever else it

                                             11
may show, the e-mail does not establish the settlement agreement reflects a mutual
intention to preserve G&B’s right to sue defendants.3
       Based on our de novo review of the record, we find the trial court properly
determined the 2011 settlement agreement and release barred this action, and properly
granted summary judgment to defendants.
B. Attorney Fee Award
       1. Peremptory Challenge
       After the trial court ruled on defendants’ summary judgment motion but before it
heard their motion for attorney fees, G&B filed a peremptory challenge under Code of
Civil Procedure section 170.6 to disqualify Judge Bergeron from adjudicating the fee
motion. Judge Bergeron denied the challenge as untimely. G&B did not challenge the
ruling by writ of mandate. Its present challenge is not cognizable on this appeal: “The
determination of the question of the disqualification of a judge is not an appealable order
and may be reviewed only by a writ of mandate from the appropriate court of appeal
sought only by the parties to the proceeding.” (Code Civ. Proc., § 170.3, subd. (d); see
also People v. Hull (1991) 1 Cal.4th 266, 270 [denial of a disqualification motion is
neither directly appealable nor reviewable on appeal from the subsequent judgment].)
       2. Contractual Basis for Award
       The settlement agreement included the following relevant provisions:
“34. Except as otherwise provided in this Agreement, each of the Parties is responsible
for the payment of his or her own attorneys’ fees and costs. [¶] 35. In the event that
either of the Parties commences an action or proceeding before any tribunal against the
other party to enforce or interpret any provision of this Agreement or is required to
defend any such action or proceeding based on, arising from, or related to this
Agreement, the prevailing party shall be entitled to recover his or her attorneys’ fees and
costs incurred.”

       3
         We also find no support in the record for G&B’s claim that its sixth cause of
action alleges tortious conduct by defendants after the settlement agreement became
effective.

                                            12
       On appeal, a determination of the legal basis for an attorney fee award is reviewed
de novo as a question of law. (Sessions Payroll Management, Inc. v. Noble Construction
Co. (2000) 84 Cal.App.4th 671, 677 (Sessions).)
       “Attorney fees are not recoverable as costs unless expressly authorized by statute
or contract. [Citations.] Where a contract specifically provides for an award of attorney
fees incurred to enforce the provisions of the contract, the prevailing party in an action on
the contract is entitled to reasonable attorney fees. (Civ. Code, § 1717, subd. (a);[4]
[citation].) . . . As a general rule, attorney fees are awarded only when the action involves
a claim covered by a contractual attorney fee provision and the lawsuit is between
signatories to the contract.” (Real Property Services Corp. v. City of Pasadena (1994)
25 Cal.App.4th 375, 379–380 (RPS).) However, cases in which a nonsignatory to a
contract was permitted to recover, or was found liable for, attorney fees have involved a
nonsignatory who was (1) an alter ego, assignee, or guarantor of a signatory, or (2) a third
party beneficiary of the contract. (See Wilson’s Heating & Air Conditioning v. Wells
Fargo Bank (1988) 202 Cal.App.3d 1326, 1332–1333, fns. 6, 7; Niederer v. Ferreira
(1987) 189 Cal.App.3d 1485, 1505–1506.) In such cases, it must be shown the prevailing
party, whether a signatory or nonsignatory, would have been liable to his or her opponent
for fees had the opposing party prevailed. (Loduca v. Polyzos (2007) 153 Cal.App.4th
334, 340–341 (Loduca); Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008)
162 Cal.App.4th 858, 896–897 (Blickman).)
       As an initial matter, we find that defendants’ assertion of an affirmative defense to
the action based on the settlement agreement did constitute the commencement of a
proceeding to enforce or interpret the settlement agreement for purposes of paragraph 35.
The prevailing party on such defense would be contractually entitled to recover attorney

       4
         “Civil Code section 1717, subdivision (a) [provides in pertinent part]: ‘In any
action on a contract, where the contract specifically provides that attorney’s fees and
costs, which are incurred to enforce that contract, shall be awarded either to one of the
parties or to the prevailing party, then the party who is determined to be the party
prevailing on the contract, whether he or she is the party specified in the contract or not,
shall be entitled to reasonable attorney’s fees in addition to other costs. . . .’ ”

                                             13
fees and costs incurred in litigating it if both the defendants and G&B would be entitled
to the benefit of paragraph 35 if they prevailed, either as “Parties” to it or on some other
legally recognized basis. Because we find defendants are not in fact “Parties” under
paragraph 35 and are not otherwise subject to its provisions, they are not entitled to
enforce it against G&B.5
       Defendants maintain they are either “de facto” parties to the settlement agreement
or third party beneficiaries of the agreement entitled to the benefit of paragraph 35. G&B
concedes defendants may have been third party beneficiaries of the settlement agreement,
but denies they must be considered parties to the agreement. We find it is immaterial
whether defendants are considered parties or third party beneficiaries. In either case, the
attorney fee clause by its own terms does not afford them any contractual right to
prevailing party fees.
       The opening paragraph of the settlement agreement states in relevant part: “This
Settlement Agreement and Release (‘Agreement’) is between Bruce L. Van Alstyne, as
Trustee of the Joseph A. Galligan and Gail M. Galligan Living Trust u/t/a dated
October 29, 2008 (the ‘Trustee’), and Patrick T. Galligan (‘Patrick’) (collectively
sometimes referred to in this Agreement as the ‘Parties’) . . . .” The attorney fee clause in
paragraph 35 of the agreement states that it applies whenever “either of the Parties”
commences an action or proceeding of a type triggering its application “against the other
party.” In other words, the attorney fee clause by its own terms does not apply unless one
of the two “Parties” as defined in the opening paragraph—the “Trustee” or “Patrick”—
commences a proceeding against the other. Even if we assume for purposes of analysis
that the probate court’s insistence on the beneficiaries approving the settlement
effectively made them parties to it, they would still not be “Parties” as defined in the
agreement and therefore paragraph 35 confers no rights on them, whatever other
provisions of the contract might apply to them.

       5
         We assume for purposes of our analysis that G&B is in fact an alter ego of
Patrick and would therefore be treated as a party to the settlement agreement.

                                             14
       The same analysis applies if defendants are assumed to be third party beneficiaries
of the settlement agreement. The release clause of the agreement, paragraph 26, names
the beneficiaries and releases them from liability to Patrick or G&B. Given its text and
the extrinsic evidence discussed ante concerning the beneficiaries’ objection to the initial
version of the paragraph it is clear that defendants were intended beneficiaries of
paragraph 26. But that does not necessarily confer rights on them under paragraph 35.
That depends on the text of the paragraph which, as we have posited, appears to confer
rights only on the trustee and Patrick. Blickman, supra, 162 Cal.App.4th 858 is
illustrative on this point.
       Blickman involved an attorney fee clause that allowed fees in “ ‘any litigation
between the parties hereto to enforce any provision of this Agreement . . . .’ ” (Blickman,
supra, 162 Cal.App.4th at p. 896.) The plaintiff, BT Commercial Real Estate (BTC),
which represented the lessees in a commercial lease transaction, sued the lessor Mozart
Development Co. (Mozart) for unpaid commissions after the leases were terminated
prematurely, contending it was a third party beneficiary of a commission agreement
between Mozart and the listing broker, Commercial Property Services (CPS). (Id. at
pp. 864–866.) Mozart cross-complained against BTC for failure to disclose information
concerning the lessees’ precarious financial condition. (Id. at pp. 865–866.) BTC
successfully demurred to the cross-complaint. (Id. at p. 866.) Mozart thereafter
prevailed against BTC on the complaint and unsuccessfully sought attorney fees incurred
in opposing BTC’s complaint based on BTC’s claim that it was a third party beneficiary
of the commission agreement containing the attorney fee clause quoted above. (Id. at
pp. 866, 893.) Mozart had argued that BTC would have been entitled to fees as a third
party beneficiary had it prevailed on its complaint and therefore, since Mozart prevailed
instead, Mozart was entitled to its fees under Civil Code section 1717. (Blickman, at
p. 893.) BTC contended Mozart had no right to recover against a nonparty to the
commission agreement unless that party would itself have been entitled to fees had it
prevailed; and had BTC prevailed on the complaint it would not have been entitled to

                                             15
fees because the fee clause in issue “did not manifest an intent to extend the right to fees
to third parties.” (Ibid.)
       The Court of Appeal agreed with BTC’s position, and affirmed the denial of fees
to Mozart. The court held: “By its plain terms, the italicized phrase [‘between the parties
hereto’] limits fees to litigation between the signatories, Mozart and its broker CPS. It
does not appear that CPS was ever a party to either BTC’s action or Mozart’s cross-
action. On the face of it, therefore, no part of this proceeding constituted ‘litigation
between the parties hereto,’ and no part of it fell within the fee clause. It follows that
neither party could assert a right to fees under [Civil Code] section 1717[,
subdivision] (a).” (Blickman, supra, 162 Cal.App.4th at p. 896.) The court found this
holding was “supported by a sizeable body of case law.” (Ibid.)
       Blickman relied in part on Sessions, supra, 84 Cal.App.4th at pages 679–681,
which held that a third party beneficiary of a contract could not recover fees under a fee
clause that applied only to litigation initiated by “ ‘either party to enforce the provisions
of this Agreement.’ ” (Italics added by Sessions.) As Sessions notes at page 680, the
underlying contractual principle was stated in Murphy v. Allstate Ins. Co. (1976)
17 Cal.3d 937, 944: “A third party should not be permitted to enforce covenants made
not for his benefit, but rather for others. He is not a contracting party; his right to
performance is predicated on the contracting parties’ intent to benefit him. [Citations.]
As to any provision made not for his benefit but for the benefit of the contracting parties
or for other third parties, he becomes an intermeddler. Permitting a third party to enforce
a covenant made solely to benefit others would lead to the anomaly of granting him a
bonus after his receiving all intended benefit.”6

       6
         In RPS, supra, 25 Cal.App.4th 375, a Second District panel reversed an order
denying attorney fees under a fee clause in a lease agreement that allowed fees to the
prevailing party “ ‘[i]n the event of any action . . . by either party against the other under
this Lease.’ ” (Id. at pp. 377–378.) Without discussing the language of the clause
limiting recovery to actions between the parties, the court held that the lessor was entitled
to fees for prevailing against a third party beneficiary/sublessee of the lease because
“[w]here there is a sufficient nexus between the lessor and sublessee, a nonsignatory

                                              16
       In Loduca, supra, 153 Cal.App.4th at pages 342–343, the court found that an
attorney fee clause awarding fees to the prevailing party “ ‘[i]f a court action is brought’ ”
on the contract would support an award to a third party beneficiary of the contract, since
the language imposed no limitation on third party rights. (See also Cargill, Inc. v. Souza
(2011) 201 Cal.App.4th 962, 970 [fee clause allowing fees to “ ‘any party’ ” as well as
other provisions of the agreement show intent to extend the benefit of the fee clause to
third party creditors].) The fee clause in this case, by contrast, shows no intent to benefit
any person other than Patrick or the trustee in any litigation between them to enforce or
interpret the settlement agreement.
       Here, defendants obtained the benefit of the release provided in paragraph 26 by
asserting it to obtain summary judgment against G&B. Had they wished to protect
themselves further they could have insisted as a condition for their approval of the
settlement agreement that paragraph 35 be broadened to ensure their entitlement to
attorney fees should Patrick or G&B file an action in violation of the release. Nothing in
the record shows such a request was made or considered by the parties. However
important the right to attorney fees might be to defendants’ purpose in protecting
themselves from litigation brought in violation of the release, this court cannot remake
the settlement agreement to provide them with rights not reflected in the language of the
agreement. The right to attorney fees is not implied by law into every contractual release.
       For these reasons, we reverse the award of attorney fees against G&B and Patrick.
                                   III. DISPOSITION
       The judgment is reversed and the matter is remanded for entry of a new judgment
in favor of defendants, modified to eliminate any attorney fee award to them as the
prevailing parties. Each side shall bear its own costs on appeal.

sublessee is entitled to enforce an attorney fee provision in the lease as a third party
beneficiary against a signatory landlord.” (Id. at pp. 382–384.) Since the issue of the
intent of the contracting parties to allow attorney fees in actions not brought by “either
party against the other” was not argued or considered in RPS, we do not find it persuasive
in the case before us. (Cf. Blickman, supra, 162 Cal.App.4th at p. 900 [RPS is only
authority for points actually involved and decided].)

                                             17
                                               _________________________
                                               Margulies, Acting P.J.

We concur:

_________________________
Dondero, J.

_________________________
Becton, J.*

*
 Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

                                          18


         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D15-4624
                 _____________________________

DONALD GOINS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________

On appeal from the Circuit Court for Duval County.
Tatiana Salvador, Judge.

                        February 6, 2018

PER CURIAM.

    AFFIRMED.

B.L. THOMAS, C.J., and MAKAR and WINOKUR, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

Alex King of Hodges and King, P.A., Jacksonville, for Appellant.
Pamela Jo Bondi, Attorney General, Virginia Chester Harris,
Assistant Attorney General, Tallahassee, for Appellee.

                            2


615 F.2d 1360
103 L.R.R.M. (BNA) 3104, 106 L.R.R.M. (BNA) 2440
Gottfriedv.Mayco Plastics
No. 79-1447, 79-1524
United States Court of Appeals, Sixth Circuit
2/12/80
E.D.Mich., 472 F.Supp. 1161
AFFIRMED


                                  STATE OF WEST VIRGINIA

                                SUPREME COURT OF APPEALS

State of West Virginia,                                                                    FILED
Plaintiff Below, Respondent                                                               March 12, 2013
                                                                                RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
vs) No. 12-0432 (Harrison County 09-F-164)                                              OF WEST VIRGINIA

Jubal Wesley Goff,
Defendant Below, Petitioner

                                   MEMORANDUM DECISION

       Petitioner’s appeal, by counsel Jerry Blair, arises from the Circuit Court of Harrison
County, wherein he was sentenced to a term of incarceration of ten to eighteen years for his
conviction of second degree robbery and a term of incarceration of one to five years for his
conviction of conspiracy to commit second degree robbery, said sentences to run concurrently. By
order entered on February 29, 2012, petitioner was resentenced for purposes of appeal. The State,
by counsel Scott E. Johnson, has filed its response.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Following a jury trial in November of 2009, petitioner was convicted of one count of
second degree robbery and one count of conspiracy to commit second degree robbery. After
admitting to a recidivist information, petitioner was sentenced to a term of incarceration of ten to
eighteen years for his conviction of second degree robbery and a term of incarceration of one to
five years for his conviction of conspiracy to commit second degree robbery, said sentences to run
concurrently. Appellate counsel was later appointed, and an order resentencing petitioner for
purposes of appeal was entered on February 29, 2012.

        On appeal, petitioner alleges that the circuit court erred in failing to instruct the jury as to
a definition of “flight,” and that the evidence was insufficient to support his conviction for second
degree robbery. In support, petitioner argues that flight is not adequately defined by existing law
and that failure to instruct a jury as to a proper definition constitutes a deprivation of his right to a
fair trial. According to petitioner, a jury cannot make a factual determination regarding an
undefined concept. In regard to his second assignment of error, petitioner argues that the evidence
supports only that the State’s witness, Brandon Yocco, committed the robbery in question.

                                                       1

According to petitioner, he did not take any items from the victim, and none of the items taken
were found on his person.

        In response, the State argues that petitioner waived any complaint that the jury instructions
lacked a definition of flight because he failed to object to the same. Further, the instruction as read
to the jury was taken almost verbatim from State v. Payne, 167 W.Va. 252, 280 S.E.2d 72 (1981),
and is not error. Additionally, the State argues that there was more than sufficient evidence to
convict petitioner of second degree robbery because the State proceeded on a concert of action
theory. According to the State, because petitioner aided and abetted a confederate who personally
took goods from the victim, the evidence was sufficient to support his conviction.

        “‘The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse
of discretion standard, unless the order violates statutory or constitutional commands.’ Syl. Pt. 1,
in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).” Syl. Pt. 1, State v. James, 227
W.Va. 407, 710 S.E.2d 98 (2011). Upon our review, the Court declines to address petitioner’s
assignment of error regarding the circuit court’s instruction as to flight. The record shows that
petitioner failed to object to the applicable instruction. We have previously held that “‘[o]ur
general rule is that nonjurisdictional trial error not raised in the trial court will not be addressed on
appeal.’ Syllabus Point 9, State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986).” Syl. Pt. 4,
State v. Smith, 178 W.Va. 104, 358 S.E.2d 188 (1987). Because petitioner failed to raise this issue
below, the Court declines to address the same here.

       As to petitioner’s second assignment of error, we have previously held that

       “[a] criminal defendant challenging the sufficiency of the evidence to support a
       conviction takes on a heavy burden. An appellate court must review all the
       evidence, whether direct or circumstantial, in the light most favorable to the
       prosecution and must credit all inferences and credibility assessments that the jury
       might have drawn in favor of the prosecution. The evidence need not be
       inconsistent with every conclusion save that of guilt so long as the jury can find
       guilt beyond a reasonable doubt. Credibility determinations are for a jury and not
       an appellate court. Finally, a jury verdict should be set aside only when the record
       contains no evidence, regardless of how it is weighed, from which the jury could
       find guilt beyond a reasonable doubt. To the extent that our prior cases are
       inconsistent, they are expressly overruled.” Syl. Pt. 3, State v. Guthrie, 194 W.Va.
       657, 461 S.E.2d 163 (1995).

Syl. Pt. 5, State v. Broughton, 196 W.Va. 281, 470 S.E.2d 413 (1996). Upon our review, the Court
finds that the evidence was sufficient to support petitioner’s conviction for second degree
robbery. Petitioner’s argument hinges on his assertion that he did not personally take any items
from the victim. The Court finds no merit in this argument. We have previously held that “[u]nder
the concerted action principle, a defendant who is present at the scene of a crime and, by acting
with another, contributes to the criminal act, is criminally liable for such offense as if he were the
sole perpetrator.” Syl. Pt. 11, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).

                                                       2

       For the foregoing reasons, the circuit court’s sentencing order is hereby affirmed.

                                                                                Affirmed.

ISSUED: March 12, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

                                                    3


609 N.W.2d 278 (2000)
DEMOLITION LANDFILL SERVICES, LLC, Appellant,
v.
CITY OF DULUTH, Respondent.
No. C6-99-1635.
Court of Appeals of Minnesota.
April 25, 2000.
*279 Timothy R. Thornton, Jack Y. Perry, Briggs and Morgan, Minneapolis (for appellant).
William P. Dinan, Duluth City Attorney, M. Alison Lutterman, Assistant City Attorney, Duluth (for respondent).
Considered and decided by RANDALL, Presiding Judge, AMUNDSON, Judge, and FOLEY, Judge.

OPINION
DANIEL F. FOLEY,[*] Judge.
Appellant Demolition Landfill Services challenges the district court's order denying its motion for summary judgment and dismissing its petition for a writ of mandamus to compel respondent City of Duluth to grant appellant a special-use permit for a landfill. Appellant asserts that the city was required to issue the permit pursuant to Minn.Stat. § 15.99, subd. 2 (1998), because the city failed to approve or deny the permit application within the statutory time period. Appellant further asserts that the district court erred in concluding that the city's rejection of a resolution granting the permit constituted a denial of the permit application. We agree and reverse.

FACTS
On December 18, 1998, appellant completed an application for a special-use permit for a landfill. On April 12, 1999, the Duluth City Council (the council) heard testimony on the application and then voted on, and rejected, a resolution approving the permit. On May 24, 1999, the council passed a resolution denying the permit.
Appellant petitioned the district court for a writ of mandamus and filed a complaint *280 for declaratory and other relief. The parties stipulated to the withdrawal of all issues except the petition for a writ of mandamus and appellant moved for summary judgment on the petition. In support of its petition, appellant asserted that pursuant to Minn.Stat. § 15.99, subd. 2 (1998), the permit application must be approved because the city did not deny the application within 120 days of the application's submission. After concluding that there were no material facts in dispute, the district court denied appellant's motion for summary judgment and dismissed the petition, holding that the city council's action on April 12, 1999, constituted a denial of the application for a special-use permit.

ISSUE
Did the district court err in concluding that the city's rejection of a resolution granting a special-use permit equated to a denial of the permit application and thereby err in dismissing appellant's petition for a writ of mandamus?

ANALYSIS
When the district court's decision on a petition for a writ of mandamus is based solely on legal determinations, the appellate court's review is de novo. Manco of Fairmont, Inc. v. Town Bd., 583 N.W.2d 293, 294 (Minn.App.1998), review denied (Minn. Oct. 20, 1998). To obtain mandamus relief a petitioner must establish
(1) the failure of an official duty clearly imposed by law; (2) a public wrong specifically injurious to petitioner; and (3) no other adequate specific legal remedy.
Coyle v. City of Delano, 526 N.W.2d 205, 207 (Minn.App.1995) (citations omitted).
Pursuant to Minn.Stat. § 15.99, subd. 2 (1998):
[A]n agency must approve or deny within 60 days a written request relating to zoning * * * for a permit, license, or other governmental approval of an action. Failure of an agency to deny a request within 60 days is approval of the request. If an agency denies the request, it must state in writing the reasons for the denial at the time that it denies the request.
The agency may extend the 60-day limit an additional 60 days if the agency provides the applicant with written notice before the initial 60-day period expires. Id., subd. 3(f) (1998). Statutory or home rule charter cities are included within the definition of "agencies." Id., subd. 1 (1998).
The parties here agree that (1) the city is an agency within the statutory definition; (2) appellant completed its permit application December 18, 1998; and (3) the city extended its time for review an additional 60 days, giving it 120 days to make a decision. It is also undisputed that the 120 days expired on April 16, 1999.
This dispute revolves around an interpretation of the council's actions taken at the April 12, 1999, meeting. At that meeting, the council discussed appellant's application, heard testimony, and voted on a resolution entitled:
A Resolution Granting a Special Use Permit to Demolition Landfill Services, LLC for a Demolition Debris Land Disposal Facility Property Located at 1100 W. Gary Street.
The resolution failed by a 2-5 vote.
At the next meeting, held May 24, 1999, a resolution denying the permit application was introduced, and the council members voted on whether to approve the resolution. The resolution passed with a 7-2 vote. The resolution stated:
[A] special use permit application by Demolition Landfill Services, Inc., to allow for a select waste disposal demolition debris landfill at 1100 Gary Street, is hereby denied.
Appellant asserts that, contrary to the district court's conclusion, the city council's rejection of the resolution granting the permit did not equate to a denial of the permit application. See Minn.Stat. § 15.99, subd. 2 (requiring agency to "approve *281 or deny" application within statutory time period). Thus, appellant contends, the agency failed to deny the permit application within 120 days and the application must be approved by default.
The city council may have intended its rejection of the resolution granting the permit to equate to a denial of the permit application. The council discussed the permit application at the April 12 meeting and after rejecting the resolution granting it, discussed whether it was necessary to enact a separate resolution denying the permit. They decided to do so after being informed by the city attorney that although such a resolution might not be "absolutely necessary, * * * it's a good practice to do that" and to provide written reasons for the denial.
Regardless of the council's intent, however, it voted on two separate resolutions: a resolution granting a special-use permit and a resolution denying a special-use permit. There is no evidence that a council member's vote on the first resolution dictated that member's vote on the second resolution. The council members were not precluded from voting against the resolution to deny the permit, regardless of their vote on the resolution to grant the permit. Thus, we cannot conclude that the council's rejection of the resolution granting the permit equated to a denial of the permit application.
Minn.Stat. § 15.99, subd. 2, unambiguously states that failure to deny a permit application within the statutory time period mandates an approval. Because the statute is unambiguous, this court must "give effect to the statute's plain meaning." Tuma v. Commissioner of Econ. Sec., 386 N.W.2d 702, 706 (Minn. 1986) (citations omitted); see also Minn. Stat. § 645.16 (1998) ("When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit."). We cannot permit a municipality to bend the letter of the statute for the sake of administrative ease. Cf. Olympia Brewing Co. v. Commissioner of Revenue, 326 N.W.2d 642, 648 (Minn.1982) (recognizing "administrative ease, while a legitimate concern, does not justify an interpretation of a statute which is inconsistent with its purpose" (citation omitted)).
Further, even if we were to conclude that the refusal to approve the resolution granting the permit constituted a denial of the permit application, it is undisputed that no written reasons were given to appellant when the council rejected the resolution granting the permit. The governing statute requires the agency to provide written reasons for a denial "at the time that it denies the request." Minn.Stat. § 15.99, subd. 2. Here, written reasons for rejecting the resolution granting the permit were provided within the resolution denying the permit that was adopted May 24.
In Manco, this court discussed the application of the doctrine of substantial compliance to Minn.Stat. § 15.99 (1998) and explained the distinction between mandatory and directory statutes. Manco, 583 N.W.2d at 295-96. This court concluded that Minn.Stat. § 15.99, subd. 3(f), which requires an agency to give reasons when it requests an extension on the initial 60-day time limit for approving or denying an application, is directory because there is no stated consequence for an agency's failure to provide reasons. Manco, 583 N.W.2d at 296; see Sullivan v. Credit River Township, 299 Minn. 170, 176-77, 217 N.W.2d 502, 507 (1974) (recognizing statute that does not state consequences of failure to comply is directory). We went on to conclude in Manco that because subdivision 3(f) is directory, the doctrine of substantial performance applies. Manco, 583 N.W.2d at 296.
Subdivision 2, at issue here, states that the consequence of not denying a request within 60 days is automatic approval. Immediately following this stated consequence, the subdivision mandates simultaneous, *282 written reasons for the denial. Cf. R.A. Putnam & Assocs. v. City of Mendota Heights, 510 N.W.2d 264, 267 (Minn.App.1994) ("The requirement that contemporaneous findings be recorded prevents a city from offering after-the-fact justifications * * * unrelated to the actual reasons for the initial decision." (quotation omitted)), review denied (Minn. Mar. 15, 1994). We conclude therefore, that simultaneous, written reasons for a denial are mandatory and not directory.[1] Because we hold that the provisions of subdivision 2 are mandatory, including the requirement that written reasons be given simultaneously with the decision, the substantial performance doctrine is not applicable to this case.

DECISION
The Duluth City Council's rejection of a resolution approving a special-use permit did not equate to a denial of the permit application. Minn.Stat. § 15.99, subd. 2 (1998), is unambiguous and mandatory. Absent a denial within the statutory time limit and simultaneous, written reasons for the denial, the permit application is approved. Thus, the district court erred in refusing to grant appellant's petition for a writ of mandamus.
Reversed.
NOTES
[*]  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
[1]  Notably, in Manco this court stated in dicta that subdivision 2 is mandatory because it contains consequences for noncompliance with the time-limit requirement. Manco, 583 N.W.2d at 295.

We reject the city's assertion that under R.A. Putnam, the city was not required to prepare simultaneous, written reasons for its denial and was entitled to a reasonable amount of time to prepare them. In R.A. Putnam, this court considered whether a zoning decision was arbitrary and concluded that if a record is prepared within a reasonable time after a zoning decision, arbitrariness should not be presumed. 510 N.W.2d at 267. Here, we are not deciding whether the city acted arbitrarily. Instead, we are applying the unambiguous language of Minn.Stat. § 15.99, subd. 2.


403 F.Supp. 920 (1975)
Grover C. CRUTCHFIELD
v.
ATLAS OFFSHORE BOAT SERVICE, INC., et al.
Civ. A. No. 74-2524.
United States District Court, E. D. Louisiana.
September 23, 1975.
Dodd, Barker, Boudreaux, Lamy & Gardner, Harold J. Lamy, New Orleans, La., for plaintiff.
Donald L. King, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for Gulf Oil Corp.
*921 Drury, Lozes & Curry, H. Edward Weidlich, Jr., New Orleans, La., for Superior Welding.
ALVIN B. RUBIN, District Judge.
On February 22, 1974, Grover Crutchfield was injured while assisting in loading pipe onto a vessel from a dock. Crutchfield was working for Packard, Inc. Employees of Superior Welding, Inc. were also engaged in the loading activity. Atlas Offshore Boat Service, Inc. owned and operated the vessel on which the pipe was being loaded. All three of these companies were working under contract with Gulf Oil Corporation. Alleging negligence by each defendant, Crutchfield sued Superior Welding, Atlas Offshore, and Gulf. (He did not sue his employer, Packard; and he did not claim a cause of action based on the unseaworthiness of the vessel. Both of those actions would have been barred by the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), as amended, 33 U.S.C. § 905.) Gulf filed a third party complaint against Packard based upon an indemnity clause in the contract between these two parties. Packard now seeks summary judgment on the third party complaint.
Packard argues that the indemnity agreement with Gulf is void under the 1972 amendments to the LHWCA, in particular 33 U.S.C. § 905. The relevant portion of that section states:
(b) In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void.
Prior to the 1972 amendments to the LHWCA, the statute contained no express prohibition against indemnity agreements. The 1972 amendments proscribed indemnity agreements between the employer of the injured worker and the vessel. There is no indication in the statute or the legislative history that Congress intended to invalidate all indemnity agreements between the employer and others.
Gulf had contracts with both the plaintiff's employer, Packard, and the vessel owner, Atlas; and both contracts contain indemnity clauses. Packard argues that the indemnity clause in its contract with Gulf was inserted by Gulf for the benefit of the vessel, and hence should be declared void because such a provision would circumvent section 905. But there is no evidence of an attempt to evade the intent of the statute. Gulf has apparently sought indemnity only in its own favor. Under section 905, the employer, Packard, will not be liable, directly or indirectly, to the vessel for injuries caused by the vessel's negligence. This does not prevent possible liability to Gulf by way of indemnity. To the extent that the vessel's negligence caused any injuries to the plaintiff, Atlas will be liable. The contracts do not require Packard to indemnify Atlas for this.
Packard also argues that summary judgment should be granted because Gulf has no need of indemnification from Packard. Gulf's defense is being handled by Atlas, under the terms of the contract between Gulf and Atlas. This does not destroy Gulf's claim for indemnification against Packard. If Gulf is found to have been negligent, it will be cast in judgment for damages. It has a right to look to each party with whom it has a valid indemnity agreement. If Gulf is cast in judgment, Atlas may seek contribution from the other indemnitors. In that case, however, Packard will not be called upon to indemnify Atlas for Atlas' negligence, but rather to share the costs of indemnification to Gulf.
For these reasons, Packard's motion for summary judgment on the third party complaint is denied.


404 F.2d 987
UNITED-HAGIE HYBRIDS, INC., Appellant,v.ESCAMBIA CHEMICAL CORPORATION, Appellee.
Patent Appeal No. 8057.
United States Court of Customs and Patent Appeals.
January 9, 1969.

James L. Kurtz, Mason, Fenwick & Lawrence, Boynton P. Livingston, G. Cabell Busick, Washington, D. C., for appellant.
Louis F. Reed, Lee C. Robinson, Jr., New York City, for appellee.
Before WORLEY, Chief Judge, and RICH, ALMOND, BALDWIN, and KIRKPATRICK,* JJ.
ALMOND, Judge.

1
Escambia Chemical Corporation, appellee, filed application1 to register for fertilizers the mark reproduced below, asserting use since April 18, 1962.

2
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

3
United-Hagie Hybrids, Inc., appellant, registrant of the following mark for hybrid seed corn,2 opposes the registration.

4
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

5
The Trademark Trial and Appeal Board dismissed the opposition,3 holding that no likelihood of confusion would result from the contemporaneous use of the two marks in issue, from which decision United-Hagie prosecutes this appeal. Both parties took testimony.

6
The record adduced by appellant disclosed that it has used the slogan "MORE KICK IN THE SPRING — BIGGER EARS IN THE FALL" and the design of a kicking and snorting mule in various formats, on hybrid seed corn since 1945. It also appears that the design feature, without the slogan, has been used by appellant on alfalfa and clover seed as well as baler twine. Substantial sales of appellant's products have been realized under these marks, stimulated through advertisement in farm papers, by the use of highway signs and promotional literature mailed out to customers both actual and prospective. Sales of the products are made through dealers who sell primarily to farmers in the central states of this country.

7
Appellee's mark has been used since April 1962 on ammonium nitrate fertilizers. Its products are sold through approximately two hundred dealers as well as its own retail stores to farmers residing primarily in the southern portions of the United States. Appellee's products are advertised under the mark sought to be registered in trade journals and various other media.

8
It is clear that priority of use resides with appellant-opposer. The single issue, therefore, with which we are concerned is whether or not appellee's mark so resembles the mark of appellant as to be likely, when applied to appellee's goods, to cause confusion, or to cause mistake, or to deceive within the purview of section 2(d) of the Lanham Act, 15 U.S.C. § 1052(d).

9
Appellant asserts that the marks are confusingly similar as both are design marks or symbols disclosing the representation of a kicking mule with slogans conveying similar connotations. Appellee advances a diametrically opposite view, pointing out distinct differences in the appearance of the symbol portions, i. e. the animal phases of the marks and the readily distinguishable language and appearance of the slogan features.

10
The board's response to the contentions and arguments of the parties follows:

11
While it is apparent that the marks possess some features in common in that they both contain the picturization of a kicking mule and slogans which include the word "kick," we believe that, regardless of whether or not these marks are analyzed in whole or in part, the differences therebetween far outweigh the points of similarity. It is therefore concluded that no likelihood of confusion would result from the contemporaneous use thereof. In this regard we find is unnecessary to go into any detail in describing these various differences since, in our opinion, the reproduction of the marks [is] adequate for such purpose. Finally, while it is not the decisive factor on our conclusion herein, it is apparent that the agricultural products here involved are specifically different, albeit they may move through the same trade channels to the same class of purchasers for conjoint uses.

12
In evaluating the testimony adduced of record and considering the arguments advanced by counsel, we think the rationale set forth by this court in Diamond Alkali Co. v. Dundee Cement Co., 343 F. 2d 781, 52 CCPA 1216, has significant application here. The court said:

13
When symbol marks such as these are being considered, appearance is most significant. "Symbols of this kind do not sound." [Citation omitted.] Appellant requests our consideration of the approximately equal size of the competing marks, the similar overall configuration, the central space, the thick right and left leg, and the direction or sweep of the mark with the right leg terminating above and spaced from the left. We have considered these features but agree with the board that in appearance the marks are sufficiently dissimilar that there is no likelihood of confusion. In setting out the marks above we have not meant to convey the impression that we are making a side-by-side comparison of the marks. We find the dissimilarities persist although the marks are compared by separate recall later in time and removed in place. Contentions that the newcomer has the burden of staying clear of the established mark, and that doubts are to be resolved in favor of the prior user have been considered but are not found convincing of the opposite result.

14
Viewing the respective marks of the parties in their entireties, as we must, and considering the different nature of the agricultural products, we are not persuaded of reversible error in the decision of the board dismissing appellant's opposition. That decision is, accordingly, affirmed.

15
Affirmed.

16
WORLEY, C. J., took no part in the decision of this case.

Notes:

*
 Senior District Judge, Eastern District of Pennsylvania, sitting by designation

1
 Serial No. 174,756 filed August 9, 1963

2
 Reg.No. 626,029 issued May 1, 1956

3
 151 USPQ 65

17
KIRKPATRICK, Judge (concurring).

18
I concur in the result reached by the majority in the present case for the reasons set out in the two dissenting opinions in Planters Nut & Chocolate Co. v. Crown Nut Co., 305 F.2d 916, 50 CCPA 1120. Viewing the symbols in their entireties the appellee's mark simply bears no resemblance to the appellant's. The only thing in which any similarity can be found is in the concept of a kicking mule, plus the use of the word "kick" in the slogan which accompanies each mark. This I think is insufficient ground on which to base a finding that the applicant's mark "so resembles a mark registered in the Patent Office * * * as to be likely * * * to cause confusion," etc. which is the statutory requirement. The majority evidently feels that similarity of an abstract concept is not sufficient to overcome lack of resemblance and I agree.


J-S02040-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DAMIEN PHILLIPS

                        Appellant                  No. 1048 EDA 2014

             Appeal from the PCRA Order of December 7, 2010
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No.: CP-51-CR-1100411-1994

BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                           FILED MARCH 02, 2015

     Damien Phillips appeals pro se from the December 7, 2010 order

denying his fourth petition for relief pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. We affirm.

     On February 28, 1994, Phillips and his accomplice, Antonio Hudson,

entered the San Jan Chinese Restaurant on East Adams Avenue in

Philadelphia with the intent to commit a robbery. Once inside, Phillips ran

behind the counter and pushed an employee, Xia Gan Lin, to the floor.

Hudson then pointed his gun at Lin while Phillips went into the kitchen.

While in the kitchen, Phillips forced Xiaohuang Wang and Kim Wing Lam to

the floor, and shot each man in the head at close range.        Phillips then

returned to the front of the store, grabbed Lin, and ordered him to open the

cash register at gunpoint.   Hudson grabbed the money out of each cash
J-S02040-15

register, and as he fled, Phillips shot Lin. Wang and Lam were found dead in

the kitchen with bullet wounds to their heads, and Lin died ten days later.

Trial Court Opinion (“T.C.O.”), 5/30/1996, at 1-2.

       On July 26, 1995, a jury convicted Phillips of three counts each of first-

degree murder and robbery, and one count each of criminal conspiracy and

possessing instruments of a crime.1              On July 27, 1995, the trial court

sentenced Phillips to three consecutive terms of life imprisonment for the

murder convictions, plus a consecutive term of thirty-seven and one-half to

seventy-five years’ imprisonment for the remaining offenses.            This Court

affirmed the judgment of sentence on May 30, 1996, and our Supreme Court

denied Phillips’ petition for allowance of appeal on November 1, 1996.

Phillips did not seek further review with the United States Supreme Court.

Consequently, Phillips’ judgment of sentence became final on January 31,

1997, pursuant to 42 Pa.C.S. § 9545(b)(3) (“a judgment becomes final at

the conclusion of direct review, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of time for seeking the review”).

       On October 31, 1997, Phillips timely filed a pro se PCRA petition. The

PCRA court appointed counsel, who filed a “no-merit” letter.2 On December
____________________________________________

1
       18 Pa.C.S §§ 2502(a), 3701, 903, and 907, respectively.
2
    See Commonwealth v. Turner, 544 A.2d 927                          (Pa.   1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).

                                           -2-
J-S02040-15

3, 1998, the court denied PCRA relief and permitted counsel to withdraw.

On March 9, 2000, this Court affirmed the order denying PCRA relief, and, on

September 19, 2000, our Supreme Court denied Phillips’ petition for

allowance of appeal.

      On March 18, 2004, Phillips filed his second pro se PCRA petition. On

June 8, 2004, the PCRA court denied PCRA relief. On June 14, 2005, this

Court affirmed the order denying PCRA relief, and, on December 21, 2005,

our Supreme Court denied Phillips’ petition for allowance of appeal.

      On February 3, 2006, Phillips filed a third pro se PCRA petition,

claiming to have obtained after-discovered evidence of ineffective assistance

of counsel.   Phillips argued that his counsel failed to make use of a letter

that he received from a fellow inmate, which included information that

Phillips’ accomplice, Hudson, had told that inmate that he wanted to make

sure that Phillips was convicted for the shooting in revenge for Phillips

“crossing his people.” PCRA Court Opinion (“P.C.O”), 5/13/2014, at 3. On

July 25, 2007, the court denied PCRA relief. On March 11, 2009, this Court

affirmed the order denying PCRA relief. Phillips did not seek further review

with our Supreme Court.

      On April 14, 2009, Phillips filed a fourth pro se PCRA petition. In it,

Phillips alleged an “unspecified violation of the constitution and laws and the

discovery of previously unavailable exculpatory evidence.”       P.C.O. at 3.

Specifically, Phillips received an affidavit from his co-defendant, Hudson, in

which Hudson recanted certain trial testimony, and stated that he falsely

                                     -3-
J-S02040-15

testified at trial in order to avoid the death penalty. P.C.O. at 3. Therein,

Hudson maintained that Phillips was the only shooter, but, unlike his trial

testimony, stated that he and Phillips did not plan to rob the restaurant

when they first arrived.       Hudson explained that Phillips became infuriated

when the employees took too long to serve Phillips his food, and that

Hudson only took money from the cash register after Phillips shot the first

two victims. P.C.O. at 5.

      On November 9, 2010, the PCRA court provided notice of its intent to

dismiss the petition without a hearing pursuant to Pa.R.Crim.P 907.          On

November 29, 2010, Phillips filed a pro se response to the Rule 907 notice,

and on December 7, 2010, the PCRA court denied PCRA relief. Phillips did

not file a notice of appeal.

      On March 10, 2011, Phillips filed a fifth pro se PCRA petition. Therein,

Phillips argued that the PCRA court did not provide Phillips with notice of the

order dismissing his fourth PCRA petition, which denied him the opportunity

to pursue an appeal. On April 27, 2011, Phillips filed a pro se supplemental

petition and memorandum of law.         On July 5, 2012, Phillips filed a pro se

amended petition, in where he raises additional claims relating to the United

States Supreme Court’s decision in Miller v. Alabama, 132 S.Ct. 2455

(U.S. 2012). On July 8, 2012, the PCRA court issued a Rule 907 notice; the

PCRA court denied PCRA relief on May 8, 2013.

      On December 13, 2013, this Court vacated the order dismissing

Phillips’ fifth PCRA petition, and remanded to the PCRA court with

                                        -4-
J-S02040-15

instructions to reinstate Phillips’ right to file a notice of appeal nunc pro tunc

from the December 7, 2010 order dismissing his fourth PCRA petition. On

February 21, 2014, the PCRA court reinstated Phillips’ right to file an appeal

nunc pro tunc. On March 14, 2014, Phillips filed a notice of appeal and a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b).     On May 14, 2014, the PCRA court filed its Pa.R.A.P. 1925(a)

opinion. On January 5, 2014, Phillips filed a supplemental brief requesting

that this Court take judicial notice of a generally known “medical” fact.3

       Phillips raises four questions for this Court’s consideration:

              I.     Whether the [PCRA] [c]ourt erred in dismissing
              [Phillips’] petition as untimely, without a hearing, where a
              court order of separation barred [Phillips’] access and
              rendered any exercise of due diligence fruitless and
              unreasonable?

              II.    Whether the [PCRA] court erred in dismissing
              [Phillips’] claim of after-discovered evidence without
              hearing testimony from a critical cooperating co-
              conspirator who recanted his trial testimony, where, said
              testimony was perjured and the primary basis upon which
              [Phillips’] guilt was predicated?

              III. Whether the [PCRA] court erred and denied [Phillips]
              the right to due process of law under the State and Federal
              Constitution, and his right to a proper legal evaluation of
              the reliability and effect of his claim of a Napue v.
____________________________________________

3
      In his supplemental brief, Phillips argues that the medical evidence
presented by the Commonwealth fails to show that he shot the victims at
close range, due to a lack of gunpowder residue around their wounds.
Supplemental Brief for Phillips at 2. However, because his fourth petition is
untimely, this irrelevant contention is moot, and we need not address it.

                                           -5-
J-S02040-15

              Illinois[3] violation, by dismissing [Phillips’] petition as
              untimely?

              IV.   Whether the [PCRA] court committed an error of law
              in dismissing [Phillips’] claim of a [n]ew [r]ule of
              Constitutional Law as untimely?

Brief for Phillips at 4-5.

       Our standard of review from an order denying a PCRA petition is

whether the determination of the PCRA court is supported by the evidence of

record and is free of legal error. See Commonwealth v. Ragan, 923 A.2d

1169, 1170 (Pa. 2007).          The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record.                See

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

       As a preliminary matter, we must determine whether Phillips’ fourth

PCRA petition was timely. It is well established that the PCRA time limits are

jurisdictional, and are meant to be both mandatory and applied literally by

the courts to all PCRA petitions, regardless of the potential merit of the

claims asserted. Commonwealth v. Murray, 753 A.2d 201, 202-03 (Pa.

2000); Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super.

2011).      “[N]o    court    may    properly    disregard   or   alter   [these   filing

requirements] in order to reach the merits of the claims raised in a PCRA

petition that is filed in an untimely manner.” Murray, 753 A.2d at 203; see

also Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

____________________________________________

[3]
       Napue v. Illinois, 360 U.S. 264 (1959).

                                           -6-
J-S02040-15

Section 9545(b) sets forth the time limitations for filing a PCRA petition as

follows:

      (1) Any petition under this subchapter, including a second or
      subsequent petition, shall be filed within one year of the date the
      judgment becomes final, unless the petition alleges and the
      petitioner proves that:

           (i) the failure to raise the claim previously was the result
           of interference by government officials with the
           presentation of the claim in violation of the Constitution or
           laws of this Commonwealth or the Constitution or laws of
           the United States;

           (ii) the facts upon which the claim is predicated were
           unknown to the petitioner and could not have been
           ascertained by the exercise of due diligence; or

           (iii) the right asserted is a constitutional right that was
           recognized by the Supreme Court of the United States or
           the Supreme Court of Pennsylvania after the time period
           provided in this section and has been held by that court to
           apply retroactively.

      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within 60 days of the date the claim could have
      been presented.

42 Pa.C.S. § 9545(b).

      When an appellant files a facially untimely petition under the PCRA,

and fails expressly to invoke any of the exceptions to the PCRA’s one-year

jurisdictional time limit, the petition is untimely and we must deny the

appellant relief. See, e.g., Commonwealth v. Wilson, 824 A.2d 331, 336

(Pa. Super. 2003) (“Appellant’s failure to timely file his PCRA petition, and

his failure to invoke any of the exceptions to the timeliness requirements of

the PCRA, results in an untimely PCRA petition under any analysis.”).

                                       -7-
J-S02040-15

       On January 31, 1997, Phillips’ judgment of sentence became final.

See 42 Pa.C.S.A. § 9545(b)(3). Phillips had until February 2, 1998 to file a

timely petition.4 On April 14, 2009, he filed the instant petition, over eleven

years after the expiration of the applicable one-year period. Therefore, the

petition is untimely on its face. 42 Pa.C.S. § 9545(b)(1).

       Phillips relies upon the newly discovered fact exception in his attempt

to overcome the PCRA’s applicable time bar.        42 Pa.C.S. § 9545(b)(1)(ii).

This exception requires a petitioner to demonstrate that he did not know the

facts upon which he based his petition.          Moreover, the petitioner must

demonstrate that he could not have learned of these facts earlier through

the exercise of due diligence. Commonwealth v. Bennett, 930 A.2d 1264,

1271 (Pa. 2007).          Due diligence requires a PCRA petitioner to take

reasonable steps to protect his own interests.       Commonwealth v. Carr,

768 A.2d 1164, 1168 (Pa. Super. 2001). Notably, “[t]he newly discovered

evidence exception . . . does not require a merits analysis of the claim in

order for it to qualify as timely and warranting merits review. The exception

merely requires that the ‘facts’ upon which such a claim is predicated must

not have been known to appellant, nor could they have been ascertained by

due diligence.”      Commonwealth v. Lambert, 884 A.2d 848, 852 (Pa.

2005).

____________________________________________

4
       January 31, 1998 fell on a Saturday.

                                           -8-
J-S02040-15

      Specifically, Phillips argues that the PCRA court erred in denying his

petition because he demonstrated the existence of newly discovered,

exculpatory facts, revealed in an affidavit by his co-defendant, Hudson.

P.C.O. at 4. We disagree. First, Hudson’s affidavit confirms Phillips’ guilt, as

Hudson once again maintains that Phillips was the only shooter. The only

deviation from Hudson’s trial testimony is his claim that he and Phillips did

not originally plan to rob the restaurant before they arrived, and that Phillips

only began to shoot the victims after he became irritated when the victims

took too long to serve his food. P.C.O. at 5. However, this evidence is not

“new,” and Phillips, as the shooter, failed to explain why he could not have

learned of Hudson’s alleged false statements at trial at any point in the past

eleven years.

      Hudson’s affidavit cannot be used as a basis for relief under section

9545(b)(1)(ii), because it is simply a new source for previously known facts.

See Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008);

Commonwealth v. Johnson, 863 A.2d 423, 427 (Pa. 2004) (“The focus of

the exception is on [the] newly discovered facts, not on a newly discovered

or newly willing source for previously known facts.”).     His affidavit not only

confirms Phillips’ guilt as the lone shooter, but it fails to offer any new facts

that Phillips was unaware of at trial. Even if any of the events recounted in

Hudson’s testimony were false, Phillips would have clearly been aware of

those falsities at trial, as he was party to those events.     Moreover, in his

untimely third PCRA petition, Phillips already claimed to have had new

                                      -9-
J-S02040-15

evidence of Hudson’s false testimony, offered in a letter that he received

from a fellow inmate, which stated that Hudson told the inmate he gave

false testimony to ensure that Phillips was convicted. P.C.O. at 3.

      Therefore, Hudson’s affidavit offers no newly discovered facts, and

Phillips failed to demonstrate why he could not have obtained these facts

earlier with the exercise of due diligence. As a result, Phillips has failed to

plead or prove a statutory exception to the time bar.

      Accordingly, the PCRA court correctly determined that it was without

jurisdiction to address the merits of the issues raised by Phillips’ untimely

PCRA petition.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/2/2015

                                    - 10 -


213 Ga. App. 488 (1994)
445 S.E.2d 290
PETERS
v.
THE STATE.
A94A1183.
Court of Appeals of Georgia.
Decided May 26, 1994.
Reconsideration Denied June 8, 1994.
Bruce S. Harvey, Pete C. Whitlock, Jr., for appellant.
Alan A. Cook District Attorney, W. Kendall Wynne, Jr., Assistant District Attorney, for appellee.
BLACKBURN, Judge.
Appellant, Keith Peters, was convicted in a bench trial of possession of marijuana with intent to distribute. In his sole enumeration of error, Peters contends the trial court erred in denying his motion to suppress. Specifically, Peters asserts the affidavit in support of the search warrant failed to establish probable cause because it contained falsehoods and omissions thereby misleading the magistrate as to the reliability of a confidential informant. We agree and reverse.
The only evidence presented to the magistrate in support of issuance of the warrant was the affidavit. The affidavit provides in pertinent part: "Within Thirty-Six (36) hours of January 27, 1993, affiant was contacted by S/A [Special Agent] Pete Stewart with the GBI. S/A Stewart stated that he received information from a confidential informant (CI) within seventy-two (72) hours of January 27, 1993. CI has in the past month observed Keith Peters possessing and selling marijuana from his residence at 422 Walker Dr., Monroe, Ga. This CI also stated it had an occasion to have a conversation with Keith Peters within the past thirty-six (36) hours of January 27, 1993. During that conversation Keith Peters told the CI he had marijuana at his residence for sale. This CI has supplied information to S/A Pete Stewart of the GBI within the past three (3) months that has led to the seizure of a quantity of marijuana. Keith Peters was unaware this conversation would be repeated to law enforcement by the CI. *489 The CI is a mature adult and is gainfully employed." (Emphasis supplied.) The affidavit further provides that within the last 12 months the affiant and another police officer had received numerous complaints from citizens that Peters was selling marijuana from his residence on Walker Drive, and that through independent investigation the affiant established the location and inhabitants of the residence in question.
At Peters' suppression hearing, the evidence established that the confidential informant had not acted as a confidential informant in the past and that the only information he provided to law enforcement officers leading to the seizure of marijuana was information which led to the seizure of his own marijuana on January 25, 1993. On that date, Special Agent Stewart, armed with a search warrant, went to the informant's residence, knocked on the door, and told the informant he had information that there was marijuana in the residence. The informant then consented to a search of his residence and took Agent Stewart to a safe in his bedroom where he kept his marijuana and opened the safe. The informant was arrested and asked to cooperate with law enforcement, and he was told his cooperation would be made known to the district attorney. The informant then provided the information which is the basis of the affidavit. Subsequently, the informant's identity was discovered by the defense.
Peters contends the statement in the affidavit regarding the previous seizure of marijuana and the omission of information regarding the seizure, arrest, and cooperation of the confidential informant constitute false statements and omissions made knowingly or with reckless disregard for the truth. Consequently, Peters argues that under the authority of Franks v. Delaware, 438 U. S. 154 (98 SC 2674, 57 LE2d 667) (1978), the perjured testimony cannot be used to establish probable cause, and therefore, the search warrant is invalid. See Nutter v. State, 162 Ga. App. 349 (291 SE2d 423) (1982).
We agree with Peters and find the statement and omissions complained of were knowingly false or made with reckless disregard for the truth and were essential to the establishment of probable cause.[1] See Redding v. State, 192 Ga. App. 87 (383 SE2d 640) (1989); Daniels v. State, 183 Ga. App. 651 (359 SE2d 735) (1987). In Redding, this Court adopted the rule that once a court determines an affidavit contains false statements or omissions as set out in Franks, "the false *490 statements be deleted, the omitted truthful material be included, and the affidavit be reexamined [sic] to determine whether probable cause exists to issue a warrant." 192 Ga. App. at 88. In the case at bar, we find that if the affidavit included all the information regarding the seizure of the informant's marijuana and his subsequent arrest and cooperation with authorities, it would be insufficient to establish probable cause.
"Under the standard set forth by the United States Supreme Court in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), probable cause may be predicated on an informant's tip only if, under the `totality of the circumstances,' including the `veracity' and `basis of knowledge' of the informant, there is a `fair probability' that contraband or evidence of a crime will be found in a particular place. While establishment of the informant's veracity and basis of knowledge is no longer an absolute requirement since Gates, veracity and basis of knowledge are still major considerations in the probable cause analysis, and this court continues to hold that an affidavit submitted in support of a search warrant must set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant." (Citations and punctuation omitted.) State v. Bryant, 210 Ga. App. 319, 320 (436 SE2d 57) (1993).
We find the information regarding the seizure of the informant's marijuana and his subsequent arrest and cooperation with legal authorities does nothing to support, but rather vitiates, a finding of reliability of the informant. Additionally, any corroborating facts set out in the affidavit, including the affiant's corroborating statements regarding the inhabitants of the residence in question and its location, were insufficient to remedy this reliability defect. See Bryant, 210 Ga. App. at 321. Accordingly, the trial court erred in denying Peters' motion to suppress.
Judgment reversed. Birdsong, P. J., and Cooper, J., concur.
NOTES
[1]  We reject the State's argument that the omissions were not a deliberate falsehood or reckless disregard for the truth because the affiant was trying to conceal the informant's identity. The record is devoid of any evidence that the affiant was trying to conceal the informant's identity. Additionally, we find the affiant could have provided the magistrate with information that the marijuana seized was the informant's and details of the subsequent arrest and cooperation of the informant without jeopardizing his confidentiality.