MEMORANDUM DECISION                                                   FILED
Pursuant to Ind. Appellate Rule 65(D), this                       Jul 14 2016, 8:41 am

Memorandum Decision shall not be regarded as                          CLERK
precedent or cited before any court except for the                Indiana Supreme Court
                                                                     Court of Appeals
purpose of establishing the defense of res judicata,                   and Tax Court

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Amy D. Griner                                             Gregory F. Zoeller
Mishawaka, Indiana                                        Attorney General of Indiana
                                                          Justin F. Roebel
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana

                                             IN THE
    COURT OF APPEALS OF INDIANA

Thomas Harper,                                            July 14, 2016

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A03-1512-CR-2150
        v.                                                Appeal from the Elkhart Circuit
                                                          Court.
                                                          The Honorable Terry Shewmaker,
State of Indiana,                                         Judge.
Appellee-Plaintiff.                                       Cause No. 20C01-1410-FA-2

Barteau, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 20A03-1512-CR-2150 | July 14, 2016      Page 1 of 15
                                          Statement of the Case
[1]   Thomas Harper appeals his conviction for burglary resulting in bodily injury, a
                             1
      Class A felony. We affirm.

                                                     Issue
[2]   The sole issue Harper raises for our review is whether the State presented

      sufficient evidence to sustain his conviction.

                                   Facts and Procedural History
[3]   A burglary and shooting took place on January 23, 2014, at a house located at

      1415 Franklin Street in Elkhart County. The temperature that day was

      approximately eight degrees Fahrenheit, and there was snow on the ground. At

      the time of the incident, a gas station and convenience store called the Burger

      Dairy was located next door to the Franklin Street house. Gurcharn Singh

      owned the Burger Dairy.

[4]   The Franklin Street house is divided into two apartments, an upstairs apartment

      and a downstairs apartment. Peter Fernandes and Arnaldo Vales lived in the

      upstairs apartment. Harsimratpal Singh and Gurpreet Singh lived in the

      downstairs apartment. Peter, Gurpreet, and Harsimratpal worked for

      Gurcharn. Harsimratpal and Gurpreet worked at the Burger Dairy. Peter

      1
          Ind. Code § 35-43-2-1 (1999).

      Court of Appeals of Indiana | Memorandum Decision 20A03-1512-CR-2150 | July 14, 2016   Page 2 of 15
      worked at another gas station owned by Gurcharn that was located further from
                                         2
      the Franklin Street house.

[5]   Harsimratpal left work early in the morning of January 23, 2014, returned to his

      downstairs apartment, and went to sleep. Peter and Arnaldo left the upstairs

      apartment that morning and went to Peter’s place of employment. At some

      point, Harsimratpal heard loud noises coming from the upstairs apartment. He

      called Gurcharn. Gurcharn left the Burger Dairy and went to the Franklin

      Street house to investigate.

[6]   Gurcharn climbed the stairs and approached the door to the upstairs apartment.

      He noticed there was damage to the door. He testified “[t]he door was smashed

      where the locks, the handles, is [sic] and all that [sic] like very bad smashed and

      somebody tried to break in . . . and nobody went inside because the door was

      still locked.” Tr. p. 104. Gurcharn descended the stairs and returned to work.

      Harsimratpal called Gurpreet and told him someone had broken the door to the

      upstairs apartment.

[7]   Shortly thereafter, Gurcharn received another call from Harsimratpal, asking

      him to return to the house because Harsimratpal again heard loud noises

      coming from the upstairs apartment. Gurcharn returned, and he and

      Harsimratpal stood talking outside of Harsimratpal’s apartment, near the stairs

      2
        Testimony was presented at trial that indicated Arnaldo also worked for Gurcharn and worked at the gas
      station with Peter.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1512-CR-2150 | July 14, 2016           Page 3 of 15
      leading to the upstairs apartment. A man with a handgun emerged from the

      upstairs apartment, descended the stairs, and shot at Gurcharn and

      Harsimratpal. The man fired the gun three or four times. Gurcharn described

      the man as “around [twenty years old],” “normal size,” and five feet, five

      inches in height. Id. at 108.

[8]   Gurcharn was shot once in each knee. Harsimratpal was shot once in the back.

      The shooter ran from the residence. Gurpreet, who had walked to the Franklin

      Street house from the Burger Dairy, witnessed the shooting. After the shooter

      fled the scene, Gurpreet went back to the gas station, encountered a police

      officer who was pumping gas, and reported the incident to the officer.

      Gurcharn and Harsimratpal were transported to the hospital for treatment.

[9]   When police from the Elkhart City Police Department arrived at the Franklin

      Street house, they cordoned-off the area and began an investigation. One

      officer found a laptop computer laying on the landing at the top of the stairs
                                                                                3
      leading to the upstairs apartment, just outside of the apartment door. The

      officer also observed part of the metal locking mechanism for the door frame

      and some splintered wood laying on the floor, outside of the entrance to the

      apartment, near the laptop. The officer found a bullet embedded in the siding

      3
[1]     Arnaldo testified he had 5,000 Indian Rupees in a suitcase in the apartment when he left the apartment on
      the morning of January 23, 2014. When he returned, the money was gone. The money was not recovered.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1512-CR-2150 | July 14, 2016             Page 4 of 15
       of the house. A firearms expert determined the bullet could have been fired

       from a .22 caliber long handgun.

[10]   During the investigation of the crime scene, police officers found footprints in

       the snow that they believed belonged to the suspect. The police also found a

       laptop power cord laying in the snow, in the middle of a street near the burgled

       apartment, and additional footprints near the cord. An evidence technician

       found a footprint on the door of the upstairs apartment.

[11]   The police tracked the footprints away from the scene, through an alley, and to

       a residence located at 513 Oakland Avenue in Elkhart County. Approximately

       thirty to forty minutes passed between the time police officers were first alerted

       to the burglary/shooting and the officers’ arrival at the Oakland Avenue house.

       The police surrounded the house.

[12]   The Oakland Avenue house has a common-entrance door. Inside of the

       common entrance are two separate doors leading to apartment A and

       apartment B. Apartment A is the downstairs apartment and apartment B is the

       upstairs apartment.

[13]   Officers knocked on both apartment doors. No one answered the door at

       apartment B. The occupant of apartment A answered the door and told officers

       “she had just spoken with someone and allowed them to use [her cell] phone.”

       Id. at 263. The occupant later identified the person who used her phone as

       Harper. She testified at trial Harper used her cell phone to call his cousin

       Court of Appeals of Indiana | Memorandum Decision 20A03-1512-CR-2150 | July 14, 2016   Page 5 of 15
                   4
       “D.J.”, and asked his cousin to “pick him up.” Id. at 282, 289. The call was

       made at 12:38 p.m. Evidence was presented that indicated Harper went to

       apartment B after using the cell phone.

[14]   After assessing the situation at the Oakland Avenue house, the police requested
                                                                              5
       assistance from the Special Response Team (SRT). The SRT arrived at

       approximately 2:45 p.m. A member of the team used a bullhorn to call to the

       individual in the apartment and ask the individual to “come down with your

       hands up.” Id. at 339. At this same time, the 911 dispatch center received a call

       from an individual stating “they were in the upstairs apartment, [sic] they were

       confused what was going on.” Id. at 352. The dispatch center advised the

       individual to go downstairs with his hands up. Harper eventually emerged

       from the apartment approximately ten to fifteen minutes after the SRT arrived

       and was transported to the Elkhart County Jail.

[15]   Jerome Wilson was the renter of the upstairs apartment at the Oakland Avenue

       house. Harper had spent the night in Wilson’s apartment but left the apartment

       the morning of January 23, 2014, when Wilson left to go visit his father.

       Wilson locked the apartment door when he left. Wilson returned to his home

       when he was told by relatives the Oakland Avenue house was surrounded by

       police officers. After the SRT cleared the apartment and Harper was taken into

       4
           The full name of the person referred to as “D.J.” is D’Andre Goodwin, Jr.
       5
        The SRT is a team of Elkhart police officers that assist with high-risk search warrants, high-risk arrests, and
       hostage situations.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1512-CR-2150 | July 14, 2016                Page 6 of 15
       custody, a police detective obtained consent from Wilson to search his

       apartment.

[16]   Incident to the search, police found on the floor of a closet a pair of gray

       sweatpants and a pair of black, gray, and red colored athletic shoes. The

       bottoms of the legs of the sweatpants were wet, and the soles of the shoes also

       were wet. A forensic analyst with the Indiana State Police Laboratory

       determined the right shoe found in the apartment matched the footprint that the

       intruder left on the door of the apartment that was burgled. The police also

       found a videogame case that contained U.S. currency. Harper’s fingerprints
                                         6
       were found on the case. When police officers left the scene of the upstairs

       apartment at 513 Oakland Avenue, they locked the doors leading to the

       apartment.

[17]   On January 24, 2014, the day following the incident, a detective with the

       Elkhart Police Department decided to listen to recordings of telephone calls

       Harper made from the jail. The detective determined Harper made a call to

       D.J., the same person he called from the cell phone the day before. Harper told

       D.J. to go to Jerome Wilson’s apartment and look underneath the couch, inside

       of a CD case, for some “bread” – a common slang term for money. Id. at 478.

       Harper also indicated during the call that he wanted D.J. to retrieve from the

       apartment “something [in] the bathroom where you put your feet.” Id.

       6
           The videogame case and the U.S. currency were not taken from the burgled apartment.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1512-CR-2150 | July 14, 2016      Page 7 of 15
[18]   Based on this information, two police detectives returned to Wilson’s apartment
                                                                                7
       and, again, obtained permission from Wilson to search the apartment. When

       Wilson and the detectives approached the door to his apartment, they noticed

       the lock was broken, the doorplate had “pry marks” on it, and a crowbar was

       near the door. Id. at 479. It did not appear that anyone had gained entry into

       the apartment. The detectives searched Wilson’s apartment and eventually

       found an H & R model .22 caliber revolver in the bathroom, in a cabinet

       underneath the sink. The detectives also found a live round of ammunition.

       The revolver contained five rounds of .22 caliber ammunition and four spent

       bullet casings.

[19]   The State charged Harper with two counts of Class A felony burglary resulting

       in bodily injury. At the conclusion of the trial, the jury found Harper guilty as

       charged. The trial court merged the two convictions and sentenced Harper to a

       total sentence of fifty years executed. Harper now appeals.

                                      Discussion and Decision
[20]   Harper argues there was insufficient evidence to support his conviction for

       Class A felony burglary. In order to convict Harper of Class A felony burglary,

       the State was required to prove Harper broke into and entered Peter Fernandes’

       apartment with intent to commit theft, and that the burglary resulted in bodily

       7
         Wilson did not stay in his apartment the night following the incident. He returned to the apartment the
       following day and encountered the police detectives upon his arrival.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1512-CR-2150 | July 14, 2016                Page 8 of 15
       injury to another person. According to Harper, the State failed to present

       evidence sufficiently linking him to the crime. Harper specifically argues the

       State failed to present evidence he was inside the burgled apartment; and, the

       State failed to present evidence he was in possession of any stolen property

       taken from the residence. In support of his claims, Harper argues the

       eyewitnesses to the crime had a close view of the shooter, yet did not identify

       Harper as the perpetrator.

[21]   Our standard of review for sufficiency of the evidence is well settled. We

       neither reweigh the evidence nor judge the credibility of witnesses. Whitlow v.

       State, 901 N.E.2d 659, 660 (Ind. Ct. App. 2007). Rather, we consider the

       evidence most favorable to the verdict and draw all reasonable inferences that

       support the ruling below. Id. at 660-661. We affirm the conviction if there is

       probative evidence from which a reasonable trier of fact could find the

       defendant guilty beyond a reasonable doubt. Id. at 661. It is not necessary that

       the evidence “‘overcome every reasonable hypothesis of innocence.’” Drane v.

       State, 867 N.E.2d 144, 147 (Ind. 2007) (quoting Moore v. State, 652 N.E.2d 53,

       55 (Ind. 1995)).

[22]   A conviction may be sustained based on circumstantial evidence. Baltimore v.

       State, 878 N.E.2d 253, 258 (Ind. Ct. App. 2007), trans. denied. Circumstantial

       evidence need not exclude every reasonable hypothesis of innocence; rather,

       circumstantial evidence can sustain a conviction if an inference may reasonably

       be drawn from the evidence to support the judgment. Id. A burglary or theft

       Court of Appeals of Indiana | Memorandum Decision 20A03-1512-CR-2150 | July 14, 2016   Page 9 of 15
       conviction may be sustained by circumstantial evidence alone. Hill v. State, 531

       N.E.2d 1382, 1383 (Ind. 1989).

[23]   In support of his argument, Harper directs our attention to Janigon v. State, 429

       N.E.2d 959 (Ind. 1982), and Cantrell v. State, 673 N.E.2d 816 (Ind. Ct. App.

       1996), trans. denied. In Janigon, our Supreme Court reversed a defendant's

       conviction as a participant in a robbery where the evidence most favorable to

       the State consisted of: (1) one witness’ testimony that the defendant was seen in

       the drug store before it was robbed; (2) the testimony of a police officer that the

       defendant was seen afterwards walking in a nearby neighborhood; and (3) a

       search of the defendant revealed that he had in his possession bills of the same

       denominations as those taken from the drug store. Our supreme court found

       this evidence insufficient to support a finding of guilt beyond a reasonable

       doubt, stating that “[m]ere presence at the scene of a crime is of itself not

       sufficient to sustain a conviction for participation.” Janigon, 429 N.E.2d at 960.

       Of particular importance to the court was the fact that “only one of the State’s

       witnesses could testify to defendant’s presence at the scene,” and none of the

       witnesses was able to identify appellant as the robber. See Id.

[24]   In Cantrell, this court reversed the defendant’s conviction for burglary based

       upon insufficient evidence. There, the defendant parked his car in the driveway

       of a residence, alleging car trouble. A police officer investigated and Cantrell

       provided the officer a false name. Shortly after the encounter with the officer,

       Cantrell drove away. Approximately five hours later, the homeowners returned

       to their home to find the home had been burgled. This court concluded that

       Court of Appeals of Indiana | Memorandum Decision 20A03-1512-CR-2150 | July 14, 2016   Page 10 of 15
       though there was evidence that Cantrell’s presence at the residence was

       “suspicious” and there was evidence to imply Cantrell was “‘up to no good,’”

       there was “no evidence, circumstantial or otherwise, which connect[ed]

       Cantrell with the break-in of the house. There [was] nothing which indicate[d]

       that he was inside the residence.” Cantrell, 673 N.E.2d at 820.

[25]   Harper maintains “[t]here was far less evidence presented against [him at trial]

       than the evidence presented in Cantrell and Janigon.” Appellant’s Br. p. 10. We

       disagree.

[26]   Arnaldo testified that when he left the Franklin Street apartment on the

       morning of the incident, the laptop computer was not laying outside of the door

       to the apartment. Arnaldo further testified the door was intact when he and

       Peter left the apartment.

[27]   A police detective testified at trial as follows regarding the footprints found in

       the snow near the burgled apartment: “You could clearly see running footprints

       in the snow. They were running away from [the burgled apartment].” Tr. p.

       251. The detective further testified the footprints were made by some type of

       tennis or athletic shoe and that the footprints were relatively easy to follow.

       The evidence technician testified that the footprint found on the door of the

       burgled apartment could not have been an old footprint because the powder

       used to lift the print “won’t adhere to a – a footwear impression unless it’s still

       slightly damp.” Id. at 215.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1512-CR-2150 | July 14, 2016   Page 11 of 15
[28]   Police officers tracked the footprints to the Oakland Avenue house and arrived

       at the house approximately thirty to forty minutes after first responding to the

       burglary/shooting incident. Upon arrival, the officers learned that an

       individual might be inside the upstairs apartment. Harper eventually emerged

       from the apartment. Jerome Wilson, the renter of the apartment, testified at

       trial that no one was supposed to be in the apartment.

[29]   When officers searched the apartment from which Harper emerged, they found

       a pair of sweatpants and a pair of athletic shoes that were both wet. The

       forensic analyst with the Indiana State Police Department testified,

       unequivocally, as follows regarding the match between the tread of the athletic

       shoes found in the apartment and the footprint left on the door of the apartment

       that was burgled:

               There was no error. I came to the conclusion based on the class
               and individual characteristics. There was a sufficient amount of
               individual amount [sic] characteristics that I felt that it was
               beyond any doubt that [the footprint found on the door] was not
               made by any other shoes, that it could have been made by this
               particular shoe, because it’s also the size and shape of the
               impression that matched with the shoe as well. . . . Beyond any
               doubt that I had. . . . If I have any doubt, I will not make an ID,
               or an identification, or an exclusion.

[30]   Id. at 459. Pictures from Harper’s Facebook page were introduced into

       evidence. The pictures showed Harper wearing athletic shoes that were similar

       to the shoes found in Jerome Wilson’s apartment – the apartment from which

       Harper emerged.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1512-CR-2150 | July 14, 2016   Page 12 of 15
[31]   A bullet was recovered from Gurcharn’s knee and from the siding of the

       Franklin Street house. Although both bullets were too mangled to determine

       whether they were fired from the revolver found in Jerome Wilson’s bathroom,

       a firearms expert determined the bullet could have been fired from a .22 caliber

       handgun.

[32]   Harper made a call from jail to his cousin and told him to go to Jerome
                                                                                8
       Wilson’s apartment and retrieve an item from the apartment’s bathroom. This

       information led detectives to re-search Wilson’s apartment and discover a .22

       caliber revolver. The revolver held nine bullets. Four bullets had been

       discharged and five bullets remained in their chambers. One of the victims of

       the shooting provided an accurate description of Harper and testified that the

       individual who shot him fired the weapon three or four times.

[33]   During an interview with a police detective that occurred while Harper was

       awaiting trial, Harper indicated that he “did [not] know anything about any

       guns or weapons [that might be located] in the [Oakland Avenue] apartment.”

       Id. at 516. However, in one of the telephone calls Harper made from the

       Elkhart County Jail, he discussed the revolver found in the apartment and

       stated that “he was loading one of them up and . . . that he was ready to go to

       war, [sic] battle with the police if they tried to come into the apartment.” Id. at

       521.

       8
           All of Harper’s telephone calls from the jail were recorded by the police.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1512-CR-2150 | July 14, 2016   Page 13 of 15
[34]   A police detective testified at trial that she interviewed Harper regarding the

       burglary of the upstairs apartment at the Franklin Street house. Harper told the

       detective he had been at the apartment on Oakland Avenue all day and had not

       left the apartment. Harper’s statement to the detective was contrary to other

       information the detective had received. The detective learned from the

       occupant of the downstairs Oakland Avenue apartment that Harper had come

       to her apartment that day to use her cell phone at 12:38 p.m.

[35]   Harper’s claim is, essentially, that the State failed to present sufficient evidence

       he was the perpetrator of the crimes. He implies someone else committed the

       crimes. He presents additional arguments that the athletic shoes found were a
                                                   9
       different size from what he wears; the wet clothing found was not the same

       color clothing identified by the victims; and, there was no connection

       established between the U.S. currency found at the Oakland Avenue apartment

       and the burglary at the Franklin Street apartment. Harper’s claims in this

       regard are really a request that we reweigh the evidence, which we may not do.

       See McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Sufficient evidence was

       presented to establish Harper as the perpetrator of the crime and to support

       Harper’s conviction for burglary resulting in bodily injury.

       9
        The athletic shoes found at the Oakland Avenue apartment were a size 7½. Evidence was presented that
       Harper wears a size 9 shoe. However, this evidence was derived from a claim made by Harper.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1512-CR-2150 | July 14, 2016       Page 14 of 15
                                                Conclusion
[36]   For the reasons stated above, the judgment of the trial court is affirmed.

[37]   Affirmed.

       Mathias, J., and Barnes, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1512-CR-2150 | July 14, 2016   Page 15 of 15


                                                             11th
Court of Appeals
                                                                  Eastland,
Texas
                                                                        Opinion

David B. Smith
Appellant
Vs.                   No.  11-02-00156-CV C
Appeal from Taylor County
J-Hite,
Inc.
Appellee

This appeal arises out of a proceeding filed by appellee, J-Hite, Inc., to confirm an arbitration
award.  Appellant, David B. Smith,
originally filed suit in state district court against appellee
on October 12, 1999, with respect to his purchase of a manufactured home from appellee.  Appellee responded to appellant=s
original petition by asserting that his claims were subject to binding
arbitration as a result of various documents executed by appellant.  The trial court sustained appellee=s arbitration contention by dismissing
appellant=s suit
and referring the controversy to arbitration.
Pursuant to the trial court=s
order, the parties initiated arbitration proceedings with the American
Arbitration Association.  The parties= disputes were heard by an arbitrator
in a hearing conducted from June 13, 2001, through June 15, 2001.  The arbitrator issued his arbitration award
on July 18, 2001.  The arbitrator awarded
a net recovery in favor of appellant in the amount of $1,814.16.  Appellee
forwarded  a check to appellant for the
amount of his net recovery on August 7, 2001.

Appellee filed an
application in state district court on October 23, 2001, seeking the entry of a
judgment confirming the arbitration award.
Appellant responded to the application for confirmation by filing on
November 16, 2001, a pleading entitled ARespondent=s Answering Statement and Complaint.@
Appellant filed this pleading pro se.
Appellant sought in this pleading to have the arbitration award set
aside on several grounds, including corruption between appellee
and the arbitrator, partiality of the arbitrator, and misconduct by the
arbitrator.  Appellee  filed a motion for summary judgment on
January 28, 2002, which the trial court granted on April 24, 2002.  Appellant raises 10 points of error attacking
the trial court=s entry
of summary judgment in favor of appellee.  We affirm.
The trial court=s
order granting summary judgment does not specify the grounds upon which it was
based.  When a trial court=s order granting summary judgment does
not specify the ground or grounds relied upon for its ruling, summary judgment
will be affirmed on appeal if any of the summary judgment grounds advanced by
the movant are meritorious.  Dow Chemical Company v. Francis, 46
S.W.3d 237, 242 (Tex.2001); Carr v. Brasher, 776 S.W.2d 567, 569
(Tex.1989).  Appellee=s motion sought summary judgment on two
grounds.  Appellee
alleged in the first ground that appellant=s
attempt to set aside the arbitration award was barred by limitations.  In the second ground, appellee
alleged that there was no evidence of any grounds sufficient to set aside the
arbitration award.
Appellant=s
fifth, sixth, seventh, and eighth points of error address appellee=s limitations contention.  Appellee asserts
that a provision of the Federal Arbitration Act (FAA) bars appellant=s attempt to set aside the arbitration
award more than 90 days after its entry.
See 9 U.S.C.A. '
12 (West 1999).[1]  When reviewing a traditional motion for
summary judgment, the following standards apply:  (1) the movant for
summary judgment has the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law; (2) in
deciding whether there is a disputed material fact issue precluding summary
judgment, evidence favorable to the non-movant will
be taken as true; and (3) every reasonable inference must be indulged in favor
of the non-movant and any doubts resolved in its
favor.  TEX.R.CIV.P. 166a; Goswami v. Metropolitan Savings and Loan
Association, 751 S.W.2d 487, 491 (Tex.1988); Nixon v. Mr. Property
Management Company, Inc., 690 S.W.2d 546, 548-49 (Tex.1985); City of
Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 676 (Tex.1979).

Appellant executed a written document entitled ARETAIL
INSTALLMENT CONTRACT, SECURITY AGREEMENT, WAIVER OF TRIAL BY JURY, AND
AGREEMENT TO ARBITRATION OR REFERENCE OR TRIAL BY JUDGE ALONE@ in connection with his purchase of the
manufactured home from appellee.  The contract contains the following
provisions dealing with arbitration:
ARBITRATION
OF DISPUTES AND WAIVER OF JURY TRIAL:

a.         Dispute
Resolution.  Any controversy or claim between
or among you and me or our assignees arising out of or relating to this
Contract or any agreements or instruments relating to or delivered in
connection with this Contract, including any claim based on or arising from an
alleged tort, shall, if requested by either you or me, be determined by
arbitration, reference, or trial by a judge as provided below.  A controversy involving only a single
claimant, or claimants who are related or asserting claims arising from a
single transaction, shall be determined by arbitration as described below.  Any other controversy shall be determined by
judicial reference of the controversy to a referee appointed by the court or,
if the court where the controversy is venued lacks
the power to appoint a referee, by trial by a judge without a jury, as
described below.  YOU AND I AGREE AND
UNDERSTAND THAT WE ARE GIVING UP THE RIGHT TO TRIAL BY JURY, AND THERE SHALL BE
NO JURY WHETHER THE CONTROVERSY OR CLAIM IS DECIDED BY ARBITRATION, BY JUDICIAL
REFERENCE, OR BY TRIAL BY A JUDGE.

b.         Arbitration.  Since this Contract touches and concerns
interstate commerce, an arbitration under this Contract shall be conducted in
accordance with the United States Arbitration Act (Title 9, United States
Code), notwithstanding any choice of law provision in this Contract.  The Commercial Rules of the American
Arbitration Association (AAAA@) also shall apply. The arbitrator(s)
shall follow the law and shall give effect to statutes of limitation in
determining any claim.  Any controversy
concerning whether an issue is arbitrable shall be
determined by the arbitrator(s). The award of the arbitrator(s) shall be in
writing and include a statement of reasons for the award.  The award shall be final.  Judgment upon the award may be entered in any
court having jurisdiction, and no challenge to entry of judgment upon the award
shall be entertained except as provided by Section 10 of the United States
Arbitration Act or upon a finding of manifest injustice.

Section 12 of the FAA provides that notice of a motion to vacate
an arbitration award must be served upon the adverse party or his attorney
within three months after the arbitration award is filed or delivered.[2]  Section 12 effectively establishes a 3-month
limitations period for filing a motion to vacate an arbitration award.  See Eurocapital
Group Ltd. v. Goldman Sachs & Company, 17 S.W.3d 426, 430-31 (Tex.App. - Houston [1st Dist.] 2000, no pet=n).
Appellant argues in his sixth point of error that
the trial court erred in applying Section 12 to his attack of the arbitration
award.  Appellant contends that the
three-month deadline in Section 12 only applies to an independent motion to
vacate an arbitration award.  He asserts
that Section 12  does not apply to his
challenge because he filed his request to vacate the arbitration award in
response to appellee=s
application for an order confirming the award.
Appellant cites three U.S. District Court opinions in support of this
proposition.  See Chauffeurs,
Teamsters, Warehousemen and Helpers Local Union No. 364 v. Ruan
Transport Corporation, 473 F. Supp. 298 (N.D. Ind. 1979); Paul Allison,
Inc. v. Minikin Storage of Omaha, Inc., 452 F.
Supp. 573 (D. Neb. 1978); and Riko
Enterprises, Inc. v. Seattle Supersonics Corporation, 357 F. Supp. 521
(S.D. N.Y. 1973).  The U.S. District
Court for the Southern District of Texas rejected the holdings of these three
cases in Tokura Construction Co., Ltd. v. Corporacion Raymond, S.A., 533 F. Supp. 1274, 1276-78
(S.D. Tex. 1982).  We agree with the
holding reached in Tokura that the 3-month
deadline contained in Section 12 applies to any attempt to vacate an
arbitration award.  See Florasynth, Inc. v. Pickholz,
750 F.2d 171, 174-75 (2nd Cir. 1984).
Appellant=s sixth
point of error is overruled.
Appellant asserts additional grounds for escaping
the application of Section 12 in his fifth point of error.  He first asserts that his challenge to set
aside the arbitration is a counterclaim subject to the timing requirements of
TEX. CIV. PRAC. & REM. CODE ANN. '
16.069 (Vernon 1997).  Appellant supports
this assertion by noting that the contract contains a Texas choice-of-law
provision.  We disagree with appellant=s contention that the timeliness of his
challenge to the arbitration award is subject to Section 16.069.  The arbitration clauses of the contract
expressly state that the provisions of the FAA control the arbitration
proceedings Anotwithstanding
any choice of law provision in this Contract.@
Furthermore, the court in Eurocapital held
that the 3-month deadline in Section 12 governs all attempts to vacate
arbitration awards governed by the FAA.  Eurocapital Group Ltd. v. Goldman Sachs &
Company, supra at 430-431.[3]

Appellant additionally argues that Section 12 is
inapplicable as a result of the following provision in the contract:  A[N]o
challenge to entry of judgment upon the award shall be entertained except as
provided by Section 10 of the United States Arbitration Act or upon a finding
of manifest injustice.@  Appellant contends that Section 12 does not
apply because the contract only referenced Section 10 of the FAA.[4]  Section 10 sets out the grounds for vacating
an arbitration award governed by the FAA while Section 12 establishes the time
limitation for bringing such a challenge on the grounds listed in Section
10.  See Eurocapital
Group Ltd. v. Goldman Sachs & Company, supra at 431. As noted by the
court in Eurocapital, Sections 10 and 12 are
complimentary enforcement provisions intended to promote the federal policy
favoring arbitration.  Eurocapital Group Ltd. v. Goldman Sachs &
Company, supra at 431.  We disagree
with appellant=s
contention that the contract=s
omission of a specific reference to Section 12 renders the provision
inapplicable.  Appellant=s fifth point of error is
overruled.
In his seventh point of error, appellant contends
that the trial court erred in calculating the date upon which the time
limitation of Section 12 began to run.
Section 12 provides that the 3-month period commences when the
arbitration award is Afiled
or delivered.@
Appellant acknowledged in his response to the motion for summary judgment that
he received the arbitration award on July 24, 2001.  Appellant initially responded to the
arbitration award by filing a motion for reconsideration with the arbitrator on
July 30, 2001.  The arbitrator denied the
motion for reconsideration on August 3, 2001.
Appellant received a copy of the denial on August 7, 2001.  Appellant argues on appeal that the
limitations period commenced on August 7, 2001, because that is the date that
he received the arbitrator=s
final ruling.  Assuming, without
deciding, that the pendency of appellant=s motion for reconsideration tolled the
limitations  period set out in Section
12, the date of August 7, 2001, is more than three months prior to the date
that appellant filed his challenge to the arbitration award (November 16,
2001).  Accordingly, appellant=s contention regarding the accrual date
does not require a reversal of the trial court=s
grant of summary judgment.  Appellant=s seventh point of error is overruled.

Appellant argues in his eighth point of error that
the trial court erred in denying his request for equitable tolling of the
limitations period set out in Section 12.
In support of this argument, appellant relies on his attempt to set
aside the arbitration award by filing a lawsuit in federal district court on
August 1, 2001.  Appellant filed his
complaint in federal court pro se.
Appellant did not pay a filing fee with the federal court.  Instead, he sought to prosecute the federal
action as a pauper.  The federal court
denied appellant=s request
to proceed as a pauper by dismissing his claim without prejudice on September
4, 2001.  Appellant asserts that the
3-month limitations period should be tolled during the period of time that his
federal complaint remained pending.
Few Texas cases have addressed the concept of
equitable tolling.  Equitable tolling
applies in situations where the claimant has actively pursued his judicial
remedies by filing a defective pleading during the statutory period or where
the complainant has been induced or tricked by his adversary=s misconduct into allowing the
following deadlines to pass.  Czerwinski
v. The University of Texas Health Science Center at Houston School of Nursing,
116 S.W.3d 119, 122-23 (Tex.App. - Houston [14th
Dist.] 2002, pet=n den=d)(citing Rowe v. Sullivan, 967
F.2d 186, 192 (5th Cir. 1992)).  The appellate
record does not support appellant=s
contention that the trial court erred in denying appellant=s request for equitable tolling.  While appellant did file a proceeding in federal
court to vacate the arbitration award within the 3-month period, appellant=s federal complaint was not dismissed
because of a pleading defect.  Instead,
the federal complaint was dismissed because the federal court denied appellant=s request to proceed as a pauper.  The dismissal date of the federal complaint
(September 4, 2001) afforded appellant at least 6 weeks to re-file his claim to
set aside the arbitration award within the 3-month period provided by Section
12.   Appellant=s
eighth point of error is overruled.

In his tenth point of error, appellant presents
the general contention that the trial court erred  in granting summary judgment in favor of appellee.  As set
forth in our discussion of appellant=s
fifth, sixth, seventh, and eighth points of error, we have determined that the
trial court did not err in granting summary judgment on appellee=s limitations claim.  Accordingly, appellant=s
tenth point of error is overruled.  We
need not address appellant=s
first, second, third, fourth, and ninth points of error because they address appellee=s
no-evidence contention under Rule 166a(i).  Our determination that summary judgment was
proper on appellee=s
limitations contention renders these points of error moot.
The judgment of the trial court is affirmed.

PER CURIAM

December 18, 2003
Panel
consists of:  Arnot,
C.J., and
Wright,
J., and McCall, J.

     [1]As
used herein, the terms AFederal Arbitration Act,@ AFAA,@ and AUnited States Arbitration Act@ refer to Title 9 of the United States Code.

     [2]As
used herein, ASection 12@ refers
to 9 U.S.C.A. ' 12 (West 1999).

     [3]As
noted by the court in Eurocapital, the Texas
General Arbitration Act also contains a 90-day limitation for seeking to vacate
an arbitration award.  See TEX.
CIV. PRAC. & REM. CODE ANN. '171.088(b) (Vernon Supp. 2003); Eurocapital
Group Ltd. v. Goldman Sachs & Company, supra at 430 n.4.

     [4]As
used herein, ASection 10@ refers
to 9 U.S.C.A. '10 (West Supp. 2003).


                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-4387
                        ___________________________

                             Tabogo Anomoh Akung

                             lllllllllllllllllllllPetitioner

                                           v.

         Jefferson B. Sessions, III, Attorney General of the United States

                            lllllllllllllllllllllRespondent
                                    ____________

                      Petition for Review of an Order of the
                          Board of Immigration Appeals
                                  ____________

                           Submitted: October 19, 2017
                            Filed: December 13, 2017
                                  [Unpublished]
                                  ____________

Before COLLOTON, BOWMAN, and KELLY, Circuit Judges.
                        ____________

PER CURIAM.

       Tabogo Anomoh Akung (also known as “Didier Awa”), a citizen of Cameroon
whose true and correct name is “Awa Achu Didier” (Petitioner), petitions for review
of an order of the Board of Immigration Appeals (BIA) dismissing his appeal from
the decision of an immigration judge (IJ), which denied him asylum, withholding of
removal, and relief under the Convention Against Torture (CAT), based on an
adverse credibility finding. The BIA upheld the credibility finding, because the IJ
had articulated specific, cogent reasons based in the record for her determination,
including that Petitioner used false documents, assumed a false identity, used an
incorrect birth date in his asylum application and gave an implausible explanation for
the mistake, and made inconsistent statements. In his petition for review, Petitioner
challenges the IJ’s credibility determination and contends the IJ abused her discretion
by failing to weigh the positive equities in his case and by finding he did not establish
a well-founded fear of persecution based on his membership in a particular social
group.

       We conclude that Petitioner’s challenge to the adverse credibility determination
fails because the IJ’s finding was sufficiently supported, as explained by the BIA, and
we find that no reasonable adjudicator would be compelled to conclude contrarily.
See Fesehaye v. Holder, 607 F.3d 523, 526 (8th Cir. 2010); Nadeem v. Holder, 599
F.3d 869, 872–73 (8th Cir. 2010) (holding that specific, cogent reasons included
applicant’s submission of fraudulent documents and concluding IJ properly relied on
numerous documentary and testimonial inconsistencies for adverse credibility
determination; noting that agency is not required to accept even plausible
explanations if alternative conclusion is also reasonable). Further, Petitioner’s
contentions that the IJ abused her discretion in weighing the equities, and that he
established a well-founded fear of persecution based on his membership in a
particular social group, are unavailing. See Kondakova v. Ashcroft, 383 F.3d 792,
798 (8th Cir. 2004) (concluding petitioner must provide credible, specific evidence
that reasonable person in petitioner’s position would fear persecution if returned, and
finding petitioner’s claims of future persecution were inconsistent with, among other
things, country conditions reports and family’s ability to live there for years without
incident).

      Petitioner’s withholding claim relied on the same discredited evidence as his
claim for asylum; thus, it also failed. See Nadeem, 599 F.3d at 873. Although an

                                          -2-
adverse credibility determination is not necessarily determinative of a CAT claim, an
IJ may consider an applicant’s discounted credibility when determining whether he
will be subject to torture, and we conclude that the credible evidence was insufficient
to show that Petitioner was more likely than not to suffer torture. See id. at 873–74.
The petition is denied. See 8th Cir. R. 47B.
                         ______________________________

                                         -3-


           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                           January 23, 2002 Session

                      STATE OF TENNESSEE v. WALTER MCGILL

                       Direct Appeal from the Criminal Court for Knox County
                                 No. 71223    Ray L. Jenkins, Judge

                          No. E2001-01074-CCA-R3-CD                     Filed April 24, 2002

The appellant, Walter McGill, pled guilty to one count of sexual battery by an authority figure and
was sentenced to five years incarceration in the Tennessee Department of Correction. On appeal,
the appellant contends that the trial court erred in failing to grant him full probation, or, in the
alternative, split confinement. Upon review of the record and the parties’ briefs, we affirm the
judgment of the trial court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
JOSEPH M. TIPTON, J., joined.

Donald A. Bosch, Lisa B. Morton, and Keith D. Stewart, Knoxville, Tennessee, for the appellant,
Walter McGill.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Robert L. Jolley, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                        OPINION

                                      I. Factual Background
               At the appellant’s guilty plea hearing, the State recited the following stipulated facts
underlying the appellant’s guilty plea:
               [O]n March 17, of the year 2000 that the [appellant] was a drafting
               teacher at Carter High School here in Knox County, that [D.S.1] was
               a student at Carter High School at that time. That as a result of his
               status, that the [appellant] touched her in her vaginal area. That the

       1
           This court refers to m inor victim s of sex crim es only b y their initials.
                [appellant] gave a statement to members of the Knox County
                Sheriff’s Department admitting that he had touched [D.S.] in that
                area.
                ....
                [D.S.] was between the statutory ages of 13 and less than 18 at [the
                time of the offense].

                Upon hearing the stipulated facts, the trial court accepted the appellant’s plea of guilt
to one count of sexual battery by an authority figure, a class C felony. See Tenn. Code Ann. § 39-
13-527(a)(1) (1997). The trial court sentenced the appellant as a standard Range I offender to five
years incarceration. The trial court further denied the appellant alternative sentencing and ordered
the appellant to serve his sentence in confinement. The appellant now appeals the denial of
alternative sentencing.

                                               II. Analysis
                 This court reviews challenges to the manner of service of a sentence de novo.
However, if the record reveals that the trial court adequately considered sentencing principles and
all relevant facts and circumstances, this court will accord the trial court’s determinations a
presumption of correctness. Tenn. Code Ann. § 40-35-401(d) (1997); State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). Regardless, we must consider the following factors in the course of our de
novo review: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the
presentence report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4)
the nature and characteristics of the criminal conduct involved; (5) evidence and information offered
by the parties on enhancement and mitigating factors; (6) any statement by the appellant in his own
behalf; and (7) the appellant’s potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102
and -103 (1997), -210 (2001 Supp.); see also Ashby, 823 S.W.2d at 168. The burden is on the
appellant to demonstrate the impropriety of his sentence. Tenn. Code Ann. § 40-35-401, Sentencing
Commission Comments.

                In the trial court, because the appellant is a Range I standard offender convicted of
a class C felony, he was presumed to be a favorable candidate for alternative sentencing, Tenn. Code
Ann. § 40-35-102(5)-(6) (1997), and the State bore the burden of overcoming that presumption.
State v. Lane, 3 S.W.3d 456, 462 (Tenn. 1999). However, the appellant bore the burden of
establishing his suitability for full probation, even if he was entitled to the statutory presumption of
alternative sentencing. State v. Grissom, 956 S.W.2d 514, 520 (Tenn. Crim. App. 1997). The
appellant was required to establish that granting him full probation would “subserve the ends of
justice and the best interest of both the public and the [appellant].” State v. Dykes, 803 S.W.2d 250,
259 (Tenn. Crim. App. 1990), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn.
2000).

                In denying the appellant alternative sentencing, the trial court stated:
                The Court has had the benefit of the presentence investigation; the
                psychological report of Dr. Lyons; a letter–oh, yes, the–the victim

                                                  -2-
                impact statements filed by the mother, the father, stepmother of the
                victim; also letters from Dr. Fain and two friends, the Hakes.
                ....

                The Court has considered the [appellant’s] interest, his behavioral
                record, his employment history, and social history, his present
                condition, including physical and mental, the interest of the public,
                the need of deterrence of the kind of crime for which the [appellant]
                has committed.

                The Court also is of the opinion that the [appellant] has demonstrated
                his lack of self-discipline. He has failed and refused to bring his
                conduct in line with conduct required in a civilized society.

                The Court sentences the [appellant] under the provisions of [Tenn.
                Code Ann. §] 40-35-103, Section 1(B), that confinement is necessary
                to avoid depreciating the seriousness of the offense and is suited to
                provide an effective deterrence to others likely to commit similar
                offenses. All of which require the imprisonment of the [appellant] for
                his own best interest and especially for the protection of the public.

                Initially we note that, contrary to the appellant’s contention, there is an affirmative
showing in the record that the trial court “consider[ed] the circumstances of the offense, the
[appellant’s] criminal record, the [appellant’s] social history and present condition, the need for
deterrence, and the best interest of the [appellant] and the public.” State v. Batey, 35 S.W.3d 585,
588 (Tenn. Crim. App. 2000). The trial court specifically noted the heavy weight it placed upon the
victim impact statements because the statements revealed the “complete devastation of the victim.”
Furthermore, the trial court considered the psychological report filed by Dr. Bernard F. Lyons, Jr.,
after the appellant submitted to an evaluation, and the trial court noted specific portions of the report
in support of its ruling. Consideration of such a report is mandated by Tenn. Code Ann. § 39-13-
705 (2001 Supp.), which statute provides:
                (a) On and after January 1, 1996, each sex offender who is to be
                considered for probation or any other alternative sentencing shall be
                required to submit to an evaluation for treatment, risk potential,
                procedures required for monitoring of behavior to protect victims and
                potential victims, and an identification under the procedures
                developed pursuant to § 39-13-704(d)(1).

                (b) Those offenders found guilty at trial or who pled guilty without an
                agreement as to length of sentence and/or probation and/or alternative
                sentencing that are to have a pre-sentence report prepared for
                submission to the court shall be required to submit to the evaluation
                referred to in subsection (a). Such evaluation shall be included as part

                                                  -3-
              of the pre-sentence report and shall be considered by the court in
              determining the sentencing issues herein stated. If the court grants
              probation or alternative sentencing, any plan of treatment
              recommended by such evaluation shall be a condition of the probation
              or alternative sentencing. Those offenders, that, as part of a
              negotiated settlement of their case, are to be placed on probation or
              alternative sentencing shall be required to submit to the evaluation
              referred to in subsection (a) as a condition of their probation or
              alternative sentencing and any plan of treatment recommended by
              such evaluation shall be a condition of probation or alternative
              sentencing.
Accordingly, we will review the trial court’s findings de novo with a presumption of correctness.

                 The appellant argues that “although the trial court cited a statute, it failed to specify
whether the sentence was calculated to avoid depreciating the seriousness of the crime or to deter
others. The trial court merely cited the code provision and its language.” We disagree. It is true that
the trial court announced that it was denying probation based upon Tenn. Code Ann. § 40-35-103
(emphasis added), which statute provides:
                 (1) Sentences involving confinement should be based on the
                 following considerations:
                 ....
                 (B) Confinement is necessary to avoid depreciating the seriousness
                 of the offense or confinement is particularly suited to provide an
                 effective deterrence to others likely to commit similar offenses. . . .
However, our reading of the record reveals that the trial court’s intent was to deny probation based
upon both the seriousness of the offense and the deterrent value of confinement.

               It is well-established that, “if probation is to be denied because of the nature of the
offense, it would have to be clear that the criminal act, as committed, would be described as
especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or
exaggerated degree.” State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981); see also State v. Fletcher,
805 S.W.2d 785, 788-89 (Tenn. Crim. App. 1991). Dr. Lyons’ report notes that the appellant and
D.S. became familiar during interactions in and out of the classroom setting. According to Dr.
Lyons, the appellant told him that D.S. sat in the front row of his class and he talked to and helped
her more than other students. During the course of their conversations, the appellant learned that
D.S.’s boyfriend had “dumped” her. He “concluded that [D.S.] received no love and attention from
a man. He decided to ‘give her self-esteem’ and ‘give her self-worth.’”

              The appellant and D.S. began to talk more regarding D.S.’s personal feelings, and she
“would give [the appellant] hugs.” The appellant conceded that the relationship made him “feel
good.” He described himself as having a flirtatious nature but stated that, when his flirtations
became unwanted, he always ceased.

                                                   -4-
               The relationship evolved to a point where the conversations turned to sexual matters.
The appellant revealed to Dr. Lyons that he and D.S. engaged in private conversations, using codes
to describe explicit sexual acts. According to the appellant, D.S. “kissed him and they rubbed each
other’s buttocks.” Additionally, on a March field trip, the two spent a full day together. When they
returned, the appellant embraced D.S. and kissed her.

                The charged offense occurred when, according to the appellant, D.S. offered to allow
the appellant to look at her thong underwear. According to Dr. Lyons, the appellant “insists he only
ran his finger down [the strap of the thong] two inches and only felt the material. He claims he did
not touch D.S.’s vagina, though he was ‘close.’” Despite the appellant’s claims that he knew he had
gone too far, he also acknowledged that he and D.S. continued to contact each other by e-mail
throughout the summer.

                Dr. Lyons notes that the appellant expresses sorrow for causing “any trauma,” but the
appellant claims to be ignorant of “what trauma might have occurred.” Dr. Lyons further concludes
that the appellant is unable to empathize with D.S., continuing to maintain that he was attempting
to help her. He posits that the appellant was “grooming” the victim and concludes:
                In the short term, a modification of [the appellant’s] currently
                depleted self-esteem and his regaining some confidence are major, if
                circumscribed, goals which might best be achieved by focused
                cognitive and interpersonal approaches in a group setting, particularly
                composed of other persons required to enter into such therapy.
                Unfortunately, this subject is unlikely to retain motivation. The
                precipitant for his treatment is situational rather than internal, and he
                is liable to be convinced that he could work things out best on his
                own. This can lead only to backsliding and recurrence of the
                behavior.

                 Thus, it is clear that the forty-two-year-old appellant abused a position of trust by
forming an inappropriate student-teacher relationship with D.S., which relationship ultimately
culminated in the instant offense. We find it particularly important to note that the appellant’s
behavior did not consist of a single, spontaneous bad act, but progressed over a period of time. Our
courts have often noted the offensiveness of an abuse of trust in such situations. See Lane, 3 S.W.3d
at 462; State v. Victor D. Neuenschwander, No. M2000-01334-CCA-R3-CD, 2001 Tenn. Crim. App.
LEXIS 335, at **11-12 (Nashville, May 8, 2001); State v. Mark Steven Marlowe, No. E1998-00873-
CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 514, at **17-18 (Knoxville, June 30, 2000), perm. to
appeal denied, (Tenn. 2001).

                Because of the nature of the offense, it is important to note that the abuse of the
position of trust is not the sole factor supporting the denial of alternative sentencing. This court has
also previously observed that
                [t]he issue in this case is the Appellant’s entitlement to an alternative
                sentence. The potential for the rehabilitation of a defendant is one

                                                  -5-
                factor which must be considered by the trial court in determining the
                sentencing alternative. Also to be considered is whether the offender
                is likely to reoffend. The risk assessment report speaks to both of
                these issues.
State v. Martin Charles Jones, No. E1999-01296-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 356,
at *6 (Knoxville, May 7, 2001), perm. to appeal denied, (Tenn. 2001) (citations omitted). Dr. Lyons’
observations concerning the appellant’s lack of sympathy for the victim, his failure to perceive the
harm he caused, and the risk of repetition of this behavior all militate against the appellant’s
rehabilitative potential. Cf. State v. Mark Logan, No. 01C01-9707-CC-00261, 1998 Tenn. Crim.
App. LEXIS 967, at *9 (Nashville, September 15, 1998); State v. Roger Lee Fleenor, No. 03C01-
9611-CR-00400, 1997 Tenn. Crim. App. LEXIS 1019, at *10 (Knoxville, October 9, 1997).

                 We also note that the trial court denied the appellant full probation because of the
potential deterrent effect of the appellant’s incarceration. In Hooper, 29 S.W.3d at 10-12, our
supreme court outlined factors which are instructive in determining whether deterrence may support
a denial of full probation:
                 1) Whether other incidents of the charged offense are increasingly
                 present in the community, jurisdiction, or in the state as a whole.
                 ....
                 2) Whether the defendant’s crime was the result of intentional,
                 knowing, or reckless conduct or was otherwise motivated by a desire
                 to profit or gain from the criminal behavior.
                 ....
                 3) Whether the defendant’s crime and conviction have received
                 substantial publicity beyond that normally expected in the typical
                 case.
                 ....
                 4) Whether the defendant was a member of a criminal enterprise, or
                 substantially encouraged or assisted others in achieving the criminal
                 objective.
                 ....
                 5) Whether the defendant has previously engaged in criminal conduct
                 of the same type as the offense in question, irrespective of whether
                 such conduct resulted in previous arrests or convictions.
                 ....
                 Additional facts may be considered by the sentencing court, provided
                 that (1) the sentencing court states these additional factors on the
                 record with specificity, and (2) the presence of these additional
                 factors is supported by at least some proof.

              Taking the guidelines of Hooper into consideration during our review of the record,
we conclude that there was proof adduced at the sentencing hearing to indicate that confining the
appellant would have a deterrent effect on “others similarly situated and likely to commit similar

                                                -6-
crimes.” Id. at 10. In his brief, the appellant concedes that his conduct in the instant offense was
intentional, satisfying the second factor. Id. at 11. The State also argues that the appellant’s case
“received substantial publicity.” Specifically, the State contends that
                the reference to a newspaper article [in the victim impact statement
                of the victim’s mother] clearly shows that this [appellant’s] crime and
                conviction were known in the community as well as in the discrete
                community of the high school that the victim attended.
                ....
                [Appellant’s] argument that the trial court’s failure to make a finding
                on the record that his “peers knew of the allegations or would likely
                be aware of any sentence imposed” is disingenuous. Not only does
                the record show that the charges against [appellant] were published
                in a newspaper, but also the victim stated that she was forced to move
                to another high school to avoid this scandal and described the fear
                 that continued to haunt her in the wake of the abuse.
In D.S.’s victim impact statement, she explains that “I had to go to another school and start my
school life over again. I had to leave a school in which I had attended for four years.” Additionally,
we note that the victim impact statement of D.S.’s stepmother mentions, “[W]hen the television
news carried the story and I saw that man for the first time, all I could do was weep.” Moreover, Dr.
Lyons, D.S.’s mother, and D.S.’s stepmother all mention reading the appellant’s comments in a
newspaper.

                 We acknowledge that, in Hooper, 29 S.W.3d at 11, our supreme court stressed “that
in this age of instant access to virtually all types of information, something more than a newspaper
article or television report is necessary to fulfill this factor [regarding substantial publicity].”
However, “[c]riminal acts by a professional in his or her official capacity . . . need not be publicized
statewide before deterrence may be considered as a factor. In most cases, substantial publicity
within the defendant’s professional community would probably suffice to meet this factor.” Id. The
record indicates that, as a result of this offense, the appellant has resigned from his position as a
teacher at Carter High School and D.S. has transferred schools. The record does not specifically
reflect that the reasons for the resignation and the transfer were publicized specifically within the
appellant’s “professional community.” Nevertheless, we conclude that the trial court correctly
considered deterrence in denying the appellant probation.

                Although the appellant demonstrated that he has support from family and friends and
he has been a productive member of society, we conclude that he has failed to meet his burden of
establishing his suitability for full probation. See State v. Don Williams, No. 03C01-9303-CR-
00072, 1994 Tenn. Crim. App. LEXIS 480, at *14 (Knoxville, August 3, 1994). Additionally, we
find sufficient proof in the record to uphold the trial court’s denial of alternative sentencing. As we
observed in Fletcher, 805 S.W.2d at 789,
                [i[f appellate review reflects that the trial court, by following the
                statutory sentencing procedure, imposed a lawful sentence, after
                having given due consideration and proper weight to the factors and
                principles which are relevant to sentencing under the Act, and that the
                trial court's findings of fact upon which the sentence is based are

                                                  -7-
adequately supported in the record, then we may not disturb the
sentence even if we would have preferred a different result.

                         III. Conclusion
Finding no reversible error, we affirm the judgment of the trial court.

                                       ___________________________________
                                       NORMA McGEE OGLE, JUDGE

                                 -8-


                T.C. Summary Opinion 2008-153

                   UNITED STATES TAX COURT

                JERRY L. LAMB, Petitioner v.
        COMMISSIONER OF INTERNAL REVENUE, Respondent

   Docket No. 246-08S.            Filed December 11, 2008.

   This opinion was withdrawn by order dated

April 17, 2009.


                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                               No. 15-1981

In Re:   CHASE CARMEN HUNTER,

                 Appellant.

                               No. 15-1985

In Re:   CHASE CARMEN HUNTER,

                 Appellant.

                               No. 15-2128

In Re:   CHASE CARMEN HUNTER,

                 Appellant.

Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond.    Henry E. Hudson, District
Judge.    (3:15-cv-00414-HEH; 3:15-cv-00336-HEH; 3:15-cv-00206-
HEH)

Submitted:   January 26, 2016                 Decided:    April 7, 2016

Before DUNCAN    and   DIAZ,   Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.
Chase Carmen Hunter, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

                                2
PER CURIAM:

       In     these        consolidated          appeals,          Chase        Carmen    Hunter

challenges the district court’s dismissal of Hunter’s complaints

as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) (2012).

On appeal, Hunter argues that (1) the district judge should have

recused himself, (2) the district court’s orders did not comply

with Fed. R. Civ. P. 52(a)(1) or 58, and (3) she is entitled to

the relief sought.

       Because      Hunter      failed      to       seek   recusal        in    the     district

court,      she    has     failed    to    preserve         this    issue       for    appellate

review.       Accord Flame S.A. v. Freight Bulk Pte. Ltd., 807 F.3d

572,    592       (4th   Cir.    2015).          We     discern       no    exceptional        or

extraordinary circumstances in this case justifying review of

this issue on its merits.                    Id.; see Corti v. Storage Tech.

Corp.,      304     F.3d     336,    343     (4th       Cir.       2002)    (Niemeyer,        J.,

concurring) (“[I]t remains the law of this circuit that when a

party to a civil action fails to raise a point at trial, that

party waives review of the issue unless there are exceptional or

extraordinary circumstances justifying review.”).

       We next review for abuse of discretion the district court’s

decision to dismiss Hunter’s petitions under § 1915(e)(2)(B)(i).

Michau v. Charleston Cty., 434 F.3d 725, 728 (4th Cir. 2006)

(identifying        standard        of    review).          Hunter    contends         that   the

district court’s order should be overturned because, by failing

                                                 3
to make specific findings of fact, it did not comply with Fed.

R. Civ. P. 52(a)(1) or 58.                 Hunter misconstrues these rules.

Rule 52(a)(1) requires that a district court, “[i]n an action

tried on the facts without a jury or with an advisory jury,

. . . find the facts specially and state its conclusions of law

separately,”       and    enter   judgment      in    accordance     with   Rule    58.

Fed.   R.   Civ.    P.    52(a)(1).        Rule      58   provides     general    rules

regarding the entry of judgment.                     Fed. R. Civ. P. 58.            The

district court violated neither of these rules.                          Because the

action did not go to trial, Rule 52(a)(1) is inapplicable.                         Rule

58 does not require the district court to make findings of fact.

       In her final argument, Hunter reiterates the allegations

contained in her petitions for declaratory judgment, and claims

that she was entitled to relief.                      First, the district court

properly found that the relief she sought in her first petition

had    already     been     denied    by       the    district    court,    and     was

subsequently       denied    by    this     court.         In    re:    Hunter,     No.

3:14-cv-00648 (E.D. Va. PACER Nos. 2, 4), aff’d, 621 F. App’x

253 (4th Cir. 2015) (No. 14-2062).                   Second, we find no error in

the district court’s dismissal of Hunter’s conclusory challenge

to the constitutionality of a Virginia statute.                          Finally, we

agree with the district court’s determination that it lacked

jurisdiction to grant the relief sought in her third petition.

See Davani v. Va. Dep’t of Transp., 434 F.3d 712, 718-19 (4th

                                           4
Cir. 2006) (holding that “state-court loser” seeking redress in

federal district court asserts claim that “is, by definition,

‘inextricably       intertwined’          with”    state     court     decision     and

therefore outside federal court’s jurisdiction).

       Hunter has filed numerous frivolous appeals and petitions

for mandamus in the last two years.                        Hunter is warned that

similar filings in the future may result in issuance of an order

to   show   cause   why   a   prefiling         injunction    or   other    sanctions

should not be entered against her by this court.

       We dismiss Hunter’s appeals as frivolous.                   We dispense with

oral   argument     because        the    facts   and   legal      contentions      are

adequately    presented       in    the    materials    before       this   court   and

argument would not aid the decisional process.

                                                                            DISMISSED

                                            5


429 S.W.2d 17 (1968)
CITY OF FREDERICKTOWN, a Municipal Corporation, of the Fourth Class, Plaintiff, and
Frank E. Gillett and Nellie Gillett, his wife, Plaintiffs-Respondents,
v.
Rosina OSBORN, Defendant-Appellant.
No. 32943.
St. Louis Court of Appeals, Missouri.
May 21, 1968.
*19 Roberts & Roberts, Farmington, for defendant-appellant.
Kenneth W. Shrum, Marble Hill, for plaintiffs-respondents.
DOERNER, Commissioner.
In a joint petition filed in the Circuit Court of Madison County, the City of Fredericktown and Frank E. Gillett and Nellie Gillett, his wife, alleged that the defendant Rosina Osborn was conducting a commercial dog kennel on her property in said city, and in connection therewith kept a large number of all kinds of dogs on her premises; that defendant's business was in violation of certain specified ordinances of the city; and that it constituted a public nuisance, or a prviate nuisance as to the Gilletts, or both; and that the Gilletts, whose home is adjacent to that of defendant's had suffered special injury and damage by reason of the foul odors generated, and the noise and disturbance created, which rendered their life uncomfortable, their premises unfit for habitation, and prevented them from enjoying a good night's sleep and rest. The prayer was that defendant be enjoined from continuing to operate a dog kennel on her property. Defendant in her answer admitted that she kept at her residence, "* * * certain dogs for the purposes of breeding, raising and selling the same * * *"; challenged the validity of the city's ordinances; denied the remainder of the pertinent allegations of plaintiff's petition; and alleged that she had been required to engage the services of an attorney to defend herself, and prayed that the action be dismissed and that she be allowed a reasonable sum for attorney fees and suit money.
At the conclusion of the hearing the court entered a judgment and decree in which it found that defendant "has been operating her premises as a private nuisance" and ordered her "enjoined from maintaining a dog kennel and from keeping, raising, breeding, and housing dogs in excess of one in number on her premises * * *." By implication, at least, the court denied the city relief on its claim that defendant was maintaining a public nuisance. Only the defendant has appealed, and we will therefore treat the action as do the parties, that is, one for the abatement of a private nuisance.
Defendant urges that the trial court erred: (1) in finding a nuisance when *20 such a finding is not supported by the facts or the law; (2) in granting an injunction because plaintiffs were barred by the statutes of limitation, and by laches; and (3), in granting an injunction which enjoined defendant from keeping more than one dog. Since this is an equitable action we are required to "* * * determine the cause de novo, weigh the competent evidence introduced upon the factual issues, and reach our own conclusions based upon that evidence, although we defer to the finding of the trial court where there is conflicting oral testimony involving a determination of the credibility of witnesses who appeared before it. * * *" Mintert v. Gastorf, Mo., 417 S.W.2d 101, 105.
Defendant's property, located in the City of Fredericktown, is known and numbered as 408 Franklin Street, which we gather from the testimony runs in an east and west direction. Plaintiffs alleged and defendant admitted that her parcel of land was approximately 100 feet wide by 200 feet deep, and defendant testified that her backyard, in which she kept her dogs, was 100 feet in width by 150 feet in depth. The yard is surrounded by a wire fence, built 4 or 5 years previously to replace an older one, and contains 4 or 5 little dog houses and 2 small wire pens constructed because, defendant related, she had a couple of little dogs that would slip through the outside fence. The yard is not paved, and there was a conflict in the testimony as to whether the surface of it was bare dirt or whether, in whole or in part, there was sod on it for a part of the year. Defendant conceded that the pens were bare dirt at all times.
Eleven witnesses appeared on plaintiffs' side of the case, of whom nine, including plaintiffs, lived in the immediate neighborhood of defendant. Twenty witnesses appeared on defendant's side, of whom nine, including defendant and her son, likewise lived in the immediate neighborhood. By the words "immediate neighborhood" we mean in the same square block in which defendant resides, or in the corresponding block on the opposite side of Franklin Street, and to better understand their proximity to defendant's property we have prepared from the testimony a plat showing the location of each neighbor. The home of plaintiffs, the Gilletts, numbered 412 Franklin Street, adjoins the defendant's property on her east side and the dog pens and dog houses are located within 18 to 20 feet of their bedroom and kitchen. The property on the west side of defendant's was acquired in July, 1965 by Charles Finch, and occupied by him and his wife from November 11, 1965, until a week before the trial. Their kitchen, Finch testified, was approximately ten feet from defendant's yard where she kept her dogs. Reverend and Mrs. Sheppard's home, numbered 411 E. College, is located directly to the north of defendant's premises and separated from it by a narrow alley.
The evidence established beyond any reasonable doubt that the business operated by defendant is located in a residential neighborhood. In fact, all of the witnesses, defendant's as well as plaintiffs', who were asked to characterize the immediate area expressed the opinion that it was a residential neighborhood. Nor is there any dispute about the nature of the business operated by defendant on her premises. As stated, she admitted in her answer, and also testified, that she was in the business of breeding, raising, and selling dogs. While there was some slight conflict in the testimony concerning the number of dogs on hand at any given time, including at the time of trial, defendant conceded that she had had as many as 30 dogs and an inference may be drawn from the testimony of her son, William, that the maximum number may have been as great as 35. The types of dogs kept, bred and raised by defendant during the 4 or 5 years preceding the trial, according to the evidence, included Pekinese, Boxers, German Shepherds, Poodles, Beagles, Bassetts, Dachshounds, and Spitz.
*21 Whatever their precise number, we believe it is obvious that the backyard in which defendant kept her dogs was small in relation to the number on hand, and that the homes of plaintiffs and the Finchs on the adjoining lots were in close proximity to the area in which the dogs were maintained. Under those circumstances we could take judicial notice of the ordinary habits, characteristics and instincts of dogs, and the likely effect on defendant's immediate neighbors, Lloyd v. Alton R. Co., 348 Mo. 1222, 159 S.W.2d 267; Mitchell v. Newsom, Mo.App., 360 S.W.2d 247, but in this case we need not do so for a careful review of the record has convinced us that the overwhelming weight of the evidence, much of it from defendant's own witnesses, abundantly supported plaintiffs' complaints regarding the noise, odors, unsanitary conditions, and other objectionable features resulting from the operation of defendant's business. Understandably, considering the nature of dogs, neither defendant nor any of her witnesses testified that the dogs never barked. In fact, several observed, as did her witness Verna Stanfield, that "All dogs bark." Defendant herself testified that her dogs barked if someone went through the alley or when her neighbor (unnamed) turned his dog out and it would run up and down the fence. There was testimony that when one dog barked all did so. As might be expected, in the main the reaction of the residents of the immediate neighborhood to the noise varied according to their proximity to defendant's property. Charles Finch, an adjoining neighbor, related that the dogs barked nearly every time he stepped out of his back door, and both he and his wife testified that the dogs also barked at night and so disturbed them that they were unable to sleep. Reverend and Mrs. Sheppard stated that the dogs frequently barked, and that the noise was particularly noticeable in the summer. Mrs. Ruth Moore, who resides two doors east of defendant, said that the barking occurred at night as well as during the day, and that it prevented her from sleeping and getting her rest at night. Plaintiff Frank E. Gillett stated that the barking frequently awakened him and his wife 5 to 7 times a night with the result that they were a bundle of nerves, and on numerous occasions had left their home to get a good night's sleep. Mrs. Gillett described the barking as "terrific" both day and night, and testified that in addition to disturbing their rest it had prevented their use of their backyard the preceding summer because when they tried to use it the dogs would gather at the fence and bark.
Regarding plaintiffs' complaint of odor, the conflict in the testimony was not so much whether an odor was generated as its extent and degree. There was no dispute about the fact that the dogs satisfied their natural needs by eliminating in defendant's backyard. Defendant testified that she gathered up the excrement once each day and buried it with lime in her backyard, but conceded that such body waste was not odorless and that it remained on the ground for some period of time because she was not out there all of the time. Dr. Meador, defendant's veterinarian, who testified on her behalf, stated on cross-examination that there was an odor connected with a dog's body waste, as did her son William. Reverend Sheppard said that the odor emanating from defendant's premises was so bad that they couldn't entertain in their backyard, and Mrs. Sheppard related that when she tried to sit in their yard in the summer she had to get up and go in the house on occasions. Mr. Finch testified there was an odor, particularly in warm weather, and his wife described it as a "terrible odor." Mrs. Moore said that it was so bad that she had to keep her back door closed. And Mr. Gillett testified that while there always was an odor, which made it impossible for them to use their backyard for cookouts, it was tremendously worse following wet, warm weather. He also made the point that in addition to dropping excrement the dogs urinated in the *22 defendant's backyard, that the urine soaked into the soil, and that it was constantly giving off an odor. In addition, there was testimony of odor emanating from the bodies of the dogs, for as one of defendant's witnesses expressed it, "* * * There is odor around one dog even." Defendant testified on direct examination that she washed the dogs, but did not state how often; and when asked by her counsel where she washed them replied that, "I do it in my bathtub."
The evidence further established, in our opinion, that the excrement from the dogs attracted flies, and that there were an unusual number in the neighborhood. Dr. Meador conceded on cross-examination that flies were attracted to the body waste of animals; and Gerald Cook, a sanitary inspector employed by the Madison County Health Department, called by plaintiffs, affirmed that flies were attracted to any kind of animal feces and stated they would range over an area of 400 to 600 feet. Dr. A. P. Basler, defendant's chiropractor, admitted on cross-examination that flies are carriers of germs and diseases.
It is our conclusion that the evidence also demonstrated that defendant's operation of her business created other discomforts, problems and inconveniences for plaintiffs and their immediate neighbors. While defendant testified that Poodles do not shed hair, she had kept and raised numerous other breeds, and the evidence disclosed that the hair was blown upon clothes hung in the adjoining yards and kept the Finchs from having barbecues on their premises. Reverend Sheppard and others related that some of defendant's dogs on occasion got through her fence and onto their properties. There was also testimony from defendant's son, William, that the mating of the dogs usually occurred in one of the pens in defendant's backyard, and as Dr. Meador agreed, when a female dog is in heat a group of dogs become "* * * quite excited. They will raise a fuss around them." Other evidence indicated that occasional fights occurred among the dogs, that when little pups died their bodies were buried with lime in defendant's backyard, and that when adult dogs died their bodies were burned by defendant.
Generally speaking, our courts have recognized that an owner has the right to the exclusive possession and control of his property, and the right to devote it to such lawful uses as will subserve his interests. Hoffmann v. Kinealy, Mo., 389 S.W.2d 745; Clinic & Hospital, Inc. v. McConnell, 241 Mo.App. 223, 236 S.W.2d 384. But such rights are not absolutes, for "* * * It is the law that one may not make such an unreasonable, unusual or unnatural use of his property that it substantially impairs the right of another to peacefully enjoy his property. Neither is it questioned that a court of equity may issue an injunction enjoining the use of property or a manner of carrying on a business if either constitutes a nuisance injuring another or his property. * * *" Schott v. Appleton Brewery Co., Mo.App., 205 S. W.2d 917, 920; Crutcher v. Taystee Bread Co., Mo., 174 S.W.2d 801. Other than those acts, businesses or structures which are nuisances per se there is no exact rule or formula by which the existence or nonexistence of a nuisance may be determined. Crutcher v. Taystee Bread Co., supra; Biggs v. Griffith, Mo.App., 231 S.W.2d 875. It is obvious that the use of property in one locality and under some circumstances may be reasonable, while such use in another locality and under other circumstances would be unreasonable and constitute a nuisance. Necessarily, therefore, whether a particular use is or is not a nuisance must be determined from the facts in each case, such as the locality, character of the neighborhood, nature of the use, extent and frequency of the injury, the effect upon the enjoyment of life, health, and property of those affected, and the like. Schott v. Appleton Brewery Co., supra; Clinic & Hospital, Inc. v. McConnell, supra. Thus our appellate courts have approved or *23 issued injunctions prohibiting or restricting the operation of various businesses when by reason of excessive noise,[1] offensive odors,[2] injurious fumes and dust,[3] embarrassing exhibitions,[4] or the nature of the activity,[5] they unreasonably interfere with nearby residents' comfortable enjoyment of their homes, disturb their sleep, affect their health, diminish the value of their properties, or disconcert them.
While our courts have dealt with cases involving the keeping of pigs and the breeding of horses in urban areas, so far as our research has disclosed the question of whether the keeping of dogs in a residential neighborhood may constitute an enjoinable nuisance is one of first impression in this state. However, there is an abundance of authority from other states, collected in an excellent note in 11 ALR 3d 1399, p. 1404, which is summarized as follows (p. 1404):
"While the keeping of a dog or dogs is not a nuisance per se since the dog is traditionally deemed to be one of the beasts friendliest to man, the keeping of such animals may amount to an enjoinable nuisance where it interferes with the peace, quiet, and normal enjoyment to which a person is entitled in the use of his home, or where the keeping of dogs results in impairment of the monetary value of nearby homes either through the undesirability of living near barking dogs or through property damage inflicted by the animals."
From his decree it is apparent that the chancellor found, as do we, that the barking and other noise created by the dogs kept by defendant in the operation of the business on her premises, the objectionable odors emanating from them and their body wastes which permeated the atmosphere, and the unhealthful and unsanitary conditions necessarily resulting from their presence seriously and unreasonably interfered with the peaceful and normal enjoyment to which the plaintiffs were entitled in the use and occupation of their home, prevented them from obtaining their required rest and sleep, caused them discomfort and inconvenience, and was injurious and detrimental to their health and well-being. Under the circumstances of this case we are firmly of the opinion that defendant's business constituted an enjoinable nuisance.[6]
*24 We find no merit in defendant's contentions that plaintiffs' action was barred by the five year statute of limitations, or by laches. Such matters are affirmative defenses and were not pleaded as required by Civil Rule 55.10, V.A.M.R. Recognizing that her answer was deficient in that respect, defendant seeks to invoke the benefit of Civil Rule 55.54 concerning the trial by express or implied consent of issues not pleaded. But there certainly was no express consent to the trial of such issues in this case and a careful review of the record has convinced us that none can be implied from the manner in which the case was tried. The purpose of Civil Rule 55.10 is not merely technical, but to give notice to the opposing parties in order that they may be prepared on the issues, White v. Wilks, Mo., 357 S.W.2d 908, and a plaintiff's consent to the trial of non-pleaded affirmative defenses should not be held to be implied unless it clearly appears that he tacitly agreed to join issue on such defenses. Nevertheless, this being an equity case, we have considered defendant's points on their merits. The statute of limitations applicable to abatable nuisances, as distinguished from nuisances permanent in character, is that prescribed for the acquisition of title to land, or ten years, not five, as defendant maintains. Skinner v. Slater, 159 Mo.App. 589, 141 S.W. 733; Bradbury Marbel Co. v. Laclede Gaslight Co., 128 Mo.App. 96, 106 S.W. 594. The evidence falls far short of showing that the injurious and disturbing conditions presently existing have prevailed for that period of time. Nor does the evidence sustain defendant's tardily asserted claim of laches, for there was no showing that plaintiffs' delay in bringing this action caused defendant to change her position to her detriment or that she was prejudiced in any way by the alleged delay, necessary elements for the application of that doctrine. Rebmann v. Rebmann, Mo., 384 S.W.2d 663; Douglass v. Douglass, Mo., 363 S.W.2d 566; Kizior v. City of St. Joseph, Mo., 329 S.W.2d 605.
Defendant argues that the remedy of injunction is a harsh and drastic step and that equity is reluctant to permanently enjoin the operation of a legitimate business, citing Biggs v. Griffith, Mo. App., 231 S.W.2d 875. It is true that where the objectionable conditions which create the nuisance can be eliminated by restrictions or changes in the method of conducting the business a court of equity will require them to be made and not enjoin the total operation of the offending business, as in Greene v. Spinning, Mo.App., 48 S.W.2d 51. But as is recognized in the Biggs case and the numerous Missouri cases heretofore cited, a court of equity will enjoin the operation of a business where that is necessary to abate the nuisance. Defendant produced no evidence that the matters of which plaintiffs complain, the barking and noise, the odors, the discomforts, and the unsanitary and unhealthful conditions resulting from the operation of her business, can be eliminated or improved to such an extent as to abate the nuisance, and in the light of the common knowledge as to the habits, characteristics and instincts of dogs, Mitchell v. Newsom, Mo.App., 360 S.W.2d 247; Lloyd v. Alton R. Co., 348 Mo. 1222, 159 S.W.2d 267, and the residential character of the neighborhood, we are of the opinion that the only adequate means of affording plaintiffs the relief to which they are entitled is an injunction prohibiting the defendant from operating a dog kennel on her premises and from keeping, breeding and raising dogs thereon for the purpose of sale or commerce. Ensign v. Wall, 323 Mich. 49, 34 N.W.2d 549; Nichols v. Simpson (Tex. Civ.App.), 308 S.W.2d 613. However, we think there is merit in defendant's complaint as to that part of the judgment and *25 decree which restrains the defendant from keeping more than one dog as a pet.
Accordingly, the judgment and decree is reversed and the cause remanded with directions to enter a judgment and decree in conformity with our views expressed herein. And in view of the result reached, we deem it equitable that four-fifths of the costs be assessed against defendant-appellant and one-fifth against plaintiffs-respondents.
PER CURIAM:
The foregoing opinion by DOERNER, C., is adopted as the opinion of this court.
Accordingly, judgment and decree reversed with directions.
ANDERSON, P. J., and RUDDY, and JAMES H. KEET, Jr., Special Judge, concur.
NOTES
[1]  Noise. Use of loud speakersClinic & Hospital, Inc. v. McConnell, 241 Mo.App. 223, 236 S.W.2d 384; Biggs v. Griffith, Mo.App., 231 S.W.2d 875; automobiles on parking lotRhodes v. A. Moll Grocer Co., 231 Mo.App. 751, 95 S.W.2d 837; operation of quarriesLademan v. Lamb Const. Co., Mo.App., 297 S.W. 184; Blackford v. Heman Const. Co., 132 Mo. App. 157, 112 S.W. 287.
[2]  Odors. Operation of barbecue stand  Deevers v. Lando, 220 Mo.App. 50, 285 S.W. 746; manufacturing rubber productsState ex rel. Renfro v. Service Cushion Tube Co., 316 Mo. 640, 291 S.W. 106; maintenance of pigsty  Whipple v. McIntyre, 69 Mo.App. 397; operation of distillery and the slopping of hogs  Smiths v. McConathy, 11 Mo. 517.
[3]  Fumes and dust. Noxious gases from chemical plantKelley v. National Lead Co., 240 Mo.App. 47, 210 S.W.2d 728; dust from quarryBlackford v. Heman Const. Co., 132 Mo.App. 157, 112 S.W. 287.
[4]  Breeding of animalsHayden v. Tucker, 37 Mo. 214; McNulty v. Miller, 167 Mo. App. 134, 151 S.W. 208.
[5]  Maintenance of undertaking business  Leffen v. Hurlbut-Glover Mortuary, Inc., 363 Mo. 1137, 257 S.W.2d 609; Clutter v. Blankenship, 346 Mo. 961, 144 S.W.2d 119.
[6]  Ensign v. Walls, 323 Mich. 49, 34 N.W. 2d 549; Robertson v. Shipp (La.App.), 50 So.2d 699; Nichols v. Simpson (Tex. Civ.App.), 308 S.W.2d 613; Miller v. Coleman, 213 Ga. 125, 97 S.E.2d 313; Knowles v. Central Allapattae Properties, Inc., 145 Fla. 123, 198 So. 819; State ex rel. Fuller v. Stillwell, 114 Kan. 808, 220 P. 1058; Roche v. St. Romain (La.App.), 51 So.2d 666; Herring v. Wilton, 106 Va. 171, 55 S.E. 546, 7 L.R.A.,N.S., 349; Rachlin v. Drath, 26 Wis.2d 321, 132 N.W.2d 581, 11 A.L.R.3d 1393; Krebs v. Hermann, 90 Colo. 61, 6 P.2d 907, 79 A.L.R. 1054.


949 N.E.2d 1104 (2011)
351 Ill. Dec. 9
UNITED CREDIT SERVICE, INC.
v.
DENNIS.
No. 111897.
Supreme Court of Illinois.
May 1, 2011.
Disposition of Petition for Leave to Appeal[*] Denied.
NOTES
[*]  For Cumulative Leave to Appeal Tables see preliminary pages of advance sheets and Annual Illinois Cumulative Leave to Appeal Table.


                  IN THE SUPREME COURT OF PENNSYLVANIA
                             EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,            : No. 182 EAL 2016
                                         :
                  Respondent             :
                                         : Petition for Allowance of Appeal from
                                         : the Order of the Superior Court
             v.                          :
                                         :
                                         :
MARLON GARTH,                            :
                                         :
                  Petitioner             :

                                    ORDER

PER CURIAM

     AND NOW, this 1st day of November, 2016, the Petition for Allowance of Appeal

is DENIED.