                               PRECEDENTIAL
       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 _____________

                      No. 11-4504
                     _____________

                 MARIE ANN FUGES,
   on behalf of herself and all others similarly situated

                             v.

     SOUTHWEST FINANCIAL SERVICES, LTD.

                    Marie Ann Fuges,
                                    Appellant
                    _______________

    On Appeal from the United States District Court
       for the Eastern District of Pennsylvania
                (D.C. No. 09-cv-00699)
       District Judge: Hon. Legrome D. Davis
                  _______________

                        Argued
                   September 25, 2012

Before: McKEE, Chief Judge, JORDAN, and VANASKIE,
                  Circuit Judges.

                (Filed: December 6, 2012)
                    _______________
James A. Francis [ARGUED]
Erin A. Novak
John Soumilas
Francis & Mailman
100 S. Broad Street – 19th Fl.
Philadelphia, PA 19110
      Counsel for Appellant

Darryl J. May [ARGUED]
Mark J. Furletti
Ballard Spahr
1735 Market Street – 51st Fl.
Philadelphia, PA 19103
      Counsel for Appellee

Thomas M. Hanson
Dykema Gossett PLLC
1717 Main Street – Ste. 4000
Dallas, TX 75201
      Counsel for Not Party Amicus Consumer Data Industry
      Association
                     _______________

                OPINION OF THE COURT
                    _______________

JORDAN, Circuit Judge.

       Marie Ann Fuges appeals from an order of the United
States District Court for the Eastern District of Pennsylvania
entering summary judgment in favor of Southwest Financial
Services, Ltd. (“Southwest”) with respect to Fuges‟s claim
that Southwest willfully violated the Fair Credit Reporting

                                2
Act (“FCRA”), 15 U.S.C. §§ 1681-1681x. Fuges claims that
Southwest willfully violated FCRA when it included
inaccurate information in a report to Fuges‟s lender
concerning potential encumbrances on her home. Southwest
argues in response that it is not a “consumer reporting
agency” (“CRA”) governed by FCRA, and that the statute
does not apply to the report that it provided to Fuges‟s lender.
The District Court held that no reasonable jury could find that
Southwest had willfully violated FCRA, because Southwest
reasonably interpreted the statute as inapplicable to its
activities and so, under the standard set forth in Safeco
Insurance Co. of America v. Burr, 551 U.S. 47 (2007),
Southwest could not be liable as claimed. For the following
reasons, we will affirm.

I.     Background

       A.     Facts

       Southwest sells current owner title reports, otherwise
known as property search or limited property reports
(“property reports” or “reports”) to consumer lenders. The
purpose of those reports is to confirm the identity of the
current holder of title to the property and to determine
whether the property is encumbered. All of the information
that Southwest collects is available in public records.

        Southwest‟s reports include the name and address of
the property owner, the marital status of the property owner
(if it appears on the deed), the amounts of any outstanding
mortgages, and the amounts of any outstanding liens or

                               3
judgments against the property.1 The property reports do not
include the owner‟s social security number, payment history,
previous addresses, employment information, date of birth, or
outstanding account balances all of which would typically be
included in a consumer credit report prepared by one of the
“Big Three” credit reporting agencies (Equifax, Experian, and
Trans Union). Another point of distinction is that Southwest
endeavors to include in its property reports only those
judgment liens that remain unsatisfied at the time of the
report, because only those liens encumber the property. A
typical credit report, by contrast, shows judgment liens that
have been satisfied, because they are part of a consumer‟s
payment history.

       Marie Ann Fuges had a $35,000 line of credit from
PNC Bank (“PNC”), which she secured with the home she
owned in Philadelphia. In 2008, she applied to PNC for
payment protection insurance that would repay her line of
credit in the event that she died or became disabled. PNC
told Fuges that, in order to obtain the insurance, she needed to
reapply for her line of credit.2 She did so, and, after she

       1
         Because the purpose of Southwest‟s property reports
is to determine whether property to be used as collateral for a
loan is encumbered, if a consumer seeks to secure a loan with
collateral owned by a third party, the property report would
only include information on that third party, not the
consumer. For approximately 80 percent of Southwest‟s
Pennsylvania property reports, however, the loan applicant is
also the owner of the subject property.
       2
         Fuges also applied for a $5000 increase in the line of
credit, even though that increase was not required in order for
her to obtain the credit insurance.

                               4
submitted her loan application, PNC ordered a credit report
generated by a credit reporting agency, as well as a property
report on the home that she owned. Southwest prepared the
latter and provided information concerning the ownership of
the home that Fuges put up as collateral, as well as
information on whether the property was subject to
mortgages, judgment liens, unpaid taxes, or other
encumbrances.

        More specifically, that property report contained the
following information: (1) Fuges‟s name and address; (2) a
note concerning her marital status; (3) the amount of her
mortgage ($35,000.00); (4) a reference to a $111.11 property
tax delinquency; and (5) a reference to a $2,923.63 judgment
lien filed by a merchant for a delinquency on the part of her
son, Robert W. Fuges. The report was inaccurate in two
respects. First, Fuges‟s property tax payments were arguably
not delinquent because she had an agreement with the City of
Philadelphia to pay her taxes in monthly installments.
Second, the property report should not have reflected the
judgment lien because inclusion of the lien wrongly assumed
that the debt was owed by Fuges‟s deceased husband, Robert
E. Fuges, who had been an owner of the property at one time.

       After PNC received the Fuges property report, it
informed Fuges that it could not approve her loan application
without proof that she had paid her property taxes. Later,
however, PNC provided Fuges with the credit insurance,
leaving her existing line of credit in place.3

      3
          It is unclear from the record when PNC changed its
mind about the credit insurance, or for what reason. Fuges
testified that she found out “by accident” (App. at 427) that

                             5
       B.      Procedural History

        On February 18, 2009, Fuges filed a putative class
action against Southwest, alleging that Southwest failed to
comply with FCRA in preparing the property report that it
had provided to PNC in connection with her credit
application. She initially claimed damages for both willful
and negligent violations of the statute under 15 U.S.C.
§§ 1681n and 1681o, respectively.

        On April 22, 2009, Southwest filed a motion to dismiss
for failure to state a claim, arguing that Fuges had failed to
take certain actions required under FCRA (such as contacting
Southwest and asking for a copy of her property report) and
also arguing that Fuges could not prove that the report caused
PNC to deny her credit application. On July 15, 2009, the
District Court dismissed most of Fuges‟s claims because she
had failed to take actions required by FCRA, but the Court
granted Fuges leave to amend her complaint. She then filed
an amended complaint, and Southwest again filed a motion to
dismiss, which the District Court denied.

       On August 1, 2011, Southwest moved for summary
judgment. It argued that its reports are not subject to FCRA,
and that, even if they were, it was not liable because it did not
willfully violate FCRA under the standard articulated in
Safeco, 551 U.S. at 69-70.4 Southwest also asserted that it

the bank had provided the credit insurance when she read her
banking statement several months after she submitted her
credit application, and PNC never notified her of its decision.
PNC did not approve the increase in the line of credit.
       4
           In Safeco, the Supreme Court held that “a company

                               6
could not be held liable for any negligent violation of FCRA
because PNC ultimately gave Fuges the credit insurance for
which she had applied, and she did not suffer any injury as a
result of Southwest‟s conduct.5

       On November 21, 2011, the District Court issued an
opinion and order granting the motion for summary judgment.
The Court did not address whether Southwest‟s conduct fell
within the scope of FCRA, or whether there was evidence of
FCRA violations. Rather, it determined that no reasonable
jury could find that Southwest had acted willfully because
Southwest‟s reading of FCRA as not being applicable to its

subject to FCRA does not act in reckless disregard of it unless
the action is not only a violation under a reasonable reading
of the statute‟s terms, but shows that the company ran a risk
of violating the law substantially greater than the risk
associated with a reading that was merely careless.” 551 U.S.
at 69. See infra Part II.B.
       5
          Fuges testified that, initially, all she wanted from
PNC was the credit insurance, but that “since [she] was
reapplying, [she] just asked for the increase” in the credit line.
(App. at 428.) According to the statement of undisputed facts
that Southwest submitted in support of its motion for
summary judgment, because “[s]he obtained this insurance
even though her [credit] application was denied[,] ... [s]he
explicitly testified that she suffered no damage other than the
allegedly inaccurate information reported to PNC.” (App. at
257.) In her brief in opposition to Southwest‟s motion for
summary judgment, Fuges elected to pursue only her claim
for willful violations and not to press her claim for negligent
violations of FCRA.

                                7
business was not unreasonable. In particular, the Court said,
“a reasonable jury could not conclude that Southwest
willfully, i.e., knowingly or recklessly, violated ... FCRA,
because Southwest reasonably interpreted its activities to fall
outside the scope of the Act, in light of the less-than-clear
statutory text and absence of meaningful judicial or FTC
guidance.” 6 (App. at 13.) In reaching that conclusion, the
District Court reasoned that Southwest‟s interpretation of
FCRA was “objectively reasonable” because the Fuges
property report contained four sections – deeds, mortgages,
parcel number and taxes, and lien information – that “more
closely relate to a particular parcel of property than to a
particular consumer.” (App. at 10.) The Court also
considered it significant that Southwest‟s report did not
contain “Fuges‟[s] social security number, payment history
on various debts, or previous addresses, all of which one
might expect to see on a typical credit report from a CRA.” 7

      6
          The Federal Trade Commission (“FTC”) has
enforcement responsibility for certain FCRA provisions. See
Safeco, 551 U.S. at 70.
      7
         The District Court, like other courts, appears to have
equated the term “consumer report,” which is defined in
FCRA, see 15 U.S.C. § 1681a(d)(1), with a “credit report,” a
term that is commonly understood to refer to a report like
those prepared by one of the nationally recognized CRAs.
See also Cortez v. Trans Union, LLC, 617 F.3d 688, 707 n.23
(3d Cir. 2010) (“We use „consumer report‟ and „credit report‟
interchangeably. The report referred to as a „consumer
report‟ in the statute is more commonly known as a „credit
report.‟”). We note, however, that the two are not necessarily
the same, as demonstrated by the fact that a report may
constitute a “consumer report” when its purpose is not the

                              8
(Id.) Thus, it determined that “Southwest‟s reading of
FCRA‟s CRA definition, i.e., that Southwest‟s reports are „on
properties‟ not „on consumers,‟ and therefore Southwest is
not a CRA, has a foundation in the statutory text, which
suggests that Southwest acted reasonably, not recklessly, with
respect to FCRA.” (Id.)

      Fuges filed a timely notice of appeal.

securing of credit or other financial services. See 15 U.S.C.
§ 1681a(d)(1)(B), (C) (providing that purpose may be
eligibility for employment or other purposes set forth in
§ 1681b). Information other than credit data may also render
a report a “consumer report” covered by FCRA. See 15
U.S.C. § 1681a(d)(1) (providing that “any information ...
bearing on a consumer‟s credit worthiness, credit standing,
credit capacity, character, general reputation, personal
characteristics, or mode of living” constitutes a consumer
report (emphasis added)).

                              9
II.    Discussion8

       A.     FCRA

      FCRA “require[s] that consumer reporting agencies
adopt reasonable procedures for meeting the needs of
commerce for consumer credit, personnel, insurance, and
other information ... with regard to the confidentiality,
accuracy, relevancy, and proper utilization of such
information.” 15 U.S.C. § 1681(b).9 The statute imposes

       8
         The District Court had jurisdiction pursuant to 28
U.S.C. § 1331 and 15 U.S.C. § 1681p. We have jurisdiction
under 28 U.S.C. § 1291. “We exercise plenary review over
the [D]istrict [C]ourt‟s grant of summary judgment, applying
the same standard ... .” Howley v. Mellon Fin. Corp., 625
F.3d 788, 792 (3d Cir. 2010). “[S]ummary judgment is
proper if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving person is entitled to a
judgment as a matter of law.” Celotex v. Catrett, 477 U.S.
317, 322 (1986) (internal quotation marks omitted). A factual
dispute is genuine “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
       9
          The “reasonable procedures” required by FCRA
include maintaining a system to provide fraud alerts to the
consumer (15 U.S.C. § 1681c-1); maintaining an internal
compliance system to ensure the accuracy of consumer
information (id. § 1681e); providing disclosure of all
information in a consumer‟s file on demand by the consumer
(id. §§ 1681g, 1681h); and maintaining procedures to allow a

                               10
civil liability on “[a]ny person who ... fails to comply with
any requirement imposed” by the statute. See id. §§ 1681n,
1681o. A person who negligently fails to comply is liable to
the affected consumer for actual damages. Id. § 1681o(a)(1).
A person who willfully fails to comply is liable to the affected
consumer for actual damages, or statutory damages ranging
from $100 to $1,000, as well as punitive damages and
attorney‟s fees. Id. § 1681n(a).

       The enactment of FCRA “was prompted by
congressional concern over abuses in the credit reporting
industry.” Philbin v. Trans Union Corp., 101 F.3d 957, 962
(3d Cir. 1996) (internal quotation marks omitted). Congress
wanted “to ensure fair and accurate credit reporting, promote
efficiency in the banking system, and protect consumer
privacy.” Safeco, 551 U.S. at 52. In support of FCRA,
Congress found that

       [a]n elaborate mechanism [had] been developed
       for investigating and evaluating the credit
       worthiness, credit standing, credit capacity,
       character,     and    general     reputation     of
       consumers[;] [] [that] [c]onsumer reporting
       agencies [had] assumed a vital role in
       assembling and evaluating consumer credit and
       other information on consumers; [and that] []
       [t]here [was] a need to insure that consumer
       reporting agencies exercise their grave
       responsibilities with fairness, impartiality, and a
       respect for the consumer's right to privacy.

consumer to dispute and to correct inaccurate information (id.
§ 1681i).

                               11
15 U.S.C. §1681(a).

       FCRA only applies to CRAs. The statute defines a
“consumer reporting agency” as “any person which, for
monetary fees, dues, or on a cooperative nonprofit basis,
regularly engages in whole or in part in the practice of
assembling or evaluating consumer[10] credit information or
other information on consumers for the purpose of furnishing
consumer reports to third parties … .” Id. § 1681a(f).

       Moreover, for a report to be covered by FCRA, it must
be a “consumer report,” defined as

      any written, oral, or other communication of
      any information by a consumer reporting
      agency bearing on a consumer‟s credit
      worthiness, credit standing, credit capacity,
      character,     general   reputation,     personal
      characteristics, or mode of living which is used
      or expected to be used or collected in whole or
      in part for the purpose of serving as a factor in
      establishing the consumer‟s eligibility for –

           (A) credit or insurance to be used
           primarily for personal, family, or
           household purposes;
           (B) employment purposes; or
           (C) any other purpose authorized under
           section 1681b of this title.

      10
         FCRA defines “consumer” as “an individual.” 15
U.S.C. § 1681a(c).

                             12
Id. § 1681a(d)(1).11

       Taken together, these definitions establish statutory
markers against which the reasonableness of any reading of
the applicability of FCRA must be measured. One marker is
that, for the preparer of a report to qualify as a CRA, the
preparer must regularly engage in gathering information “on
consumers” with the purpose of preparing and furnishing
“consumer reports.” Another marker is that, for a report to be
subject to FCRA, it must both be a “consumer report” and
have been prepared by a “consumer reporting agency,” as
those terms are defined in the statute.

       11
           The defined term “consumer report” is subject to a
number of statutory exclusions. These include: reports
containing information relating solely to transactions or
experiences between the consumer and the person making the
report or communications between commonly-controlled or
affiliated parties, 15 U.S.C. § 1681a(d)(2)(A); notifications of
the extension of credit by credit card companies, id.
§ 1681a(d)(2)(B); and reports containing the decision of a
person who has been requested by a third party to extend
credit to a consumer, provided that the consumer is informed
of the request for the report, id. §1681a(d)(2)(C).
Communications relating to prospective employment,
including investigative reports, are also excluded.          Id.
§ 1681a(d)(2)(D), 1681a(o), 1681a(y). FCRA does not
specifically except “property reports” or any similar reports
from the definition of “consumer reports,” and we neither
express nor imply any opinion on whether property reports of
the kind at issue here are covered by FCRA.

                              13
       B.     Liability Standard Under Safeco

        The Supreme Court‟s landmark decision in Safeco
Insurance Co. of America v. Burr, 551 U.S. 47 (2007), set the
framework that the District Court here relied on in granting
summary judgment to Southwest. Safeco involved insurance
companies that relied in part on credit scores to set auto
insurance premiums. Because of unfavorable credit scores,
some new applicants were quoted insurance rates that were
higher than the best rates available. The applicants argued
that they had been subjected to an “increase” in rates (even
though they had not previously enjoyed the lower rates) and
so had suffered “adverse action” based on their credit reports,
which required notice under § 1681m(a) of FCRA. Id. at 54-
55. The insurance companies argued that they did not have to
comply with FCRA‟s notice requirement because the failure
to offer the preferred rates to new customers could not
constitute an “increase” in rates in the absence of prior
dealing. See id. at 69. The plaintiffs sought statutory and
punitive damages, which required that they prove that the
failure to give notice was “willful.” The Supreme Court held
that it was not. Although the Court disagreed with the
insurance companies‟ interpretation of “increase,” it
concluded that the interpretation was “not objectively
unreasonable, and so falls well short of raising the
„unjustifiably high risk‟ of violating the statute necessary for
reckless liability.” Id. at 70 (emphasis added). The Court
thus established a safe harbor against liability for willfulness.
A company cannot be said to have willfully violated FCRA if
the company acted on a reasonable interpretation of FCRA‟s
coverage.

                               14
        The Court derived this “reasonable interpretation” test
by deconstructing the word “willfully.” FCRA imposes civil
liability where the defendant “willfully fails to comply” with
the statute. 15 U.S.C. § 1681n(a).12 The Court noted,
however, that “„willfully‟ is a word of many meanings” and
that “where willfulness is a statutory condition of civil
liability, we have generally taken it to cover not only knowing
violations of a standard, but reckless ones as well.” Safeco,
551 U.S. at 57 (citations and internal quotation marks
omitted). Drawing on the “essence of recklessness at
common law,” the Court said that “a company subject to
FCRA does not act in reckless disregard of it unless the action
is not only a violation under a reasonable reading of the
statute‟s terms, but shows that the company ran a risk of
violating the law substantially greater than the risk associated
with a reading that was merely careless.” Safeco, 551 U.S. at
69 (internal quotation marks omitted). A defendant‟s conduct
is reckless only if it was “objectively unreasonable” in light
of “legal rules that were „clearly established‟ at the time.” Id.
at 69-70 (citing Saucier v. Katz, 533 U.S. 194, 202 (2001)).
Thus, even when a court disagrees with a party‟s reading of
FCRA, it may not impose liability for a reckless, and
therefore willful, violation of the statute unless that party‟s
reading is “objectively unreasonable.” See id. at 69 (noting
that the Court did not agree with Safeco‟s analysis and that its
reading of FCRA was “erroneous”).13

       12
         FCRA also imposes liability for negligent violations.
15 U.S.C. § 1681o. However, Fuges elected to pursue only
her claim for willful violations and not to press her
negligence claim.
       13
          Although the analysis that yielded the Safeco
“reasonable interpretation” test followed from the common

                               15
       In short, the Safeco test is one of “objective
reasonableness,” and the Court explicitly rejected the
argument that subjective bad faith must be taken into account
in determining whether a defendant has acted recklessly, and
therefore willfully, under FCRA. In deciding that subjective
bad faith is irrelevant, the Court said that, “[w]here … the
statutory text and relevant court and agency guidance allow
for more than one reasonable interpretation, it would defy
history and current thinking to treat a defendant who merely
adopts one such interpretation as a knowing or reckless
violator.” Safeco, 551 U.S. at 70 n.20.

        Fuges argues in this appeal that Southwest is not
entitled to the Safeco “reasonable interpretation” defense,
both because Southwest had not actually interpreted FCRA

law definition of recklessness, knowing noncompliance also,
of course, constitutes a willful FCRA violation. See Safeco,
551 U.S. at 57; see also Cushman v. Trans Union Corp., 115
F.3d 220, 227 (3d Cir. 1997) (acknowledging that an
investigative policy could constitute a willful FCRA violation
if adopted either “knowing that policy to be in contravention
of the rights possessed by consumers pursuant to ... FCRA or
in reckless disregard of whether the policy contravened those
rights”). Fuges suggests that this may represent an alternative
basis on which we may find willful violations on the part of
Southwest. (See Appellant‟s Opening Br. at 26 (noting that
“recklessness is not the only way for a plaintiff to prove an
[sic] FCRA violation was willful” and that “knowing
noncompliance may also constitute a willful FCRA
violation”).) However, the record contains no evidence that
Southwest knew that it was in violation of FCRA, and Fuges
did not make that argument in the District Court.

                              16
before concluding the statute did not apply to its activities and
because Southwest‟s interpretation of FCRA was not
objectively reasonable.14 We take each of those arguments in
turn.

       C.     Safeco’s Applicability Absent a “Reading” of
              FCRA

      Fuges contends that the District Court erred by
extending the “reasonable reading” defense articulated in
Safeco to Southwest‟s conduct even though Southwest failed

       14
          Fuges also argues that the District Court erred at the
summary judgment stage by failing to consider evidence that
Southwest‟s activities come within the ambit of FCRA, and
that the District Court was required to consider evidence of
willful violations prior to concluding that Southwest was,
under Safeco, free from liability for such violations. We
disagree. Evidence of knowing violations of FCRA is
relevant to a claim of willfulness, see supra note 13, but then
Safeco‟s recklessness analysis would not apply. See Safeco,
551 U.S. at 56-57 (noting that knowing violations of FCRA
are willful by definition.) When a plaintiff does not allege
knowing violations of FCRA, however, the claim must be
based on recklessness and Safeco‟s “reasonable
interpretation” test applies. In those “recklessness” cases,
whether a defendant has actually violated FCRA is simply not
the issue. See id. at 68 (noting that, even “if Safeco did
violate the statute, the company was not reckless in falling
down in its duty”); id. at 69 (noting that “Safeco‟s reading of
the statute, albeit erroneous, was not objectively
unreasonable”); id. at 70 (“Safeco‟s misreading of the statute
was not reckless.”).

                               17
to read or interpret FCRA in the first instance. The District
Court focused its analysis on the interpretation of the terms
“consumer reporting agency” and “consumer report.” (See
App. at 9 (discussing components of the CRA definition in 15
U.S.C. § 1681a(f)).) The Court did not specifically address
the question of whether Southwest had adopted a particular
interpretation of those terms prior to preparing the Fuges
property report or prior to the commencement of this lawsuit.

        The timing, however, is not dispositive. In Long v.
Tommy Hilfiger U.S.A., 671 F.3d 371 (3d Cir. 2012), we
expressly rejected the argument that a defendant is required to
have a pre-litigation “reading” of FCRA to avail itself of the
Safeco “reasonable interpretation” defense. 671 F.3d at 377.
Long involved the interpretation of the phrase “expiration
date” in a FCRA provision governing the disclosure of credit
card information. Like Fuges, the plaintiff in Long argued
that the defendant “did not actually rely on any interpretation
of [FCRA] and instead disregarded the statute altogether and
is only now seizing upon a post hoc „objectively reasonable‟
interpretation in order to shield itself from liability.” Id.
(citation and internal quotation marks omitted).           That
argument struck us as being, in essence, an assertion about
the defendant‟s intent or subjective bad faith, and, as such, it
was “expressly foreclosed by Safeco,” because such evidence
“is irrelevant when there is an objectively reasonable
interpretation of the statute that would allow the conduct in
question.” Id. (citing Safeco, 551 U.S. at 70 n.20).

       Fuges argues that Long and other cases in which
defendants were found to have relied on a reasonable
interpretation of FCRA may be distinguished from two post-
Safeco cases in which there was “no evidence whatsoever of a

                              18
[FCRA] „reading‟ by the defendant,” and in which the Safeco
defense did not apply. (See Appellant‟s Opening Br. at 40
(citing Birmingham v. Experian Info. Solutions, Inc., 633 F.3d
1006 (10th Cir. 2011); Saunders v. Branch Banking & Trust
Co. of Va., 526 F.3d 142 (4th Cir. 2008)).) However, in
neither of those cases was the interpretation of specific FCRA
terms at issue.15

       Fuges also notes that in most of the post-Safeco cases,
such as Long, Shlatichman v. 1-800-Contacts, Inc., 615 F.3d
794 (7th Cir. 2010), and Levine v. World Financial Network
National Bank, 554 F.3d 1314 (11th Cir. 2009), the
“defendants acknowledged ... FCRA‟s regulatory existence,
and attempted to comply with it on some level.” (Appellant‟s
Opening Br. at 40.) However, in each of those cases, the
defendant also acknowledged that it was subject to FCRA,
and the only disputed issue was the interpretation or

       15
          The dispute in Birmingham was whether a CRA had
willfully violated 15 U.S.C. § 1681e(b) by failing to follow
reasonable procedures to assure the accuracy of its consumer
reports, and whether it had violated 15 U.S.C. § 1681i(a)
because it did not adequately address a consumer‟s concerns
about the accuracy of his credit file. See Birmingham, 633
F.3d at 1009. However, the defendant‟s reading of the
relevant FCRA provisions was not at issue. The Saunders
court did not apply the Safeco “reasonable interpretation” test
because a jury had already found willful FCRA violations
based on a pre-Safeco instruction that the defendant had to
have acted “knowingly and intentionally.” See Saunders, 526
F.3d at 151 & n.4 (noting that the jury instruction had placed
a greater burden on the plaintiff than the Safeco test, and that
he had met that burden).

                              19
applicability of a particular provision of FCRA. In the
present case, based on its interpretation of the definitions of
“consumer report” and “consumer reporting agency,”
Southwest has urged that it is not subject to FCRA at all.

       In summary, Southwest does not lose the potential
protection of the “reasonable interpretation” defense, even if
it never actually interpreted FCRA prior to the
commencement of this lawsuit. Safeco requires only that “the
company‟s reading of the statute is objectively reasonable,”
Safeco, 551 U.S. at 70 n.20 (emphasis added), and that the
interpretation that would allow the conduct in question is “an
interpretation that could reasonably have found support in the
courts,” id. Safeco does not require that the defendant
actually have made such an interpretation at any particular
point in time.

       D.     Southwest’s Liability Under the Safeco Test

       Fuges argues in the alternative that, even if Southwest
is potentially entitled to shelter in Safeco‟s safe harbor, the
District Court erred in holding that no reasonable jury could
find that Southwest had acted recklessly, and therefore
willfully, in treating FCRA as inapplicable.16 Fuges contends

       16
          At the outset of her treatment of this issue, Fuges
suggests that “no court has ever found that it is jury question
whether a defendant had an objectively reasonable reading of
FCRA statutory text” because “[j]uries focus on facts, not
[on] the interpretation of statutory text, particularly
ambiguous statutory text.” (Appellant‟s Opening Br. at 50.)
However, Fuges misapprehends the District Court in this
regard. The District Court held only that a reasonable jury

                              20
that neither Southwest nor the District Court specifically
identified any ambiguity in the statutory text,17 and that any
reading of FCRA as being inapplicable must be reckless.

could not find that Southwest had acted recklessly, and
therefore willfully, based on the Court‟s own determination
that the FCRA definitions of “consumer reporting agency”
and “consumer report” were ambiguous, and that Southwest‟s
interpretation was not objectively unreasonable. (See App. at
13 (emphasizing the “narrow scope of [the Court‟s]
decision”).) After Safeco, a jury may be called on to
determine whether violations of FCRA were willful or
negligent, based on the facts surrounding defendants‟
adoption of a particular reading of the statute. See Cortez,
617 F.3d at 722 (considering the “jury‟s reasoned
determination” that the defendant was “not merely careless”
in determining that FCRA did not apply); see also id. (noting
that “the verdict of this lay jury reveals an understanding of
the distinction between negligent and willful”); id. at 723
(speculating that “[t]he jury may well have concluded” that
the defendant deliberately risked violating FCRA because the
offending consumer information “was a separate product that
could be sold to customers at an additional cost”).
      17
           Fuges‟s argument misses the mark. She takes pains
to demonstrate that the text of the specific FCRA provisions
for which she alleges violations (15 U.S.C. §§ 1681e(a), (b),
(c), (d), 1681h(c)) is unambiguous, and that courts of appeals
(including this Court) have already construed those
provisions.     However, it was only the definitions of
“consumer report” and “consumer reporting agency” in 15
U.S.C. § 1681a(d), (f) that the District Court concluded were
unclear. (See App. at 12-13 (noting that these definitions add

                             21
        To understand why Fuges is mistaken, it is helpful to
consider why the “reasonable interpretation” test was met in
Safeco. We noted in Long that there were three bases for the
Supreme Court‟s decision in Safeco. First, FCRA gave no
clear guidance on whether the auto insurers were required to
view an initial rate offer as an “increase” in rates that would
constitute adverse action and trigger a consumer notification
requirement. Long, 671 F.3d at 376 (citing Safeco, 551 U.S.
at 69-70).18 Second, the insurers‟ proposed interpretation that
their quotes were not an adverse action “had a „foundation in
the statutory text ... and a sufficiently convincing justification
to have persuaded the District Court to adopt it.‟” Id.
(quoting Safeco, 551 U.S. at 69-70) (omission in original).
And third, the insurers were interpreting the statute in the
absence of any contrary authority on the meaning of
“increase” because “„no court of appeals had spoken on the
issue, and no authoritative guidance has yet come from the
FTC.‟” Id. (quoting Safeco, 551 U.S. at 70).

       The District Court here was satisfied that conditions
similar to those that had rendered Safeco‟s reading of FCRA
“not objectively unreasonable” were present in this case.
First, the Court decided that the statutory definitions of
“consumer reporting agency” and “consumer report” were
ambiguous as applied to “a company like Southwest that sells
so-called „current owner reports.‟” (App. at 10.) Second, the
Court determined that Southwest‟s reading of FCRA‟s CRA

“an additional layer of interpretive complexity,” as applied to
Southwest, not found in other FCRA cases).)
       18
          The Safeco Court characterized the statutory text as
“less-than-pellucid.” Safeco, 551 U.S. at 70.

                               22
definition as not covering Southwest “has a foundation in the
statutory text.”19 (Id.) Third, the Court found “an absolute
dearth of judicial or agency guidance regarding whether ...
FCRA” covers the activities of Southwest. (Id. at 11.) The
District Court thus concluded that Southwest did not act
recklessly with respect to FCRA.

       We agree with the District Court‟s analysis. First, the
FCRA definitions of “consumer reporting agency” and
“consumer report” are ambiguous as they relate to Southwest.
The source of this ambiguity is the phrase “information on
consumers” in the CRA definition, and the phrase “bearing on
a consumer[ ]” in the definition of consumer report. Fuges
argues, in essence, that any information in the Southwest
property report that relates to her is information “on” or
“bearing on” her as a consumer. But to take this argument to
its limits, virtually any information gathered in connection
with a consumer lending transaction can be characterized as
information on, or bearing on, the individual applicant
because it says something related to the applicant. Thus, the
unbounded nature of these definitions renders them
ambiguous when one tries to figure out just how broadly a
sensible definition should reach.

      19
          The District Court focused on the requirement that
an entity “assemble or evaluate „consumer credit information
or other information on consumers‟” to be covered by the
FCRA definition of “consumer reporting agency.” (App. at 9
(quoting 15 U.S.C. § 1681a(f)).) The Court concluded that
Southwest‟s reading of that language to exclude it from
coverage as a CRA, “because it reports on properties, not
consumers,” id., was not objectively unreasonable.

                             23
        Second, Southwest‟s reading of the applicable
provisions of FCRA has some foundation in the statutory text,
and was therefore not objectively unreasonable.            The
definition of a CRA requires that a company “engage[ ] in
whole or in part in the practice of assembling or evaluating
consumer credit information or other information on
consumers.” 15 U.S.C. § 1681a(f). Southwest could
reasonably interpret that provision to exclude information that
it assembles with regard to a subject property, because such
information is not “on consumers.” Likewise, the definition
of “consumer report” encompasses only reports that contain
“information [assembled] by a [CRA] bearing on a
consumer‟s credit worthiness, credit standing, credit capacity,
character, general reputation, personal characteristics, or
mode of living.” 15 U.S.C. § 1681a(d)(1). Southwest could
reasonably interpret that provision to exclude its property
reports, both because it interpreted the CRA definition to
exclude itself,20 and because the information on property

      20
          This case differs from other post-Safeco cases where
the defendants claimed the Safeco defense for alleged willful
violations of FCRA. In those cases, the defendant was
indisputably a CRA, and the issue was whether the
challenged conduct constituted a willful violation of a
particular FCRA provision because the defendant had
unreasonably interpreted that provision.            See, e.g.,
Birmingham, 633 F.3d at 1009 (considering whether a CRA
had “reasonable procedures” to assure accuracy as required
by 15 U.S.C. § 1681e(b)); Levine, 554 F.3d at 1318-19
(considering whether a CRA had complied with requirement
for sale of consumer report for “account review” pursuant to
15 U.S.C. § 1681b(a)(3)); Shannon v. Equifax Info. Servs.,
LLC, 764 F. Supp. 2d 714 (E.D. Pa. 2011) (considering

                              24
encumbrances does not necessarily “bear on” any of the
characteristics of an individual consumer‟s personal
creditworthiness listed in that provision.

       Third, there is no judicial or agency guidance that
would suggest that Southwest‟s reading of FCRA is contrary
to the intended meaning of the provisions in question.21
Under Safeco, the inquiry is whether “the company ran a risk
of violating the law substantially greater than the risk
associated with a reading that was merely careless.” 551 U.S.
at 69; see also Cortez v. Trans Union, LLC, 617 F.3d 688,
723 (3d Cir. 2010) (finding recklessness where defendant
“substantially risked acting in violation of [FCRA]”). The
District Court correctly determined that Southwest was not

whether a CRA had “reasonable procedures” and conducted
an investigation of allegedly inaccurate information as
required by 15 U.S.C. §§ 1681e(b), 1681i(a), respectively).
In this case, as the District Court noted, “Southwest disputed
not only that its current owner reports fall within ... FCRA‟s
definition of „consumer reports,‟ but also that it even qualifies
as a „consumer reporting agency‟ in the first place.” (App. at
A12 (noting that “[t]his adds an additional layer of
interpretive complexity”).)
       21
           While the absence of contrary authority to a
particular FCRA interpretation is persuasive as to the
reasonableness of the adoption of that interpretation, it is not
dispositive. “It merely establishes that the issue has not been
presented to a court of appeals before. The credit agency
whose conduct is first examined under that section of the
[FCRA] should not receive a pass because the issue has never
been decided.” Cortez, 617 F.3d at 722.

                               25
reckless because Southwest did not run a “substantial risk” in
adopting its interpretation of FCRA, in the absence of
authority contrary to that interpretation. As the District Court
noted, there does not appear to be any judicial or agency
guidance as to whether FCRA covers companies like
Southwest. Cases concerning the CRA status of companies
that are not credit bureaus but that still assemble “information
on consumers” have typically addressed employee
background investigatory reports that have little in common
with the property reports at issue here. See, e.g., Poore v.
Sterling Testing Sys., 410 F. Supp. 2d 557 (E.D. Ky. 2006)
(holding that a company that reports on criminal records of
job applicants is a CRA); Lewis v. Ohio Prof’l Elec.
Network, LLC, 190 F. Supp. 2d 1049 (S.D. Ohio 2002)
(same). Moreover, those companies qualify as CRAs under
part of the FCRA “consumer report” definition that
specifically addresses employment eligibility reports. See 15
U.S.C. § 1681a(d)(1)(B). Unlike Southwest, companies that
assemble such reports indisputably assemble “information on
consumers,” namely the employment candidates who are the
subject of the reports.22

       22
          FTC guidance on FCRA coverage is similarly scant.
FTC guidance letters, like the judicial opinions noted above,
are largely limited to employment eligibility reports. See,
e.g., FTC Staff Opinion 9-15-99 (addressing CRA status of
law firm that researches criminal records of job applicants for
its clients); FTC Staff Opinion 9-9-98 (addressing CRA
status of company that provides information on prospective
employees to fast food companies). See also Letter from
Federal Trade Commission to Richard LeBlanc, Due
Diligence,     Inc.   (June    9,     1998),    available    at
http://www.ftc.gov/os/ statutes/fcra/ leblanc.shtm (confirming

                              26
       The District Court‟s ably stated conclusion that
Southwest cannot be held liable for willful violations of
FCRA is consistent with our holding in Long and finds
support in numerous other cases in which courts have applied
Safeco and declined to hold defendants liable absent evidence
of a reckless approach to FCRA compliance. See, e.g., Long,
671 F.3d at 377-78 (finding no liability for willful FCRA
violations despite the fact that the court rejected the
defendant‟s interpretation of the statute); Birmingham, 633
F.3d at 1009 (finding no liability “because of the absence of
evidence of intentional or reckless misconduct”); Levine, 554
F.3d at 1318-19 (finding no liability where defendant
reasonably interpreted “account” as including a “closed
account”). 23

that company that performs background checks and
assembles and sells reports containing the information is a
CRA). Even if there were FTC staff letters that address the
applicability of FCRA to companies like Southwest, “the
Supreme Court has expressly declined to describe such letters
as „authoritative guidance.‟” Levine, 554 F.3d at 1319 (citing
Safeco, 551 U.S. at 70 n.19).
       23
          Fuges principally relies on Cortez, supra, in support
of her argument that Southwest acted recklessly in adopting
its interpretation of FCRA. Cortez is, however, readily
distinguishable from the present case in that the defendant‟s
interpretation there was in direct opposition to published
authority on the applicability of FCRA. In Cortez, the
offending information was an erroneous notation in a
consumer report that the plaintiff was on a Treasury
Department list of terrorists and drug traffickers ineligible for
credit. See Cortez, 617 F.3d at 704-05. The defendant
claimed that the information did not “bear on” the consumer‟s

                               27
        In summary, Southwest‟s interpretation of the FCRA
definitions of “consumer reporting agency” and “consumer
report” is not unreasonable, and Southwest “did not run „a
risk of violating the law substantially greater than the risk
associated with a reading that was merely careless.‟” Long,
671 F.3d at 378 (quoting Safeco, 551 U.S. at 69). Fuges
therefore has not stated a claim for a willful violation of
FCRA.24

creditworthiness, and that it was therefore not subject to
FCRA. However, Treasury Department regulations explicitly
stated that information regarding a consumer‟s inclusion on
the terrorist watch list was governed by FCRA when included
in a consumer report. Id. at 722. Moreover, a Treasury
Department website notified consumers that both FCRA and
FTC regulations provided them with a remedy against a CRA
that furnished incorrect information about their presence on
the watch list. Id. Given this explicit contrary guidance, we
concluded that the defendant “substantially risked acting in
violation of the law,” as it adopted an interpretation of FCRA
that was objectively unreasonable. Id. at 723; see also id. at
721 (“[T]he fact that [a defendant‟s] actions rest upon a legal
conclusion does not immunize it from liability for reckless
conduct under ... FCRA.”) In the absence of the sort of
contrary guidance present in Cortez, we cannot say that
Southwest was similarly reckless in believing that its
activities are not covered by FCRA.
      24
          Like the District Court, we “need not, and do not,
decide whether Southwest‟s business model, including its ...
report on Fuges, falls within ... FCRA‟s sphere.” (App. at
13.) Because we have concluded that Southwest did not
willfully violate FCRA, and because Fuges chose not to
pursue her claim for negligent violations of the statute, see

                              28
III.   Conclusion

      For the reasons stated above, we will affirm the
judgment of the District Court.

supra note 5, there is no sound reason to answer in this case
whether Southwest negligently violated FCRA.

                             29


603 N.E.2d 861 (1992)
Gerald C. MILLER, As Personal Representative of the Estate of Stephen T. Miller, Plaintiff-Appellant,
v.
TERRE HAUTE REGIONAL HOSPITAL, Defendant-Appellee.
No. 11S05-9212-CV-936.
Supreme Court of Indiana.
December 1, 1992.
*862 Roger L. Pardieck, Marcia L. Templeton, Gloria K. Grinnan, Pardieck, Gill & Vargo, Indianapolis, for plaintiff-appellant.
John D. Nell, Martha W. Fields, Wooden, McLaughlin & Sterner, Indianapolis, for defendant-appellee.
DICKSON, Justice.
In Guinn v. Light (1990), Ind., 558 N.E.2d 821, this Court announced a new procedure regarding the effect of filing a proposed complaint with the Department of Insurance upon the medical malpractice statute of limitations. Declaring the procedure to be prospective, we exempted the plaintiff Guinn and found his filing to have been timely. Id. The present plaintiff-appellant, Gerald C. Miller, presents circumstances analogous to those of Guinn and seeks like remedy. Applying Guinn, the Court of Appeals refused his request and affirmed summary judgment for the defendant. Miller v. Terre Haute Regional Hospital (1992), Ind. App., 596 N.E.2d 913. We grant transfer.
On November 21, 1986, Stephen Miller died at Terre Haute Regional Hospital (Hospital), where he had been taken for treatment of a gunshot wound. On November 18, 1988, pursuant to the Medical Malpractice Act (Act), Gerald Miller, Stephen's father, filed a proposed complaint against the Hospital with the Commissioner of the Indiana Department of Insurance (Department), alleging the Hospital's negligence caused Stephen's death. On November 28, 1988, the Department sent the Hospital a copy of the proposed complaint, as well as a letter disclosing that a search of the Department Records indicated that the Hospital was not a qualified health care provider under the Act. Miller received a copy of this letter on November 29, 1992.
On December 20, 1988, over two years after Stephen's death, Miller filed a complaint in the Vigo Circuit Court against the Hospital. The Hospital moved for judgment on the pleadings pursuant to T.R. 12(C), arguing that Miller had failed to comply with the condition precedent of the wrongful death statute (IC 34-1-1-2) by filing his complaint more than two years after Stephen's death. Because the parties submitted additional affidavits and letters for the trial court's consideration, the trial court treated the Hospital's motion for judgment on the pleadings as a T.R. 56(C) motion for summary judgment and entered judgment in favor of the Hospital. Miller appeals the grant of summary judgment, raising multiple issues, one of which we find dispositive.
Our decision in Guinn, supra, governs this issue. The plaintiff in Guinn alleged that on August 10, 1982, her dentists were negligent. She filed a proposed complaint with the Indiana Department of Insurance on July 16, 1984. On April 15, 1985, the chairman of the medical review panel appointed to assess the plaintiff's case determined that as neither dentist was a qualified health care provider as required under the Act, the proceeding did not come under the Act's jurisdiction. The plaintiff subsequently filed her complaint in court on May 29, 1985. The defendant dentists successfully moved for summary judgment, *863 arguing that the two-year medical malpractice statute of limitations barred her action.[1]
This Court held that the filing of a proposed complaint against a health care provider with the Department tolls the statute of limitations until the parties are informed that the provider has not qualified under the Act. Id. at 824. Upon such notice, the statute of limitations begins to run again, and the claimant must file an action in court or risk being time-barred. Id. Noting that our decision had the characteristics of rule-making which called for a prospective application of this clarifying decision, we expressly exempted Guinn: "We will not hold Guinn accountable for failing to follow procedure where the proper procedure was unsettled." Id.
In the present case, the Court of Appeals rigidly followed Guinn's prospective application language. The court decided that the two-year statute of limitations was tolled by Miller's filing of the proposed complaint with the Department until the notification that the Hospital was not a qualified health care provider. Miller, 596 N.E.2d at 918. The court further determined that, as Miller did not file his complaint within the three days remaining in the statutory period, his filing with the court on December 20, 1988, was untimely. Id. While this calculation is correct for factual situations arising after Guinn, plaintiff Miller filed his complaints with the Department and the Vigo Circuit Court in 1988, before we decided Guinn. Miller's appeal was decided by the Court of Appeals in 1992. Thus, like Guinn, Miller was unaware of the proper procedure to follow after a determination that a health care provider is not qualified under the Act. Application of the new rule announced in Guinn to a plaintiff in Miller's position would be patently unfair.
The Hospital contends that because it is not a qualified health care provider as defined by the Act, the provisions of the Act do not apply to Miller's action. However, a plaintiff need not be clear as to whether a defendant is covered by the Act to initiate proceedings with the Department of Insurance. As we stated in Guinn:
Some patients and their attorneys, of course, tender a complaint to the commissioner when they are uncertain whether a provider has qualified under the Act. We view this as prudent in light of the potential for misinformation conveyed over the telephone or through other informal means.
Guinn, 558 N.E.2d at 824. Thus, any plaintiff, regardless of the qualified status of the defendant health care provider, will get the benefit of the tolling of the statute of limitations while the Department determines the qualified status. Here, it was prudent for Miller to commence his action by filing his proposed complaint with the Department. We will not punish those plaintiffs who commence their actions by filing with the Department without definite knowledge of the qualified status of the defendant health care provider.
The Hospital also argues that Guinn is to be applied only to common law negligence claims, not to statutorily created wrongful death actions. Citing General Motors Corp. v. Arnett (1981), Ind. App., 418 N.E.2d 546, 548, for the proposition that the two-year requirement found in the wrongful death statute[2] is a condition precedent to bringing a suit rather than a statute of limitations, the Hospital contends that Miller's action is barred because he failed to meet the condition precedent.
We disagree. As our Court of Appeals aptly stated: "[W]e find no reason for distinguishing between a case where, as here, *864 the alleged victim dies and a case where the alleged victim is merely injured." Miller, 596 N.E.2d at 918. Furthermore, the language of the Medical Malpractice Act includes an action for "injury or death:"
Subject to IC 16-9.5-9 [Medical Review Panel], a patient or his representative having a claim under this article for bodily injury or death on account of malpractice may file a complaint in any court of law having requisite jurisdiction and demand right of trial by jury.
IC 16-9.5-1-6 (emphasis supplied). Thus, an action for death resulting from a health care provider is not exclusively within the ambit of the wrongful death statute. Such an action is properly brought under the Medical Malpractice Act.
As the resolution of the statute of limitations issue in light of Guinn is dispositive, we decline to address the plaintiff's other issues. The Court of Appeals decision is vacated. The summary judgment is reversed. This cause is remanded to the trial court for further proceedings.
SHEPARD, C.J., and DeBRULER, GIVAN, and KRAHULIK, JJ., concur.
NOTES
[1]  IC 16-9.5-3-1, Time for filing claim, states in part: (a) "No claim, whether in contract or tort, may be brought against a health care provider based upon professional services or health care rendered or that should have been rendered unless filed within two (2) years from the date of the alleged act, omission, or neglect, except that a minor under the full age of six (6) years shall have until his eighth birthday in which to file."
[2]  34-1-1-2, Action for wrongful death, states in part: "When the death of one is caused by the wrongful act or omission of another, the action shall be commenced by the personal representative of the decedent with two (2) years... ."


143 Conn. 673 (1956)
ROBERT M. DEL BUONO
v.
BOARD OF ZONING APPEALS OF THE TOWN OF STRATFORD
Supreme Court of Connecticut.
Argued June 14, 1956.
Decided July 27, 1956.
BALDWIN, O'SULLIVAN, WYNNE, DALY and COMLEY, JS.
*674 Anthony T. Varone, with whom, on the brief, were Raymond W. Ganim and George W. Ganim, for the appellant (defendant).
Thomas B. Coughlin, for the appellee (plaintiff).
O'SULLIVAN, J.
Since the early part of 1953, the plaintiff has been the owner of a five-acre tract of land in the town of Stratford. It is bounded on the north by a shipyard, on the east by the Housatonic River, on the south by land occupied by a group of dilapidated shanties, and on the west by route 1, a heavily traveled thoroughfare. A gasoline station and a marine supplies store of generous proportion are on the westerly side of this thoroughfare near the tract in question. In the immediate neighborhood another station, a garage and a restaurant have recently been built, their former location having been taken for the new Greenwich-Killingly expressway which passes about 650 feet away.
The plaintiff's property is in a residence B zone. Approximately twenty-five years ago, it had been zoned for industry when an aircraft concern contemplated erecting a plant upon it, but after that plan collapsed the zonal classification reverted to residence B, and since then no further change has been made. In the meantime, business and industry have crept into the vicinity of the tract, and this *675 tendency has accelerated in recent years. All of the surrounding property is now in either a business or an industrial zone.
On February 7, 1955, the plaintiff filed with the planning and zoning board a petition asking that the tract, in whole or in part, be rezoned to business 1. A public hearing was had on March 2, 1955. On May 16, 1955, the petition was denied. From that ruling the plaintiff appealed to the board of zoning appeals, the defendant herein. The appeal was fully heard on June 9, 1955, and about three weeks later was terminated by the adoption of the following vote: "Be It Resolved the decision of the Town Planning and Zoning Board of May 16, 1955 be reversed to the extent that Robert M. Del Buono is granted a waiver of Residence B requirements to permit use for the following purposes, and subject to the conditions stated hereafter: 1. A dock, wharf, slip, basin or similar land for pleasure boats or for vessels engaged in fishing or shellfishery. 2. A yard for building, storing, repairing, or servicing boats. 3. A sail loft or ship chandlery, including the sale of marine equipment, engines and supplies. 4. Accessory uses customarily incidental to a permitted use, including the dispensing of fuels and lubricants to boats only. 5. Signs pertaining to a business on the premises only, and in accordance with sign regulations." The effect of this vote was to deny the request for a change of zone and in lieu thereof to grant the plaintiff a waiver of the zoning regulations. The limitation precluding the use of the tract for businesses other than those enumerated conformed to the plaintiff's statement at the public hearing that all he wanted to do with his property was to use it for marine and boating activities. To that end, he had submitted a plot plan, prepared by *676 an architectural engineer, indicating areas for boat slips, dry docks, parking, and a boat supplies building. As we shall later point out, the waiver was good for only two years.
The plaintiff appealed from the decision of the board of zoning appeals to the Court of Common Pleas. His appeal was sustained, and the defendant board has now appealed to this court.
The petition presented to the planning and zoning board was not for a waiver. The plaintiff was seeking a change of zone. The same request was before the board of zoning appeals when he appealed to that body from the denial of his petition. The narrow question, then, submitted to us is whether the court erred in holding that the defendant, by its refusal to change the classification of the plaintiff's tract from residence B to business 1, and by its granting, on its own motion, a temporary waiver for specific uses, acted illegally or arbitrarily. Chouinard v. Zoning Commission, 139 Conn. 728, 731, 97 A.2d 562.
In 1945, the town council, acting as the legislative body of Stratford, adopted an entirely new zoning ordinance which, with certain amendments, is presently in effect. The ordinance sets up a planning and zoning board, indiscriminately referred to, in the enactment, by that name and as the planning board. Section 17 recites, in part, that "the Planning Board shall have the power to adopt new zoning regulations and to amend, change or repeal the regulations of this ordinance and to establish new zone boundaries and to amend, change or abandon the present zone boundaries" under conditions and procedural steps then stated. Section 21 (A) provides that "[t]he Board of Zoning Appeals shall hear and decide appeals of aggrieved persons from *677 decisions of the Planning Board; it may affirm, reverse, modify, alter or revise any order or decision of the Planning Board." Since no claim to the contrary has been advanced by either party, we shall assume that these provisions are valid and confer the enumerated powers upon these two boards.
Zoning finds its warrant in the police power. State v. Hillman, 110 Conn. 92, 100, 147 A. 294. But if zoning is to be valid, it must have a rational relation to the public health, morals or safety or to the general welfare of the community. Corthouts v. Newington, 140 Conn. 284, 288, 99 A.2d 112. Moreover, the power to zone and thus to impose restrictions upon the use of private property is not unlimited even though its exercise will confer a real benefit upon the public. It is subject to its own restrictions in that it never can be exercised in an arbitrary manner. Florentine v. Darien, 142 Conn. 415, 423, 115 A.2d 328. Therein lies the weakness of the defendant's position.
Because of the zonal classification in which the plaintiff's property has been placed, he has, for all practical ends, lost all right to its enjoyment, since it has been stripped of every use to which it might reasonably be put. As the defendant concedes in its brief, the land cannot serve residential purposes until extensive piling, fill, drainage and retaining walls are put in at great expense to the owner. To this must be added the fact that, after such expense has been incurred, it is extremely doubtful that anyone would be lured into buying a lot because of the excessive cost and because of the surrounding neighborhood, zoned, as it is, only for business and industry. In other words, the fact that the land is in a residence B zone precludes its use for any purpose for which it is or can reasonably *678 be made adaptable and compels the owner to use it, if at all, for a purpose for which it is utterly unfitted. A classification permanently restricting the enjoyment of property to such an extent that it cannot be utilized for any reasonable purpose goes beyond valid regulation and constitutes a taking without due process. Arverne Bay Construction Co. v. Thatcher, 278 N.Y. 222, 232, 15 N.E.2d 587. The classification would be unreasonable and confiscatory. Corthouts v. Newington, 140 Conn. 284, 289, 99 A.2d 112; Oschin v. Redford, 315 Mich. 359, 363, 24 N.W.2d 152; 8 McQuillin, Municipal Corporations (3d Ed.) § 25.45. Under the circumstances of the case at bar, the plaintiff was entitled to have his land removed from uselessness and zoned to permit its most appropriate use. See Hills v. Zoning Commission, 139 Conn. 603, 609, 96 A.2d 212.
We again observe that the plaintiff was seeking a change of zone, not a waiver, and the two are not equivalents. Plumb v. Board of Zoning Appeals, 141 Conn. 595, 599, 108 A.2d 899. If we assume that the defendant was empowered to grant a waiver in the face of the fact that the published notice of the public hearing referred only to a petition for a change of zone, its action is still as incapable of support as is the existing zoning restriction. To be sure, the plaintiff may now conduct on the tract the business he wishes to operate. The length of time when he may do this, however, is short. It covers but two years, the longest period permitted under the ordinance. Stratford Zoning Regs., § 20 (B) (9) (1952). To make the land adaptable for the use now authorized by virtue of the waiver will consume some, if not all, of that time and will call for vast physical changes in the land, with their attendant cost. It is unreasonable and oppressive to require the plaintiff, *679 if he makes these large expenditures, to limit his subsequent use of the tract to the allotted period of the waiver. The action of the board was invalid.
It is of no moment that the plaintiff bought the tract in 1953. Zoning is concerned with the use of property and not primarily with its ownership. State ex rel. LaVoie v. Building Commission, 135 Conn. 415, 419, 65 A.2d 165; Abbadessa v. Board of Zoning Appeals, 134 Conn. 28, 32, 54 A.2d 675. Neither will a change in zone amount to spot zoning. It will not result in wrenching a single lot or parcel of land from its environment and giving it a new rating that disturbs the tenor of the neighborhood. Hills v. Zoning Commission, 139 Conn. 603, 609, 96 A.2d 212.
There is no error.
In this opinion the other judges concurred.


            TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                                         NO. 03-01-00520-CV

                                  William A. Brown, Jr., Appellant

                                                    v.

                         Ann Lenora Brown and Ann S. Brown, Appellees

       FROM THE DISTRICT COURT OF FAYETTE COUNTY, 155TH JUDICIAL DISTRICT
              NO. 2000V-174, HONORABLE DAN R. BECK, JUDGE PRESIDING

                Several years after the death of her father, appellee Ann Lenora Brown filed suit seeking to

partition family lands she held in co-tenancy with her mother Ann S. Brown and her brother William A.

Brown, Jr.1 The parties participated in two mediations regarding the disposition of the various tracts of

land, signing a settlement agreement after each mediation session. Under the agreements, Mother received

the 126-acre homestead tract, Daughter received two tracts of land totaling about 140 acres, and Son

received a 176-acre tract plus $16,000 and his mediation expenses. After the second mediation agreement

was signed but before it was incorporated into a judgment, Son objected to Mother=s reservation of her

mineral interest in the tract conveyed to Son and argued that the second agreement was procured by fraud,

deceit, or mistake. The district court found that the two agreements were enforceable as Rule 11

        1
         We will refer to appellant William A. Brown, Jr. as ASon,@ to appellee Ann Lenora Brown as
ADaughter,@ and to appellee Ann S. Brown as AMother.@
agreements, see Texas Rules of Civil Procedure 11,2 and signed a judgment partitioning the family tracts and

ordering the parties to execute the necessary deeds to accomplish the partition detailed in the agreements.

Son appeals, contending that he never agreed to Mother=s reservation of her mineral interest in the 176-acre

tract he received.

                                          Factual Background

                After Daughter filed her suit seeking the partition of various family lands, the parties

mediated their rights to the individual tracts. The parties attended a mediation session in February 2001,

which resulted in a signed agreement. The February agreeme nt, signed by all three parties and their

attorneys, provides in pertinent part that:

        [Son] shall be awarded and have conveyed to him by Special Warranty Deed the
        87 acre tract and the 36 acre tract and [Daughter=s] 50 acre tract by Special

        2
          To be enforced under Rule 11, an agreement between attorneys or parties must be in
writing, signed, and filed as part of the record or made in open court and entered of record. Tex.
R. Civ. P. 11. The purpose of Rule 11 is to prevent parties from misconstruing or wrongly
remembering oral agreements regarding pending suits. Padilla v. LaFrance, 907 S.W.2d 454,
459-60 (Tex. 1995); see Ebner v. First State Bank, 27 S.W.3d 287, 296 (Tex. App.CAustin 2000,
pet. denied).

                                                     2
        Warranty Deed including without limitation [Daughter=s] interest in the minerals
        and he shall keep the approximate 29 acres from the original 54 acre tract
        previously deeded to him . . . .[3]

                After the February mediation, three issues arose related to releases, a covenant-not-to-sue,

and other properties; the parties returned to mediation on June 11, 2001. Between the February and June

mediations, Daughter=s attorney drafted an agreement and circulated it to Son and Mother. Daughter=s

attorney brought to the June mediation the latest version of the agreement, which differed from earlier

circulated drafts in several respects. In particular, the draft included as an exhibit a summary of

all conveyances necessary to accomplish the agre ement. This summary stated that Daughter

would convey to Son her interests Ain the surface and minerals@ of the 176-acre tract and Mother

would convey her interests Ain the surface,@ whereas a previously circulated draft of a deed

indicated Mother would convey her mineral interests as well as her surface estate. It appears

that no deeds were attached to this latest version of the agreement. At the end of the June

mediation, the parties and their attorneys signed a new agreement drafted by the attorneys for Daughter and

Mother.

                The June agreement provides:

        3
           Son stated, and no one disputes, that the 176-acre tract is the property referred to in this
portion of the February agreement. Although the tracts described in the quoted language add up to 173
acres, we will defer to the parties= knowledge of the properties in question and refer to these tracts
collectively as the 176-acre tract.

                                                    3
       8. Warranties & Representations . As part of the consideration for the payment
          of [$16,000 from Daughter to Son], and the covenants and conveyances
          described in Exhibit A, each of the Parties expressly covenants, agrees,
          warrants and represents, for themselves and their heirs, executors, legal
          representatives, successors and assigns, that the Party:
              ....

              d.     before executing this Agreement, has been fully informed of its terms,
                     contents, conditions and effect, and has had the benefit of the advice of
                     an attorney of the Party=s own choosing;

              e.     before executing this Agreement, has carefully read and understood the
                     contents of the Agreement and has signed it as the Party=s own free act;

              f.     has relied solely and completely on the Party=s own judgment, and the
                     advice of the Party=s counsel, in making and executing this Agreement
                     and has not relied on any representations or promises of any person
                     released hereunder;
              ....

              j.     fully understands and agrees that no representation by any attorney or
                     other representative acting on behalf of any of the Parties has influenced
                     or induced the execution of this Agreement.
       ....

       12. Terms of Agreement; Headings. It is understood that the terms of this
           Agreement are contractual and not mere recital. . . .
       ....

       15. Lack of Coercion or Duress. The Parties agree that they have each entered
           into this Agreement freely, without coercion or duress, and after having
           consulted with professionals of the Party=s own choice.

Each party signed the agreement, and their signatures were notarized. Each party=s attorney

signed a page stating:

                                                    4
       I hereby confirm that I have consulted with my client regarding the terms and
       conditions of the above and foregoing Release and Settlement Agreement. I have
       ascertained to my own satisfaction that my client fully understands the terms and
       conditions thereof. . . . My client has executed this Agreement voluntarily and
       without compulsion and is competent to understand the terms and conditions of the
       Agreement and the advice that I have given about it.

               Exhibit 1 to the June agreement is a summary of the disposition of the various

properties. Also attached to the agreement are eleven unexecuted warranty deeds and three

maps. Exhibit 1 states that Mother will Aconvey to [Son] the interests of [Mother] in the surface

of the 176.57-acre tract@ and Daughter will Aconvey to [Son] the interests of [Daughter] in the

surface and minerals of the 176.57-acre tract.@ The deed in question states that Mother conveys

to Son her Arights, title, and interest in the surface estate only, and not the minerals,@ to the 176-

acre tract. In addition to signing the agreement, Son, Daughter, and Mother initialed each page

of the agreement and every attachment, including Exhibit 1 and the deed conveying to Son only

Mother=s surface estate in the 176-acre tract.

               Shortly after the June mediation, Son refused to sign the deeds or an agreed judgment.

Mother and Daughter returned to court to enforce the June agreement. The district court held two

hearings on the motion to enforce; at those hearings, Son argued that in the June agreement

Mother wrongly reserved her mineral interest in the 176-acre tract. He argued that Mother had

already disclaimed her surface interest in the tract, making the conveyance to him worthless

                                                          5
without the minerals.4 The district court found that the June and February agreements should be enforced

as Rule 11 agreements and rendered a judgment of partition in accordance with the agreements.

Additionally, the court found that the February agreement did not require Mother to convey to Son her

mineral interests in the 176-acre tract.

                                                Discussion

                Son contends that the June agreement was not enforceable because he never agreed to

Mother=s reservation of her mineral interest and because the February agreement was ambiguous as to

whether Mother=s mineral interest was to be conveyed. He further contends that the June agreement was

obtained by fraud, misrepresentation, trickery, and/or mistake. Therefore, argues Son, the district court

erred in enforcing the June agreement. Instead, the district court should have enforced the February

agreement or, in the alternative, denied Mother and Daughter=s motion to enforce and either sent the parties

back to mediation or set the cause for trial.

                Son correctly asserts that a party may revoke his or her consent any time before

the trial court renders judgment, and that a so-called agreed judgment rendered after consent is

withdrawn is void. S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995); see Padilla v.

        4
           Mother contends that in 1997 she disclaimed her surface interest in most of the tract, but retained
a surface interest in twenty-two or twenty-three acres. Son responded that the retention of surface interest
in those twenty-odd acres was a typographical error. Mother replied, AThat=s the state of the record and
the property records, Judge, and so that=s what they=re stuck with.@

                                                      6
LaFrance, 907 S.W.2d 454, 461 (Tex. 1995); Alcantar v. Oklahoma Nat=l Bank, 47 S.W.3d 815,

819 (Tex. App.CFort Worth 2001, no pet.). However, a settlement agreement that meets the

requirements of Rule 11 may be enforced as a binding contract under general contract law rather

than as an agreed judgment. See Tex. R. Civ. P. 11; Padilla, 907 S.W.2d at 461; Alcantar, 47

S.W.3d at 819.

               In construing a contract, a court=s primary concern is discerning the true intentions

of the parties as expre ssed by the contract. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983);

Sidelnik v. American States Ins. Co., 914 S.W.2d 689, 691 (Tex. App.CAustin 1996, writ denied).

To determine the parties= intentions, courts consider the entire writing, seeking to harmonize and

give effect to all contractual provisions, if possible. Hofland v. Fireman=s Fund Ins. Co., 907

S.W.2d 597, 599 (Tex. App.CCorpus Christi 1995, no writ). The language used by the parties is

to be given its plain, grammatical meaning unless it appears that to do so would defeat the

parties= intentions. Lyons v. Montgomery, 701 S.W.2d 641, 643 (Tex. 1985); see also Snyder v.

Eanes Indep. Sch. Dist., 860 S.W.2d 692, 696 (Tex. App.CAustin 1993, writ denied) (meaning

given to contractual language is question of law and should be interpreted to carry out parties=

intentions).

               Separate instruments may be read together as one contract if they pertain to the

same transaction, even if they do not expressly refer to each othe r. Board of Ins. Comm=rs v.

Great S. Life Ins. Co., 239 S.W.2d 803, 809 (Tex. 1951); Cothron Aviation, Inc. v. Avco Corp.,

843 S.W.2d 260, 263 (Tex. App.CFort Worth 1992, writ denied); Massey v. Galvan, 822 S.W.2d

                                                 7
309, 315 (Tex. App.CHouston [14th Dist.] 1992, writ denied). The separate instruments need not

have been executed contemporaneously, but they must not conflict with respect to issues such as

terms and parties. Cothron Aviation, Inc., 843 S.W.2d at 263.

                  Whether a contract is ambiguous is a question of law for the trial court to decide by

viewing the contract as a whole in light of the circumstances under which the contract was

entered. Coker, 650 S.W.2d at 394; Sidelnik, 914 S.W.2d at 691. If the contract can be given a

definite or certain meaning, then it is not ambiguous and will be interpreted as a matter of law.

Coker, 650 S.W.2d at 393; Sidelnik, 914 S.W.2d at 691. That the parties draw differing

interpretations or that the contract uses unclear or uncertain language does not necessarily

render a contract ambiguous. See Weslaco Fed=n of Teachers v. Texas Educ. Agency, 27 S.W.3d

258, 264 (Tex. App.CAustin 2000, no pet.); Hofland, 907 S.W.2d at 599. Courts should not strain

to find ambiguities if by so doing they defeat the parties= probable intentions. Quality Oilfield

Prods., Inc. v. Michigan Mut. Ins. Co., 971 S.W.2d 635, 637 (Tex. App.CHouston [14th Dist.]

1998, no pet.).

                  As fact finder, a trial court is the sole judge of credibility and weight to be given to

testimony. Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 567 (Tex. 2000); Webb v.

Jorns, 488 S.W.2d 407, 411 (Tex. 1972) (AIt is an old and familiar rule that the fact finder may

resolve conflicts and inconsistencies in the testimony of any one witness as well as in the

testimony of different witnesses.@); Schneider v. Schneider, 5 S.W.3d 925, 931 (Tex. App.CAustin

1999, no pet.). We will not second-guess a trial court=s resolution of conflicts in the evidence, and

                                                     8
the fact finder=s decision on evidentiary conflicts generally is regarded as conclusive. Schneider,

5 S.W.3d at 931; see also Griffin Indus., Inc. v. Honorable Thirteenth Court of Appeals, 934

S.W.2d 349, 355 (Tex. 1996) (Baker, J., dissenting). Although we review a trial court=s

conclusions of law de novo, we will uphold conclusions of law unless they are erroneous as a

matter of law. See Westech Eng=g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196

(Tex. App.CAustin 1992, no writ). We will affirm a trial court=s judgment if it can be supported by

any valid legal theory. Id.

               At the hearings, Son stated and Daughter agreed that the first draft of a deed,

drawn up after the February mediation to give Mother=s interest in the 176-acre tract to Son,

conveyed both Mother=s surface and mineral estates in the tract; Mother insisted that she never

agreed to that conveyance. Daughter=s attorney said that at the June mediation, Mother=s

attorney Ahad documents he wanted to use, and those did not include a conveyance of the

minerals.@ Son stated that he never agreed to Mother=s reservation of her mineral estate in the

176-acre tract. Daughter=s attorney testified that she circulated draft deeds before the June

mediation but never received any comments from Son or Mother and so she Ajust showed up at

mediation with drafts of all of the deeds according to what I had sent out, but nobody had agreed

to anything at that point.@ However, Son=s attorney stated Son had agreed to the draft deeds. A

letter from Daughter=s attorney to Son=s attorney states, A[W]e certainly welcome [Son] to either

draft the deeds or to provide comments and suggestions regarding the manner in which they

should be handled.@

                                                9
                Son, who is himself an attorney, was represented by counsel throughout these

proceedings; he testified that he signe d the June agreement because A[a]ll of the exhibits and

attachments were represented to me to be unchanged and I thought they were unchanged. I later

found they were changed.@ Son testified that at the June mediation he requested certain changes

to the draft agreement, such as the removal of a covenant-not-to-sue.5 Son denied that he

reviewed the documents given to him after Mother=s and Daughter=s attorneys made changes,

saying, AThese documents were presented after the mediator left[,] while the notary public was

standing over me and everybody else had already signed and initialed and they were waiting to

leave.@

                Daughter=s attorney, who testified that the mineral interest for the 176-acre tract was never

mentioned as an issue to be addressed at the June mediation, testified that she brought to the June mediation

a draft deed in which Mother conveyed her surface and mineral interests to Son. However, the deed that

was eventually attached to the June agreement came from a computer disk provided by Mother=s attorney.

          5
         Son=s attorney objected to some of Mother=s questioning of Son, saying, A[D]iscussions
that took place in the mediation are protected and are not admissible for any purpose. So what
the Court has before it here are two settlement agreements and some testimony that he didn=t
agree to one of the exhibits.@ The district court sustained the objection and said the attorneys
should not Aget into anything discussed at settlement B mediation.@ Mother stated, A[M]y
ultimate point is that [Son] negotiated a change to Exhibit 1 [of the June agreement], which
demonstrates that he reviewed Exhibit 1.@

                                                     10
Daughter=s attorney said that at the June mediation the mediator asked the attorneys to use lists and deeds

provided by Mother=s attorney because those lists were more accurate. She and Mother=s attorney went to

her office to prepare the final deeds using Mother=s attorney=s computer disk. Daughter=s attorney believed

that at the time she and Mother=s attorney left to make final revisions, Son and Son=s attorney had copies of

the new deed reserving Mother=s mineral estate in Son=s tract. Son and his attorney had at least an hour to

review the documents, which Daughter=s attorney believed was Aadequate time for that review.@ When they

returned from making changes, the mediator had left; Daughter=s attorney reviewed the documents with

Daughter, asking her to sign the agreement and to initial each page of the agreement and of the attached

exhibits and deeds, which took about half an hour. The documents were then given to Mother for her

review and signature, and then to Son. Asked about a draft agreement introduced into evidence,

Daughter=s attorney stated:

        This is the copy that was given to the mediator when we walked in the room that
        day. As I recall, what occurred that day is, I walked in with the version of the
        settlement agreement that I had circulated; versions of the special warranty deeds
        that I had completed B those had not all been circulated because I just got the land
        description the Friday before for some of that. And when we went in, this was the
        settlement agreement that you [Mother=s attorney] presented, saying that you had
        done the same thing I had done in putting things together. So that was talked
        about at the mediation.[6]

        6
            Son contends that Daughter=s attorney=s testimony establishes that only the mediator was
provided with a draft indicating that Mother was reserving her mineral interest. However, a careful reading
of the [record that the] testimony is not so clear. Daughter=s attorney said she gave a copy of the draft to

                                                     11
The referenced draft states that Mother conveyed to Son her surface interest and Daughter

conveyed her surface and mineral interests. Daughter=s attorney did not know whether Son read

the deeds but said, AI know that the mediator came out and said that there had been a request

from that side to please change the special warranty deeds to reflect the address for [Son] at his

post office box.@ Daughter=s attorney testified that when she and Mother=s attorney went to her

office to make changes that Ahad been requested to be made both to the warranty deeds and to

the main document of the settlement agreement, we got a phone call from the mediator saying

that changes had been requested to Paragraph 10 of Exhibit 1 to that settlement agreement,

specifically requesting that we delete some language that appeared to be redundant.@ Mother=s

attorney stated that Athis mineral issue was discussed at the second mediation,@ but Son stated that such a

statement was Aa boldfaced lie@ and that Mother=s mineral interest in the 176-acre tract was not discussed in

the June mediation.

                The district court had before it conflicting testimony regarding the June agreement.

Son contended that he was tricked into signing an agreement that contained changes of which he

was unaware, but Daughter=s attorney testified that Son had a draft stating that Mother would convey only

her surface interest, as opposed to Daughter=s conveyance to Son of her surface and mineral interest in the

176-acre tract. There is evidence in the record to indicate that Mother retained a surface interest in a small

the mediator when she walked into the room. She does not indicate that the parties were not given the
same draft or that they were given a different draft.

                                                     12
part of the tract, contrary to Son=s assertion that she retained only the mineral estate. Son was given the

opportunity to draft the deeds himself and did not do so. He signed and initialed each page of the June

agreement, including Exhibit 1 (the Summary of Conveyances) and Exhibit 8 (the deed for the 176-acre

tract), both of which prominently mentioned that Mother conveyed only her surface estate in the tract.

                 As we have detailed, the June agreement in several prominent places stated that each party

read and understood the entire document and entered into the agreement free of coercion and duress.

Son=s attorney specifically affirmed that his client understood the terms of the agreement and signed it

voluntarily. The deed in dispute is four pages long, and the last two pages are simply signature pages. The

first full paragraph on the first page states, A[Mother] . . . does GRANT, TRANSFER, and CONVEY,

unto [Son] all of [Mother=s] rights, title, and interest in the surface estate only, and not the minerals . . . .@

The February agreement on which Son heavily relies is silent as to Mother=s mineral interest in the tract,

while specifying that Son will receive Daughter=s mineral interest. That an early draft of a deed, to which

Mother did not agree, stated Mother would convey to Son her mineral interest does not conclusively

establish that Son was tricked into signing a changed agreement in June. The district court was in a position

to evaluate the testimony and resolve all conflicts in the evidence. See Schneider, 5 S.W.3d at 931. We

will not second-guess that determination. See id.

                 The trial court could have considered the repeated language in the June agreement that each

party read and understood its terms and did not rely on any representations by another party or another

party=s representative as an inducement to enter the agreement. The court could have considered that each

party initialed every page of the agreement and the complained-of deed. The court could have considered

                                                       13
that the February agreement did not specifically require Mother to convey to Son her mineral estate in the

176-acre tract and so did not contradict the June agreement that specifically reserved her mineral estate in

that tract. The court could have considered that Son, as an attorney who was represented by his own

counsel, would have or should have read the agreement and the disputed deed before signing the

agreement. We hold that the two agreements satisfy the requirements of Rule 11 and hence the district

court did not err in finding the agreements enforceable or in signing a judgment of partition in accordance

with the signed agreements. We overrule Son=s issues on appeal and affirm the judgment of the district

court.

                                                 __________________________________________

                                                 Bea Ann Smith, Justice

Before Chief Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: June 21, 2002

Do Not Publish

                                                    14


NOTE: This order is nonprecedential
United States Court ofA11peaIs
for the FederaI Circuit
TRADE ASSOCIATES, INC.,
Plaintiff-Appellant, '
V.
FUSION TECHNOLOGIES, INC.,
Defenclant-Cross Appellant.
2012-1176, -1177 _
Appeals from the United States District Court for the
Western District of Washing't0n in case n0. 09-CV-580-4,
Judge Robert J. Bryan.
ON MOTION
ORDER
The parties jointly move to voluntarily dismiss their
appeals
Up0n consideration thereof
IT ls OR:oERED THAT:
(1) The motion to dismiss is granted The appeals are
dismissed.

TRADE ASSOCIATES V. FUSION TECH
2
(2) Each side shall bear its own costs
FOR THE COURT
MAR 1 6 2012
lsi J an Horbaly
Date J an Horba1y
Clerk
cc: Paul T. Meiklejohn, Esq.
John E. VVhitaker, Esq.
s21
Issued As A Mandate: MAR 1 6
FlLED
U.S. COUHT 0F AFFEALS FOH
THE FEDERAL C|HCUIT
MAR 16 2012
am nassau
cLERl<


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             OCTOBER 3, 2007
                               No. 07-11343                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                  D. C. Docket No. 94-00108-CR-FTM-29-D

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                    versus

JERMAINE A. YOUNG,

                                                       Defendant-Appellant.

                         ________________________

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

                              (October 3, 2007)

Before DUBINA, BLACK and MARCUS, Circuit Judges.

PER CURIAM:

     Appellant Jermaine A. Young, proceeding pro se, appeals the denial of his
pro se motion for resentencing, brought pursuant to 18 U.S.C. §§ 3664(o)(2) and

3565, and through which he challenged the district court’s entry of an amended

judgment in 2002 that clarified the procedure through which he should fulfill his

restitution obligation related to his 1995 convictions for carjacking, kidnaping, and

firearms charges.

      Young argues on appeal that the district court lacked jurisdiction to amend

his original judgment several years after his original judgment was entered. The

government argues that the district court lacked jurisdiction to consider the merits

of Young’s resentencing motion.

      We must resolve jurisdictional issues before we address the merits of the

underlying claims. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-102,

118 S. Ct. 1003, 1012-16 (1998). We review a “district court’s determination that

it lacked subject matter jurisdiction de novo.” Mahone v. Ray, 326 F.3d 1176,

1178 (11th Cir. 2003).

      As an initial matter, a crucial part of Young’s argument is his assertion that

the district court did not have jurisdiction to amend his judgment several years

after the court entered the original judgment. Because Young failed to file a direct

appeal of the district court’s amended judgment, we may not now review that

judgment, and our scope of review is limited to whether Young could move for

                                          2
resentencing pursuant to §§ 3664(o)(2) and 3565. See United States v. Machado,

465 F.3d 1301, 1305-06 (11th Cir. 2006).

      Regarding Young’s assertion that his motion could be brought through

§§ 3664(o)(2) and 3565, we note that the Victim and Witness Protection Act of

1982 (“VWPA”), Pub.L.No. 97-291, 96 Stat. 1248, was amended substantially by

the Mandatory Victims Restitution Act of 1996 (“MVRA”), Pub.L.No. 104-132,

110 Stat. 1227, which became effective on April 24, 1996. See United States v.

Siegel, 153 F.3d 1256, 1258 (11th Cir. 1998). Because Young was convicted in

1995, the provisions of the MVRA are not applicable to his case. The VWPA did

not include § 3664(o)(2), and, accordingly, Young may not attempt to use that

subsection to attack his restitution order. Compare 18 U.S.C. § 3664 (1990) and

18 U.S.C. § 3664 (2002).

      Additionally, even if the provisions of the MVRA did apply to Young’s

case, the current version of § 3664 specifically states that “[n]othing in this section

. . . shall be construed to create a cause of action not otherwise authorized in favor

of any person against the United States.” 18 U.S.C. § 3664(p). Furthermore,

nothing in the former restitution statute under which Young was sentenced created

an independent cause of action to attack a restitution order. See 18 U.S.C. §§ 3663,

3663A, 3664 (1990). The other statute that Young cited in his resentencing

                                           3
motion, § 3565, also fails to provide him a vehicle through which he could raise

this motion, as § 3565 deals entirely with the revocation of probation. See 18

U.S.C. § 3565.

      Furthermore, because Young solely was attacking his order of restitution,

and not his imprisonment, his resentencing motion could not have been brought as

a 28 U.S.C. § 2255 motion. See Blaik v. United States, 161 F.3d 1341, 1342-43

(11th Cir. 1998). Because Young was not authorized to apply for relief from his

restitution order under § 2255, he could not have brought his resentencing motion

as a § 2241 petition, either. See 28 U.S.C. § 2255 (¶ 5); Blaik, 161 F.3d at 1342-

43.

      Thus, we conclude from the record that the district court properly denied

Young’s resentencing motion because there was no procedural basis through which

he could bring such a motion.

      AFFIRMED.

                                          4


172 F.3d 42
U.S.v.James Earl Piersol, III
NOS. 97-7425, 97-2428, 97-7426, 97-7429, 97-7427
United States Court of Appeals,Third Circuit.
November 13, 1998

1
Appeal From:  M.D.Pa.

2
Affirmed.