                IN THE SUPREME COURT OF IOWA
                             No. 14–1622

                        Filed December 23, 2016

RUSSELL L. NEWHALL,

      Appellee,

vs.

MARCIA ELAINE NEWHALL ROLL,

      Appellant.

      On review from the Iowa Court of Appeals.

      Appeal from the Iowa District Court for Butler County, Gregg R.

Rosenbladt, Judge.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.

      Thomas D. Hanson of Dickinson, Mackaman, Tyler & Hagen, P.C.,
Des Moines, for appellant.

      Mark McCormick of Belin McCormick, P.C., Des Moines, and

Megan R. Rosenberg of Cady & Rosenberg Law Firm, P.L.C., Hampton,

for appellee.
                                            2

HECHT, Justice.

       In this partition action, the plaintiff sought partition by sale of one

tract of real estate located in Hardin County and another tract located in

Butler County. The defendant opposed the proposed partition by sale,

preferring partition in kind instead. On appeal from the district court’s

decision ordering the sale of both tracts, the court of appeals reversed.

On further review, we conclude the defendant failed to prove it would be

equitable and practicable to partition the tracts in kind and therefore

vacate the decision of the court of appeals and affirm the district court’s

judgment. 1

       I. Background Facts and Proceedings.

       Russell Newhall and Marcia Roll are biological siblings who own

two farm properties as tenants in common.                The first tract, located in

Butler County, was transferred to Russell and Marcia by inter vivos gift

from their parents in 2006. The second tract, located in Hardin County,

was transferred to Russell and Marcia in 2011 through a testamentary

gift from their biological aunt.        Russell owns several grain bins and a

grain dryer on the Butler County land.

       The Butler County tract and the Hardin County tract are both
subject to leases.      Russell leases and farms the tillable portion of the

Butler County farm. 2 Third parties rent pastureland on both the Butler

and Hardin County tracts.

       1Our   decision in Roll v. Newhall, ___ N.W.2d ___ (Iowa 2016) involving the same
parties is also filed today. In that case, Marcia asserted Russell could not inherit under
their biological mother’s will because their biological aunt adopted him after the will
was executed but before the testator died.
       2Although  he has farmed the tillable portion of the Butler County tract since
1974, Russell’s primary enterprise at the time of trial was farming and raising cattle in
North Dakota.
                                     3

        Russell and Marcia have an acrimonious relationship, and Russell

sought to sever their interests in the two tracts by agreement on multiple

occasions before this litigation was commenced.         In October 2007,

Russell offered to sell his interest in the Butler County land to Marcia.

In May 2012, Russell again offered to sell his interest in the Butler

County land or to trade it for Marcia’s interest in the Hardin County

land.    On each occasion, Marcia expressed no interest in Russell’s

proposed partition of the tracts.

        A. The Consolidated Actions.       In March 2013, Russell filed

separate actions against Marcia in Butler and Hardin counties seeking a

judicial partition by sale of both tracts. Marcia responded by requesting

the properties be partitioned in kind. The two actions were consolidated

for trial in Butler County upon joint motion of the parties.

        At the trial, both parties presented evidence of the nature and

value of the properties. The tract in Butler County consists of 315.30

acres—115 acres devoted to row crops, approximately 150 acres of

pastureland and timberland, and the remainder devoted to hay ground

and buildings.    Russell’s expert appraised the Butler County land at

$929,000 (excluding the value of the grain bins purchased and installed

there by Russell). Marcia’s expert appraised the property at a fair market

value of $1,200,000 (including the value of the grain bins).

        The Hardin County tract consists of 162.92 acres—approximately

110 acres of tillable land and the remainder in pastureland. Russell’s

expert appraised the Hardin County land at a fair market value of

$778,000; Marcia’s expert opined that the property’s fair market value is

$620,000.

        Without the value of the grain bins factored in, the difference

between the market values of the two properties according to the experts
                                       4

ranged from $151,000 (Russell’s expert) to $535,500 (Marcia’s expert).

After reviewing the experts’ methodology and hearing their testimony, the

district court found the experts were both “very credible.”

      B. The Parties’ Positions in District Court.             At trial, Marcia

urged the court to award Russell the Hardin County property and make

a specific allotment of the Butler County property to her under Iowa Rule

of Civil Procedure 1.1216.     See Iowa R. Civ. P. 1.1216 (permitting the

trial court to allot a specific tract to a specific party).   Because the land

in Butler County was worth more than the land in Hardin County,

Marcia proposed that the distributions could be equalized if the court

awarded Russell an additional sum of money or about 70 acres from the

Butler County farm, consisting primarily of pasture and hay land.

      Russell urged the partition be achieved through a sale of both

tracts. In the alternative, Russel requested the Butler County tract be

allocated to him if the court were to choose an in-kind distribution in lieu

of a sale. Although both parties expressed a desire to receive the Butler

County land if the land were partitioned in kind, neither party opposed

the sale of the Hardin County land.

      The parties presented testimony explaining why the court should

award the Butler County land to them if a partition in kind were to be

ordered.   Both parties were raised there on the family farm, and each

claimed an emotional connection with the land and a desire to pass it on

to their children who are interested in farming the ground.          Although

Russell relocated to North Dakota in 2008, he maintained his vocational

connection with the Butler County farm, having raised row crops there

since 1974.

      Marcia claimed a stronger tie to the Butler County farm because

she lives nearby and developed her avocation of collecting and selling
                                          5

antiques on the farm. She further asserted the family farm should be

allocated to her because she stayed in Iowa to take care of her parents in

their old age while Russell moved to North Dakota in 2008. Marcia also

opposed partition by sale of the Butler County tract because a sale would

cause her to incur a tax liability in the range of $145,000 to $164,000.

         C. The District Court’s Decision. The district court concluded

Marcia did not meet her burden to prove a partition in kind would be

equitable and practicable. The court found Marcia’s proposed division of

the Butler County farm—with the tillable land allocated to her and

pasture and hay ground allocated to Russell—would diminish the

aggregate value of the property. The court also found the Butler County

and Hardin County tracts carried substantially different tax bases, which

would complicate efforts to equitably divide the land through an in-kind

distribution.    Specifically, the party receiving the Hardin County land

would receive land with a stepped-up basis while the party receiving all

or most of the Butler County land would receive property with a very low

basis.

         Marcia appealed. We transferred the case to the court of appeals.

         D. Court of Appeals Decision. The court of appeals reversed in a

split decision, concluding that Marcia proved it is both equitable and

practicable to award Russell the Hardin County tract, award Marcia the

Butler County tract, and order an equalization payment of $75,000 from

Marcia to Russell. 3 We granted Russell’s application for further review to

determine whether the district court erred in ordering partition by sale of

         3Likethe district court, the court of appeals found it would be inequitable to
divide the Butler County farm between the parties because doing so would decrease the
total value of the entire tract and present practical problems of access and fencing of
the hay and pasture ground.
                                      6

the Butler County and Hardin County tracts under the circumstances of

this case.

      II. Scope of Review.

      Actions to partition real or personal property are equitable

proceedings, which we review de novo. Iowa R. Civ. P. 1.1201(1); Iowa R.

App. P. 6.907; see also Martin v. Martin, 720 N.W.2d 732, 735 (Iowa

2006). In equity cases, the trial court’s findings of fact are not binding

on us, but we give them weight, especially when they concern a witness’s

credibility. Iowa R. App. P. 6.904(3)(g); Martin, 720 N.W.2d at 735.

      III. Analysis.

      Our analysis in this case begins with an overview of the legal

principles governing partition actions in Iowa. With those principles in

mind, we shall determine whether the district court erred in rejecting

Marcia’s request for a partition in kind in lieu of sale.

      A. Rules Governing Partition Actions in Iowa. Partition actions

are governed by Chapter 651 of the Iowa Code and Division XII of the

Iowa Rules of Civil Procedure. See Iowa Code §§ 651.1–.6 (2014); Iowa

Rs. Civ. P. 1.1201–1.1228.         Together with the relevant statutory

provisions, the applicable procedural rules establish “a rough legal

blueprint” for partitioning concurrently owned real or personal property.

N. William Hines, Joint Tenancies in Iowa Today, 98 Iowa L. Rev. 1233,

1249–50 (2013).

      Prior to the effective date of the Iowa Rules of Civil Procedure in

July 1943, partition in kind was favored over partition by sale. Spies v.

Prybil, 160 N.W.2d 505, 507 (Iowa 1968). At common law and under the

previous statutory framework, property was partitioned in kind unless

the parties agreed to a sale or the property could not “be equitably

divided into the requisite number of shares.”       Id.; see also Iowa Code
                                      7

§ 12326 (1939); Metcalf v. Hoopingardner, 45 Iowa 510, 511–12 (1877)

(noting the statute permitted partition by sale only if the property could

not equitably be divided in kind). But “[t]his is no longer true in Iowa.”

Spies, 160 N.W.2d at 508.      The rules adopted in July 1943 effected a

“change in emphasis.”       Id. at 507 (quoting an advisory committee

comment to then Iowa Rule of Civil Procedure 278).          We explained in

Spies that the new rule “is unequivocal in favoring partition by sale and

in placing upon the objecting party the burden to show why this should

not be done in the particular case.” Id. at 508.

        Under the present framework, a co-owner of real or personal

property may request a judicial partition of the property in one of two

ways:     (1) partition by sale or (2) partition in kind.   Iowa R. Civ. P.

1.1201; cf. Iowa Code § 651.3 (2014) (permitting partial partitions in

kind). In a partition by sale, the property is sold and the sale proceeds

are distributed according to the parties’ respective interests. 59A Am.

Jur. 2d Partition § 117, at 94 (2015). When real estate is partitioned in

kind, the property is divided into parcels, and the parcels are allotted to

the parties by share. 68 C.J.S. Partition §§ 1, 146, at 91, 131–32 (2009).

The party seeking a partition in kind has the burden to prove it would be

both equitable and practicable.     Iowa R. Civ. P. 1.1201(2).     “For good

reasons shown, the court may order referees making a partition in kind

to allot a particular tract or article to a particular party.” Iowa R. Civ. P.

1.1216.

        Some limitations on in-kind partitions of real estate are well-

established under Iowa law.      In-kind partition is not appropriate if a

division into separate parcels would depreciate their aggregate value.

Murphy v. Bates, 224 Iowa 389, 391, 276 N.W. 29, 30–31 (1937);

Branscomb v. Gillian, 55 Iowa 235, 236, 7 N.W. 523, 523 (1880).
                                    8

Further, “if a division in kind is impracticable and cannot be effected

without sacrifice in value and to the best interest of all parties,” then a

sale must be ordered. Nehls v. Walker, 215 Iowa 167, 168–69, 244 N.W.

850, 851 (1932). Notably, these limiting principles were recognized even

at a time when partition in kind was favored in Iowa. See Branscomb, 55

Iowa at 236, 7 N.W. at 523.

      On first glance, Iowa law appears somewhat unique in that our

“default” method of partition is partition by sale. Compare Iowa R. Civ. P.

1.1201(2) (“Property shall be partitioned by sale and division of proceeds,

unless a party prays for partition in kind by its division into parcels and

shows that such partition is equitable and practicable.”), with 68 C.J.S.

Partition § 125, at 113.   Our research reveals only one other state—

Kentucky—expresses a preference for partition by sale.       See Ky. Rev.

Stat. Ann. § 389A.030(3) (West, Westlaw current through 2016 regular

sess.).   That said, although only Iowa and Kentucky have codified the

preference for judicial sale, several other states tend not to utilize

equitable remedies that could obviate the need for a sale. See Yun-Chien

Chang & Lee Anne Fennell, Partition and Revelation, 81 U. Chi. L. Rev.

27, 30 (2014) (“Most American jurisdictions have a common law rule that

purports to favor partition in kind, but scholars suggest that courts

usually order partition by sale.”). One observer has noted that although

most states have claimed adherence “to the historical preference for

physical division,” there is a general trend toward judicial sales either

because the parties desire sale “or because courts are easily convinced

that sale is necessary for the fair treatment of the parties.”    John G.

Casagrande, Jr., Note, Acquiring Property Through Forced Partitioning

Sales: Abuses and Remedies, 27 B.C. L. Rev. 755, 771 & n.141 (1986).
                                    9

      B. Two Proposals for a Partition In Kind. In this case, Marcia is

the party seeking a partition in kind. Consistent with Iowa’s preference

for partition by sale, Marcia thus bears the burden of proving a partition

in kind would be both equitable and practicable.         Iowa R. Civ. P.

1.1201(2).

      Marcia offers two alternatives for an in-kind division that she

contends would be equitable and practicable. Both alternatives allocate

all or most of the Butler County farm to her.        The first alternative

allocates most of the Butler County farm to her and gives Russell the

Hardin County farm plus a 70-acre parcel from the northern portion of

the Butler County property. The second alternative allocates all of the

Butler County property to Marcia and gives Russell the Hardin County

property plus an equalization payment offsetting the difference in value

between the two farms.

      Russell rejects both alternatives and instead urges the sale of both

tracts.   However, he contends in the alternative that if the court

concludes a partition in kind is equitable and practical, the Butler

County property should be allocated to him.         Like Marcia, Russell

testified at trial and asserted in his brief that he would approve of a

partition that allocates all or most of the Butler County real estate to

him; however, also like Marcia, he does not wish to receive an in-kind

distribution of the Hardin County farm.

      We now turn to the question of whether Marcia met her burden of

proof under either of her proposed alternatives.

      1. Alternative 1: Hardin tract plus a parcel of Butler tract. Under

the first alternative, Marcia would receive the tillable portion of the

Butler County land and Russell would receive the tillable portion of the

land in Hardin County. The remaining acres would then be split between
                                     10

the parties, with Russell receiving the remainder of the Hardin County

land and a 70-acre parcel of the northernmost portion of the Butler

County land.

      Although Russell and his expert conceded at trial that the division

of the Butler County land proposed by Marcia might appear feasible on

paper, they posited it would be neither equitable nor practicable in

reality. Having farmed the land for forty years, Russell credibly opined

that parceling off the northernmost portion of the Butler County land

consisting primarily of timber and hay ground would produce a parcel of

land that is not economically viable as a separate farming unit for several

reasons. Specifically, he explained (1) the parcel lacks access to fresh

water for livestock in the winter; (2) although the owner of the proposed

parcel could gain access to the east side, a river obstructs access to its

west side; (3) the existing fences on the parcel are inadequate for raising

livestock there; (4) the part of the parcel that is suitable for pasture is

subject to recurrent flooding; and (5) the parcel is too small to be

economically viable for raising livestock.

      Marcia presented testimony from an expert appraiser disputing

Russell’s opinion on problems with access to the proposed parcel and

fencing if the parcel were to be separated from the Butler County farm.

These potential problems are insubstantial and surmountable, Marcia’s

expert asserted; and the parcel allocated to Russell from the Butler

County farm could be drawn entirely from the west side to avoid any

need to cross the river.     Simply put, Marcia’s expert opined that a

practical and equitable division of the Butler County farm could be

achieved.

      Like the trial court, we credit Russell’s testimony and find the in-

kind division of the Butler County farm proposed by Marcia would be
                                      11

impractical. Russell has farmed the tillable ground for more than forty

years.    Because of this experience, Russell is more intimately familiar

than any other witness with the farm’s row-crop productivity potential,

its topographical features rendering parts of it vulnerable to flooding, and

its suitability for hay and pasture ground. We find this experience also

gives persuasive force to Russell’s opinion on the limited suitability of

access routes to the northern portion of the farm that Marcia proposes to

allocate to him. Lastly, we find Russell’s experience as a cattle farmer

also gives persuasive force to his opinions on the unattractiveness of the

proposed parcel for raising livestock. Accordingly, we find Marcia failed

to meet her burden to establish the in-kind division of the Butler County

farm is practical.

         Marcia’s proposed in-kind division of the Butler County farm fails

for yet another reason.     Russell’s expert appraiser persuasively opined

that—based on practical farming considerations—the value of the acres

Marcia proposed for allocation to Russell would be diminished if they

were separated from the rest of the farm.        Accordingly, we conclude

Marcia’s proposed in-kind division setting aside part of the Butler County

farm to Russell must be rejected because the division into separate

parcels would depreciate their aggregate value. See Murphy, 224 Iowa at

391, 276 N.W. at 30–31; Branscomb, 55 Iowa at 236, 7 N.W. at 523.

         2. Alternative 2: Hardin tract plus equalization payment. Under the

second alternative, Marcia would receive the Butler County farm and

Russell would receive the Hardin County farm, along with a sum of

money to equalize the value of the allocations. The payment of money as

a means of offsetting unequal distributions of real property in partition

actions is commonly referred to as “owelty.”
                                     12

      Owelty is an equitable remedy developed at common law and used

in partition actions to equalize the value of property each party receives

through the payment of a sum of money from the recipient of the higher-

value property to the recipient of the lower-value property.         Owelty,

Black’s Law Dictionary (3d pocket ed. 2006). Courts utilize the remedy

when “[i]n making divisions along natural and practical lines the

allotments cannot . . . be made of equal area or value” without impairing

the aggregate value of the parcels, and it would be disadvantageous to

sell the property. See Sawin v. Osborn, 126 P. 1074, 1075 (Kan. 1912);

68 C.J.S. Partition § 132, at 120; see also 59A Am. Jur. 2d Partition

§ 154, at 123–24.     Courts in jurisdictions favoring partition in kind

regard owelty as preferable to partition by sale.      See, e.g., Schnell v.

Schnell, 346 N.W.2d 713, 720–21 (N.D. 1984) (stating that partition in

kind with owelty should be preferred to sale); Chesmore v. Chesmore, 484

P.2d 516, 518 (Okla. 1971) (noting partition in kind with owelty is

preferable to sale); see also 68 C.J.S. Partition § 145, at 130. For that

reason, owelty is commonly justified as a means of avoiding judicial sale.

59A Am. Jur. 2d Partition § 155, at 124; see, e.g., Sawin, 126 P. at 1075;

R.R. Thompson Estate Co. v. Kamm, 213 P. 417, 418 (Or. 1923); Updike v.

Adams, 52 A. 991, 991–92 (R.I. 1902) (per curium).

      Russell asserts owelty is not recognized as an available remedial

tool under Iowa law.     He contends the Iowa Rules of Civil Procedure

governing partition actions leave no middle ground for owelty, permitting

only partition by sale or partition in kind. See Iowa R. Civ. P. 1.1201(2)

(“Property shall be partitioned by sale and division of the proceeds,

unless a party prays for partition in kind . . . , and shows that such

partition is equitable and practicable.”); see also 68 C.J.S. Partition §§ 2,

132, at 10, 120 (noting owelty is often “enabled by statute”).       Russell
                                          13

further posits that our recognition of the doctrine of owelty would

undermine Iowa’s statutory preference for partition by sale. See Iowa R.

Civ. P. 1.1201(2).

       Marcia contends owelty has long been recognized by courts of

equity and should be adopted in Iowa as an appropriate remedial tool in

partition actions.      Because it is an equitable remedy and partition

actions are equitable proceedings, Roll contends sound public policy

should lead this court to adopt and apply owelty in this case.

       Upon consideration, we need not decide whether the doctrine of

owelty is available in Iowa. Under the circumstances of this case, Marcia

cannot prove a superior claim of entitlement to the Butler County farm.

Like Marcia, Russell was raised on the farm and claims an abiding

connection to it. 4 Like Marcia, Russell has a child to whom he wishes to

succeed him in ownership of the family farm. And although Marcia and

her daughter live in Iowa in close proximity to the Butler County farm

and Russell lives in North Dakota, he has maintained an intimate

connection with the property by continuously farming it.                 Under these

unique circumstances, we cannot say the Butler County farm should be

set aside to Marcia “[f]or good reasons shown.” Iowa R. Civ. P. 1.1216.
Nor can we conclude it would be equitable to allocate the Butler County

farm to Marcia and award the Hardin County farm and some equalizing

       4We   do not overlook Marcia’s contention that Russell’s claim of attachment to
the family farm is less profound than hers because he made overtures to sell or trade
his interest several years ago. In our view, Russell’s unaccepted offers to amicably
separate his ownership interest from Marcia’s should be viewed as a good faith effort to
resolve differences rather than an expression of insubstantial attachment to the family
farm where he grew up and farmed as an adult for more than forty years. Likewise, we
do not consider Marcia’s refusal to pursue Russell’s settlement overtures giving her an
opportunity to obtain the Butler County land as evidence that she lacks a substantial
attachment to the Butler County farm.
                                          14

amount of money to Russell. 5           Although Marcia’s connection with the

family farm is sincere and profound, we cannot say it is measurably

superior to Russell’s or that equity therefore demands the property be

allocated to her. Thus, we do not decide in this case whether to adopt

the doctrine of owelty and leave that question for another day.

       IV. Conclusion.

       We conclude Marcia failed to meet her burden to prove a partition in

kind allocating all or most of the Butler County farm to her would be practical

and equitable. Accordingly, we vacate the decision of the court of appeals and

affirm the district court’s decision.

       DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.

         5We have not overlooked Marcia’s contention that she will suffer an adverse tax

consequence from the sale of the Butler County farm. The parties have a low tax basis
in the property, and they both could experience a substantial gain and potential tax
liability from the sale. As both parties hold the same basis in the property, we cannot
say the potential tax consequences of the sale augur in favor of Marcia’s claim that
equitable principles should lead this court to allocate the Butler County farm to her.


                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-3738
                                   ___________

Antoine Owens,                          *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the Eastern
                                        * District of Missouri.
Michael Bowersox,                       *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: April 18, 2002

                                  Filed: May 23, 2002
                                   ___________

Before HANSEN, Chief Judge, MCMILLIAN and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                              ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Antoine Owens was convicted of two counts of first-degree murder in state
court and sentenced to two consecutive terms of life imprisonment without eligibility
for parole. After exhausting his state remedies, he filed a petition under 28 U.S.C.
§ 2254 in federal district court. The district court1 denied the petition, and Mr. Owens
appealed.

       We granted Mr. Owens a certificate of appealability on the issue of whether his
confession was obtained in violation of his sixth amendment right to counsel. He
contends on appeal that his right to counsel was violated because an inculpatory
statement was taken from him during a police-initiated interrogation without his
attorney present. We affirm.

                                         I.
      Mr. Owens does not challenge the state court's factual findings, which we
presume to be true absent clear and convincing evidence to the contrary, see
28 U.S.C. § 2254(e)(1); Weaver v. Bowersox, 241 F.3d 1024, 1030-31 (8th Cir.
2001). According to the state appellate court, the day after Mr. Owens was arrested,
counsel was appointed for him and he was arraigned. State v. Owens, 827 S.W.2d
226, 228 (Mo. Ct. App. 1992).

       The state court described the facts that led up to the subsequent communication
between Mr. Owens and the police as follows. After Mr. Owens was arraigned,
Detective Aarnarian Snow went to pick up Mr. Owens's mother and bring her to the
station. See id. The court credited the testimony of Detective Snow, who testified
that during the drive to the station, the petitioner's mother told him that " 'she had
talked to [Mr. Owens] on the phone and had persuaded him to tell the truth and that
[a relative] had nothing to do with the murders.' " Id. She also told the detective that
her son " 'agreed he would talk to the police and tell the truth' " and that he had
" 'indicated that he was willing to talk to the police.' " Id.

      1
       The Honorable Carol E. Jackson, United States District Judge, adopting the
report and recommendations of The Honorable Thomas C. Mummert, III, United
States Magistrate Judge for the Eastern District of Missouri. See 28 U.S.C.
§ 636(b)(1)(B).

                                          -2-
        The state court also found that after Detective Snow and Mr. Owens's mother
arrived at the station, he left her with two police officers and went to the jail to talk
to Mr. Owens. "At the jail, [Detective] Snow told [Mr. Owens] that he 'had received
information from [his mother] that he wanted to make a statement ... that he wanted
to talk,' " and Mr. Owens confirmed that information. Id. at 228-29, 231. Detective
Snow then informed Mr. Owens of his Miranda rights, see id. at 229, and Mr. Owens
made an inculpatory statement that was admitted at trial. The state court also noted
that at the suppression hearing a police investigator testified that Mr. Owens's mother
told him that her son had telephoned her and had said that "he wanted to talk to the
police and tell the truth." Id.

                                            II.
       In Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), the Supreme Court held,
based on the fifth amendment, that an accused who has invoked his or her right to
counsel, is not subject to further interrogation until counsel has been provided, unless
the accused "initiates further communication ... with the police." In Michigan v.
Jackson, 475 U.S. 625, 629 (1986), the Court, interpreting the sixth amendment, held
that the same prophylactic rule is applicable to a formally-charged defendant "who
has requested appointment of counsel at his [or her] arraignment." According to the
Court,"if police initiate interrogation after a defendant's assertion, at an arraignment
or similar proceeding, of his [or her] right to counsel, any waiver of the defendant's
right to counsel for that police-initiated interrogation is invalid." Id. at 636. A
defendant "initiates" an interrogation if he or she " 'evince[s] a willingness and a
desire for a generalized discussion about the investigation.' " Holman v. Kemna,
212 F.3d 413, 417 (8th Cir. 2000), cert. denied, 531 U.S. 1021 (2000) (quoting
Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983), (plurality opinion,
Rehnquist, J.)).

     The state does not contest the fact that before Detective Snow arrived at the jail
Mr. Owens had invoked his right to counsel, and that Detective Snow, as a state actor,

                                          -3-
was presumed to know that the state court had appointed an attorney for Mr. Owens,
see Jackson, 475 U.S. at 634. We agree with the parties that the critical issue here is
whether Mr. Owens "initiated" the interrogation, which is a legal determination. See
Holman, 212 F.3d at 417.

        Although Mr. Owens did not contact the police himself and ask to talk to them,
and he did not ask his mother specifically to have the police come to the jail, the state
trial court found that there was contact by Mr. Owens through his mother to Detective
Snow, and the state appellate court determined that "the impetus for the interrogation
came from defendant through his mother." Owens, 827 S.W.2d at 229. The appellate
court observed that there "was no suggestion that the police coached her to prompt
defendant to talk to them" and found as fact that "[i]t was defendant who said he
'wanted' or was 'willing' to talk to the police." Id. The court concluded that
Mr. Owens thereby " 'evinced a willingness and a desire for a generalized discussion
about the investigation,' " and that he, and not the police, thus had initiated the
communication during which Mr. Owens made the statement in issue. Id. (quoting
Bradshaw, 462 U.S. at 1045-46).

        In a § 2254 proceeding, we review a state court's decision to determine whether
it is "contrary to, or involve[s] an unreasonable application of, clearly established
Federal law, as determined by" the Supreme Court. 28 U.S.C. § 2254(d)(1).
Mr. Owens does not contend that the state court's decision is opposite that reached
by the Supreme Court on a question of law, and we have not located and the parties
have not cited any Supreme Court case that addresses the waiver of the sixth
amendment right-to-counsel when a defendant expressed a willingness to talk to the
police through a third party. Therefore we conclude that the state court's
determination was not "contrary to" Supreme Court precedent. See id.; see also See
Williams v. Taylor, 529 U.S. 362, 405 (2000).

                                          -4-
       Mr. Owens contends that the state court was unreasonable in its application of
the relevant Supreme Court precedent. To warrant relief under § 2254(d)(1), the state
court's application of Supreme Court precedent must be not only erroneous but also
objectively unreasonable. See Williams, 529 U.S. at 409-410. Although the state's
position undoubtedly would be stronger if Mr. Owens himself had contacted the
police, we do not believe that it was unreasonable for the state court to hold that a
defendant may "evince" a willingness and desire to discuss the crime by
communicating with the police through a third party, especially a close relative. See
Holman, 212 F.3d at 416, 419-20 (defendant initiated contact with police by asking
stepfather to have deputy come to prison to take his confession). Nor do we believe
that relief under § 2254 may be granted to Mr. Owens based on his failure to ask his
mother specifically to send a police officer to the jail. Presuming, as the state court
found, that Mr. Owens told his mother that he wanted or was willing to talk to the
police, we conclude that the state court's determination that Mr. Owens was the
impetus behind the contact and thereby "initiated" the interrogation was not
objectively unreasonable.

                                          III.
       We note that once a defendant invokes his or her right to counsel, the
defendant's initiation of police interrogation is necessary but not sufficient to
establish a waiver of that right. The ultimate question is whether the circumstances
as a whole (including the initiation) indicate that the defendant voluntarily,
knowingly, and intelligently waived his or her right to counsel. See Bradshaw, 462
U.S. at 1045-46; Holman, 212 F.3d at 417. This issue is not before us, however,
because Mr. Owens contends on appeal only that the police, and not he, initiated the
communication. Furthermore, we observe that the state court found that the waiver
of counsel was valid because, inter alia, before Detective Snow interrogated
Mr. Owens, the detective had Mr. Owens "confirm that he did want to talk" and
advised him of his Miranda rights. Owens, 827 S.W.2d at 231.

                                         -5-
                                IV.
Accordingly, we affirm the judgment of the district court.

A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

                                 -6-


425 F.2d 737
Nathan PUTCHAT and Sally Putchat, husband and wife, Appellants,v.COMMISSIONER OF INTERNAL REVENUE.
No. 18292.
United States Court of Appeals, Third Circuit.
Argued April 9, 1970.
Decided May 4, 1970.
Rehearing Denied June 30, 1970.

Arthur Pelikow, New York City, (Robert B. Alexander, Jr., Stuart M. Berkman, New York City, on the brief), for appellants.
William S. Eastabrook, Dept. of Justice, Tax Division, Washington, D. C. (Johnnie M. Walters, Asst. Atty. Gen., Lee A. Jackson, Thomas L. Stapleton, Janet R. Spragens, Attys., Dept. of Justice, Washington, D. C., on the brief), for appellee.
Before SEITZ and ALDISERT, Circuit Judges, and LATCHUM, District Judge.
OPINION OF THE COURT
PER CURIAM.

1
Nathan and Sally Putchat filed a joint federal income tax return for 1959. The Commissioner subsequently determined that they improperly reported as long-term capital gain $75,000.00 received in complete settlement of a lawsuit by Nathan seeking to enforce his rights under a contract. Taxpayers petitioned the Tax Court for a redetermination of the deficiency. The court rejected their petition, holding that "an amount received by petitioner as consideration for the release of all his rights under an employment contract * * * constitutes ordinary income." 52 T.C. 470 (1969). This appeal followed.

2
We have reviewed the record made below in the light of the contentions of counsel both in their briefs and at oral argument. We are convinced that the Tax Court correctly decided the issues of fact and law and therefore affirm on its opinion.

3
The judgment of the Tax Court will be affirmed.


835 F.2d 870
Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent.  This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Lewis W. POE, Plaintiff-Appellant,v.The UNITED STATES, Defendant-Appellee.
No. 87-1348.
United States Court of Appeals, Federal Circuit.
Nov. 12, 1987.

Before MARKEY, Chief Judge, RICH and MAYER, Circuit Judges.
PER CURIAM.

DECISION

1
The judgment of the United States Claims Court, No. 237-79C (Mar. 5, 1987), granting the United States' motion for summary judgment and dismissing Lewis W. Poe's (Poe's) complaint, is affirmed.

OPINION

2
The Claims Court did not err in determining that this case was ripe for summary judgment based on the administrative record.  It correctly concluded that the discovery Poe desires would merely duplicate evidence already in that record.    See Brown v. United States, 396 F.2d 989, 999 (Ct.Cl.1968).

3
The possibility of drawing inconsistent conclusions from the evidence in the administrative record does not prevent the actions of the Air Force from being supported by substantial evidence.    See Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620 (1966);  Heisig v. United States, 719 F.2d 1153, 1156-57 (Fed.Cir.1983).  That the record contains "conflicting documentation" does not, therefore, create a "genuine issue as to [a] material fact" precluding summary judgment under Claims Court Rule 56(c).  The Claims Court applied the proper standard in concluding that substantial evidence supported the actions of the Air Force.    Heisig, 719 F.2d at 1156.

4
Poe's assertion that "[t]he possibility of fraud exists" in Dr. Mitchell's medical report does not create a genuine issue for trial.  One opposing a motion for summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts."    Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 106 S.Ct. 1348, 1356 (1986).  That another psychiatrist rendered a different diagnosis does not constitute such a showing.

5
After considering Poe's arguments that the Air Force violated its own regulations and the Fourth Amendment to the U.S. Constitution, we discern no basis to overturn the Claims Court's conclusion that the actions of the Air Force "conform to applicable statutes and regulations."

6
We have not considered the government's argument that the Claims Court erred in denying its motion to dismiss certain of Poe's claims as outside the Claims Court's jurisdiction.  Because the government has not appealed from that part of the judgment, it may not seek its reversal.    Helvering v. Pfeiffer, 302 U.S. 247, 250-51 (1937);  UST, Inc. v. United States, No. 87-1134, slip op. at 5-6 (Fed.Cir. Oct. 15, 1987).


58 F.Supp.2d 1269 (1999)
Beth Pfeiffer NIXON, Plaintiff,
v.
NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, Defendant.
No. Civ.A. 98-2167-GTV.
United States District Court, D. Kansas.
July 15, 1999.
*1270 *1271 Ruth M. Benien, Benien Law Offices, Chtd., Kansas City, KS, for Beth Pfeiffer Nixon, plaintiff.
Barry E. Warren, Chris R. Pace, Glenn S. Grayson, Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, KS, for Northwestern Mutual Life Insurance Company, defendant.

MEMORANDUM AND ORDER
VanBEBBER, Chief Judge.
Plaintiff Beth Pfeiffer Nixon brings this action against Northwestern Mutual Life Insurance Company, asserting a claim of pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq.,[1] and the Kansas Act Against Discrimination (KAAD), K.S.A. 44-1001 et seq., and a claim for breach of implied contract of employment. The case is before the court on defendant's motion (Doc. 11) for summary judgment. Defendant asserts that it was not plaintiff's employer. For the reasons set forth below, the motion is granted.

I. Summary Judgment Standards
Summary judgment is appropriate if the evidence presented by the parties demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could resolve the issue either way. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). An issue is "material" if it is essential to the proper disposition of the claim. Id. (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). The court must consider the record, and all reasonable inferences therefrom, in the light most favorable to the party opposing the motion. Id.
The party moving for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Id. at 670-71 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If the moving party will not bear the burden of persuasion at trial, that party "may make its prima facie demonstration simply by pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Id. at 671 (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to go beyond the pleadings and set forth specific evidence that creates a genuine issue of material fact left for trial. Id.

II. Factual Background
The following facts are either uncontroverted or are based on evidence submitted *1272 in summary judgment papers viewed in a light most favorable to the plaintiff. Immaterial facts and facts not properly supported by the record are omitted.
Defendant is an insurance company that maintains its home offices in Milwaukee, Wisconsin. Defendant operates its insurance business through a network of insurance agents, and its sales are solicited entirely by the agents outside of the home office. Defendant contracts with General Agents in various parts of the United States. The General Agents in turn may contract directly with sales agents, known as Special Agents.
The General Agents' and Special Agents' contracts expressly provide that they are independent contractors, and not employees of defendant or, in the case of Special Agents, not employees of the General Agent or defendant. All of the contracts prohibit the General Agents and Special Agents from selling any life insurance or disability coverage other than defendant's products. The contracts do not control who the agents solicit, but they do control the territory where agents can sell and require them to maintain an office. Under the contracts, the agents must indemnify defendant for all expenses, costs, causes of action, and damages caused by the agent's actions or the agent's employees' actions. Defendant also requires that the agents keep certain records, which remain the property of the company.
This case arose from the employment of plaintiff by James Coopersmith, a Special Agent for defendant. Coopersmith entered a contract with Gary Hames, a General Agent. Coopersmith's contract expressly provided that he was an independent contractor. Coopersmith's business letterhead contained defendant's logo and masthead, and the names of Coopersmith and Hames. Plaintiff testified in her deposition that Coopersmith sold only defendant's insurance products, drove a business car with defendant's name on it, kept awards from defendant in his office, and attended defendant's seminars, meetings, and annual picnics. Coopersmith's office was in the Northwestern Mutual Life office building in Shawnee Mission, Kansas. Approximately fifty to one-hundred people worked alongside Coopersmith and plaintiff in the building, and everyone shared the same break room and kitchen.
Defendant submitted the affidavit of Phillip B. Franczyk, defendant's Vice President of Agency Development. Franczyk began his career with defendant as a fulltime agent in 1971. He works out of the home office in Wisconsin, but spent most of his career in the field, including several years as a General Agent. Franczyk stated in his affidavit that based upon his experience, he is familiar with defendant's agency structure and its relationship to the home office.
Franczyk stated in his affidavit that defendant had no involvement in the day-to-day operations of Coopersmith's business. He stated that defendant did not control Coopersmith's daily activities, work hours, or work schedule. Further, he stated that Coopersmith was free to make his own decisions regarding whom to solicit, and the time, place, and manner of solicitations with regard to defendant's insurance policies.
Franczyk also stated that Coopersmith was compensated strictly through sales commissions with no base salary, as stated in his Special Agent contract. Moreover, the commissions were paid through the General Agent. Neither defendant nor the General Agent withheld income taxes from the commission checks. Defendant included Coopersmith in its group insurance and retirement plans, and withheld social security taxes from the commission checks, but these acts were taken pursuant to special provisions of the Internal Revenue Code that specifically include independent life insurance agents as statutory employees for limited purposes. See 26 U.S.C. §§ 3321(d)(3)(B), 7701(a)(20). Neither defendant nor the General Agent paid workers' compensation or unemployment insurance for Coopersmith. Franczyk also *1273 stated that Coopersmith was responsible for selecting, renting, and furnishing his own office space at his own expense.
Plaintiff was employed as a marketing assistant for Coopersmith from March 5, 1997 to May 9, 1997. Plaintiff testified that Coopersmith "asked me to come over to Northwestern Mutual to fill out an application and discuss some things." She also testified that "Jim Coopersmith approached me and he said that he worked for Northwest Mutual Life and that he wanted me to come be a member of his team." Coopersmith did not consult or notify defendant prior to hiring plaintiff. Plaintiff, however, testified that prior to being hired, she was interviewed for a personality profile by Colleen Eikmeier, the personnel director for defendant. She also testified that another female employee of defendant gave plaintiff her orientation, telling her about the employment policies, the dress code, the hours, and the vacation pay. Plaintiff testified in her deposition that she received a policy manual with the defendant's name and logo on the front. Defendant submitted a copy of the policy manual it alleges that plaintiff received. The manual has the name James M. Coopersmith on the front cover with the address of the building and suite number. The first line of the foreword states "Welcome to the offices of Jim Coopersmith." Plaintiff denies in her deposition that such language was in the manual that she received or that Coopersmith's name appeared on the front cover. The substantive portions of the manual, which plaintiff does not dispute that she received, identify the primary job responsibility of the general agency as servicing the needs of defendant's policy holders, and repeatedly references defendant's name and the address of the office building.
Plaintiff received all of her compensation by checks drawn on Coopersmith's personal account and signed by Coopersmith. Defendant did not compensate plaintiff. Coopersmith withheld all applicable taxes from plaintiff's checks. Coopersmith stated in his affidavit that he alone was responsible for establishing plaintiff's duties or work hours, and defendant had no control over those matters.
Plaintiff testified in her deposition that all of the allegedly offensive conduct was done by Coopersmith at the office in the Northwestern building. She further testified that no one other than Coopersmith was involved in her termination. Plaintiff had no contact with defendant regarding her termination, and never contacted defendant regarding her allegations of harassment and discrimination. Coopersmith's secretary handed plaintiff the termination letter and her severance check. Plaintiff testified in her deposition that defendant discriminated against her by failing to offer her a transfer, failing to provide a grievance procedure or review mechanism for her termination as referenced in the manual, and failing to discipline Coopersmith for his harassment and discriminatory conduct.
Plaintiff testified in her deposition that she believed Gary Hames, the General Agent, was the boss over everyone else in the Northwestern Mutual building, that he had the authority to discharge her, and that Coopersmith's secretary was an employee of Northwestern who reported directly to Coopersmith. Plaintiff, however, acknowledged in her deposition that she had no knowledge of Hames discharging any of Coopersmith's employees or any other employees in the building. She also testified that other people working in the building performed work for Coopersmith, even though they did not report directly to Coopersmith. Plaintiff believed that all of the clerical persons in the building were defendant's employees. Plaintiff also testified in her deposition that defendant set the policies with respect to work hours, vacation time, and insurance policies. She testified that everyone in the building kept the same hours.

III. Analysis
Plaintiff asserts claims of pregnancy discrimination and breach of implied contract of employment. Defendant argues that there is no employment relationship between *1274 plaintiff and defendant, and therefore, both of plaintiff's claims against defendant should be dismissed. The court agrees.
To establish a claim under Title VII,[2] plaintiff must prove that defendant was her employer. Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1069 (10th Cir.1998). The Tenth Circuit has identified three tests for determining whether an employer-employee relationship exists: (1) the common law agency approach; (2) the "hybrid" method; and (3) the single employer test. Id.
There is little distinction between the common law agency approach and the hybrid method  both focus on the ability of the alleged employer "to control the means and manner by which the work is accomplished, but allow consideration of other factors as well." Lambertsen v. Utah Dep't of Corrections, 79 F.3d 1024, 1028 (10th Cir.1996). The other factors include: (1) the occupation at issue and whether the work is generally done under supervision; (2) the skill required for the occupation; (3) whether the alleged employer provides the equipment and place of work; (4) the length of time the individual has worked; (5) the method of compensation; (6) the manner of terminating the relationship; (7) whether annual leave is afforded; (8) whether the work is integral to the alleged employer's business; (9) whether the employee accumulates retirement benefits; (10) whether the employer pays social security taxes; and (11) the intention of the parties. Id.
The parties incorrectly focus on the relationship between Coopersmith and defendant under the hybrid test.[3] Instead, under the hybrid test, the court is concerned with whether plaintiff is an employee of defendant. Defendant submitted evidence that it had no involvement in the day-to-day operations of Coopersmith's business and, therefore, in plaintiff's day-to-day work. Plaintiff testified that two females she identified as defendant's employees gave her a personality, profile and told her about the employment policies. That evidence, however, fails to establish that defendant controlled those aspects of plaintiff's employment. Moreover, Coopersmith stated in his affidavit that he was solely responsible for establishing plaintiff's duties and work hours. Plaintiff has failed to establish personal knowledge or other basis for admission of her testimony that defendant established the applicable employment policies. Defendant was not involved in plaintiff's compensation. Coopersmith paid plaintiff out of his personal account and withheld all applicable taxes. Although plaintiff worked in an office building apparently owned by defendant, Coopersmith actually rented the work place and equipment, as required by his agency contract. Plaintiff acknowledged in her deposition that Coopersmith alone was responsible for the allegedly offensive conduct, and that she had no contact with defendant regarding such conduct or her termination. Although plaintiff believed that Gary Hames, the General Agent, was the boss in the office and that he could discharge her, she admitted in her deposition that she had no personal knowledge regarding his authority over the employees in the office. Plaintiff has failed to establish that defendant was her employer under the hybrid test. There is no evidence that defendant had control over the means *1275 and manner of plaintiff's work, and none of the other factors indicate an employer-employee relationship between defendant and plaintiff.
Plaintiff argues that, under the dual employer theory, both defendant and Coopersmith are her employers. See Zinn v. McKune, 143 F.3d 1353, 1360 (10th Cir. 1998) (Briscoe, J., concurring). "Generally, a person may be the employee of two employers, `at one time as to one act, if the service to one does not involve abandonment of the service to the other.'" Id. (Briscoe, J., concurring) (quoting Restatement (Second) of Agency § 226 (1958)). Under Title VII, "two separate entities may be a worker's employer if they share or codetermine matters governing the essential terms and conditions of the worker's employment." Id. (Briscoe, J., concurring). Plaintiff, however, has failed to establish through competent evidence that defendant controlled any terms or conditions of her employment. Her speculation regarding defendant's control is insufficient to create a genuine issue of material fact. Therefore, plaintiff has failed to show under the dual employer theory that defendant is plaintiff's employer.
Under the single employer test, the court must consider whether Coopersmith, who is undisputedly plaintiff's employer, and defendant are a single employer in light of the following factors: interrelation of operations, centralized control of labor relations, common management, and common ownership or financial control. Lockard, 162 F.3d at 1069. The key factor is "whether the putative employer has centralized control of labor relations." Id., at 1070. "To satisfy the control prong, [defendant] must control the day-to-day employment decisions of [the affiliate.]" Id. Here, the evidence indicates that defendant had no control over the day-to-day operations of Coopersmith. Defendant did not control the work hours, work schedules, or daily activities of Coopersmith's employees. Although plaintiff testified that she believed defendant controlled Coopersmith's business, including employment decisions, she failed to establish that she had personal knowledge or any other adequate foundation for the testimony. Plaintiff has failed to establish the key factor  defendant's control of labor relations. Plaintiff has also failed to offer evidence of the other three factors in the single employer test. Defendant did not control the solicitation business, except to the extent that it limited the geographic area. Neither did defendant control the day-to-day operations of Coopersmith's business. Further, there is no evidence of common management or ownership. As indicated in Coopersmith's contract and by the evidence submitted with the summary judgment papers, Coopersmith was in an independent contractor relationship with defendant. Plaintiff has failed to establish that defendant and Coopersmith were a single employer.
Plaintiff could also establish that defendant is her employer if Coopersmith, who indisputably hired plaintiff, was acting as an agent of defendant with respect to plaintiff's employment. See 42 U.S.C. § 2000e(b) ("employer" includes "any agent of [an employer]"); K.S.A. 44-1002(b) ("employer" includes "any person acting directly or indirectly for an employer"). This issue is also determinative of plaintiff's claim for breach of implied contract of employment because Coopersmith's hiring of plaintiff is the only alleged contractual link between defendant and plaintiff. Although Coopersmith is defendant's agent with respect to sales of life insurance policies, there is no evidence that he is an agent of defendant with respect to plaintiff's employment. See Deal, 5 F.3d at 119 (agent under Title VII must be an agent with respect to employment practices). Plaintiff has failed to establish that Coopersmith had authority to contract with plaintiff on behalf of defendant. Accordingly, plaintiff's claims are dismissed.
IT IS, THEREFORE, BY THE COURT ORDERED that defendant's motion *1276 (Doc. 11) for summary judgment is granted.
Copies of this order shall be mailed to counsel of record for the parties.
The case is closed.
IT IS SO ORDERED.
NOTES
[1]  Specifically, plaintiff asserts a claim under the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k).
[2]  The statutory definitions of employer under Title VII and the KAAD are virtually identical. See 42 U.S.C. § 2000e(b) ("employer" is "a person engaged in an industry affecting commerce who has fifteen or more employees, ... and any agent of such person."); K.S.A. 44-1002(b) ("employer" is "any person in this state employing four or more persons and any person acting directly or indirectly for an employer ..."). Accordingly, the court's analysis under Title VII also applies to the claim under the KAAD.
[3]  As discussed infra, to rely on Coopersmith's relationship to defendant to establish plaintiff's employment relationship with defendant, plaintiff must establish that Coopersmith was acting as an agent of defendant with respect to employment matters. See Deal v. State Farm County Mutual Ins. Co. of Texas, 5 F.3d 117, 119 (5th Cir.1993).


4 Ill.2d 488 (1954)
122 N.E.2d 535
LEONARD J. SCHWARTZ et al., Appellees,
v.
OLIVER G. PIPER et al., Appellants.
No. 33266.
Supreme Court of Illinois.
Opinion filed November 18, 1954.
Rehearing denied January 18, 1955.
*489 JESSE R. BROWN, of Edwardsville, for appellants.
HAROLD G. TALLEY, of Alton, for appellees.
Decree reversed.
Mr. JUSTICE KLINGBIEL delivered the opinion of the court:
Leonard J. Schwartz and Verna Schwartz, plaintiffs, filed a complaint in the circuit court of Madison County seeking to establish title to a trapizoidal strip of land lying between their residence and a residence owned by the defendants, Oliver G. Piper and Anna E. Piper in the city of Edwardsville. This appeal is from a decree quieting title to the disputed tract in the plaintiff Leonard J. Schwartz, and permanently enjoining defendants from use of the property. A freehold is involved.
Main Street in the city of Edwardsville runs in a northwesterly and southeasterly direction, but for purposes of this opinion we shall refer to it as running north and south. Leonard J. Schwartz is the owner of record of a tract fronting on Main Street 84 feet by 208 feet deep. Oliver G. Piper and Anna E. Piper are the owners of record of a tract adjoining the Schwartz tract on the south fronting *490 on Main Street 72 feet by 150 feet deep. The tract in dispute adjoins the Schwartz tract on the south. It is a strip off the north side of the Piper tract ten feet wide at the front on Main Street, 150 feet deep and three feet wide at the rear. It is undisputed that the record title to this strip is in the Pipers. Both the Schwartz and the Piper tracts are improved with dwelling houses and occupied by the respective parties as homesteads. There are no buildings on the disputed tract.
The titles to both the Schwartz and Piper tracts were derived from one Ivan L. Zurkuhlen, who acquired title by warranty deed in 1896. In 1902 Ivan Zurkuhlen conveyed the Schwartz tract to one John Zimmerscheid who, in turn, conveyed to Agnes McKee in 1904. In 1919 Agnes McKee conveyed to Henry and Etta Buck and they in turn conveyed to Leonard J. Schwartz in 1921. All conveyances were by warranty deed and none of them purport to include any part of the disputed tract.
Ivan L. Zurkuhlen conveyed the Piper tract to his son, Fred Zurkuhlen, in 1908, who in turn conveyed to Etta Worden in 1921. Etta Worden conveyed to the defendant Anna E. Piper by deed dated March 15, 1945. All of these conveyances were by warranty deed. In 1947, by quitclaim deeds and the use of a straw party, a joint tenancy in this tract was created in Anna E. Piper and Oliver G. Piper. Each of these conveyances include all of the tract which is in dispute.
It appears from the evidence that the various owners and occupants of the respective tracts lived peacefully as neighbors from the time of the sale of the Schwartz tract by Zurkuhlen in 1902 until the summer of 1952 when a dispute arose between plaintiffs and defendants as to the location of the property line between the two tracts. Prior to that time there had never been any controversy as to the location of the line. When the dispute arose plaintiffs employed an engineering firm to survey their premises *491 and defendants had the city engineer measure their tract. The surveyor placed stakes to mark the south line of the Schwartz tract and this coincided with the measurement made by the city engineer establishing the north line of the tract described in the Piper deed. On October 27, 1952, the Pipers built a fence, constructed of steel posts and two strands of wire, upon the line established by such survey and measurement. This fence is on the north line of the disputed tract. It further appears that prior to 1952 there were no stones, stakes, monuments or visible markings of any kind marking the dividing line between the two tracts except that during the period from about 1903 to 1917 there was an iron fence maintained on the dividing line. This old iron fence was removed about 1917 and no trace of its location remained after its removal.
A plat admitted in evidence by stipulation of the parties shows that the residence on the Schwartz tract is located approximately three and one-half feet north of the north line of the disputed tract and that a concrete sidewalk three and one-half feet wide runs along the south side of the residence so that the south edge of the Schwartz sidewalk very nearly coincides with the north line of the disputed tract. The plat also shows that the north side of the Piper residence is approximately thirty-five feet south of the north line of the disputed tract and that there is a crushed stone driveway running from Main Street east on the Piper tract. The north line of the driveway coincides with the south line of the disputed tract.
Photographs admitted in evidence show that there is a cedar tree, some lilac bushes and other shrubbery located on the disputed tract very near the north line thereof, and a large tree near the front about one foot north of the north line of the Piper driveway. There is a clothes-line pole and a garbage can rack located toward the rear near the north line of the disputed tract. The clothes-line pole and garbage can rack were placed there by defendants after *492 they purchased the Piper tract in 1945 and have been used by them since their erection. Some of the shrubbery was planted there by plaintiffs and their predecessors in title and defendants planted some flowers there. There is a dispute as to who mowed the grass on the strip, it appearing that both parties mowed it part of the time. There are now no monuments, corner stones, stakes or other visible markers to indicate where there was ever any established line recognized as the dividing line by the parties hereto or any of their predecessors in title.
Plaintiffs claim title to the disputed tract by reason of adverse possession for more than twenty years under section one of an act in regard to limitations, (Ill. Rev. Stat. 1951, chap. 83, par. I.) The complaint alleges that plaintiff and his predecessors in title have been in open, continuous, actual, notorious, visible, exclusive, uninterrupted and adverse possession of said strip for more than 49 years prior to October 27, 1952. The complaint was filed November 1, 1952.
Defendants' answer, so far as material here, consists of a general denial and claim of ownership by title of record.
The only material question raised by the briefs is one of fact, and the test is whether the proof shows that plaintiff and those under whom he claims title have been in the actual, open, exclusive, adverse and continuous possession of the disputed strip for twenty years or more, under a claim of ownership inconsistent with the claim of ownership of the holder of the record title.
It is well settled that the adverse possession which is required to constitute a bar to the assertion of a legal title by the owner must include these five elements: It must be (1) hostile or adverse, (2) actual, (3) visible, notorious and exclusive, (4) continuous, and (5) under claim of ownership. (Zirngibl v. Calumet and Chicago Canal and Dock Co., 157 Ill. 430; Augustus v. Lydig, 353 Ill. 215.) *493 If the record does not establish all of those conditions plaintiff cannot prevail. (Bugner v. Chicago Title and Trust Co. 280 Ill. 620.) Furthermore, the doctrine of adverse possession is to be taken strictly. It cannot be made out by implication or inference. The presumptions are all in favor of the true owner, and the proof, in order to overcome such presumptions, must be strict, clear and unequivocal. Horn v. Metzger, 234 Ill. 240; Town of Kaneville v. Meredith, 351 Ill. 620.
Under the twenty-year Statute of Limitations it is the possession that bars the owner from recovery. No deed is requisite to the inception, the continuance or the completion of the bar, but the possession must be of a definitely defined tract and where there is no deed or color of title the claimant has the added burden of establishing by clear and convincing proof the location of the boundaries to which he claims. Such boundaries must be definitely established at the inception, during continuance and at the completion of the period of adverse possession. The proof must be such as to establish with reasonable certainty the location of the boundaries of the tract to which the five elements of adverse possession are applied and all of the elements must extend to the tract so claimed. While it is not necessary that the land should be enclosed by a fence, the boundaries must be susceptible of specific and definite location. It is elementary that in any case involving a boundary dispute the claim of title by adverse possession must be to a visible or ascertainable boundary line. Usually such lines are marked by monuments of some sort and where the location of a boundary is marked by a monument at the inception or during the continuance of the period of adverse possession, but such monument is lost or destroyed, the location of such boundary or the monument marking the same must be susceptible of definite proof in any action in which the benefits of adverse possession are claimed. *494 Were such proof not required it would be impossible for the court to define with certainty the boundaries of the tract so claimed.
So far as the evidence discloses the old iron fence constructed about 1903 was the only definitely fixed visible monument marking the line to which plaintiffs claim. It is undisputed that this fence was removed more than thirty years before the filing of this suit and that no visible trace of the exact location of the fence remained after its removal. The plaintiffs therefore had the burden of proving by clear and convincing evidence the exact location of the boundary line to which they claimed. This they have failed to do. The testimony, even of plaintiffs' own witnesses, as to the exact location of the old fence or the boundary to which they and their predecessors in title claimed, is so vague and indefinite as to make it impossible for the court to ascertain the location of the line with reasonable certainty. Leonard J. Schwartz, one of the plaintiffs, testified that he lived across the street from the tract in question from 1907 to 1921 and that he remembers the iron fence. He fixes the location of the fence with reference to the concrete sidewalk which runs along the south side of the Schwartz house and his testimony is that it was "some two or three or four feet south of the concrete sidewalk." He further testified that it stood on the south line of the disputed tract, which is also the north line of defendants' driveway. From the plat made by plaintiffs' own surveyor and admitted in evidence as plaintiffs' exhibit it is apparent that the north line of defendants' driveway is from six to nine feet south of the concrete sidewalk. It is undisputed that the defendants' driveway was not constructed until after 1945 and at least twenty-five years after all visible trace of the fence was gone.
Etta C. Buck, a witness for plaintiffs, testified that she owned the Schwartz property from 1919 to 1921. She could not locate the old fence with reference to the Piper *495 driveway, but stated it was about three feet south of the concrete sidewalk running along the south side of the Schwartz residence, while the plat shows that the south line of the disputed tract is at least six feet south of the sidewalk at its nearest point.
Venita Baker Peters testified for plaintiffs that she is a niece of Etta C. Buck and frequently visited her aunt when she lived in the Schwartz house. She fixes the location of the fence by an old shed which was moved many years ago and as to the location of which no visible trace remains. Her testimony is that the fence connected to the southwest corner of the old shed and that the old shed was "quite a ways" past the walk to the south.
Wilma Shepard testified for plaintiffs that she is a sister of Leonard Schwartz; that she remembered the iron fence and placed it with reference to the sidewalk. Her testimony was that she could not say exactly but judged it to be four or five feet south of the walk.
On behalf of the defendants, Fred M. Zurkuhlen testified that his father was the common owner of the tracts involved; that he lived with his father in the Schwartz house until it was sold in 1902 and that thereafter his father built the residence on the Piper tract and he lived there for a number of years. He sold the Piper tract to Etta Worden about 1921. After his father sold the Schwartz tract to John Zimmerscheid they had the line between the two tracts surveyed and about 1903 built the iron fence on the line established by the surveyor. He further testified that the old iron fence stood along the sidewalk along the south side of the Schwartz house and "barely nipped" the sidewalk at its closest point and that the new fence constructed by the Pipers is on the same line occupied by the old fence.
The same witnesses also attempted to fix the location of the old fence by reference to the tree located on the disputed tract near the front, but their testimony in that *496 respect is equally uncertain, vague, indefinite and conflicting. The tract in dispute is city property only three feet wide at the narrow end. Under these circumstances a variation in the location of the line, even if only a foot or two, is of grave importance. It is essential that the line to which adverse possession is claimed be ascertainable and that the evidence should establish its location with reasonable certainty. The evidence as to the exact location of the old iron fence, which admittedly was the only visible monument or marking establishing the line and which was removed more than thirty years ago, is so vague and indefinite that we must hold that the plaintiffs have failed to establish an ascertainable boundary line by any clear and convincing evidence.
We are not unmindful of the rule relied on by plaintiffs that this court will not reverse the chancellor where the testimony is heard in open court and is conflicting unless his finding is clearly against the weight of the evidence. We have carefully examined all of the evidence and we find that plaintiffs have failed to establish an ascertainable line to which they claimed by adverse possession. They claim to the north line of defendants' driveway which by their own plat appears to range from six feet at the nearest point to nine feet at the farthest point south of plaintiffs' sidewalk. Schwartz's testimony concerning the location of the iron fence with reference to the sidewalk is that it was "two or three or four feet" south of the sidewalk. Defendants' witness on the other hand testified that it "nipped" the sidewalk which would place it on the north line of the disputed tract. Under these circumstances such evidence is too vague, indefinite and conflicting to establish an ascertainable boundary.
The decree of the circuit court of Madison County is reversed and the injunction is dissolved.
Decree reversed.


852 P.2d 328 (1993)
Thomas J. RAUH, Appellant (Plaintiff),
v.
E.W. KORNKVEN, Appellee (Defendant).
No. 92-278.
Supreme Court of Wyoming.
May 19, 1993.
*329 James R. McCarty, Casper, for appellant.
Keith P. Tyler, Casper, for appellee.
Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.
CARDINE, Justice.
Appellant Thomas Rauh (Rauh) brought suit against real estate salesperson, E.W. Kornkven (Kornkven), alleging fraud and negligent misrepresentation in the purchase of a small ranch near Lovell, Wyoming. After a bench trial, judgment was entered in favor of Kornkven on all counts. Rauh appeals from that judgment.
We affirm.
Rauh raises two issues:
1. Whether the court erred in making the factual finding that the plaintiff failed to prove that the statement of Kornkven that there was a 160 acre BLM lease included in the Jacobs Ranch was false.
2. Whether the court erred in refusing to grant relief to the appellant on his theory of negligence.
During June 1990, Kornkven and his real estate office listed the ranch of owners Mr. and Mrs. Jacobs for sale. Sometime before September 17, 1990, Rauh inquired of Kornkven concerning this ranch. The listing described the ranch as "300 + or - Acres, with 160 BLM acres included as part of this unit."
From the testimony at trial, it appears that, after the initial contact about the ranch, Rauh, Kornkven, and Rauh's cousin, Bruce Morris (Morris), discussed, visited and investigated this ranch property on several occasions. The testimony concerning these discussions is in dispute. Rauh maintains that Kornkven represented, at all times, that the ranch consisted of 320 deeded acres. Both Kornkven and Rauh's cousin Morris claim that they all knew the ranch included only 136 acres of fee land.
Kornkven also testified that at one of these meetings he provided Rauh with documents containing assessor's information which included a tax roll showing the total acreage to be 136. Rauh maintains that Kornkven never gave him these written documents.
On September 17, 1990, Rauh offered to purchase the ranch for a total of $50,-000.00: $15,000.00 down at closing and $35,000.00 over ten years on a contract for deed with 10 percent interest. Rauh expected to receive monies from a separate business deal and use those funds for his down payment. The business deal, however, was not completed, and Rauh borrowed the down payment from a friend, James Laird (Laird). With the borrowed down payment, Rauh closed on the ranch on October 22, 1990. Kornkven did not attend the closing.
One year after purchasing the ranch, Rauh failed to make the initial payment on *330 the contract for deed, and the Jacobs terminated the contract. Around that same period, Rauh filed this action against Kornkven seeking damages for fraud and negligence.

DISCUSSION
In his complaint, Rauh raises two claims: the first is based upon fraud, and the second is based upon negligence. The complaint alleged that Kornkven misrepresented the deeded acreage of the ranch. In his action for fraud, Rauh claims that he relied on Kornkven's misrepresentation, which Kornkven knew or should have known was false, to his detriment. In his claim for negligence, Rauh asserts that Kornkven breached his duty as a real estate salesperson by misrepresenting the deeded acreage or by failing to discover the true acreage.
Rauh's first argument is that the district court erred in finding that he failed to prove any misrepresentation. In essence, Rauh's argument is one challenging the sufficiency of the evidence. Our standard when reviewing the sufficiency of the evidence requires us to accept all the successful party's evidence as true and give that evidence all reasonable and favorable inferences. Ellison v. Walter ex rel. Walter, 834 P.2d 680, 682 (Wyo.1992).
Upon careful review of the trial transcript, we find that there existed sufficient evidence to support the district court's finding that Kornkven did not misrepresent the deeded acreage. Both Kornkven and Rauh's cousin, Morris, testified that they and Rauh understood, before Rauh agreed to purchase, that the ranch did not contain 320 acres of deeded land. In addition, Kornkven testified that he provided Rauh with documents which explained the accurate deeded acreage, and Kornkven presented those documents as an exhibit at trial.
Rauh's second argument claims that the district court erred in denying him relief on his claim of negligence. Again this is a sufficiency of the evidence challenge.
The duty of care owed by real estate brokers and salespersons to a nonclient buyer is: (1) to not perpetuate a material representation of the seller which the broker/salesperson knows or should know is false, and (2) to take reasonable steps to avoid giving the buyer false information. Hagar v. Mobley, 638 P.2d 127, 137-38 (Wyo.1981).
The trial evidence and testimony presented provides ample support for the trial court's denial of Rauh's negligence claim. Having found that Kornkven made no misrepresentations to Rauh, and Kornkven having testified that he gave Rauh documents explaining the actual fee acreage being purchased, it was reasonable for the district court to conclude that no duty was breached and no action in negligence existed.
Affirmed.


379 P.2d 824 (1963)
In the Matter of the ESTATE of Lawrence Godfrey JOHNSON, Deceased.
Carl A. JOHNSON, Appellant (Petitioner below),
v.
George P. SAWYER, Administrator with Will Annexed of the Estate of Lawrence Godfrey Johnson, Deceased, Appellee.
No. 3115
Supreme Court of Wyoming.
March 22, 1963.
Carl A. Johnson, appellant, pro se.
George P. Sawyer, Torrington, for appellee.
Before PARKER, C.J., and HARNSBERGER, GRAY, and McINTYRE, JJ.
PER CURIAM.
Lawrence Godfrey Johnson, a resident of Goshen County, died testate February 4, 1961. Testator's primary designee as executor having predeceased him, the named alternate, Halcomb, was appointed and qualified in April 1961. Thereafter he proceeded with the probate, publishing notice to creditors, arranging inventory and appraisement, and making sale of certain realty. On July 21 he died, and thereafter his attorney, Sawyer, petitioned for and was granted letters of administration with will annexed and continued the probate, publishing notice of final settlement on November 9, providing that the same would be made on December 11. On December 9, Carl A. Johnson, half brother of Lawrence Godfrey Johnson, filed a "Petition for Revocation and Prayer for the Issuance of New Letters of Administration with the Will Annexed" and "Objections to Final Settlement and Distribution." The probate court denied the petition for revocation and petitioner has appealed. Simultaneously with the denial the court entered a decree of distribution and determination of heirship so that the estate could now be closed.
Appellant takes the position that being a half brother of the deceased he is entitled to administer under the provisions of § 2-93, W.S. 1957, and that in accordance with §§ 2-107 and 2-206 to 2-208, W.S. 1957, when letters of administration have been granted to persons other than one of those named in § 2-206, on a petition of one of them, the outstanding letters must be revoked and the party entitled to probate must be appointed in his stead. He refers to the will which provided, among other things:
"1. I hereby recognize that I have a step-mother, three half-brothers and *825 one half-sister, but it is my express intention not to provide any substantial benefits for said step-mother, half-brothers and half-sisters by this my last will and testament.
"2. I hereby give and bequeath to my step-mother, half-brothers Carl A. Johnson, Elmer Johnson and Ed Johnson, Cheyenne, Wyoming and to my half-sister, Edna Johnson, * * * each the sum of $1.00."
He recognizes this court's statement, interpreting the predecessor of § 2-93, in In re Coolidge's Estate, 47 Wyo. 488, 41 P.2d 503, that the relatives of decedent are entitled to administer only when they are entitled to succeed to some portion of decedent's property, but he argues that the one dollar which he received under the will was an inheritance rather than a disinheritance and entitled him to the full benefit of the mentioned statutes.
It is elementary and even axiomatic that a bequest of a nominal sum, often a dollar but sometimes more, to a child or descendant of a testator is for all practical purposes equivalent to complete disinheritance, and is treated by the courts as such. In re Talmage's Estate, 114 Cal. App.2d 18, 249 P.2d 345; In re Frinchaboy's Estate, 108 Cal. App.2d 235, 238 P.2d 592; Jourden v. Meier, 31 Mo. 40; Achelis v. Musgrove, 212 Ala. 47, 101 So. 670; 57 Am.Jur. Wills § 582; 95 C.J.S. Wills § 616, p. 843; 69 C.J. 100, n. 23 [c] (2); Annotation, 152 A.L.R. 723, 725.
There is no merit in appellant's contentions. Additionally, the petition for revocation here came at a time when the probate was substantially completed, and it is essential that for a petition of revocation to be favorably considered it must have been made within a reasonable time. Succession of Perot, 223 La. 412, 65 So.2d 895; 33 C.J.S. Executors and Administrators § 85c; and see In re Gori's Will, 129 Misc. 541, 222 N.Y.S. 250.
The order of the probate court is affirmed.