        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs October 7, 2003

                     RICCO SAINE v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Shelby County
                           No. P-23556    W. Otis Higgs, Judge

                   No. W2002-02805-CCA-R3-PC - Filed March 15, 2004

Aggrieved that the lower court denied post-conviction relief following an evidentiary hearing, the
petitioner, Ricco Saine, appeals and claims that his aggravated burglary conviction resulted from
ineffective assistance of counsel and an involuntary guilty plea. We affirm the denial of
post-conviction relief.

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

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and NORMA MCGEE OGLE, JJ., joined.

Jake Erwin, Memphis, Tennessee, for the Appellant, Ricco Saine.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Greg Gullily, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                            OPINION

               The petitioner pleaded guilty on October 11, 1999, to three counts of aggravated
robbery involving different victims, see Tenn. Code Ann § 39-13-402 (2003), one count of assault,
see id. § 39-13-101 (2003), and one count of aggravated burglary, see id. § 39-14-403 (2003).

               At the plea submission, the state recited the following factual basis for the charges:

                       Facts that give rise to [the aggravated robbery charges] are
               that on Monday, November the 9th, 1998, approximately 12:30 p.m.,
               an individual later identified as [the petitioner] entered the Chip N’
               Dale’s Antiques located at 3457 Sumner.
       He pulled a silver pistol; demanded money from the clerk,
Joan Hill, an employee; took approximately 510 dollars and fled in a
small, maroon compact car.

        On November 12th, 1998, approximately 10:50 a.m., another
individual later identified as [the petitioner] entered the Fun Shop
located at 634 South Highland; pulled a handgun; pointed it at the
clerk, Larry Tracy; demanded the money; received about 80 dollars
from the cash register; and again, fled in a small, maroon compact
car.

         On Monday, November the 16th, 1998, approximately 3:15
p.m., an individual later identified as [the petitioner] came into the
Buckley’s Antique located at 1965 Madison; pulled a small silver
pistol; demanded money; received approximately 30 dollars from the
clerk, Mr. Buckley; and fled in a maroon compact car.

        On this occasion the victim got the identification of the
vehicle through Mississippi tag PNY-137, which led officers in their
investigation to [the petitioner]. [The petitioner] was displayed in a
photographic display to the victims, and they were able to identify
him.

        Facts that give rise to [the assault charge] are that on, it looks
like, October 31st, 1998, on-patrol officers were called to the area of
Lamar and Sims and observed [the petitioner] on the lot there at 3020
Lamar shoving the complainant, who apparently was his girlfriend,
that being a Macon (spelled phonetically) Robinson. They detained
him and arrested him for assault on that occasion.

        The facts that give rise to [the aggravated burglary charge] are
that on October the 30th, 1998, a Candace Mosley reported to the
Memphis Police Department that her home at 2834 Roger Road, No.
2, had been broken into sometime between 5:30 a.m. and 4:20 p.m.
Taken in the break-in was a Yamaha keyboard.

        Officers with the pawn shop detail were able to trace the
pawning of that Yamaha keyboard, obtained the print off of the pawn
ticket and traced that to [the petitioner]. [The petitioner] stated that
he did pawn the keyboard, but he didn’t break into the apartment, but
he was charged.

                                   -2-
                In asking the trial court to accept the plea, counsel for the petitioner advised the trial
court that the petitioner had been receiving medication since his detention on the charges and that
the petitioner had been mentally evaluated and found competent. Counsel further informed the trial
court that the petitioner denied his involvement in the assault charge but, nevertheless, wanted to
plead guilty. After personally addressing the petitioner and reviewing with the petitioner his rights,
the trial court accepted his guilty plea. The court sentenced the petitioner to ten years for each
aggravated robbery conviction, to five years for the aggravated burglary conviction, and to eleven
months and twenty-nine days for the assault conviction. The robbery and assault sentences were
ordered to be served concurrently, with the aggravated burglary to be served consecutively for an
effective fifteen-year sentence.

                Approximately eight months later, the petitioner filed a pro se petition for post-
conviction relief claiming multiple grounds for relief, including that his guilty pleas were
involuntarily entered and unlawfully induced. With the assistance of appointed counsel, the
petitioner filed an amended petition, claiming that his pleas were involuntary because he was
improperly advised by former counsel, that he did not receive effective assistance of counsel, and
that the plea submission hearing did not comply with procedural and constitutional requirements.

                The post-conviction court conducted a hearing on the petition on January 11, 2001,
at which time the petitioner and former counsel testified. The petitioner’s counsel announced at the
beginning of the hearing that the petitioner was attacking only his plea on the aggravated burglary
charge. The petitioner testified that when he pleaded guilty he was “going through a mental thing”
and that he was “messed up” because he was being given the wrong medication. For those reasons,
the petitioner said that he did not understand what he was doing at the time.

                 In connection with the aggravated burglary charge, the petitioner claimed that his
former girlfriend reported the offense because she was upset with him. The petitioner insisted that,
if the girlfriend could be brought to court, she would deny that the petitioner broke into her house.
According to the petitioner, because of the medication he was taking, he neglected to tell former
counsel about the girlfriend.

                 Responding to the post-conviction court’s questions about the type of medication, the
petitioner testified that he had been taking Thorzine since he was fourteen years old and also took
medication to calm him and help him sleep. Responding to additional questions by the court, the
petitioner maintained that he understood everything that occurred during the plea submission, except
the aggravated burglary charge. For that charge, the petitioner said that he did not tell his attorney
that he wanted to plead guilty. In terms of trial counsel’s services, the petitioner said that counsel
did not explain the aggravated burglary to him and that they never discussed that charge. More
specifically, the petitioner claimed that he was not made aware of the facts alleged concerning the
aggravated burglary and that he would not have pleaded guilty had he been aware.

                                                   -3-
                On cross-examination, the petitioner conceded that despite his “mental” problems,
he had been able to knowingly enter guilty pleas to prior offenses, such as theft, criminal trespass,
assault, and driving without a license.

               The petitioner’s former trial counsel testified for the state that she is the Criminal
Court Supervisor for the Shelby County Public Defender’s Office. She supervises approximately
30 attorneys and handles a reduced case load. Counsel stated that she has been licensed to practice
law in Tennessee for 20 years.

                Originally, counsel was appointed to represent the petitioner on the aggravated
robberies, but she monitored his other charges that were being handled by different public defenders
at the General Sessions Court level. Counsel testified that when she initially met with the petitioner,
he advised her of his mental health history. As a result, counsel arranged for an in-patient mental
evaluation. Pursuant thereto, the petitioner was diagnosed as competent and sane.

                 Counsel testified that the petitioner wanted a joint disposition of his cases. Counsel
said that she reviewed the facts of each case with the petitioner and discussed possible defenses.
Counsel related that the petitioner did not contest the robbery charges. He also did not contest that
he had “pawned” Ms. Mosley’s property, but he did insist that he had not broken into Ms. Mosley’s
house. Counsel did not contact Ms. Mosley, and to counsel’s knowledge, her office staff did not
interview Ms. Mosley. Counsel testified that she explained to the petitioner how the possession of
recently stolen property creates an inference of burglary, and she testified that she advised the
petitioner that “there was a good chance he could be convicted of burglary.” In terms of punishment,
counsel said that she told the petitioner that if convicted at trial, he could receive more than 30 years’
incarceration depending on whether consecutive sentencing was imposed.

                Counsel admitted that she was aware that the petitioner denied the assault charge and
breaking into Ms. Mosley’s residence. Counsel testified that she told the petitioner that he could not
be forced to plead guilty to those charges but that “in all likelihood the state would not give him an
offer just to cover the aggravated robberies.” Before the plea submission, counsel reviewed the
paperwork with the petitioner, which clearly reflected that he was pleading guilty to aggravated
burglary.

                The post-conviction court took the matter under advisement and later issued written
findings and conclusions denying the petition for post-conviction relief. The court found the
petitioner’s claim of ineffective assistance of counsel to be without merit. The court credited trial
counsel’s testimony, and it concluded that the services provided to the petitioner were within the
range of competence expected of attorneys in criminal cases and, moreover, that the petitioner was
not prejudiced by his attorney’s representation. Regarding the petitioner’s claim that his guilty plea
to the aggravated burglary was involuntary and unknowing, the post-conviction court ruled that the
petitioner had not carried his burden. The court pointed, inter alia, to the mental health evaluation
whereby the petitioner was found competent, the petitioner’s responses during the plea submission
hearing, and the petitioner’s post-conviction testimony that he read at a tenth grade level. The court

                                                   -4-
also noted that the probable motivation for the petitioner’s claims was that the petitioner would be
already eligible for parole but for the aggravated burglary sentence running consecutively to the
robbery sentences.

                   From the denial of his bid for post-conviction relief, the petitioner has appealed.1

                The law is well settled that to obtain post-conviction relief, a petitioner must show
that his or her conviction or sentence is void or voidable because of the abridgment of a
constitutional right. Tenn. Code Ann. § 40-30-103 (2003). The petitioner bears the burden of
proving factual allegations in the petition for post-conviction relief by clear and convincing evidence.
Id. § 40-30-110(f) (2003). Evidence is clear and convincing when there is no serious or substantial
doubt about the accuracy of the conclusions drawn from the evidence. Hicks v. State, 983 S.W.2d
240, 245 (Tenn. Crim. App. 1998).

                 Once the court assigned to hear and adjudicate the post-conviction petition has ruled,
its factual findings are subject to a de novo review by this court; however, we must accord those
factual findings a presumption of correctness, which is overcome only when a preponderance of the
evidence is contrary to the post-conviction court’s factual findings. Fields v. State, 40 S.W.3d 450,
456 (Tenn. 2001). A reviewing court, in other words, may not re-weigh or re-evaluate these
findings, may not substitute its inferences for those of the post-conviction court, and may not second-
guess questions concerning the credibility of witnesses and the weight and value of their testimony.
See Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). The burden is on the petitioner
to show that the evidence preponderates against the lower court’s findings. See Clenny v. State, 576
S.W.2d 12, 14 (Tenn. Crim. App. 1978). On the other hand, a post-conviction court’s conclusions
of law are subject to a purely de novo review by this court, with no presumption of correctness.
Fields, 40 S.W.3d at 457.

                                       Ineffective Assistance of Counsel

                The petitioner’s ineffective assistance of counsel claim is grounded in the
requirements of the Sixth Amendment to the United States Constitution and Article I, section 9 of
the Tennessee Constitution that an accused in a criminal case receive effective assistance of counsel.
Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). To obtain post-conviction relief on the basis of
ineffective assistance of counsel, the petitioner bears the burden of proving (1) that the services
rendered or the advice given was below “the range of competence demanded of attorneys in criminal

         1
             From the record, it appears undisputed that the November 7, 2001 order denying post-conviction relief was
not transmitted by the clerk of court to either the petitioner or his post-conviction counsel until after the time to appeal
had expired. The petitioner filed a motion asking the post-conviction court to “enter an Order on Findings of Fact and
allow [him] to make an application for a delayed appeal.” An Order was entered on October 29, 2002, which recited
that “Petitioner’s Motion on Findings of Facts is hereby granted.” Pursuant to the petitioner’s motion filed with the clerk
of the appellate court, our court then entered an order on December 4, 2002, granting the petitioner fifteen days to file
a notice of appeal with the lower court. He did so on December 12, 2002.

                                                            -5-
cases,” id. at 936, and (2) that the deficiencies were prejudicial in terms of rendering a reasonable
probability that the result of the trial was unreliable or the proceedings were fundamentally unfair,
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). “[A] failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective assistance
claim[, and] a court need not address the components in any particular order or even address both
if the [petitioner] makes an insufficient showing of one component.” Goad v. State, 938 S.W.2d
363, 370 (Tenn. 1996).

               In terms of appellate review, a post-conviction court’s conclusion whether a petitioner
has been denied the effective assistance of counsel presents a mixed question of law and fact. State
v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The post-conviction court’s findings of fact underlying
a claim of ineffective assistance are reviewed under a de novo standard, with a presumption that
those findings are correct unless the preponderance of the evidence is otherwise. See Fields, 40
S.W.3d at 458. The post-conviction court’s conclusions of law whether counsel’s performance was
deficient or whether any such deficiency was prejudicial are reviewed under a purely de novo
standard with no presumption of correctness.

                 Our review of the petitioner’s appellate brief discloses only two references to the
record on appeal, pages 8 and 14 of the post-conviction hearing transcript. Rule 10 of the Court of
Criminal Appeals of Tennessee provides that “[i]ssues which are not supported by argument, citation
to authorities, or appropriate references to the record will be treated as waived.” R. Ct. Crim. App.
Tenn. 10(b). Viewed in the best possible light, the petitioner’s brief is marginally adequate. At any
rate, we discern no factual or legal grounds to disturb the lower court’s assessment of counsel’s
effectiveness.

                The only route of persuasion that the petitioner beckons us to take amounts to nothing
more than an attack on the post-conviction court’s credibility determinations. However, the post-
conviction court heard and considered firsthand the testimony of the petitioner and former counsel.
The petitioner does not explain how the evidence preponderates against the court’s demeanor and
credibility assessments.

                From the testimony of trial counsel, it is evident that she conscientiously,
professionally, and zealously represented the petitioner. Trial counsel obviously appreciated the
gravity of the charges that the petitioner was facing. Trial counsel obtained professional assistance
in evaluating the petitioner’s competency and mental health. Following that evaluation, trial counsel
then attempted to negotiate a favorable, global settlement of the multiple charges brought against the
petitioner, which could easily have resulted in an effective sentence in excess of 30 years. We detect
no suggestion that counsel improperly influenced the petitioner to plead guilty to the aggravated
burglary. Quite to the contrary, counsel advised the petitioner that nothing required him to plead
guilty to that offense; in that event, however, and in counsel’s considerable experience, the state
would not be willing to settle the other charges. Trial counsel also offered the petitioner a practical
insight about the aggravated burglary charge based on the legal inference that arises from the
possession of recently stolen property.

                                                 -6-
                Not only was counsel’s performance objectively reasonable, it also benefitted the
petitioner. In other words, it certainly did not prejudice the petitioner, as is required to secure post-
conviction relief on an ineffective assistance claim. The negotiated plea agreement for an effective
sentence of fifteen years was highly favorable under the circumstances, particularly considering the
petitioner’s proven propensity to rob commercial establishments at gunpoint.

               Simply stated, the petitioner is entitled to no relief on this claim, and we affirm the
post-conviction court’s disposition.

                                      Involuntary Guilty Plea

                The petitioner’s claim that his decision to plead guilty to aggravated burglary was not
intelligently and voluntarily made is, likewise, unavailing.

                When reviewing the entry of a guilty plea, the overriding concern is whether the plea
is knowingly, voluntarily, and understandingly made. Boykin v. Alabama, 395 U.S. 238, 242-44, 89
S. Ct. 1709, 1712 (1969). “[A] plea is not ‘voluntary’ if it is the product of ‘ignorance, in-
comprehension, coercion, terror, inducements, [or] subtle or blatant threats. . . .’” Blankenship v.
State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin, 395 U.S. at 242-43, 89 S. Ct. at 1712)).
Moreover, a plea cannot be voluntary if the defendant is “incompetent or otherwise not in control
of his mental facilities” at the time it is entered. Id. at 904-05 (quoting Brown v. Perini, 718 F.2d
784, 788 (6th Cir. 1983)). A defendant’s plea of guilty is not constitutionally infirm or coerced
merely because the defendant opted to plead guilty as a means of avoiding a more severe sentence
following a trial. See, e.g., Brady v. United States, 397 U.S. 742, 751, 90 S. Ct. 1463, 1471 (1970).

                The post-conviction court, as was its prerogative, declined to accredit the petitioner’s
argument that his medication selectively interfered with his ability to understand the nature of his
plea to the aggravated burglary charge. His repetition of that argument on appeal gains no force.
Nothing irregular occurred during the plea submission, and there is no evidence, independent of the
petitioner’s assertion, that he did not understand the court’s questions about the aggravated burglary
offense or other particulars of his guilty pleas. This claim fails.

                                              Conclusion

                Consequently, for all the foregoing reasons, we affirm the denial of post-conviction
relief.

                                                _________________________________________
                                                JAMES CURWOOD WITT, JR., JUDGE

                                                  -7-


IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. WR-65,106-01

CHARLES EDWARD TURNER, Relator

v.

THE DISTRICT CLERK OF McLENNAN COUNTY, Respondent

ON APPLICATION FOR A WRIT OF MANDAMUS
CAUSE NO. 05375654 IN THE 54TH DISTRICT COURT
McLENNAN COUNTY

 The order was delivered per curiam.

O R D E R

 This is an original application for a writ of mandamus.
	Relator contends that he filed an application for writ of habeas corpus in the 54th District
Court of McLennan County, but that the application has not been forwarded to the Court of Criminal
Appeals even though more than thirty-five days have elapsed.  Relator's contentions present a
colorable claim to have prompt resolution of any grounds raised in such an application.
	It is this Court's opinion that additional information is required before a decision can be
reached.  Therefore, the Respondent, District Clerk of McLennan County, is ordered to file with this
Court within thirty days a response by submitting the record on such application or a copy of a timely
entered order designating issues to be investigated, see McCree v. Hampton, 824 S.W.2d 578 (Tex.
Crim. App. 1992), or by stating the nature of any applications filed by Relator such that they are not
filed pursuant to Article 11.07, § 3, V.A.C.C.P., or that no applications by applicant have been filed.
	IT IS SO ORDERED this the 26th day of JULY, 2006.
DO NOT PUBLISH


344 F.2d 197
WMOZ, INC., and Edwin H. Estes, Appellants,v.FEDERAL COMMUNICATIONS COMMISSION, Appellee.
No. 18742.
United States Court of Appeals District of Columbia Circuit.
Argued February 1, 1965.
Decided February 25, 1965.

Mr. Glenn A. Mitchell, Washington, D. C., for appellants.
Mr. Ernest O. Eisenberg, Counsel, F. C. C., with whom Messrs. Henry Geller, Gen. Counsel, and Daniel R. Ohlbaum, Deputy Gen. Counsel, F. C. C., were on the brief, for appellee. Mr. John H. Conlin, Counsel, F. C. C., also entered an appearance for appellee.
Before DANAHER, BASTIAN and WRIGHT, Circuit Judges.
PER CURIAM:

1
Here the only question of substance involves the Commission's refusal to reopen the record for the taking of evidence which the appellants claimed was newly discovered and of decisional significance.

2
The appellants in this court have challenged the Commission's Decision and Order released February 4, 1964 denying the application for renewal of the standard broadcast station license of WMOZ, Inc. at Mobile, Alabama, revoking the license of Estes for standard broadcast station WPFA at Pensacola, Florida, and denying the appellants' petition to reopen the record for the taking of additional evidence. Appellants further have appealed from the Commission's Memorandum Opinion and Order released June 5, 1964 denying the appellants' petition for reconsideration and for further oral argument. The record shows that a Hearing Examiner had concluded that Estes as owner of 99 per cent of the stock of WMOZ, Inc. had disqualified himself and his corporation from holding a Commission authorization. The available evidence has also demonstrated, he concluded, that Estes lacked the qualifications to be the licensee of WPFA. The Commission approved its Examiner's finding that Estes had deliberately falsified certain records and had testified falsely with respect to their preparation. The Commission additionally concluded that Estes, having knowingly and willfully submitted false information to the Commission, lacked the necessary character qualifications to continue as a licensee of the Commission. Thus it was decided that the WMOZ license should not be renewed and that his individual license for station WPFA should be revoked. Without more, it would appear that at the time of its orders based upon the untrustworthiness1 of Estes, the Commission's action found overwhelming support in the record.

3
However, some months before the Commission's February, 1964 order was entered, Estes moved to reopen the record so that he might file two affidavits executed by one Ray and one Foster who claimed knowledge of important facts. If believed, the testimony of these affiants might have gone far toward undermining the basis for the Commission's conclusions as to Estes. It might have been made to appear that he was the victim of conspiratorial competitors and others who sought to drive Estes out of business that they might acquire his radio properties. Certainly the record is replete with charges and recriminations. Some months after oral argument, the Commission en banc denied the motion.2

4
We think in view of the nature of the claims, public interest considerations require that this case be remanded to the end that a supplemental record may be compiled before the Hearing Examiner, and that Ray and Foster should be called to testify. In the light of their testimony, further evidence may be received in refutation or corroboration as the case may be. We intimate no opinion as to what weight the Commission shall ultimately accord to the testimony adduced at the supplemental hearing, nor do we express a view as to what the Commission's ultimate action should be if it should decide that false testimony has been adduced and that the Commission's processes have been abused. It is enough to observe that a full record, compiled as has been suggested, may advance the interests of justice.

5
We have considered other contentions with respect to various Commission rulings and deem them to be without merit.

6
Remanded for further proceedings consistent with this opinion.

Notes:

1
 Cf. Federal Communications Commission v. WOKO, Inc., 329 U.S. 223, 227-228, 67 S.Ct. 213, 91 L.Ed. 204 (1946)

2
 Only four Commissioners participated in the decision. More than 14 months elapsed between the date of the report of the Hearing Examiner and the Commission's ultimate action


738 P.2d 662 (1987)
Russell D. CALLISTER and L. Rex Andersen, co-partners, doing business under the firm name and style of the Callister Company, Plaintiffs and Appellants,
v.
MILLSTREAM ASSOCIATES, INC., a Utah corporation, Defendant and Respondent.
No. 860006-CA.
Court of Appeals of Utah.
June 15, 1987.
Thomas N. Crowther, Cynthia J. Crass, Salt Lake City, for defendant and respondent.
Robert C. Cummings, Gordon A. Madsen, Salt Lake City, for plaintiffs and appellants.
Before ORME, GREENWOOD and BILLINGS, JJ.

OPINION
ORME, Judge:
Plaintiffs appeal from a judgment against them in an action they commenced to recover damages for defendant's alleged breach of an agreement to buy real estate. After a two day trial to the court, the district court agreed with defendant's position that it was entitled to rescission of the agreement because (1) plaintiffs were unable to convey clear title at closing and (2) *663 plaintiffs misled defendant concerning the number of apartment units that could be built on the property. We affirm the judgment against plaintiffs, albeit on only one of the grounds relied on by the trial court.
The facts as found by the trial court can be succinctly stated. In July of 1981, defendant, using the standard form of "Earnest Money Receipt and Offer to Purchase" in use until quite recently, contracted to purchase real estate from plaintiffs. The property was not identified in the agreement, which referred only to "Attached Legal Description." That phrase was footnoted, and the text of the footnote stated: "Legal Description and preliminary title report to be provided by G[ua]rdian Title."[1] In the space provided for a description of the property, this phrase was added: "Property to be free and clear of all liens and encumbrances unless otherwise specified in this agreement." No lien or encumbrance was so specified except, by clear implication, the lien which secured a loan that defendant was going to assume as part of its purchase. The agreement contemplated closing of the transaction "on or before August 15, 1981."
The trial court found that prior to execution of the agreement defendant told plaintiffs it intended to build 100 units on the property and that plaintiffs told defendant that (1) the property was zoned R-2-8 and (2) at least 75 units could be built on the property.[2] The relevance of these particular findings is unclear since the agreement made no mention of these items, but did provide that "no verbal statement made by anyone relative to this transaction shall be considered to be a part of this transaction unless incorporated in writing herein."
Meanwhile, a recorded covenant, which plaintiffs failed to mention to defendant or to specify in the agreement, restricted the property to 60 units for so long as the property was zoned R-2-8. At the scheduled closing, which was postponed by a few days beyond the August 15 target date, defendant became aware of the restrictive covenant and refused to proceed. Within a few days, plaintiffs obtained release of the 60-unit restriction, for which a 75-unit restriction was substituted. Defendant still refused to perform. Plaintiffs declined to retain the earnest money deposit as liquidated damages and commenced this action.
Plaintiffs make three arguments on appeal. First, they contend the court erred in putting any credence in defendant's claim it was misled as to the number of units that could be built on the property. Second, they argue the title defect did not warrant rescission. Third, they point out defendant cannot receive attorney's fees pursuant to the terms of the very agreement it seeks to have nullified.
We agree there is no merit to defendant's claim it was misled. With or without actual or constructive notice[3] of the encumbrance, and whether acquired before or after execution of the agreement, defendant's substantive rights would be exactly the same since it had a contractual right to conveyance of title free and clear of all liens and encumbrances other than the one which was specified in the agreement.[4] Defendant concedes it was not entitled to an award of attorney's fees. See BLT Inv. Co. v. Snow, 586 P.2d 456, 458 (Utah 1978). The only issue requiring further attention, then, is the trial court's conclusion that rescission was warranted because of the title defect existing at closing.
In this regard, plaintiffs argue that time was not of the essence of the agreement *664 and that they, within mere days following the scheduled closing, succeeded in having the 60-unit restrictive covenant removed.
Even assuming plaintiffs were entitled to the additional time to clear the encumbrance,[5] it is fatal to their position that they did not actually clear it. They merely substituted a 75-unit encumbrance for a 60-unit encumbrance in the face of express, specially added contractual language that the property was to be free of all liens and encumbrances other than those referred to in the agreement. A 75-unit encumbrance failed to meet the requirements of the contract and provided grounds for rescission, just as the 60-unit encumbrance would have done.[6]
Plaintiffs argue, not without some persuasiveness, that defendant merely had a change of heart and wanted to get out of the deal, whereupon it latched on to "discovery" of the 60-unit encumbrance, which it had actually known about all along, as a convenient loophole. Of course, the use of short, general, fill-in-the-blank forms to govern expensive or complicated transactions is all but a guaranty that loopholes will be available for the wily. The loophole by which plaintiffs were defeated in this case could have been easily plugged by plaintiffs had they simply specified in the agreement that the 60-unit encumbrance, along with the lien securing the existing loan, was excepted from what was otherwise a broad requirement that all liens and encumbrances be cleared before title was conveyed.
The case is remanded to district court for the sole purpose of deleting from the judgment the award of attorney's fees in favor of defendant. The judgment is otherwise affirmed. Each party shall bear its own costs of appeal.
GREENWOOD and BILLINGS, JJ., concur.
NOTES
[1]  Apparently all the parties knew what property was the subject of the agreement. In any case, defendant did not argue that the agreement was unenforceable by reason of its failure to identify with sufficient particularity the property which was the subject of the agreement.
[2]  The zoning information and 75-unit figure were included on a brochure plaintiffs had furnished to defendant.
[3]  The restrictive covenant had been duly recorded in the office of the county recorder. Defendant is properly charged with constructive notice of the 60-unit restriction. See Utah Code Ann. § 57-3-2 (1986).
[4]  The protection offered by this provision no doubt explains why defendant did not more timely secure a preliminary title report nor otherwise concern itself with the status of the property other than to confer with the zoning office.
[5]  Generally, a vendor is allowed a reasonable time to perfect title. Walker v. Bintz, 3 Utah 2d 162, 280 P.2d 767 (1955). See Neves v. Wright, 638 P.2d 1195, 1198 (Utah 1981) (seller need not have title at all times during the executory period of a contract, but in every case there must be a close scrutiny of facts to avoid unfairness). But see Griffeth v. Zumbrennen, 577 P.2d 129, 131 (Utah 1978) (provision in earnest money agreement specifically requiring performance on or before a given date connotes that time was of the essence).
[6]  Plaintiffs argue that if the purchaser has notice of encumbrances upon the property, and the encumbrance is of such a nature that it could not be removed by the vendor, like building restrictions, then the purchaser takes possession subject to the encumbrances. Plaintiffs cite 77 Am.Jur.2d, Vendor and Purchaser § 120 (1975) for this proposition and support it with Leonard v. Woodruff, 23 Utah 494, 65 P. 199 (1901) and Flemetis v. McArthur, 119 Utah 268, 226 P.2d 124 (1951). Neither case is applicable to the facts in the present case. In Leonard, the agreement between vendor and purchaser was silent as to the required character of the title. 65 P. at 203. In Flemetis, the reservations related to mineral and water rights, not building restrictions. 226 P.2d at 126. More appropriate analysis is found in cases such as Bergstrom v. Moore, 677 P.2d 1123, 1125 (Utah 1984) (if unexcepted encumbrances on vendor's title are irremediable and vendor will not be able to fulfill its contract to convey title as described in warranty deed, rescission is an appropriate remedy) and Marlowe Inv. Corp. v. Radmall, 26 Utah 2d 124, 485 P.2d 1402, 1404 (1971) (Ordinarily vendor does not have to have marketable title until the purchaser has made his payments. "Nevertheless if it plainly appears that he has so lost or encumbered his ownership or his title that he will not be able to fulfill his contract, he cannot insist that the purchaser continue to make payments when it is obvious that his own performance will not be forthcoming.").


W.Z. v New York City Health & Hosps. Corp. (2020 NY Slip Op 03820)

W.Z. v New York City Health & Hosps. Corp.

2020 NY Slip Op 03820

Decided on July 8, 2020

Appellate Division, Second Department

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

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

Decided on July 8, 2020
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

CHERYL E. CHAMBERS, J.P.
LEONARD B. AUSTIN
ROBERT J. MILLER
COLLEEN D. DUFFY, JJ.

2018-11125
 (Index No. 504382/12)

[*1]W.Z., etc., appellant,
vNew York City Health and Hospitals Corporation, respondent.

Ronemus & Vilensky (Lisa M. Comeau, Garden City, NY, of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York, NY (Fay Ng and Antonella Karlin of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Michelle Weston, J.), dated July 31, 2018. The order denied that branch of the plaintiff's motion which was for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc and, thereupon, directed dismissal of the complaint, and denied, as academic, that branch of the plaintiff's motion which was to strike the defendant's first and fifth affirmative defenses.
ORDERED that the order is affirmed, with costs.
On July 24, 2007, the infant plaintiff allegedly sustained brain injuries as the result of medical malpractice on the part of the medical staff at a hospital operated by the defendant when he was born prematurely via an emergency cesarean section. On February 23, 2012, a notice of claim was served, without leave of court, and this action was commenced on December 21, 2012. By notice of motion dated January 24, 2017, the plaintiff moved for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, and to strike the defendant's first and fifth affirmative defenses. The Supreme Court denied that branch of the plaintiff's motion which was for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc and, thereupon, directed dismissal of the complaint, and denied, as academic, that branch of the plaintiff's motion which was to strike the defendant's first and fifth affirmative defenses. The plaintiff appeals.
"Under General Municipal Law § 50-e(5), in determining whether to deem a late notice of claim timely served nunc pro tunc, the court must consider, in particular, whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of the accrual of the claim or within a reasonable time thereafter (see Unconsolidated Laws § 7401[2]; Wally G. v New York City Health & Hosps. Corp. [Metro. Hosp.], 27 NY3d 672, 675). Additional factors in determining whether to grant such an extension include whether the plaintiff demonstrated a reasonable excuse for the failure to serve a timely notice of claim and for the delay in seeking leave to serve a late notice of claim, whether the plaintiff was an infant at the time the claim arose and, if so, whether there was a nexus between the plaintiff's infancy and the delay in service of a notice of claim, and whether the public corporation was substantially prejudiced by the [*2]delay in its ability to maintain its defense on the merits (see General Municipal Law § 50-e[5]; Williams v Nassau County Med. Ctr., 6 NY3d 531, 535; Matter of Hampson v Connetquot Cent. Sch. Dist., 114 AD3d 790)" (Feduniak v New York City Health & Hosps. Corp. [Queens Hosp. Ctr.], 170 AD3d 663, 665 [citation omitted]).
The plaintiff's service of the late notice of claim on February 23, 2012, without leave of court, was a nullity (see J.H. v New York City Health & Hosps. Corp. [Elmhurst Hosp. Ctr.], 169 AD3d 880, 882). The plaintiff does not purport to have a reasonable excuse for the failure to timely serve a notice of claim, or for the lengthy delay in seeking leave to serve a late notice of claim. We agree with the Supreme Court that the plaintiff failed to establish that the plaintiff's medical records maintained by the defendant supplied the defendant with actual notice of the essential facts constituting the claim. The medical records failed to evince that the defendant's medical staff, by its acts or omissions, inflicted injury on the plaintiff, notwithstanding the opinion of the plaintiff's expert that had the defendant's medical staff taken a different course of treatment, there could have been a better result (see Wally G. v New York City Health & Hosps. Corp. [Metro. Hosp.], 27 NY3d at 676-677).
Moreover, the plaintiff also failed to demonstrate that the defendant was not substantially prejudiced by the lengthy delay in seeking leave to serve a late notice of claim (see M.M. v New York City Health & Hosps. Corp., 175 AD3d 1209; compare J.H. v New York Health & Hosp. Corps. [Elmhurst Hosp. Ctr.], 169 AD3d at 884).
Accordingly, we agree with the Supreme Court's determination to deny that branch of the plaintiff's motion which was for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc and, thereupon, to direct dismissal of the complaint, and to deny, as academic, that branch of the plaintiff' s motion which was to strike the defendant's first and fifth affirmative defenses.
CHAMBERS, J.P., AUSTIN, MILLER and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


131 F.3d 148
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Mark L. SMITH, an Alaska resident;  Smith Lighterage,Company, Inc., an Alaska corporation, Plaintiffs-Appellees,v.AON RISK SERVICES, INC., a/k/a and d/b/a Rollins Hudig Hallof Washington, Inc.;  Gale's Tendering Services,an Alaska partnership;  James R. Johnsonand Gale F. Johnson, Alaskaresidents, Defendants,andRoyal Insurance Company of America;  John Deere InsuranceCompany;  International Specialty, Inc.;  GreatAmerican Insurance Company, Defendants-Appellants.
No. 97-35035.
United States Court of Appeals, Ninth Circuit.
Submitted November 17, 1997.**Decided Nov. 21, 1997.

Appeal from the United States District Court for the District of Alaska, D.C. No. CV-96-00323-JKS.
Before HUG, Chief Judge, PREGERSON and BEEZER, Circuit Judges.
SINGLETON, J.

1
MEMORANDUM*

2
The Royal Insurance Company of America and other insurers (collectively, "Underwriters") appeal the district court's order awarding attorneys fees and costs under 28 U.S.C. § 1447(c) to Mark Smith and Smith Lighterage Company (collectively, "Smith").  We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

3
We review the district court's award of attorneys fees and costs under 28 U.S.C § 1447(c) for an abuse of discretion.  See Moore v. Permanente Med.  Group, Inc., 981 F.2d 443, 447 (9th Cir.1992).  We review de novo whether section 1447(c) authorizes an award of attorneys fees and costs.  See Baddie v. Berkeley Farms, Inc., 64 F.3d 487, 490 (9th Cir.1995).

4
Underwriters contend that the district court erred as a matter of law and abused its discretion when it awarded attorneys fees and costs to Smith because section 1447(c) does not authorize an award of fees or costs when the initial removal was proper.  We disagree.

5
"An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal."  28 U.S.C. § 1447(c).  All defendants must join in a removal petition.  See 28 U.S.C. § 1446(a);  Ely Valley Mines, Inc. v. Hartford Accident & Indem.  Co., 644 F.2d 1310, 1314 (9th Cir.1981).

6
Here, Underwriters removed the case to federal court based on diversity of citizenship.  However, Aon Risk Services, a defendant in the state action, did not join in Underwriters' removal petition.  Thus, section 1447(c) authorized an award of attorney fees and costs incurred in conjunction with the remand because the initial removal was improper.  See 28 U.S.C. §§ 1446(b) & 1447(c).  Accordingly, the district court did not abuse its discretion by awarding attorneys fees and costs.  See Moore, 981 F.2d at 447.

7
AFFIRMED.

**
 The panel unanimously finds this case suitable for decision without oral argument.  See Fed.  R.App. P. 34(a);  9th Cir.  R. 34-4.  Accordingly, appellants' request for oral argument is denied

*
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.  R. 36-3


282 F.Supp.2d 600 (2003)
SOUTH SIDE LANDFILL, INC., Landfill Management Co., Randolph Farms, Inc., Ralph and Mina Balkema, and John and Dorothy Balkema, Plaintiffs,
v.
UNITED STATES of America, Defendant.
No. 1:95-CV-220.
United States District Court, W.D. Michigan, Southern Division.
August 1, 2003.
*601 Scott R. Sikkenga, Kalamazoo, MI, Theodore A. Schwartz, Damon R. Sedita, Montclair, NJ, for Plaintiffs.
Michael L. Shiparski, Grand Rapids, MI, Stephen T. Lyons, Washington, DC, for Defendant.

OPINION
QUIST, District Judge.
Plaintiffs, South Side Landfill, Inc., Landfill Management Co., Randolph *602 Farms, Inc., Ralph and Mina Balkema, and John and Dorothy Balkema, filed this action against the United States ("Government" or "I.R.S.") pursuant to 26 U.S.C. § 7422 seeking a refund of taxes for the years 1989 to 1992. Each of the corporate plaintiffs owns and operates a landfill. Plaintiffs' refund claims depend upon the interpretation and application of Internal Revenue Code § 468, 26 U.S.C. § 468, which, among other things, allows landfill owners to take a current deduction for future closing and post-closing costs. In a prior Opinion and Order issued in this case, the Court held that pursuant to § 468(a)(2)(B), a taxpayer must include imputed interest in its reserve created pursuant to § 468(c)(2). See S. Side Landfill, Inc. v. United States, 52 F.Supp.2d 783, 787-88 (W.D.Mich.1999) (hereafter "South Side I"). The Government has now moved for partial summary judgment regarding another issue under § 468, namely, whether § 468(d)(2)(B)(ii) precludes Plaintiff South Side Landfill, Inc. from electing the benefits of § 468 as a result of the landfill's placement on the National Priorities List established under the National Contingency Plan of Section 105 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9605.

Background
Plaintiff South Side Landfill, Inc. ("SSL") owns and operates a landfill in Indiana (the "landfill"). In 1984, contractors for the United States Environmental Protection Agency ("EPA") conducted a site inspection at the landfill to obtain data for Hazard Ranking System scoring: (State Record of Decision at 3, Pls.' Br. Opp'n Ex. 1.) Sampling from on-site wells indicated the presence of some heavy metals in the ground water at the landfill. (Id. at 3-4.) Based upon that sampling and results from a 1981 survey of industrial waste disposal practices, the landfill was scored and nominated for the National Priorities List ("NPL") in 1986. (Id. at 4.)
In 1985, SSL entered into an Agreed Order with the Indiana Department of Environmental Management ("IDEM"), pursuant to which SSL agreed to construct a slurry wall below grade and a leachate collection system to prevent potentially contaminated groundwater from escaping from the landfill and contaminating local groundwater supplies. The work on the slurry wall and leachate collection system was completed during the fall of 1988.
The landfill was added to the NPL on March 31, 1989. (Id. at 4.) Testing conducted prior to this time "generally showed no discernible contaminant plume or pattern of contamination that [could] be attributed directly to the landfill." (Id. at 8.) With regard to metals, the testing indicated that the level of metals in the groundwater was below primary maximum contaminant levels and that the only metals that exceeded secondary maximum contaminant levels were iron and manganese, found in wells both upgradient and downgradient of the landfill. (Id.) Although tests conducted in 1985 revealed levels of chromium and silver exceeding maximum contaminant levels, the source of these metals was determined to be further east and northeast of the landfill. (Id.) In 1989, after completion of the slurry wall and leachate containment system, IDEM conducted another sampling. An analysis showed that most metal levels were lower and that the silver and chromium detected in the prior sampling were not present. (Id. at 8.) Sampling of the leachate from inside the slurry wall indicated "a relatively weak-strength leachate" with maximum contaminant levels comparable to those set for drinking water. (Id. at 10.)
On or about September 14, 1995, IDEM issued its Record of Decision, in which IDEM concluded that with the remedial *603 measures of the slurry wall and leachate containment system in place, the landfill did "not pose [an] unacceptable risk to the environment and human health" and "no further action" at the landfill was required. (Id. at 2.) On July 3, 1997, the landfill was delisted from the NPL.
In its present motion, the Government contends that SSL is prohibited from taking a deduction under § 468 for the tax years in question by § 468(d)(2)(B)(ii), which bars a taxpayer from taking a deduction under § 468 for any property listed in the National Contingency Plan established under Section 105 of CERCLA.

Discussion
Section 468 grants landfill operators a special deduction for site reclamation and closing costs. Federal and state laws and regulations impose certain closure obligations upon landfill operators, such as construction and maintenance of a final cap and monitoring of leachate from the disposal site. To comply with these requirements, landfill operators must incur significant expense, often for many years after the operations at the disposal site and the related income stream have ceased. In order to bridge the gap between receipt of income and expenditures for closing costs and to ensure that sufficient funds are available to pay for such costs, Congress enacted § 468, which allows landfill operators who use the accrual method of accounting to deduct a pro-rata portion of future closing and post-closing costs, calculated on a current basis, equal to the capacity of the landfill consumed during the taxable year.
The operation of § 468 was fully discussed in the Court's prior Opinion. Section 468 provides an exception to the economic performance rule set forth in 28 U.S.C. § 461(h)(1), which provides that an accrual method taxpayer may deduct an item only when all events have occurred that determine the fact and amount of liability with reasonable accuracy. South Side I, 52 F.Supp.2d at 785. Pursuant to § 468, a landfill operator may elect to deduct reasonably estimated "qualified closing costs." Id. Taxpayers electing to deduct qualified closing costs under § 468 must add the amount of each annual deduction to a separate reserve maintained for the particular site. 26 U.S.C. § 468(a)(2)(D); see South Side I, 52 F.Supp.2d at 785. The reserve must also be adjusted to account for payments actually made during the taxable year for qualified closing costs (a decrease), 26 U.S.C. § 468(a)(2)(C), and for interest earned on the reserve funds (an increase), 26 U.S.C. § 468(a)(2)(B); South Side I, 52 F.Supp.2d at 785. If the reserve amount at the end of the year exceeds the current costs to close the landfill, the taxpayer must report the excess in income for that year. 26 U.S.C. § 468(a)(4)(B).
The amount of the deduction allowable in any taxable year for qualified closing costs is "equal to the current . . . closing costs allocable to . . . the production from the reserve property during such taxable year." 26 U.S.C. § 468(a)(1)(B). The term "current closing costs" is defined as "the amount which the taxpayer would be required to pay for qualified closing costs if the closing activities were performed currently." 26 U.S.C. § 468(d)(1)(B)(i). Current closing costs for a solid waste disposal site are computed on a "unit of capacity method." 26 U.S.C. § 468(d)(1)(B)(ii)(II). The term "qualified closing costs," as it relates to landfills, includes "[a]ny expenses incurred for any land reclamation or closing activity . . . which is conducted in accordance with any permit issued pursuant to" the Solid Waste Disposal Act or "any other Federal, State, or local law which imposes requirements substantially similar to the requirements imposed by the Solid Waste Disposal Act." 26 U.S.C. § 468(d)(2)(B)(i). Finally, "reserve *604 property" means "any property with respect to which a reserve is established under [§ 468(a)(1)]." 26 U.S.C. § 468(d)(4).
The issues presented in the instant motion are: (1) whether SSL is barred from taking a deduction pursuant to § 468 on or after March 31, 1989, the date the landfill was placed on the NPL; and (2) if SSL is so barred, whether SSL must include the balance in its § 468 reserve as income for the tax year in which the landfill was listed on the NPL.

I. Does the Inclusion of the Landfill on the NPL Bar SSL from Taking a Deduction Under § 468?
For purposes of the first issue presented by the Government's motion, the pertinent statutory language, § 468(d)(2)(B)(ii), appears as an exception to the definition of "qualified closing costs":
(2) Qualified reclamation or closing costs. The term `qualified reclamation or closings' means any of the following expenses:
. . . . .
(B) Solid waste disposal and closing costs.
(i) In general. Any expenses incurred for any land reclamation or closing activity in connection with any solid waste disposal site which is conducted in accordance with any permit issued pursuant to
(I) any provision of the Solid Waste Disposal Act (as in effect on January 1, 1984) requiring such activity, or
(II) any other Federal, State, or local law which imposes requirements substantially similar to the Solid Waste Disposal Act (as so in effect).
(ii) Exception for certain hazardous waste sites. Clause (i) shall not apply to that portion of any property which is disturbed after the property is listed in the national contingency plan established under section 105 of [CERCLA].
26 U.S.C. § 468(d)(2) (italics added). The Government contends that pursuant to § 468(d)(2)(B)(ii), SSL is precluded from taking a § 468 deduction for the 1989-92 tax years, when the landfill was listed on the NPL. SSL contends that the Government's argument must be rejected because the exception states that it applies only to "hazardous waste sites" and there are material issues of genuine fact regarding whether the landfill was a hazardous waste site.
This Court summarized the rules of statutory construction in South Side I as follows:
In construing the statute at issue, the Court must look first to the language used by Congress. See American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982). "A firmly established principle of statutory interpretation is that `the words of statutesincluding revenue actsshould be interpreted where possible in their ordinary, everyday senses.'" Hanover Bank v. Commissioner, 369 U.S. 672, 687, 82 S.Ct. 1080, 1089, 8 L.Ed.2d 187 (1962)(quoting Crane v. Commissioner, 331 U.S. 1, 6, 67 S.Ct. 1047, 1051, 91 L.Ed. 1301 (1947)). Ordinarily, the language used is presumed to reflect the legislative purpose of the statute. American Tobacco Co., 456 U.S. at 68, 102 S.Ct. at 1537. "Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). Where the intent of Congress as expressed in unambiguous language of a statute is clear, a court need only apply *605 the language of the statute without examining legislative history. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). In addition, tax provisions granting deductions are "matter[s] of legislative grace" and must be strictly construed. White v. United States, 305 U.S. 281, 292, 59 S.Ct. 179, 184, 83 L.Ed. 172 (1938); Helvering v. Northwest Steel Rolling Mills, 311 U.S. 46, 49, 61 S.Ct. 109, 111, 85 L.Ed. 29 (1940).
52 F.Supp.2d at 787.
Section 468(d)(2)(B)(ii), by its plain language, precludes a taxpayer from taking a deduction for closing costs for any portion of property which has been disturbed after being "listed in the national contingency plan established under section 105 of [CERCLA]." While § 468(d)(2)(B)(ii) does not specifically refer to the NPL, Section 105(8) of CERCLA requires the President to revise the National Contingency Plan originally adopted pursuant to Section 311 of the Federal Water Pollution Control Act to reflect CERCLA's provisions. 42 U.S.C. § 9605(a). As part of that revision, the President must create a list of national hazardous waste sites, now known as the NPL, and rank them in order of priority for cleanup. 42 U.S.C. § 9605(a)(8)(B); see Exxon Corp. v. Hunt, 475 U.S. 355, 374, 106 S.Ct. 1103, 1115, 89 L.Ed.2d 364 (1986); ARCO Envtl. v. Dep't of Health and Envtl. Quality, 213 F.3d 1108, 1111 n. 2 (9th Cir.2000). In light of these requirements, the reference in § 468(d)(2)(B)(ii) to listing "in the national contingency plan" can be reasonably interpreted to refer to property listed on the NPL. The clear import of § 468(d)(2)(B)(ii) is that once property is listed on the NPL, no deduction for qualified closing costs may be taken for any portion of the property disturbed after the date the property becomes listed. The triggering event for § 468(d)(2)(B)(ii) is listing on the NPL. Thus, it is evident from the statutory language that Congress intended the exception to preclude a deduction for qualified closing costs without regard to whether the taxpayer ever incurs response and remediation costs under CERCLA.
SSL contends that regardless of a listing on the NPL, the exception applies only to hazardous waste sites. SSL's argument is based upon the heading of the subsection containing the exclusion, which states: "Exception for certain hazardous waste sites." It is well-established that headings in statutes are of limited use in statutory interpretation:
[H]eadings and titles are not meant to take the place of the detailed provisions of the text. Nor are they necessarily designed to be a reference guide or a synopsis. Where the text is complicated and prolific, headings and titles can do not more than indicate the provisions in a most genral [sic] manner; to attempt to refer to each specific provision would often be ungainly as well as useless. As a result, matters in the text which deviate from those falling within the general pattern are frequently unreflected in the headings and titles. Factors of this type have led to the wise rule that the title of a statute and the heading of a section cannot limit the plain meaning of the text.
Bhd. of R.R. Trainmen v. Balt. & Ohio Ry. Co., 331 U.S. 519, 528-29, 67 S.Ct. 1387, 1392, 91 L.Ed. 1646 (1947). See also ASX Inv. Corp. v. Newton, 183 F.3d 1265, 1268 n. 5 (11th Cir.1999) (stating that "we recognize that headings may not be used to limit the plain meaning of a statute or rule and generally are used as interpretive tools only when the text is ambiguous"). SSL's argument must be rejected, because there is nothing ambiguous about the text of the exception, which, to be operative, requires only that the landfill be listed on *606 the NPL. Moreover, the text and the heading, when considered together, show that the term "hazardous waste sites" was intended to refer to any property placed on the NPL rather than a subset of sites eligible for a § 468 deduction. See Broward Gardens Tenants Ass'n v. United States EPA, 311 F.3d 1066, 1068 (11th Cir.2002) (referring to the NPL as "a list of hazardous waste sites for which the cleanup was a high priority"); Mead Corp. v. Browner, 100 F.3d 152, 153 (D.C.Cir. 1996) (describing the NPL as "identifying high priorities among the nation's known hazardous waste sites"). Therefore, the placement of the landfill on the NPL in March 1989 is sufficient to invoke the exception in § 468(d)(2)(B)(ii).[1]
SSL also argues that the Government is not entitled to summary judgment on this issue because it has failed to carry its burden of demonstrating no genuine issue of material fact. SSL contends that the Government has not presented any evidence regarding the portion of the landfill that was disturbed after the landfill was listed on the NPL. The Court lacks jurisdiction to consider this argument. "[A] refund claim with the I.R.S. is a jurisdictional prerequisite to a refund action in federal district court." Firsdon v. United States, 95 F.3d 444, 446 (6th Cir.1996). As the Sixth Circuit has explained:
The regulations promulgated pursuant to § 7422(a) state that "[t]he claim must set forth in detail each ground upon which a credit or refund is claimed and facts sufficient to apprise the Commissioner of the exact basis thereof." Treas. Reg. § 301.6402-2(b)(1). When a party fails to state with specificity the grounds for the refund, the court is without jurisdiction to entertain the action. See Salyersville Nat'l Bank v. United States, 613 F.2d 650, 651 (6th Cir.1980). "Federal courts have no jurisdiction to entertain taxpayer allegations that impermissibly vary or augment the grounds originally specified by the taxpayer in the administrative refund claim." Charter Co. v. United States, 971 F.2d 1576, 1579 (11th Cir. 1992).
McDonnell v. United States, 180 F.3d 721, 722 (6th Cir.1999). The only ground SSL asserted in its claim for refund was that it was not a hazardous waste site. The claim that there is no evidence regarding the portion of the landfill disturbed after it was placed on the NPL is a different argument that was never presented for administrative review. Moreover, it is undisputed that the landfill was added to the NPL on March 31, 1989, and this is the only fact necessary for the Court to determine whether § 468(d)(2)(B)(ii) applies to SSL.
Finally, SSL contends that the exception should not apply to SSL because the landfill was improperly listed on the NPL. The Court is also without jurisdiction to consider this argument because SSL failed to raise it in its administrative claim for a refund. However, even if this ground were properly before the Court, whether the landfill was properly placed on the NPL is an issue which is irrelevant to this proceeding and over which this Court lacks jurisdiction to determine. By raising the argument that the landfill should not have been placed on the NPL, SSL is essentially asking this Court to review the EPA's decision in that regard. Section 113(a) of CERCLA provides: "Review *607 of any regulation promulgated under this Act may be had upon application by any interested person only in the Circuit Court of Appeals of the United States for the District of Columbia." 42 U.S.C. § 9613(a). In addition, application for such review must be made within ninety days from the date of promulgation of the regulation. Id. "The designation of a hazardous waste site on the NPL is considered rulemaking subject to judicial review under 42 U.S.C. § 9613(a)." Wash. State Dep't of Transp. v. United States EPA, 917 F.2d 1309, 1311 (D.C.Cir.1990). This Court therefore lacks jurisdiction to determine whether the landfill was properly listed on the NPL, because the Circuit Court of Appeals for the District of Columbia is the proper forum for such a challenge. United States v. Asarco Inc., 214 F.3d 1104, 1108 (9th Cir.2000).[2]

II. Must SSL include the balance in its § 468 reserve balance as income for the tax year in which the landfill was listed on the NPL?
The second issue presented is whether SSL is required to include the entire balance of its § 468 reserve in its income for the year in which the landfill was placed on the NPL. In its principal brief, the Government argued that § 468(a)(5)(A) required such a result, because SSL's § 468 election was effectively revoked when it was placed on the NPL.[3] In its response brief, however, SSL, citing an IRS Field Service Advisory, pointed out that listing of the property on the NPL is not one of the events set forth in § 468(a)(5)(A) requiring inclusion of the reserve balance in income. In its reply brief, the Government conceded that § 468(a)(5)(A) does not apply to the circumstances in this case, but argued instead that § 468(a)(4) requires SSL to include the reserve balance in income at the end of the year in which the landfill was listed on the NPL.[4]
As noted, the Government relies on § 468(a)(4)(B), which requires a taxpayer to include in income any excess between the taxpayer's reserve for closing costs at the end of the year over the current cost to close that part of the landfill consumed since the § 468 election was made. Pursuant to § 468(a)(4)(C), the rule stated in § 468(a)(4)(B) must be applied after all adjustments to the reserve are made. The Government contends that where a waste disposal site has been placed on the NPL during the taxable year, the result is that the entire ending reserve balance must be included in income, because pursuant to § 468(d)(2)(B)(ii), current closing costs for *608 a disposal site listed on the NPL will always be zero.
The Court disagrees with the Government's interpretation. Contrary to the Government's argument, § 468(d)(2)(B)(ii) does not say that the current closing costs for a disposal site listed on the NPL are automatically deemed to be zero. Rather, that section, which provides an exception to the definition of "qualified closing costs," i.e., what may be deducted, simply states that "qualified closing costs" do not include costs for "that portion of any property which is disturbed after the property is listed" on the NPL. Section 468(d)(2)(B)(ii) thus expressly recognizes that expenses incurred in the taxable year prior to the placement on the NPL remain deductible, and it does not suggest, nor can it be read to mean, that qualified closing costs (subject to appropriate adjustments) booked to the reserve in the months and years prior to placement on the NPL are automatically forfeited, as the Government contends. If Congress had intended that result, it could have easily said so, and likely would not have provided for a partial deduction of qualified closing costs for the portion of the taxable year prior to the time the disposal site was listed on the NPL. Moreover, the Government's argument attempts to shoe-horn a result into a section intended for other purposes. The Government asserts that § 468(a)(4) serves to recapture reserve balances for properties placed on the NPL, but, as the Government concedes, § 468(a)(5) defines the circumstances in which recapture is appropriate. Section 468(a)(4), the subsection on which the Government now relies, is concerned with reporting as income any portion of the reserve exceeding current closing costs. Nothing in that subsection or elsewhere in § 468 suggests that current closing costs are zero for any property that has been listed on the NPL.[5]
The Government also contends that the result it urges is consistent with the legislative history of § 468, which states that recapture is required at the end of the tax year in which a disposal site is listed on the NPL. H.R. Conf. Rep. No. 98-861, at 882 (1984). However, in cases such as this, where the statutory language is clear, there is no need for a court to examine legislative history to determine congressional intent. Ratzlaf v. United States, 510 U.S. 135, 147-48, 114 S.Ct. 655, 662, 126 L.Ed.2d 615 (1994) ("[W]e do not resort to legislative history to cloud a statutory text that is clear."); Audette v. Sullivan, 19 F.3d 254, 256 (6th Cir.1994) (stating that "because the plain meaning of the statute is unambiguous, there is no need to examine the legislative history"). Accordingly, the Court rejects the Government's argument that § 468(a)(4) requires the inclusion of SSL's entire reserve in income for the 1989 taxable year and concludes that SSL's deduction for the 1989 taxable year is limited to that portion of the landfill disturbed prior to March 31, 1989.

Conclusion
For the foregoing reasons, the Court will grant in part and deny in part the Government's motion for partial summary judgment.
An Order consistent with this Opinion will be entered.

ORDER
In accordance with the Opinion filed this date,
*609 IT IS HEREBY ORDERED that the Government's Motion for Partial Summary Judgment (docket no. 53) is GRANTED IN PART AND DENIED IN PART. The motion is granted with respect to the issue of whether 26 U.S.C. § 468(d)(2)(B)(ii) applies to Plaintiff South Side Landfill as a result of its placement on the National Priorities List. The motion is denied with respect to the Government's argument that Plaintiff South Side Landfill's entire § 468 reserve must be included in income for the 1989 tax year. Therefore, closing and post-closing costs through March 31, 1989, remain an issue for trial.
NOTES
[1]  The Government also relies upon the legislative history in a House Conference Report and the Joint Committee on Taxation's "General Explanation of the Revenue Provisions of the Deficit Reduction Act of 1984." Given the unambiguous language of the statute, however, the Court finds it unnecessary to examine the legislative history with regard to the applicability of the exception in this case.
[2]  To the extent SSL's argument is premised upon fairness, the Court must reject it, essentially for the same reasons it rejected Plaintiffs' fairness arguments in South Side I. See 52 F.Supp.2d at 788. SSL's argument is that it was not a hazardous waste site and should not have been placed on the NPL. Even accepting that premise as true, SSL had available to it an adequate procedure for contesting its placement on the NPL, and there is no indication that Congress intended to establish an exception in tax refund cases for waste disposal sites improperly placed on the NPL.
[3]  Section 468(a)(5) provides that a taxpayer must include the balance of a reserve in income upon: (1) the revocation of a § 468 election; (2) completion of the closing of the waste disposal site; or (3) disposition of any portion of the property by the taxpayer. 26 U.S.C. § 468(a)(5).
[4]  Although the Government conceded that the FSA was correct insofar as it concluded that § 468(a)(5) does not support its position, the Government also pointed out that pursuant to 26 U.S.C. § 6110(k)(3), such determinations may not be used or cited as precedent. Although courts have considered private rulings when interpreting Internal Revenue Code sections, see Intermet Corp. v. Comm'r, 209 F.3d 901, 907-08 (6th Cir.2000); Thom v. United States, 283 F.3d 939, 943 n. 6 (8th Cir.2002), the Court need not consider the FSA in light of the Government's concession that § 468(a)(5) does not support its position.
[5]  It would seem that if Congress had actually intended to require recapture when a disposal site is placed on the NPL, it would have done so by a more direct means than by using the Government's proffered method of performing a calculation which always ends up as zero.