62 Cal.App.3d 660 (1976)
133 Cal. Rptr. 267
In re the Marriage of LEORA BERNICE and TROY LEE CAVNAR.
LEORA BERNICE CAVNAR, Appellant,
v.
TROY LEE CAVNAR, Respondent; WESTERN CONFERENCE OF TEAMSTERS PENSION TRUST FUND et al., Respondents.
Docket No. 15802.
Court of Appeals of California, Fourth District, Division Two.
October 7, 1976.
*661 COUNSEL
Elver, Falsetti, Boone & Crafts and Alan L. Crafts for Appellant.
Hennigan, Butterwick & Clepper and Michael H. Clepper for Respondent Husband.
No appearance for other Respondents.
*662 OPINION
KAUFMAN, J.
Leora Bernice Cavnar appeals from an interlocutory judgment ordering the dissolution of her marriage to Troy Lee Cavnar and dividing the community property of the parties. Wife specifically challenges the trial court's characterization of husband's disability retirement pay as his separate property. We conclude that under the circumstances of this case a portion of husband's disability pay is attributable to the community and therefore reverse the judgment in part.
The appeal is on an agreed statement of facts (see Cal. Rules of Court, rule 6(a)). Husband and wife were married in 1947. After a marriage of over 25 years which produced three children, all of whom have reached their majority, the couple separated on October 5, 1972. On April 17, 1974, wife filed a petition for dissolution of the marriage. An interlocutory judgment of dissolution was entered December 15, 1975.
During the marriage, husband was a member of the Teamsters Union which maintains for its members a pension trust fund administered by Prudential Insurance Company. Over the course of his employment, husband's several employers contributed to the pension trust fund on his behalf. All such contributions were made during the marriage.
In March 1971, husband, then age 59, retired. For seven months thereafter, husband received monthly early retirement benefit payments of $212 from the pension trust fund. However, in September 1971, husband converted his early retirement benefit plan to a disability retirement plan pursuant to which he began to receive monthly payments of $305 from the same fund. The particulars of husband's disability are not given in the agreed statement. Husband is entitled to continue receiving these monthly benefit payments throughout his lifetime if, prior to his reaching the age of 65, he continues to be disabled and eligible for disability insurance benefits under the federal Social Security Act, and if, prior to reaching the age of 70, he continues in retirement. Disability payments will terminate with the last payment made before husband's death.

Discussion and Disposition
The question presented by wife's appeal is whether an employee spouse whose right to retirement pay has matured can divest the community of the fruit of his pension benefit plan by electing to receive disability pay instead.
*663 (1) It is now settled that retirement benefits, whether vested or not,[1] are community property to the extent the right thereto has accrued during coverture. (In re Marriage of Brown, supra, 15 Cal.3d at pp. 841-842.) However, disability pay, though it derives from a pension fund accumulated during marriage, has been held to constitute separate property of the employee spouse upon dissolution. (See In re Marriage of Jones, 13 Cal.3d 457, 461 [119 Cal. Rptr. 108, 531 P.2d 420]; In re Marriage of Olhausen, 48 Cal. App.3d 190, 192 [121 Cal. Rptr. 444].)
In Jones, supra, the Supreme Court held that where a spouse is entitled to receive a pension only because he is disabled and has no right to a pension because of longevity of service, the disability benefit payments are his separate property upon dissolution of the marriage. (13 Cal.3d at pp. 459-461.) The Jones court reasoned that whereas retirement pay is deferred compensation for past services rendered and therefore community property to the extent it was earned during marriage, disability pay is compensation for personal anguish and diminished earning capacity, which, being comparable to damages for personal injury received after separation or dissolution, is the recipient spouse's separate property. (13 Cal.3d at p. 462; see In re Marriage of Olhausen, supra, 48 Cal. App.3d at p. 192; see also Zaragosa v. Craven, 33 Cal.2d 315, 320-321 [202 P.2d 73, 6 A.L.R.2d 461].) However, the Jones court specifically left open the question of whether disability benefits received after the recipient spouse has earned a vested right to retirement pay may constitute a community asset. (13 Cal.3d at p. 461.) Apparently, no appellate court of this state has addressed the precise question left open in Jones. To resolve the instant controversy, however, we need not explore the broad question left open in Jones, supra, of whether and under what circumstances an employee spouse's disability pay should or could be characterized as community property where the employee's interest in retirement benefits has merely become vested. Our inquiry is limited to determining the community's interest in disability pay once an employee's right to retirement benefits has matured.
Wife argues that to permit husband to elect to receive disability pay instead of retirement pay after he had already begun to receive the latter *664 and thereby extinguish wife's interest in pension benefits acquired during coverture would frustrate the equal division of community property contemplated by Civil Code section 4800.
Without question, had husband not elected to receive disability pay, wife would be entitled to receive one-half of his retirement pay as her share of the community property. (In re Marriage of Peterson, 41 Cal. App.3d 642, 647-648 [115 Cal. Rptr. 184]; In re Marriage of Jones, supra, 13 Cal.3d at p. 461.) It follows that in the event husband should become ineligible for disability pay and thereafter receive retirement pay instead, wife would clearly be entitled to her one-half share of such retirement payments.
Husband correctly argues that inasmuch as he has an election of types of benefits to be derived from the pension plan, he is entitled to determine the nature of the benefits to be received under the plans. (2) It appears settled that notwithstanding an award of a share in retirement pay has been made to a nonemployee spouse, the employee spouse retains the right to determine the nature of the retirement benefits owned by the community. (In re Marriage of Brown, supra, 15 Cal.3d at p. 850; In re Marriage of Olhausen, supra, 48 Cal. App.3d at p. 194.) In Olhausen, supra, the court considered whether husband's election to receive disability benefits acquired during marriage, which foreclosed his right to thereafter receive retirement pay under the same pension plan, was community or husband's separate property. The court concluded that disability pay is husband's separate property upon dissolution because it compensates him for his personal anguish and inability to compete in the job market. The court reasoned: "[f]uture events determine what the employee and his spouse will receive. The possibilities include a vested retirement for service, a right to withdraw contributions upon termination of employment, and a disability benefit. These alternatives are a part of the contract of employment. Under some circumstances there is a payout which may be divided between the spouses. Under the circumstances of this case, the [contract] provides for a disability benefit payable to [husband], and nothing more. This benefit was earned by services performed during marriage ... but the benefit paid is not of the kind which is to be divided upon dissolution of the marriage." (48 Cal. App.3d at pp. 193-194.) (Italics added.)
(3) Wife does not dispute husband's right to select the benefit plan of his choosing. However, wife contends, in substance, that inasmuch as *665 husband had retired before electing to receive disability pay, only a portion of the disability pay is his separate property. We agree.
Both Jones and Olhausen based their conclusions that disability pay was husband's separate property on their characterization of disability benefits as compensation for personal anguish and diminished earning capacity. (See In re Marriage of Jones, supra, 13 Cal.3d at p. 462; In re Marriage of Olhausen, supra, 48 Cal. App.3d at pp. 193-194.) Under the circumstances of this case, however, husband's disability pay differs in its purpose from the disability benefits found to be the employee spouse's separate property in Jones and Olhausen. Inasmuch as husband had retired and was receiving retirement pay before electing to receive disability pay, husband's disability cannot be said to compensate him for diminished earning capacity or his inability to compete in the job market. Thus, only a portion of husband's pension benefit payments, though termed "disability payments," is properly allocable to disability. It would be unjust to deprive wife of a valuable property right simply because a misleading label has been affixed to husband's pension fund benefits.
We conclude, therefore, that inasmuch as husband was receiving $212 per month retirement pay before electing to receive $305 per month disability pay, only the net increase of $93 is attributable to disability. Since the trial court is vested with broad discretion in determining the equitable distribution of community assets (see Civ. Code, § 4800), however, the appropriate distribution of the community assets is properly left there.
The interlocutory judgment of dissolution is reversed insofar as it establishes that the pension fund benefits are husband's separate property. No appeal having been taken from any other part of the judgment, the judgment is affirmed in all other respects. The trial court is directed to redetermine the division of community property and in so doing to take into account the community interest in husband's pension benefit payments heretofore described. Inasmuch as husband's pension benefit payments are likely to change over time, the trial court is further directed to retain jurisdiction to supervise the payment of pension benefits. (Cf. In re Marriage of Brown, supra, 15 Cal.3d at p. 849.) Wife shall recover costs on appeal.
Gardner, P.J., and McDaniel, J., concurred.
NOTES
[1]  "[T]he term `vested' ... refers to a pension right which is not subject to a condition of forfeiture if the employment relationship terminates before retirement. [Fn. omitted.] ... [¶] [A] vested pension right must be distinguished from a `matured' or unconditional right to immediate payment. Depending upon the provisions of the retirement program, an employee's right may vest after a term of service even though it does not mature until he reaches retirement age and elects to retire." (In re Marriage of Brown, 15 Cal.3d 838, 842 [126 Cal. Rptr. 633, 544 P.2d 561].)


14 Cal.App.3d 400 (1971)
92 Cal. Rptr. 325
CIVIL SERVICE EMPLOYEES INSURANCE COMPANY, Plaintiff and Respondent,
v.
VERA ABELS RICARD, Defendant and Appellant.
Docket No. 26758.
Court of Appeals of California, First District, Division Two.
January 15, 1971.
*401 COUNSEL
Molly H. Minudri for Defendant and Appellant.
Frederick Mahan for Plaintiff and Respondent.
OPINION
SHOEMAKER, P.J.
This is an appeal by defendant Vera Ricard from a judgment enjoining her from proceeding to arbitrate or otherwise attempting to enforce against plaintiff Civil Service Employees Insurance Company (hereafter "Civil Service") an uninsured motorist insurance claim asserted by defendant.
The record shows that on September 6, 1966, Vera Ricard and her brother, Irwin Ford, sued to recover damages for the wrongful death of their father, Jesse Ford, as a result of injuries sustained when he was struck by a car. The first count of the complaint sought damages in the amount of $100,000 against William Burton, whose negligence was alleged to have caused the decedent's death. In the second count of the complaint, Vera Ricard sought to recover $10,000 from Civil Service. She alleged that a policy issued to her by Civil Service extended $10,000 in coverage in the event that her father, a resident of her household, was killed by an uninsured motorist. She further alleged that Burton was an uninsured motorist, but that Civil Service had refused her demand for payment of the $10,000.
On September 26, 1966, Civil Service moved to strike said second count, alleging that the insurance policy issued to Vera Ricard required arbitration of uninsured motorist claims; that Civil Service was ready, willing and able to proceed with arbitration but that Vera Ricard had failed to file an application for arbitration.
Thereafter, the court granted Civil Service's motion to strike and subsequently *402 Vera Ricard filed a demand for arbitration of her claim against Civil Service with the American Arbitration Association.
Concurrently with the filing of her demand for arbitration, Vera Ricard went forward on the first count of her complaint and on January 13, 1967, a default judgment was entered against Burton and in favor of Vera Ricard in the amount of $10,000.
Thereafter, on February 9, 1967, Civil Service commenced the instant action against Vera Ricard, seeking to enjoin her from proceeding any further with her claim against Civil Service. As grounds for such relief, Civil Service alleged that pursuant to Insurance Code section 11580.2, subdivision (c)(3), Vera Ricard had forfeited her right to uninsured motorist coverage by obtaining the judgment against Burton without the written consent of Civil Service.
On December 16, 1968, the court rendered a judgment in favor of Civil Service and issued a permanent injunction prohibiting Vera Ricard from proceeding further against Civil Service.
(1) Appellant Ricard's position, both in the trial court and on appeal, is that when respondent insurer appeared in the prior action, brought by appellant, with its motion to strike and indicated its desire to arbitrate, it impliedly gave its consent that appellant should prosecute the action to judgment against Burton. Appellant contends that under such circumstances, respondent insurer is estopped to assert that appellant forfeited her uninsured motorist coverage by obtaining the judgment against Burton. Appellant's position is without merit.
Insurance Code section 11580.2, subdivision (c)(3), provides that uninsured motorist coverage does not apply "To bodily injury of the insured with respect to which the insured or his representative shall, without the written consent of the insurer, make any settlement with or prosecute to judgment any action against any person who may be legally liable therefor."
In Travelers Indem. Co. v. Kowalski (1965) 233 Cal. App.2d 607, 610 [43 Cal. Rptr. 843], it was held that the above-quoted language was devoid of ambiguity and perfectly clear. "It declares with certainty that the insurance provided in the statute does not apply when the insured, without the written consent of the insurer, prosecutes to judgment any action against the uninsured motorist. There is no room for construction here."
In the instant case, it is undisputed that appellant did obtain judgment against the uninsured motorist and that she did so without the consent of respondent insurer.
Appellant argues that she had no alternative but to obtain judgment *403 against Burton because she was not entitled to seek arbitration of her claim more than one year after the accident which caused the death of her decedent. However, a reading of Insurance Code section 11580.2, subdivision (h) (the pre-1967 code), lends no support to this contention. The subdivision in question provides that no cause of action for uninsured motorist coverage shall accrue to the insured unless within one year from the date of the accident, suit for bodily injury has been filed against the uninsured motorist or agreement as to the amount due under the policy has been concluded or the insured has formally instituted arbitration proceedings. (Stats. 1963, ch. 410, p. 1218.) In the instant case, appellant preserved her rights against respondent insurer by filing suit against Burton within one year after the accident, and there was obviously no necessity that she also commence arbitration proceedings within one year of the accident. Respondent insurer has never made any claim to the contrary and indicated its willingness to arbitrate in September 1966, when it moved to strike appellant's cause of action against it on the policy.
Appellant cites Calhoun v. State Farm Mutual Auto. Ins. Co. (1967) 254 Cal. App.2d 407 [62 Cal. Rptr. 177], as authority for her claim that she did not forfeit her uninsured motorist coverage by obtaining the judgment against Burton without the written consent of respondent insurer. However, that case is totally dissimilar from the case at bar. In Calhoun, the plaintiff's decedent died as a result of a collision with a car driven by one Bach, who had $5,000 in insurance coverage. Plaintiff herself had uninsured motorist coverage in the amount of $10,000, and she demanded that her insurer pay her the $5,000 difference between Bach's insurance coverage and her own. When her insurer flatly denied coverage on the ground that Bach was not an uninsured motorist, plaintiff advised her insurer that she was going to settle her claim against Bach for his policy limit of $5,000 and continue to look to her own insurer for the other $5,000. She thereafter effected such a settlement with Bach. This court held that she did not forfeit her uninsured motorist coverage by so doing because she had settled her claim against Bach only after her own insurer had breached and repudiated its policy and had denied all liability. The insurer's conduct, which occurred at a time when plaintiff had in no way defaulted in her obligations, constituted a total refusal to perform and foreclosed the insurer from complaining of plaintiff's subsequent breach of a policy provision inserted for the insurer's benefit.
The instant case bears no factual resemblance to the Calhoun case, since respondent insurer at no time repudiated its policy or denied coverage. Although respondent did move to strike appellant's cause of action when she brought suit against respondent on the policy, it was merely seeking *404 to compel appellant to arbitrate the issue of the uninsured motorist's liability to appellant. This was unquestionably proper, since subdivision (e) of Insurance Code section 11580.2 (the pre-1967 code), states in pertinent part that "The policy or an endorsement added thereto shall provide that the determination as to whether the insured shall be legally entitled to recover damages, and if so entitled, the amount thereof, shall be made by agreement between the insured and the insurer or, in the event of disagreement, by arbitration." (Stats. 1963, ch. 410, p. 1218.)
Judgment affirmed.
Taylor, J., and David, J.,[*] concurred.
NOTES
[*]   Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.


                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                              No. 15-7965

UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DOMINIQUE A. HANKINS, a/k/a Dominique Hankins,

                Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.    Rebecca Beach Smith, Chief
District Judge. (2:12-cr-00182-RBS-LRL-1)

Submitted:   April 19, 2016                 Decided:   April 21, 2016

Before AGEE, DIAZ, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Dominique A. Hankins, Appellant Pro Se. V. Kathleen Dougherty,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Dominique   A.   Hankins   appeals   the   district   court’s   order

denying his postjudgment motion seeking appointment of counsel

and requesting to serve his federal sentence concurrently with

his state sentence.      We have reviewed the record and find no

reversible error.     Accordingly, we affirm for the reasons stated

by the district court.      United States v. Hankins, No. 2:12-cr-

00182-RBS-LRL-1 (E.D. Va. Dec. 2, 2015).         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.

                                                                AFFIRMED

                                   2


Citation Nr: 1220792
Decision Date: 06/14/12    Archive Date: 06/22/12

DOCKET NO.  09-09 546	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York

THE ISSUES

1. Entitlement to service connection for a clotting disorder, diagnosed as deep vein thromboses, to include as secondary to (or aggravated by) prostate cancer and/or as due to exposure to herbicides.

2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).

REPRESENTATION

Veteran represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Jebby Rasputnis, Associate Counsel

INTRODUCTION

The Veteran served on active duty from July 1969 to April 1971. He served in the Republic of Vietnam from May 1970 to April 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 decision of the Regional Office (RO) in Buffalo, New York. The RO denied the Veteran's claims.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC, to ensure compliance with applicable law. VA will notify the Veteran if further action is required on his part.

REMAND

The claims file reflects that private medical evidence remains outstanding and multiple medical opinions are warranted. The matter must be remanded to the RO/AMC for further development in accordance with VA's duty to assist.

The Veteran has identified a Dr. Carlin, Vascular Surgeons of Central New York, as his cardiovascular surgeon. In April 2008, he informed a VA examiner that he sees Dr. Carlin at least biannually. He also submitted an April 2008 statement that he received an August 21, 2007 ultrasound from Dr. Carlin for the purpose of identifying any remaining clots. Although some records from Dr. Carlin appear in the claims file, those records are dated July 29, 2007 to August 3, 2007. Further, records from Hematology-Oncology Associates of Central New York also appear incomplete. The last record within the claims file from this health care provider is dated September 4, 2007 and states that an additional blood test and analysis was pending. Although an addendum to the April 2008 VA examination report reflects that specific test result was faxed to the examiner, the result is not otherwise reflected in the claims file. The RO must provide the Veteran with authorization forms allowing for the release of all pertinent private treatment records - to specifically include any additional pertinent records from Dr. Carlin and any records generated after September 4, 2007 from Hematology-Oncology Associates of Central New York.

The April 2008 examination resulted in an opinion that the Veteran's deep vein thromboses were not caused by his service-connected prostate cancer. However, the examiner did not address the Veteran's other contentions - that he experienced a clotting disorder as the direct result of in-service exposure to herbicides (see April 2008 Veteran statement) or that any clotting disorder was aggravated by his service-connected prostate cancer (see May 2012 brief). See Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (Board required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The 2008 examiner also did not discuss the results of a September 2007 VA examination, which included an opinion that the lower extremity thromboses were "at least as likely as not due to the prostate cancer." The resulting 2008 examination report is therefore inadequate and must be returned. See 38 C.F.R. § 4.2.

The Veteran has claimed entitlement to TDIU. In order to establish service connection for a total rating based upon individual unemployability due to service-connected disability (TDIU), there must be an impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155 ; 38 C.F.R. §§ 3.340 , 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

As the record requires additional development prior to the issuance of a decision on his claim for service connection for a clotting disorder, the Board cannot render a decision on the claim of entitlement to TDIU and must also remand that issue. See Harris v. Derwinski, 1 Vet.App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Further, although the Veteran is (presently) service-connected only for prostate cancer and that disability has been the subject of two (2) VA examinations (February 2006 and September 2007), no examiner has opined as to the effect of that disability on his employment and employability. As the Veteran contends that his service-connected disability renders him unable to obtain any employment more than marginal and he has submitted some supportive medical evidence, the Board finds that another examination is warranted. 38 C.F.R. § 3.327(a).

Accordingly, the case is REMANDED to the RO/AMC for the following action:

1. Gather any outstanding records of VA medical treatment.

2. Provide the Veteran with the necessary authorizations for the release of any private treatment records not currently on file. If any of the requested private records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. The records requested must specifically include, but are not limited to, records from:

a. Dr. Carlin, Vascular Surgeons of Central New York (particularly the report of an August 21, 2007 ultrasound and any other records identified as pertinent by the Veteran); and

b. Hematology-Oncology Associates of Central New York Beaufort Memorial Hospital (after September 4, 2007).

3. Subsequent to the above development, return the Veteran's claims folder to the April 2008 VA examiner for a clarifying medical opinion pursuant to 38 C.F.R. § 4.2. If that examiner is not available, provide the claims file to another physician similarly qualified to render the requested opinions. The entire claims folder and a copy of this remand must be made available to the examiner and the examination report must reflect review of pertinent material in the claims folders (to include, but not limited to, any treatment records added to the claims file as a result of this remand).

a. The examiner must review any evidence added to the claims file after the April 2008 examination and indicate whether or not such evidence has any effect on the prior medical opinion;

b. The examiner must provide an opinion as to whether or not it is likely that the Veteran experiences any clotting disability as the direct result of his presumed in-service exposure to Agent Orange;

c. The examiner must provide an opinion as to whether or not it is likely that the Veteran's service-connected prostate cancer aggravated any clotting disability;

d. The examiner must discuss the September 2007 VA examination results, reconciling the difference between that opinion and the 2008 opinion.

e. The examiner must clearly outline the rationale for the requested opinions and discuss the medical principles involved. If the requested medical opinions cannot be given, the examiner must state the reason(s) why.

4. Adjudicate the Veteran's claim of entitlement to service connection for a clotting disability, as due to herbicide exposure and/or as secondary to, or aggravated by, prostate cancer. Note that the Board cannot render a decision as to TDIU until the claim for service connection is adjudicated.

5. Schedule the Veteran for a VA examination at an appropriate location to determine the effects of his service-connected prostate cancer (residuals) on his employability. The entire claims folder and a copy of this remand must be made available to the examiner and the examination report must reflect review of pertinent material in the claims folders.

a. The examination report must reflect review of pertinent material in the claims folder. This material specifically includes, but is not limited to, the December 2008 opinion from a private orthopedist that the Veteran's prostate cancer residuals render him "unable to come anywhere close to maintaining the work schedule necessary to maintain his marina."

b. The examiner must comment on the current severity of the Veteran's prostate cancer residuals and the effect of that disability on his ability to secure or follow a substantially gainful occupation.

c. The examiner also must comment on the combined effect of the Veteran's prostate cancer residuals and any diagnosed clotting disorders on his ability to secure or follow a substantially gainful occupation.

d. In all conclusions, the examiner must identify and explain the medical basis or bases for the opinions, with identification of pertinent evidence and citations to any referenced medical treatises or research. If the examiner is unable to render an opinion without resort to speculation, he or she must explain why.

6. After the above has been completed, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing physician for corrective action.

7. Thereafter, consider all of the evidence of record and readjudicate the issues. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. Thereafter, if indicated, the case should be returned to the Board for appellate disposition.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The Veteran is notified that it is his responsibility to report for any examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2010). If the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any sent notice was returned as undeliverable.

By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet.App. 268, 271 (1998).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).

_________________________________________________
DENNIS F. CHIAPPETTA, JR.
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2011).


COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-03-157-CR

GREGORY
CHARLES REED                                                     APPELLANT

V.

THE
STATE OF TEXAS                                                                  STATE

------------

FROM
THE 297TH DISTRICT COURT OF TARRANT COUNTY

------------

OPINION

------------
I. Introduction
        Appellant
Gregory Charles Reed appeals his convictions for aggravated sexual assault of a
child with a deadly weapon, indecency with a child, and aggravated sexual
assault causing serious bodily injury. The trial court found Reed guilty of
these offenses, sentenced him to life imprisonment for aggravated sexual assault
of a child with a deadly weapon and to twenty years’ confinement for the other
two offenses, all to run concurrently, and made an affirmative deadly weapon
finding. In five points, Reed challenges the admission of certain evidence and
alleges that this court erred by failing to abate this appeal to require written
findings pursuant to article 38.22 of the code of criminal procedure.  We
will affirm.
II. Background
Facts
        On
or about December 11, 2001, a few weeks after Reed met fourteen-year-old, K.B.,
she was suspended from school and she invited Reed to come over to her house the
following day.  When Reed arrived, the couple hugged and kissed, but when
Reed indicated that he wanted to have sex, K.B. said she did not and demanded
that Reed leave.  Reed then punched K.B. in the face.  K.B. tried to
run out of the house, but Reed pulled her back in by the hair.  As they sat
on the couch, Reed forced K.B. to stroke his penis with her hand.  Reed
then told K.B. to go to the bedroom, and he retrieved a knife from the
kitchen.  When he returned to the bedroom, Reed ordered K.B. to remove her
clothing.  He then sexually assaulted her vaginally and anally.
        After
the sexual assault, Reed cut off the cord to K.B.’s bedside clock and
attempted to strangle her.  He later tried to drown her in the
bathtub.  Finally, Reed stabbed K.B. in the neck.  He retrieved the
knife and threw it at K.B.; it cut her left forearm and became lodged in her
left breast.  He retrieved the knife again and threw it at K.B.
again.  This time, it penetrated K.B.’s abdomen, cutting her liver.
Reed then left, telling K.B. to clean up and not to tell anyone what had
occurred.
        Reed
testified that K.B. lied to him about her age and that he and K.B. had
consensual sex.  He said that K.B. tried to stab him, and he hit her and
stabbed her because he felt threatened and because she kept coming at him with
the knife.  He admitted that K.B. was lying on the ground when he stabbed
her in the throat and threw the knife at her.  The State called several
witnesses to testify about incriminating remarks Reed made near the time of the
offense.  Finally, the State offered into evidence two written statements
by Reed.  After the trial court found Reed guilty and sentenced him, Reed
perfected this appeal.
III. Reed’s
Evidentiary Challenges
        Reed
raises four points challenging the trial court’s admission of a variety of
evidence.
        A. Standard of Review for Evidentiary Rulings
        A
trial court’s decision to admit or exclude evidence is afforded a great deal
of discretion. Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim.
App. 1990).  Therefore, we review a trial court’s ruling on the
admissibility of evidence under an abuse of discretion standard.  Angleton
v. State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998).  If the trial
court’s evidentiary ruling is reasonably supported by the record and is
correct under any theory of applicable law, we must uphold it—this is known as
the “zone of reasonable disagreement” test.  Montgomery, 810
S.W.2d at 391 (op. on reh’g).  “The mere fact that a trial judge may
decide a matter within his discretionary authority in a different manner than an
appellate judge in a similar circumstance does not demonstrate that an abuse of
discretion has occurred.” Id. at 380.
        Nonetheless,
in order to be admissible, the evidence must be relevant as defined by Rule 401
of the Texas Rules of Evidence.  Tex. R. Evid. 401.  Pursuant to
Rule 401, evidence is relevant if it has “any tendency to make the existence
of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”  Id.
In determining whether evidence is relevant, courts look to the purpose for
offering the evidence and whether there is a direct or logical connection
between the offered evidence and the proposition sought to be proved.  Reed
v. State, 59 S.W.3d 278, 281 (Tex. App.—Fort Worth 2001, pet. ref'd).
So long as there is any reasonable logical nexus, the evidence will pass the
relevancy test.  Id.
        B.
State’s Exhibit 49
        In
his first point, Reed contends that the trial court erred by admitting into
evidence State’s Exhibit 49, a letter Reed wrote to a friend while he was
incarcerated, in which he discusses the nature of his sexual encounter with K.B.
Reed argues that the letter was not relevant to prove any fact of consequence in
dispute at trial, and therefore, the “only apparent purpose for Exhibit 49 was
to prove that [he] was sexually promiscuous.”  Consequently, he complains
that Exhibit 49 was impermissible character evidence pursuant to 404(b) of the
rules of evidence.  The State, however, maintains that the letter was
relevant as an admission of guilt to aggravated sexual assault of a child.
        At
trial, when the State attempted to offer Reed’s letter into evidence, Reed
objected, complaining that the letter was not relevant to any issue in dispute
in the case.  In response, the State advised the trial court that the
letter contained statements against interest from Reed, discussing the encounter
with K.B. and her resulting injuries.  After reviewing the contents of the
letter for relevancy, the trial court admitted the letter into evidence.
In the letter, Reed describes his sexual encounter with K.B., claiming that he
did not sexually assault K.B., nor did he have to do so because he ”was
getting to[o] much” from other sources.  While he admits that sexual
intercourse occurred, he states that K.B. “gave it up and [that] she lied
about her age.”  He also states that K.B. tried to hurt him and to stab
him, so he defended himself.
        Prior
to the introduction of Exhibit 49 into evidence, Reed provided testimony
consistent with several statements contained in the letter.  For example,
Reed admitted that he and K.B. engaged in consensual sex, but he indicated that
she told him she was seventeen years old at the time of the sexual
encounter.  He also testified that after K.B. became upset with him and
came at him with a knife, he felt threatened and stabbed her in
self-defense.  Because Reed testified prior to the introduction of the
letter in a manner consistent with his statements in the letter concerning the
nature of his sexual encounter with K.B. and her resulting injuries,
introduction of Exhibit 49 did not have the tendency to make Reed’s guilt of
the charged offense more or less probable than it would be without the
evidence.  Thus, based on our review of the record, it appears that Exhibit
49 was not relevant to any issue apart from its tendency to prove Reed’s
promiscuous sexual conduct around the time of his sexual encounter with K.B.
See Tex. R. Evid.
404.  As a result, we hold that the trial court abused its discretion by
admitting State’s Exhibit 49 into evidence.
        Having
found error, we must conduct a harm analysis to determine whether the error
calls for reversal of the judgment.  See Tex. R. App. P. 44.2.  Error under
the rules of evidence in the admission of evidence constitutes nonconstitutional
error.  See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.
1998).  A reviewing court is to disregard nonconstitutional error that does
not affect the substantial rights of the defendant.  Tex. R. App. P. 44.2(b).  In making
this determination, we review the record as a whole.  Kotteakos v.
United States, 328 U.S. 750, 764-65, 66 S. Ct. 1239, 1248 (1946).
        In
the instant case, a substantial portion of Exhibit 49 corroborated Reed’s
testimony at trial and was exculpatory in that it was consistent with his claims
that K.B.’s injuries resulted from self-defense.  At trial, the State did
not continually emphasize Reed’s promiscuous sexual conduct, nor did it rely
on any statements from Exhibit 49 during argument.  In fact, the State only
referenced the contents of the letter after Reed objected to its admissibility
and immediately after its admission into evidence.
        In
addition, there was overwhelming evidence of Reed’s guilt to the charged
offenses.  Specifically, the trial court heard testimony that Reed
violently sexually assaulted a fourteen-year-old girl, forced her to touch him,
stabbed her as she was lying on the ground, and attempted to both strangle and
drown her.  Thus, after reviewing the record as a whole, we are unpersuaded
that the trial court’s admission of Exhibit 49 affected Reed’s substantial
rights.  See Torres v. State, 92 SW.3d 911, 919 (Tex. App.—Houston
[14th Dist.] 2002, pet. ref’d).  Consequently, we overrule Reed’s first
point.
        C. State’s Exhibits 57 and 58
        In
his third and fourth points, Reed contends that the trial court erred by
admitting into evidence State’s Exhibits 57 and 58, two written statements
made by Reed after he was taken into custody, because both statements were
involuntary. The State maintains that Reed voluntarily made both written
statements after he was arrested and properly advised of his rights.
        With
respect to State’s Exhibit 57, Reed complains that this written statement was
involuntary because he agreed to give this statement “while he was lying on
the ground, handcuffed, in the pouring rain, and surrounded by armed police
officers.”  When the State attempted to introduce Exhibit 57 into
evidence at trial, Reed objected on the basis that the statement was
involuntarily made.  The trial court held a Jackson v. Denno1 hearing and determined that the statement “was made
under voluntary conditions” after Reed was properly advised of his Miranda2 rights and agreed to waive them.
        During
the hearing, Detective Cory Ulmer, a police officer for the City of Fort Worth
and the lead officer in Reed’s case, testified as the sole witness regarding
the facts and circumstances surrounding Reed’s arrest and his custodial
written statements.  Detective Ulmer testified that on December 15, 2001,
after K.B. identified Reed as her assailant, he obtained an arrest warrant for
Reed for attempted capital murder.  Detective Ulmer and his arrest team
then went to Reed’s residence to take Reed into custody.  According to
the detective, when they arrived at Reed’s residence, it was raining very
heavily.  As Detective Ulmer knocked on Reed’s front door, Reed attempted
to leave the premises by using the back door.  Three officers immediately
grabbed Reed to try to arrest him, but Reed struggled with the officers by
pulling his arms away from them.  Reed was eventually taken to the ground
and handcuffed.  After the officers gained control of Reed, Detective Ulmer
informed Reed that he was under arrest, advised him of his Miranda
rights, and asked him if he would like to talk about the incident involving K.B.
Reed agreed to discuss the incident with Detective Ulmer and was transported to
Detective Ulmer’s office in a marked law enforcement vehicle.
        Upon
arrival, Reed was taken to an interview room by another officer.  At
approximately 11:00 p.m., Detective Ulmer joined Reed in the interview room,
removed Reed’s handcuffs, and once again advised him of his rights.
After Reed waived his rights and signed a form indicating his intention to do
so, Detective Ulmer began questioning him about what had transpired between
himself and K.B.  At first, Reed denied any knowledge of the incident, but
when Detective Ulmer challenged this assertion and informed Reed that this was
his opportunity to tell his side of the story, Reed began discussing his
encounter with K.B.  During this time, Reed told Detective Ulmer that after
he and K.B. had consensual sex, she became angry and pulled a knife on him, and
he retaliated in self-defense.  At approximately 11:40 p.m., Reed agreed to
provide a written statement detailing the incident involving K.B.  He then
filled out a statement form, waiving his rights and describing the events
surrounding his encounter with K.B.
        At
the hearing, Detective Ulmer testified that he and Reed were the only persons
present in the interview room when Reed made his statement; however, he
indicated that he did not threaten or coerce Reed into making it.  He also
testified that, although the door to the interview room was shut, he offered
Reed the opportunity to leave the room to use the restroom or to get a drink of
water.  According to Detective Ulmer, he believed that Reed voluntarily
made his first written statement after intelligently and knowingly waiving his
rights.
        The
trial court is the sole judge of the weight and credibility of the witnesses’
testimony at a Jackson v. Denno hearing and may choose to believe or
disbelieve any or all of such testimony.  Dewberry v. State, 4
S.W.3d 735, 747-48 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131
(2000).  Accordingly, we may not disturb any finding that is supported by
the record. Id. In the instant case, the trial court found, based on
Detective Ulmer’s testimony, that Reed’s first written statement was
voluntary.  Because our review of the record supports this finding, we hold
that the trial court did not abuse its discretion by admitting State’s Exhibit
57 into evidence.  See Sells v. State, 121 S.W.3d 748, 767 (Tex.
Crim. App.), cert. denied, 124 S. Ct. 511 (2003).  We overrule
Reed’s third point.
        With
respect to State’s Exhibit 58, Reed argues that this statement was
“irredeemably tainted by [his] first” statement, State’s Exhibit 57.
On December 18, 2001, three days after Reed was arrested and made his initial
statement, Detective Ulmer went to see Reed at the Mansfield Law Enforcement
Center to gather further information regarding the incident involving Reed and
K.B.  Detective Ulmer first inquired as to whether Reed was represented by
an attorney, and Reed told him that he was not. Detective Ulmer then advised
Reed of his rights, and Reed agreed to waive them.  According to Detective
Ulmer, Reed was eager to give a second statement because he did not believe his
first statement was favorable to him.  Although Reed requested that his
first written statement be destroyed, Detective Ulmer told him that he could not
destroy it.  But Detective Ulmer advised Reed that he could set his first
statement straight by providing an additional statement.  Thereafter, Reed
provided a second written statement.
        During
the hearing, Reed objected to the admission of State’s Exhibit 58 on the basis
of the voluntariness of the statement.  Considering the testimony provided
by Detective Ulmer, the trial court found that the statement was voluntarily
made and admitted State’s Exhibit 58 into evidence.  Because this finding
is supported by the record, we hold that the trial court did not abuse its
discretion by admitting State’s Exhibit 58 into evidence.  See id.
Consequently, we overrule Reed’s fourth point.
        D. State’s Exhibit 73
        In
his fifth point, Reed contends that the trial court erred by admitting State’s
Exhibit 73, a photocopy of a plexiglass shank, into evidence at the punishment
phase of trial because it was not relevant, nor was it ever conclusively linked
to Reed.  The State maintains that State’s Exhibit 73 was properly
identified as a photocopy of the plexiglass shank found in Reed’s possession
and was relevant to sentencing.
        During
punishment, the State called Officer Kevin Miller, a jailer with the Tarrant
County Sheriff’s Department, to testify regarding Reed’s possession of a
prohibited weapon inside the Tarrant County Corrections Center.  According
to Officer Miller, on May 12, 2002, he performed a shakedown search of the jail
cells within Reed’s cell block because a plexiglass window on the cell across
from Reed’s cell broke during an altercation the previous day, and some pieces
of plexiglass were believed to be in the possession of inmates in the
neighboring cells.  While searching Reed’s cell, Officer Miller
discovered a six-inch piece of plexiglass inside a leather domino pouch.
After Officer Miller recovered the plexiglass shank from Reed’s cell, he
photocopied the weapon in accordance with department policy.  He then
placed the photocopy of the plexiglass shank in the files at the sheriff’s
department as a record of the item found in Reed’s cell.  Officer Miller
testified that the plexiglass shank found in Reed’s cell was capable of
causing death or serious bodily injury, and therefore, was prohibited under the
Correction Center’s rules.  Consequently, after a disciplinary hearing
regarding Reed’s possession of the plexiglass shank, Reed was placed on thirty
days’ restriction in the Correction Center.
        Prior
to trial, the State provided Reed with notice of its intent to offer evidence
related to his disciplinary infraction of possessing the plexiglass shank.
At the punishment phase of trial, Reed objected to the admission of State’s
Exhibit 73 on the basis of relevance.  The trial court overruled his
objection and admitted the exhibit into evidence.
        The
Texas Code of Criminal Procedure permits a trial court to admit evidence “as
to any matter the court deems relevant to sentencing,” including evidence
arising after the offense.  Tex. Code Crim. Proc. Ann. art. 37.07,
§ 3(a)(1) (Vernon Supp. 2004); see Contreras v. State, 59 S.W.3d 362,
365 (Tex. App.—Houston [1st Dist.] 2001, no pet.).  Evidence is deemed
relevant during the punishment phase of trial if it assists the fact finder in
determining the appropriate sentence given the particular defendant in the
circumstances presented.  Rogers v. State, 991 S.W.2d 263, 265 (Tex.
Crim. App. 1999).  Accordingly, the trial court has broad discretion in
determining the admissibility of evidence during the punishment phase of
trial.  Cooks v. State, 844 S.W.2d 697, 735 (Tex. Crim. App. 1992), cert.
denied, 509 U.S. 927 (1993).
        Given
the violent nature of the offenses that Reed was found guilty of committing,
evidence proving his possession of the plexiglass shank, a prohibited weapon,
after his incarceration would be helpful to the trial court’s determination of
the appropriate sentence in this case.  In addition, although Reed
complains that Exhibit 73 was not relevant because Officer Miller “never
identified it as being a copy of the ‘shank’ found in [his] cell,” Officer
Miller indicated that the plexiglass shank depicted in State’s Exhibit 73 was
found in a domino pouch in Reed’s cell and that the photocopy of the
plexiglass shank was placed in the department’s files as a record of the
disciplinary infraction.  Officer Miller testified that Reed was the only
person with access to his cell because it was a single cell unit that was locked
down for twenty-three hours a day.  Consequently, because the domino pouch
and the enclosed plexiglass shank were discovered in Reed’s cell, a sufficient
connection existed demonstrating Reed’s possession of the plexiglass shank and
rendering the plexiglass shank relevant to sentencing.  See Soria v.
State, 933 S.W.2d 46, 60 (Tex. Crim. App. 1996) (op. on reh’g) (holding
that drawing of defendant holding bloody knife found in defendant’s cell was
sufficient connection to render the drawing relevant to sentencing), cert.
denied, 520 U.S. 1253 (1997).  Accordingly, we overrule Reed’s fifth
point.
IV. Article
38.22 Satisfied
        In
his second point, Reed contends that this court erred by failing to abate this
appeal to require written findings regarding the voluntariness of his statements
as dictated under article 38.22 of the code of criminal procedure.  The
State argues that this court’s denial of Reed’s motion to abate was proper
because the trial court’s specific oral findings, transcribed and made part of
the record on appeal, satisfied the requirements of article 38.22.  We
agree.
        In
all cases where a question is raised concerning the voluntariness of a statement
of an accused, the code of criminal procedure requires a trial court to enter a
written order stating its conclusion as to whether or not the statement was
voluntarily made and setting forth the specific findings on which its conclusion
is based.  Tex. Code Crim. Proc. Ann. art. 38.22,
§ 6 (Vernon Supp. 2004).  Nonetheless, a trial court satisfies the
requirements of article 38.22 when it dictates its findings and conclusions to
the court reporter, and they are transcribed and made a part of the statement of
facts, filed with the district clerk and made a part of the appellate
record.  Murphy v. State, 112 S.W.3d 592, 601-02 (Tex. Crim. App.
2003), cert denied, 124 S. Ct. 1660 (2004); Drake v. State, 123
S.W.3d 596, 601 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); Blount
v. State, 64 S.W.3d 451, 457 (Tex. App.—Texarkana 2001, no pet.); Andrade
v. State, 6 S.W.3d 584, 592 (Tex. App.—Houston [14th Dist.] 1999, pet.
ref’d).
        In
the instant case, with respect to both of Reed’s written statements, Exhibits
57 and 58, the trial court held a hearing after an issue as to voluntariness was
raised and determined that each statement was voluntarily made.  At the
conclusion of each hearing, the trial court dictated its findings and
conclusions to the court reporter, clearly detailing the specific facts on which
its conclusion was based.  The trial court’s findings and conclusions
were transcribed and made part of the record on appeal.  Nevertheless,
during the pendency of this appeal, Reed filed a motion to abate the appeal to
require written findings regarding the voluntariness of his statements.
Relying on the court of criminal appeals’ decision in Murphy, this
court denied his motion.  112 S.W.3d at 601-02.
        The
trial court’s specific, oral findings and conclusions on the record
sufficiently provide the parties with a basis on which to assess the trial
court’s ruling and enable this court to resolve the fact issues upon which the
appellant bases his ground of error.  See Bonham v. State, 644
S.W.2d 5, 8 (Tex. Crim. App. 1983).  Consequently, we are unpersuaded that
our prior decision denying Reed’s motion to abate this appeal was erroneous
because the trial court sufficiently satisfied article 38.22 by dictating its
findings and conclusions into the record.  We overrule Reed’s second
point.
V. Conclusion
        Having
overruled all of Reed’s points on appeal, we affirm the trial court’s
judgment.

                                                          SUE
WALKER
                                                          JUSTICE

PANEL
A:   CAYCE, C.J.; LIVINGSTON and WALKER, JJ.

DO
NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED:
June 17, 2004

NOTES
1.
378 U.S. 368, 84 S. Ct. 1774 (1964).
2.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).


386 F.Supp. 91 (1974)
UNITED STATES of America, Plaintiff,
v.
David CHUN et al., Defendants.
UNITED STATES of America, Plaintiff,
v.
Michael K MASUTANI and Henry Y. S. Sur, Defendants.
UNITED STATES of America, Plaintiff,
v.
Gerald J. PARK et al., Defendants.
Cr. Nos. 73-13,206 to 73-13,208.
United States District Court, D. Hawaii.
December 23, 1974.
*92 Harold M. Fong, U.S. Atty., Stephen H. Scott, Jack C. O'Donnell, Sp. Attys., U.S. Dept. of Justice, Honolulu, Hawaii, for plaintiff.
Matthew S. K. Pyun, Jr., Honolulu, Hawaii, for defendants, David Chun and Henry Y. S. Sur.
Herbert K. Shimabukuro, Nishimura, Lee & Shimabukuro, Honolulu, Hawaii, for defendants, Richard S. Matsuoka and Michael K. Masutani.
Ernest A. Ito, Sidney I. Hashimoto, Chee, Hashimoto, Lee & Oshiro, Honolulu, Hawaii, for defendant, Herbert Yamane.
David L. Fong, Gould & McKenzie, Stephen M. Okano, David H. White, Okano, Noguchi & Wong, Honolulu, Hawaii, for defendants, Allen P. Perkins, Tsuneo Inouye and Harry K. Tomimatsu.
Gregg Young, Honolulu, Hawaii, for defendant, Walter Kubota.

MEMORANDUM AND ORDER ON REMAND
SAMUEL P. KING, District Judge.
On remand,[1] a hearing was held to develop the facts surrounding the failure to give the appellees inventory notice. In addition, the court solicited evidence as to any claim of prejudice or improper prosecutorial activity. Based on this further evidence, together with the evidence previously adduced, and the guidelines set out by the appellate court, this court addresses itself to the constitutional and statutory aspects of the motions to suppress.[2]

THE CONSTITUTIONAL ISSUE
The appellate court affirmed the proposition that the unnamed but overheard *93 subject of a Title III wiretap has a Fourth Amendment constitutional right of privacy, the violation of which could lead to suppression of wiretap evidence attempted to be used against him. Such a determination would rely upon traditional Fourth Amendment standards, requiring notice including at a minimum all the information contained in a subparagraph 2518(8)(d) inventory notice given promptly[3] after the decision to obtain an indictment has been made.[4] What constitutes "promptly" should focus on whether the individual has been afforded a reasonable opportunity to prepare an adequate response to the evidence derived from the interception.[5]
I find from the evidence that, although formal subparagraph 2518(8)(d) inventory notice was not given to these unnamed-overheard defendants, they did in fact have actual notice of the wiretap and access to the conversations in which they were identified as participants on or about March 21, 1973, the date upon which they were indicted, or at the latest March 29, 1973, the date the discovery and pretrial order was filed and the Title III applications were turned over to the clerk of the court for inspection by all defendants. I further find that they had actual notice from about January 12, 1973, when the subparagraph 2518(8) (d) notices were sent out, that the persons with whom they may have had telephone conversations had been the subjects of wiretaps.[6]
Defendants in 73-13,206 had been overheard in wiretaps which terminated November 15, 1972. Defendants in 73-13,207 and 73-13,208 had been overheard in wiretaps which terminated December 18, 1972. Thus the non-inventoried defendants in 73-13,206 were eventually fully notified in fact if not by formal inventory notice some 126 days after the wiretap ended, and the non-inventoried defendants in 73-13,207 and 73-13,208 some 93 days after the wiretap ended.
The decision to indict the unnamed-overheard defendants was reached toward the end of February and the beginning of March 1973, according to the staff attorney who was in charge of this aspect of the government's drive against organized gambling in Hawaii. In some cases the defendants had not been sufficiently identified, in others their involvement had not been sufficiently evaluated, in others the state of the evidence had not been considered adequate, prior to this time.
There was one exception. The failure to inventory defendant Perkins was an oversight. He had been tapped for indictment in the earlier stages of the investigation and was supposed to have been noticed. Failure to list his name on the inventory was not the result of any deliberately improper prosecutorial behavior nor for any sinister purpose.
Defendant Matsuoka testified that he first knew on March 24, 1973, that he had been indicted; that earlier that month he had routinely destroyed a 1972 desk-type notebook in which he kept track of his bets and which entries would establish that he was a bettor for himself only and not a runner; that *94 he knew before destroying these records that the person with whom he had placed his bets had been the subject of a wiretap.
Defendant Kubota testified that he had a witness to the fact that he was only a bettor for himself and not a runner; that this witness had died on April 30, 1974; that he had not heard of the wiretaps until discussing his case with his counsel after indictment.
Defendant Masutani on June 25, 1973, filed an affidavit to support his claim of prejudice. The government objected to the court considering this affidavit as evidence for the purpose of this remanded hearing. That objection is overruled and the affidavit is considered. In that affidavit defendant Masutani avers that he and others with or for whom he is alleged to have placed bets had records which had been destroyed prior to March 21, 1973, but which would have been retained had he been noticed in January 1973, and that the loss of these records substantially prejudices his defense.
All other defendants assert prejudice and prosecutorial tactical advantage by the mere passage of time.
On the evidence before me, I have no difficulty in finding that there is insufficient evidence to sustain any of the claims of prejudice. Defendants Masutani, Sur, Park,[7] Inouye, and Tomimatsu, if named wiretappees, would not have had to be noticed under Title III until March 18, 1973, three days before the indictments were returned. Defendants Chun, Kubota, Matsuoka, Perkins and Yamane similarly would have been notified by February 13, 1973, under Title III procedures. The events that took place between the ends of the wiretaps and actual notice to the defendants on or about March 29, 1973, have not been shown to be such as to give rise to any inference of prejudice when considering Fourth Amendment protections.
I conclude that the failure to serve these defendants with inventory notice, given the circumstances of these cases, does not constitute a violation of their Fourth Amendment rights.

THE STATUTORY ISSUE
The appellate court affirmed the proposition that the unnamed but overheard subjects of a Title III wiretap, at least in general terms, must be made known to the judicial officer exercising the discretionary authority to require or not to require inventory notice, and that a failure by the government to provide that information is a violation of subparagraph 2518(8) (d).[8] The question then remains as to whether such a violation relates to a requirement that plays such a central role in the statutory scheme that suppression must follow, as in United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), or to a procedural direction that does not affect the lawfulness of the interception, as in United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974).
As I read the appellate court's opinion it holds that the inventory notice provision of subparagraph 2518(8)(d) is a central or at least a functional safeguard in the statutory scheme of Title III.[9] Without a notice provision, Title III would be unconstitutional, at least as it applies to persons named in the order authorizing interception.[10] As to such persons, notice is required not later than *95 90 days after the denial or termination of the wiretap. See, United States v. Eastman, 326 F.Supp. 1038 (M.D.Pa. 1971), aff'd, 465 F.2d 1057 (3d Cir. 1972). The statute specifies what shall be in the notice, calls the collected information an inventory (by which I take it is meant a written document), and requires the inventory to be served. One can think of many forms of papers and manners of service which will meet these requirements.
Here, the defendants eventually received the information set out in subparagraph 2518(8)(d). The actual orders authorizing the wiretaps, tapes and transcripts of the actual conversations intercepted, and all supporting documents were made available to all defendants, a disclosure that was formalized by court orders.[11] But as to all defendants, this disclosure took place after the expiration of 90 days (no extension having been requested or granted) from the termination of the last wiretap.
The record does not support a finding that any defendant had actual notice of the information required to be set out in the inventory notice of subparagraph 2518(8) (d) prior to the expiration of the 90-day period. This distinguishes this situation from that in United States v. Iannelli, 339 F.Supp. 171 (W.D.Pa. 1972), aff'd, 477 F.2d 999 (3d Cir. 1973).[12]
Therefore, if defendants had been named in the orders or applications under Title III, their failure to receive the information required by the inventory notice of subparagraph 2518(8)(d) within the required period of 90 days would lead to suppression of the wiretap evidence.[13]
All defendants, however, were in the category of unnamed but overheard defendants. As to them, the statute purports to authorize the judge to exercise his discretion, in the interest of justice, to determine that they shall not receive the same inventory notice as named defendants.[14] However, I conclude that a conscious decision not to notice an unnamed but overheard individual who was known to be tapped for indictment could not withstand constitutional scrutiny. If, as held on appeal herein, the unnamed but overheard defendant has a Fourth Amendment right to privacy of the same dimensions as that of a named defendant,[15] post-use *96 notice of a wiretap is required,[16] and a failure to give such notice would render the overheard communication unlawfully intercepted within the meaning of section 2518(10) (a).[17] Inasmuch as the judicial officer in the exercise of his discretion could not constitutionally exclude unnamed but overheard prospective defendants from the inventory notice required by subparagraph 2518(8)(d), such notice must be given "not later than ninety days" from the denial or termination of the wiretap.[18]
Perhaps a distinction in notice requirements between named defendants and unnamed but overheard defendants as to time of notice could meet constitutional requirements. Thus, the statute might have been drafted with definite notice time limits for named defendants and elastic notice time limits based on traditional Fourth Amendment standards for unnamed but overheard defendants. But subparagraph 2518(8)(d) makes no such distinction.[19] All persons who are to be served an inventory notice are to be served within a reasonable time but not later than 90 days after denial or termination of a Title III wiretap.[20]
From this view of the statutory scheme and applicable law, it follows that the reason why the judicial officer did not order inventory notice to be given to these unnamed but overheard defendants is immaterial. Assuming, on the other hand, that the judicial officer could, in the exercise of his discretion in the interest of justice, exclude unnamed but overheard prospective defendants from the inventory notice requirement of subparagraph 2518(8)(d), that is not the factual situation in this case.
The facts that these unnamed individuals had been overheard and that they were prospective defendants was not brought to the attention of the judge at the time of the inventory notice in January 1973 or at any subsequent time prior to indictment.[21] The appellate court held that this was a violation of both the spirit and the letter of subparagraph 2518(8)(d).[22] This violation relates to a matter that is a central or at least a functional safeguard in the statutory scheme.[23] Suppression must follow when it is shown that a statutory requirement which was intended to play a central role in the statutory scheme has been ignored.[24]

CONCLUSION
The motions of defendants Chun, Kubota, Matsuoka, Perkins, Yamane, Masutani, Sur, Inouye, and Tomimatsu, to suppress the intercepted communications obtained as a result of the Title III wiretaps herein are granted.
NOTES
[1]  United States of America v. David Chun, et al., 503 F.2d 533 (9th Cir., August 30, 1974), reversed the district court's order of September 5, 1973, granting certain defendants' motion to suppress wiretap evidence for failure to give the inventory notice required by 18 U.S.C. § 2518(8) (d).
[2]  The appellate court indicated several areas for further elucidation.

It may be that the district judge believed that the appellees' Fourth Amendment rights . . . had been violated; but the state of the record does not enable us to assert this with confidence. . . . we . . . remand the case to the district court for a determination of this issue. Chun, at 538.
. . . the record is unclear as to whether the underlying statutory purpose behind the § 2518(8)(d) formal notice provisions has been satisfied in spite of appellees' failure to receive such formal notice. . . . Finally, the facts do not unequivocally indicate a deliberate attempt by the government to gain any tactical advantage. Chun, at 542.
. . . we believe it . . . appropriate from the standpoint of sound judicial administration to reverse and remand so that there may be a reconsideration in the light of Chavez, Giordano and this opinion. In this manner, the parties and the district judge will be given an opportunity to focus upon both the constitutional and statutory grounds for suppression. Chun, at 543.
[3]  . . we believe that when the government intends to use the contents of an interception or evidence derived therefrom, to obtain an indictment against an unnamed but overheard individual, such individual must be given notice promptly after the decision to obtain an indictment [is] made. At a minimum, this notice must include all the information which is contained in a § 2518(8) (d) inventory notice. Chun, at 537.
[4]  While the appellate court speaks in terms of notice after the decision to obtain an indictment has been made, no doubt the passage of time prior to such a decision may also impinge on the determination of what is adequate notice.
[5]  Chun, at 538.
[6]  The execution of about 70 search warrants in December 1972 received wide publicity. At that time the newspaper stories asserted as fact the law enforcement agencies involved had obtained substantial information concerning the gambling activities which were the occasion for the searches from Title III wiretaps.
[7]  The indictment as to defendant Park has been dismissed on motion of the government.
[8]  Chun, 503 F.2d at 540-541. As pointed out in the appellate opinion, had the judge known that there were unnamed but overheard individuals whom the government might indict, he would have required that they be served with inventory notice pursuant to subparagraph 2518(8) (d).
[9]  Chun, 503 F.2d 542: "As we analyze § 2518(8)(d), the inventory notice provision is a central or at least a functional safeguard in the statutory scheme."
[10]  Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967).
[11]  Transcripts of all wiretaps were made available to all defendants. All sealed documents relating to the wiretaps were unsealed and made available to all defendants. Both events took place on March 29, 1973.
[12]  In the district court, the judge held that unnamed but overheard defendants need not be noticed pursuant to 18 U.S.C. § 2518(8) (d). He noted that: "In any event it seems likely that Bruno and the others became aware of the intercept in this case when their acquaintances were served." On appeal, the appellate court stated as fact that the appellants raising this issue "eventually received actual notice well in advance of the hearing on a motion to suppress. There was no prejudicial error here."
[13]  United States v. Eastman, 465 F.2d 1057 (3d Cir. 1972), aff'g 326 F.Supp. 1038 (M. D.Pa.1971) (semble). Failure to order inventory notice to be served on named defendants would be just as deliberate a flouting of a provision of title III as a prior waiver of the requirement. If this were coupled with actual failure to serve an inventory notice within the time limits of subparagraph 2518(8) (d), the violation would be obvious and lead to suppression. On the other hand, if inventory notice had in fact been served on a defendant within the applicable time limit without a court order, or notwithstanding a court order waiving the requirement, the violation could be considered to be merely technical. This is the kind of distinction I read into Giordano and Chavez.
[14]  The last sentence of subparagraph 2518(8)(d) provides: "On an ex parte showing of good cause to a judge of competent jurisdiction the serving of the inventory required by this subsection may be postponed." There seems to be no reason why the judge could not for good cause postpone the serving of the inventory as to some individuals or classes of individuals and not as to others. No attempt to do that was made in this case.
[15]  Chun, 503 F.2d at 537.
[16]  Chun, at 537, and n. 6.
[17]  See, Giordano, supra, at 1831-1833.
[18]  The subparagraph provides that the time of service may be postponed on an "ex parte showing of good cause". That was not attempted in this case.
[19]  See, n. 14.
[20]  See, n. 14. That 90 days is itself a reasonable time follows from the decisions finding that Title III's statutory scheme passes constitutional scrutiny. Undoubtedly the statute could have provided for a longer period of time. See, United States v. Cafero, 473 F.2d 489, 498-500 (3d Cir. 1973).
[21]  See, n. 8.
[22]  Chun, 503 F.2d at 540: "This contravenes both the spirit and the letter of § 2518(8) (d)."
[23]  See, n. 9.
[24]  See, Giordano, supra, 94 S.Ct. at 1833. To permit the time limits of subparagraph 2518(8) (d) to be surpassed without suppression would have the effect of deleting the phrase "but not later than ninety days" from the statute.


473 N.W.2d 178 (1991)
Karen M. CUTLER, Executor of the Estate of Daniel T. Cutler, Deceased, Appellant,
v.
KLASS, WHICHER & MISHNE; Marvin J. Klass; Theodore M. Whicher; Robert D. Mishne; David C. Nyberg; Willis A. Buell; James C. Hanks; Roger L. Carter; Janet J. Brown; and James R. Villone, and each of them individually, Appellees.
No. 90-823.
Supreme Court of Iowa.
July 17, 1991.
*179 John L. Riccolo and David L. Baker of Riccolo & Baker, Cedar Rapids, for appellant.
James L. Kramer and Thomas J. Bice of Johnson, Erb, Latham, Gibb & Carlson, P.C., Fort Dodge, for appellees.
Considered by HARRIS, P.J., and SCHULTZ, CARTER, LAVORATO, and NEUMAN, JJ.
HARRIS, Justice.
This suit against a Sioux City law firm arises from the suicide of a firm member. Shortly before the suicide the firm communicated to the distraught partner the fact that it was delaying a decision on allowing him to return to work. The claims ascribe responsibility for the suicide to the manner in which the firm communicated with decedent. By rulings on a motion to dismiss and a motion for summary judgment the trial court dismissed the claims and we affirm.
Uncommonly tragic facts are alleged. During 1985 Daniel T. Cutler, plaintiff's decedent, became deeply indebted and the value of farmland he owned depreciated drastically. Cutler was a partner of Klass, Whicher & Mishne, a Sioux City law firm.
From early in 1985 Cutler had been unable to devote attention to his practice. Other members of the firm gradually took over his professional responsibilities. By March 1 he was not competent to practice law. From March 7 to March 11 and again from March 15 to March 29 Cutler was a patient in a Sioux City hospital for treatment of severe depression.
Due to his hospitalization the firm placed Cutler on disability status, effective March 1, 1985. On March 29 the firm wrote Mrs. Cutler a letter informing her of the disability status and enclosed Cutler's check for March. The letter explained special provisions in the firm partnership agreement which apply upon incapacity of a partner. Any partner who is unable to carry on duties for a continuous period in excess of two months shall not receive any further draw until returning to work. Draws may be extended at the direction of the firm's management committee, but not in excess of another two months without the consent of the partnership. The letter also stated that it was then premature to know what Dan's future status would be with the firm but that he and all partners would receive a draw at the end of April.
While he was hospitalized Cutler retained A. Frank Baron, a Sioux City lawyer who heads his own firm, to represent him with respect to any problems regarding his tenure with the defendant firm. Baron informed the firm of this fact and requested that any communications in the matter be routed through him.
*180 Upon his release on March 29, rather than having Baron do so, Cutler called his law partner, Marvin Klass, and stated he wished to return to the law firm to work half days in about a week. Klass asked if he could visit with Cutler's doctor. Cutler said it would not be necessary. When Klass again pressed for permission to speak with the doctor, Cutler refused. Klass then told Cutler he would have to take the matter up with the partners and would get back to him.
Following this conversation Klass called a meeting of the firm partners. The meeting was held on Sunday, March 31. The partners decided they would not act upon Cutler's request to return to work until they had spoken with his doctor or obtained other information. Obviously the partners were concerned, not only about Cutler's health, but also the clients whose affairs Cutler would attend. The minutes of that meeting indicate eight partners decided Cutler would not be allowed to return to the office until there was a full partnership meeting to consider the matter.
The following day, April 1, Klass sent a letter to Cutler and attached the minutes of the partnership meeting. The letter stated:

April 1, 1985
Dear Dan:
I am leaving for Seattle today and will not return until around April 10.
Jim Hanks and Will Buell are on trips and I would want them to be present when the partnership makes any major decisions.
Yesterday a partnership meeting was held and a unanimous decision reached concerning your return to the office. A copy of the action taken is enclosed. The consensus of the group was that a complete review and discussion should be held before a final decision is made.
Meanwhile, I am glad you are doing better and hope you continue to make good progress.

Sincerely,
Also on April 1 Klass phoned Willis Buell, another firm member who was vacationing in California, and told him of what had transpired. Buell was concerned that Cutler could misinterpret the letter as an expulsion from the firm. Buell therefore phoned Larry Noll, a close friend and business associate of Cutler, and told him about the forthcoming letter and of his concern that Cutler might misconstrue it. Noll relayed the information to Mrs. Cutler. She then telephoned the law firm and spoke with T.M. Whicher, another firm member. Although Mrs. Cutler alleges Whicher was abrupt with her, she concedes he reassured her that the letter was not notice of Dan's expulsion from the firm. Indeed Cutler was never told by anyone he would be separated from the firm.
On the night following her telephone conversation with Whicher, Mrs. Cutler told her husband he would be receiving the letter. Cutler appeared to accept it calmly. The letter from the firm was found with Cutler's body.
Cutler purchased a shotgun on Tuesday, April 2. The following day he telephoned his wife and asked her to come home for lunch but Mrs. Cutler was prevented by her work from doing so. When Cutler took his own life he left a suicide note which stated: "The farm killed me. . . . Talked to Tom Patterson regarding malpractice[1] caseinvestigation will show there is a good one. . . . Dump the damn farm."
Plaintiff's petition against the firm was in three counts. Although there was overlapping and mixing among the three, we take count one to assert a general negligence claim, count two asserted a claim for negligent infliction of emotional distress creating an unreasonable risk, and count three to be a claim for intentional infliction of emotional distress (outrageous conduct). The defendant firm filed a motion to dismiss which, as to the first two counts, was sustained by Judge Murray S. Underwood. The third count was dismissed by Judge Tom Hamilton on defendant's subsequent motion for summary judgment. *181 I. Before addressing these claims in the divisions which follow, we mention the special risks and problems which attend premature attacks on litigation by motions to dismiss. Although we conclude the trial court should be affirmed, we certainly do not recommend the filing of motions to dismiss in litigation, the viability of which is in any way debatable. Neither do we endorse sustaining such motions, even where the ruling is eventually affirmed. Both the filing and the sustaining are poor ideas.
The reasons are clear enough. In the first place, in filing a motion to dismiss, a defendant gives away all the facts because in ruling on the motion well-pled facts are assumed to be true. Berger v. General United Group, 268 N.W.2d 630, 634 (Iowa 1978); Sarvold v. Dodson, 237 N.W.2d 447, 447-48 (Iowa 1976). Combined with this venerable rule is a more recent one. Under notice pleading a suit will survive a motion to dismiss whenever a valid recovery can be gleaned from the pleadings. Lakota Consol. Indep. School v. Buffalo Center/Rake Community Schools, 334 N.W.2d 704, 708 (Iowa 1983).
We recognize the temptation is strong for a defendant to strike a vulnerable petition at the earliest opportunity. Experience has however taught us that vast judicial resources could be saved with the exercise of more professional patience. Under the foregoing rules dismissals of many of the weakest cases must be reversed on appeal. Two appeals often result where one would have sufficed had the defense moved by way of summary judgment, or even by way of defense at trial. From a defendant's standpoint, moreover, it is far from unknown for the flimsiest of cases to gain strength when its dismissal is reversed on appeal. We emphasize that our determination of this appeal is no commendation for filing or sustaining the motion to dismiss.
II. The trial court took count one to be a claim for negligent infliction of emotional distress, an understandable assumption in view of the tangled pleading which sought damages in part on that basis. But, although it was largely obscured by other claims, the count also sought a wrongful death recovery on a pure negligence theory. Under the rule previously explained we must then set aside from our consideration any previously recited facts, many of which were later shown in connection with the motion for summary judgment. Our review of the dismissal of count one must weigh only the facts alleged in the petition.
The petition alleged that Cutler was a partner in defendant law firm where he had practiced eight years. He was under psychiatric care and hospitalized for a mental condition of such seriousness that he contemplated suicide. Although Cutler's psychiatrist told him he could return to work on a half-time basis, defendants refused to allow his immediate return, delaying a decision on the question until a meeting could be had of all partners. The defendant law firm sent a letter to Cutler informing him of the delay. Cutler committed suicide.
Plaintiff relies on Restatement (Second) of Torts sections 303 and 436 (1965).[2]
We have no quarrel with the principles outlined in these Restatement sections but *182 are convinced they have no application here.
It is not quite unheard of for the estate of a suicide victim to raise a viable wrongful death claim. Traditionally suicide has been considered an intentional or intervening act for which the tortfeasor cannot be held responsible. McLaughlin v. Sullivan, 123 N.H. 335, 337, 461 A.2d 123, 124 (1983); Falkenstein v. City of Bismarck, 268 N.W.2d 787, 790 (N.D.1978); 74 Am.Jur.2d Torts § 26, at 642 (1974); W. Prosser & W. Keaton The Law of Torts § 44, at 311 (5th ed. 1984); Annotation, Civil Liability for Death by Suicide, 11 A.L.R.2d 751 (1950). These authorities also point out that occasional exceptions now exist. One, sometimes called duty to prevent, arises where, by reason of physical custody or by reason of a protective status, a person owes a duty to prevent a potential decedent from committing suicide. Examples are situations where the decedent is confined in a hospital or jail.
The same authorities establish that exceptions also can be found where a tortious act results in a mental condition which in turn results in an uncontrollable impulse to commit suicide or which prevents the decedent from realizing the nature of the act.
The facts alleged here qualify under no exceptions to the general rule of no liability. The firm obviously had neither care nor custody of Cutler and thus cannot be said to fall within the first-mentioned exception. Cutler's estate contends it qualifies under the second.
Plaintiff alleges the firm should have foreseen Cutler's act of suicide and for purposes here we accept the allegation. The second exception is however not sufficiently alleged because no tortious act is made out in the petition, even under the standards of notice pleading.
The firm cannot be faulted for delaying Cutler's return to active practice; indeed the firm was bound to take that position. See Iowa Code of Professional Responsibility for Lawyers EC 1-2; EC 1-6; EC 6-1; EC 8-7; EC 9-6; DR 1-103(C); DR 2-110(B)(3); DR 6-101(A) (1971). Even though the ethical considerations and disciplinary rules do not specifically state that members of a law firm must terminate the practice of a mentally ill partner, the firm must take steps to ensure that the public is not provided incompetent service. Several cases point out this ethical duty. See In re Weston, 92 Ill.2d 431, 65 Ill.Dec. 925, 929, 442 N.E.2d 236, 240 (1982) (attorney disbarred for failure to adequately supervise mentally ill associate); In re Kiley, 22 A.D.2d 527, 256 N.Y.S.2d 848, 849 (1965) (attorney suspended for failure to uncover ethical irregularities within law firm); In re Fata, 22 A.D.2d 116, 118, 254 N.Y.S.2d 289, 291 (1964) (attorney disbarred for unethical acts of fellow partner).
Plaintiff alleges Cutler was told by his doctor he could return to work on a part-time basis and wanted to do so. Because part-time work was contemplated by a seriously, mentally ill lawyer, it was obviously appropriate for the firm to inform Cutler, at least temporarily, not to do so. The petition does allege the firm knew or should have known that the manner in which Cutler was thus necessarily informed could lead to a suicide. This is only an allegation of the required standard of care; it is not an allegation that the standard was violated. The petition does not allege there was anything amiss in the message itself. We have no reason to assume the letter was any less kind and thoughtful than what we later learned it to be. Indeed the firm is blamed only for sending the message. It was however a message that, under the facts alleged, the firm was required to send. Under the facts alleged the firm had to send the message.
Because there was no tortious act alleged the dismissal of count one must be affirmed.
III. Count two is a claim for negligent infliction of emotional distress. The claim rests on Restatement (Second) of Torts sections 312 (emotional distress intended) and 313 (emotional distress unintended) for its allegation that the firm, acting without outrageous conduct, is liable *183 for emotional distress which ultimately resulted in Cutler's death.
We have rejected the principle espoused by Restatement section 313. See Niblo v. Parr Mfg., Inc., 445 N.W.2d 351, 354 (Iowa 1989). We thus hold it cannot support plaintiff's count two.
Section 312 does not apply under the facts alleged. Comment b to section 312 of the Restatement states the following:
The rule stated here extends, however, somewhat further than the rule of section 46. It permits the negligence action in any case where it may be found that the conduct, although intended to inflict emotional distress, amounts to something less than extreme outrage, but nevertheless involves an unreasonable risk, which the actor should recognize, that bodily harm will result.
With the exception of civil rights claims, our cases have never gone quite this far; we have never based liability on anything less than outrageous conduct. Under the facts alleged here we are not called upon to consider adopting the expanded theory of liability espoused in comment b to Restatement section 312. This is because the alleged conduct, for the reasons explained in division II, does not qualify either as outrageous, or as unreasonable risk. Dismissal of count two was therefore proper.
IV. Because plaintiff's claim of intentional infliction of emotional distress (outrageous conduct) under count three was dismissed on the firm's motion for summary judgment, we review it in the light of the more detailed facts first outlined. The elements of such a recovery are:
(1) outrageous conduct by the defendant;
(2) the defendant's intentional causing, or reckless disregard of the probability of causing emotional distress;
(3) plaintiff suffered severe or extreme emotional distress;
(4) actual and proximate cause of the emotional distress by the defendant's outrageous conduct.
Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 635-36 (Iowa 1990) (citing Vinson v. Linn-Mar Community School Dist., 360 N.W.2d 108, 118 (Iowa 1984)).
We have said that in emotional distress cases "it is for the court to determine in the first instance, as a matter of law, whether the conduct complained of may reasonably be regarded as outrageous." M.H. By and Through Callahan v. State, 385 N.W.2d 533, 540 (Iowa 1986) (citations omitted).
The gist of plaintiff's complaint is that the defendants' action in sending the letter at a time when they knew Cutler was represented by counsel and knew of Cutler's mental instability constituted reckless disregard of Cutler's susceptibility to emotional distress.
"In order for conduct to be considered outrageous it must be `so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Vaughn, 459 N.W.2d at 636 (citations omitted).
The content of the letter cannot be said to be extremely outrageous under this standard. The letter did not indicate Cutler was removed from the partnership. Its tenor fell well within the standard. The firm members even expressed their hope and wish for a healthy recovery.
Peculiar susceptibility, by reason of physical or mental condition of the person affected, is a factor in considering whether conduct is outrageous, although "major outrage" is always the crucial element of the tort. Restatement (Second) of Torts § 46, comment f.
The letter, without any other action or conduct by defendants evidencing outrageous conduct, is not enough to generate a genuine issue of material fact on the claim of intentional infliction of emotional distress.
Neither does the remark ascribed to Whicher (which he denies making)[3] make *184 out a claim under this theory. It is not claimed that the remark was ever repeated to Cutler himself. Nor does the firm's conduct in dealing directly with Cutler support the claim. The firm cannot be blamed for responding directly to Cutler (rather than through his attorney) after Cutler directly confronted the firm with a demand to return to work part-time.
Under these facts, considered singly or together, especially in view of the firm's ethical duty to protect the public from incompetent legal services, summary judgment was correctly entered.
V. We have considered and find no error in other assignments. They include the trial court's order dismissing (on summary judgment) an amended damage claim for mental anguish and wrongful death on a breach of contract and fiduciary theories. As the trial court noted, the plaintiff acknowledged receipt of all amounts due under the partnership agreement. We have already rejected plaintiff's other theories of recovery.
Because the facts do not support such a claim we do not consider whether wrongful death damages may be recovered in a breach of contract action. See Annotation, Action Ex Contractu for Damages Caused by Death, 86 A.L.R.2d 316 (1962). The majority rule appears to deny such damages. "It is often stated that damages resulting from death caused by breach of contract are not recoverable either at common law or under the wrongful death statutes." 1 S. Speiser, Recovery for Wrongful Death, § 2:10 (1975); 25A C.J.S. Death § 23, at 615 (1966).
We do find merit in plaintiff's challenge to a trial court ruling imposing sanctions against the plaintiff for failure to respond to interrogatories. See Suckow v. Boone State Bank & Trust Co., 314 N.W.2d 421, 426 (Iowa 1982). The order imposing sanctions is reversed.
MODIFIED AND AFFIRMED.
NOTES
[1]  This suit originally included medical malpractice claims against Cutler's psychiatrist and the hospital in which he had been a patient. Those claims are not involved in this appeal.
[2]  Restatement (Second) of Torts § 303 states:

An act is negligent if the actor intends it to affect, or realizes or should realize that it is likely to affect, the conduct of another, a third person, or an animal in such a manner as to create an unreasonable risk of harm to the other.
Restatement (Second) of Torts § 436 states:
(1) If the actor's conduct is negligent as violating a duty of care designed to protect another from a fright or other emotional disturbance which the actor should recognize as involving an unreasonable risk of bodily harm, the fact that the harm results solely through the internal operation of the fright or other emotional disturbance does not protect the actor from liability.
(2) If the actor's conduct is negligent as creating an unreasonable risk of causing bodily harm to another otherwise than by subjecting him to fright, shock, or other similar and immediate emotional disturbance, the fact that such harm results solely from the internal operation of the fright or other emotional disturbance does not protect the actor from liability.
[3]  Whicher is alleged to have said to Mrs. Cutler: "Look, Karen, we've got a ___ ____ business to run here."