128 F.Supp. 590 (1955)
John A. PORTER, a minor, by his Guardian Ad Litem, Mrs. Alvarene Jones, Plaintiff,
v.
UNITED STATES of America, Defendant.
Cecil W. PORTER, Plaintiff,
v.
UNITED STATES of America, Defendant.
Civ. Nos. 4341, 4352.
United States District Court, E. D. South Carolina, Columbia Division.
February 4, 1955.
*591 John Grimball and C. T. Graydon, Columbia, S. C., for plaintiffs.
N. Welch Morrisette, Jr., U. S. Atty., and Irvine F. Belser, Jr., Asst. U. S. Atty., Columbia, S. C., for defendant.
WILKIN, District Judge.
These two cases were combined for trial because they arose out of the same circumstances. The jurisdiction of this Court arises from the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq. The plaintiff, John Porter, a minor about twelve years old, seeks damages for an injury which he received to his left hand from an explosion of a military trip-flare fuse. The plaintiff, Cecil Porter, father of John Porter, seeks damages for the loss which he suffered from the injury to his son. The complaints allege that the injuries, which the boy suffered, were caused by the negligence and carelessness of the agents and servants of the defendant. The essential facts of the case were not in dispute. The question presented to the Court is whether in view of the facts the defendant is legally liable for the damage which the plaintiffs suffered.
At the time of the accident, the plaintiffs lived near Fort Jackson. They still *592 live at the same place, and Cecil Porter is a Sergeant in the United States Army and stationed at Fort Jackson. The house in which the plaintiffs live is located in an area that was formerly used as a military camp, but which about seven years ago was turned back to civilian owners. Although the house which the plaintiff, Cecil Porter, rents is several hundred yards from the nearest house, there is a substantial civilian settlement and a trailer camp quite near. Many of the houses in the area adjoining the camp are occupied by families of army personnel.
Since the area adjoining Fort Jackson is not under military control or control of the Federal government, and is no part of any municipality, no system of garbage disposal was afforded the residents. A very general but bad practice grew up of disposing of household trash and garbage by dropping it along the roads and in the open country beyond the plaintiff's house. Some of the empty cans found in the area were the same as cans used by the army for military rations. Several hundred yards beyond the plaintiff's home, the plaintiff found certain military ordnance items, such as empty cartridge boxes, some boxes or cans containing explosive cartridges, fuses, cartridge belts, and other equipment for machine guns.
Across the road from where this ordnance material was found, the fuse was picked up which caused the injury to the plaintiff's hand. It was carried to the home of the plaintiffs, and the boy was allowed to play with it in the presence of his mother and grandfather. When he pulled a little ring on the fuse, it exploded. He was burned in the face and on the leg, and the thumb and the index finger of his left hand were blown away, together with the tip of the next finger. The evidence revealed that the boy had a supply of army ordnance material in a drawer in his home. The boy's father testified that he had given his son warning in regard to military explosives and had told him that "he shouldn't pick up any of the stuff that he sees," and "told him that it was dangerous."
The boy's father and mother testified that they had seen military trucks carry "trash and stuff," pass their home and dump it in the area where other refuse had been deposited. On cross-examination, the plaintiff, Cecil Porter, was asked, "Did you ever see any trucks dumping explosives yourself?" And he answered, "No, sir, I never seen them dumping any explosives." There was no direct testimony to indicate how the ordnance material or the fuse, which caused the injury, reached the place where they were found.
The injury to the boy's hand occurred in June and, in the month of March prior, the plaintiff, Cecil Porter, had reported to military authorities at Fort Jackson that military material had been found near his home. An officer, familiar with ordnance material, made an investigation and himself found some gun powder and a live flare. He burned the gun powder and discharged the flare. His investigation, however, did not disclose where the material had come from.
The evidence tended to prove that the minor plaintiff was injured through the explosion of a flare fuse, found on privately owned land a mile or so from Fort Jackson, and that occasionally military trucks had been seen dumping trash and refuse in the area where the fuse had been found, and where extensive dumping of garbage and other refuse and trash was being indulged in by civilians living in the neighborhood. The plaintiffs argue that a very high degree of care is imposed upon the defendant because of the dangerous character of munitions of war. They argue that because the fuse was originally army equipment, it could not have been deposited where the plaintiff found it, except through some neglect or default of some agent or servant of the defendant, and that, because army trucks had been seen dumping trash, the men in charge of the *593 trucks were acting within the scope of their employment.
Counsel for the government on the other hand argue that there is no evidence that the fuse was placed at the roadside by an employee or agent of the defendant, and that there is no evidence that the men in charge of the government trucks were acting within the scope of their employment. They contend that the uncontroverted testimony of army officers reveals that if any army trucks carried trash to the area where the fuse was found, the men in charge of the trucks were acting without authority from the defendant and contrary to army regulations.
The Federal Tort Claims Act, upon which the plaintiffs base their cause of action, provides that the government can be sued only for injuries "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."
Since the decision by the Supreme Court in the case of Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 972, 97 L.Ed. 1427, there can be no assumption that the government is liable under the Federal Tort Claims Act merely because it may be the owner of an "`inherently dangerous commodity' or property," or engaged "in an `extra hazardous' activity."
The decision of the Fifth Circuit Court of Appeals in United States v. Inmon, 205 F.2d 681, applied the ruling in the Dalehite case to cases of injury resulting from military munitions found on lands used by the army for training purposes.
The law of South Carolina provides that before a master is responsible for the torts of his servant, the servant must not only be acting in the course of his employment, or within the scope of his authority, but must be actually engaged in his employer's business at the time of the injury. Such being the law of this state, it was absolutely necessary for the plaintiffs to prove that the fuse, which caused the injury, was deposited by the roadside by agents or servants of the defendant, actually engaged at the time in the work of the defendant.
These cases now before this Court are controlled absolutely by the principles announced in the case of Rolon v. United States, D.C., 119 F.Supp. 432, and the statements made by the Court, at page 434, apply specifically to the cases presented here.
Cases cited by counsel for the plaintiffs can be distinguished from the cases on which this decision is based. The decision in the case of Stewart v. United States, 7 Cir., 186 F.2d 627, was based upon the defendant's failure to comply with an Illinois Statute, S.H.A. ch. 93, § 143 et seq., which has no application here. And in the case of Beasley v. United States, D.C., 81 F.Supp. 518, a senior military officer saw the boys who were injured tampering with the shell, which exploded and caused their injuries. The officer had made no attempt to stop the dangerous activity of the boys.
Not only is this Court without authority to presume negligence on the part of the defendant but, if presumptions were to be indulged, the greater part of the evidence in the case would support the presumption that the explosive object was thrown at the roadside by "brass pickers," or other persons who acquired the dangerous object contrary to law and in violation of army regulations. The evidence fails completely to show not only actionable negligence on the part of government agents, but fails to show any plausible reason for the dumping of such military material at the place where it was found.
As a further defense against the claims of the plaintiffs, the defendant *594 alleges that the plaintiffs were guilty of contributory negligence. Whether the plaintiff, John Porter, can be held accountable for contributory negligence depends not so much on his age as on his capacity, discretion, knowledge, and experience. Hollman v. Atlantic Coast Line R. Co., 201 S.C. 308, 22 S.E.2d 892; Chitwood v. Chitwood, 159 S.C. 109, 156 S.E. 179. John Porter was eleven and one-half years old at the time of the accident. He had had experience with military equipment. He was a boy of unusual capacity and knowledge. Furthermore, he had been cautioned by his parents and warned to avoid any contact with army munitions. John violated instructions and took a chance with an object which he had been warned against and which, from past experience, he should have known might be dangerous. His conduct constitutes contributory negligence and, under the law, defeats his right of recovery if otherwise he had a right of recovery.
The plaintiff, Cecil Porter, is also guilty of contributory negligence because he did not follow up and enforce his instructions to his son. He allowed the son to accumulate in the home a cache of military objects. The amount of military material found in the home after the accident would indicate a negligent attitude on the part of the boy's parents, which contributed to the boy's injury. Because John was a good boy, his parents allowed him too much liberty with army material and, under the law, their indulgence precludes recovery for the deplorable and regrettable accident.
The government is not an insurer of the safety of its citizens. It has consented to be sued for the negligence of its employees and agents, but it can be held liable only upon proof of negligence when the injured party has not proximately contributed to his own injury.
Judgment will be entered for the defendant.


305 S.W.2d 883 (1957)
Mary G----, Petitioner,
v.
Don SOUDER, Sheriff of Douglas County, Missouri, Respondent.
No. 7678.
Springfield Court of Appeals. Missouri.
October 23, 1957.
*884 James E. Curry, Ava, for petitioner.
John M. Bragg, Ava, for respondent.
STONE, Judge.
The petitioner in this original proceeding in habeas corpus (to whom we refer as Mary that her three minor children may not be identified with this recordation of their mother's sordid conduct) is held by the Sheriff of Douglas County, Missouri, under a "capias execution" which states that Mary "was convicted of the offense of contempt of court and her punishment was assessed at a term of thirty days in the county jail." Mary's conviction was upon a verified information filed by the Prosecuting Attorney of Douglas County under Section 211.400,[1] in a separate case styled State of Missouri vs. Mary G____ (hereinafter referred to as the contempt proceeding). After reciting that on the 5th day of April, 1957, in the Juvenile Division of the Circuit Court of Douglas County, Mary's three minor children "were adjudged to be neglected children and in need of the protection of said Juvenile Court" and that "it was ordered and adjudged that Mary G____ not permit Lee R____to come into her home," the information charged that Mary "negligently disobeyed said orders and judgments so made on April 5th, 1957, by permitting the said Lee R____to come into her home where said named children reside contrary to the orders and judgments of the court and *885 against the peace and dignity of the State." Following trial, the court entered a "judgment of guilty of the charge of contributing to the neglect of children who are wards of the Juvenile Court of Douglas County, Missouri," and assessed punishment at imprisonment in the county jail for thirty days. After an unsuccessful motion for new trial, defendant was sentenced and the court ordered "defendant committed."
The order of court, which the information in the contempt proceeding charged that Mary "negligently disobeyed," had been entered on April 5, 1957, in a statutory neglect proceeding under Chapter 211, in which the court had adjudged that Mary's three minor children were "neglected children" within the meaning of Section 211.310, "by reason of being permitted by the mother to live in the home with a disreputable person, Lee R____, and are suffering from the depravity of the mother in permitting this person to be in the home." The order in the neglect proceeding then stated that "(a)ll of said children are found to be in need of the care and protection of the State of Missouri and are hereby made wards of the Juvenile Division of the Circuit Court of Douglas County, Missouri, * * * and committed to the custody of the mother, Mary G____, until further order of this court upon the specific condition that Lee R____, the person who has been living in the home, no longer is permitted to live there or visit there and so long as said mother conducts herself as a moral, decent citizen."
Mary's first contention is that she could not have been guilty of the charge leveled against her in the information in the contempt proceeding (i. e., that she "negligently disobeyed" the order in the neglect proceeding "by permitting the said Lee R____ to come into her home") for the simple but sufficient reason that she had not been ordered to exclude Lee from her home (and, for that matter, had not been ordered either to do, or to refrain from doing, any act) but that the order in the neglect proceeding (insofar as it pertained to Lee) simply granted custody of her three minor children to Mary "upon the specific condition" that Lee be not permitted to live or visit in Mary's home. We are constrained to agree. The term "order," as used in Section 211.400, necessarily carries the inherent connotation of a mandate, command or direction authoritatively given.[2] According ordinary meaning to the plain language of the order in the neglect proceeding, we find no mandate, command or direction that Lee should not reside or visit in Mary's home, but rather the statement of a "specific condition," whose breach afforded a valid basis for taking her three children from Mary's custody but not for a contempt charge that she "negligently disobeyed" the order.[3] A contrary conclusion would impinge on the settled principle that, to support a charge of contempt for disobedience thereof, an order will not be expanded by implication in the contempt proceeding but must be so specific and definite as to leave no reasonable basis for doubt as to its meaning.[4]
But, we need not rest our disposition of the instant case solely upon construction of the order in the neglect proceeding, for there are yet other and more compelling *886 considerations which necessitate Mary's discharge under our writ of habeas corpus. The contempt with which Mary was charged was indirect criminal contemptindirect (or constructive) in that it arose out of matters which occurred outside the presence of the court but which tended to belittle, degrade, obstruct, interrupt, prevent or embarrass the administration of justice, and criminal in that the alleged acts were directed against the majesty of the law and against the dignity and authority of the court as an agency of government, so that the state and the people became interested in prosecution and the primary purpose of punishment was the vindication of public authority.[5] The inherent power of constitutional courts to punish for all contempts (whether direct or indirect, and whether criminal or civil) has been recognized and exercised since the dawn of judicial antiquity.[6] However, as exemplified by Section 476.130 which is declaratory of the common law, there is a basic and vital difference in the procedure to be followed with respect to direct and indirect contempts, in that a court may act ex mero motu and may punish and commit summarily an offender guilty of direct contempt, while one accused of indirect (or constructive) contempt is entitled to reasonable notice and a hearing.[7]
This requirement of reasonable notice in a case involving an alleged indirect contempt is not satisfied by a showing that the accused was present in court at the time of trial and adjudication and "had actual notice then and there of what was going on" [Ex parte Clark, 208 Mo. 121, 149, 106 S.W. 990, 998(12), 15 L.R.A., N.S., 389] but rather contemplates and necessitates a written notice fairly and fully informing the accused of the specific acts of contempt with which he is charged,[8] and so given as to afford "a reasonable time to make his (or her) defense." Section 476.130. Any notice short of that would make a hollow mockery of the fundamental and abiding truth that reasonable notice to one whose civil rights or personal liberty may be affected is a veritable cornerstone of our judicial system,[9] would constitute nothing more than an exquisite exercise in frustrating futility, sometimes misleading and always meaningless, and would be but sounding brass and tinkling cymbal, a notice in form but not in substance.
The judgment in the case at bar recites that Mary was found "guilty of contributing to the neglect of children * * * as charged in the information," but the information shows that Mary actually was charged with negligent disobedience of the court order entered in the neglect proceeding on April 5, 1957. That a charge of contributing to the neglect of a child and a charge of negligently disobeying a lawful order of court with relation to a child are *887 not one and the same, and may not be so treated, is apparent from the language of Section 211.400 hereinbefore quoted marginally. See also Section 211.540. Curtly stated, Mary was accused of one thing but convicted of another. Although contempt proceedings are sui generis and technical accuracy therein is not required,[10] such proceedings are criminal in nature,[11] the judgment and commitment must be construed strictly in favor of the accused, and no presumption or intendment may be indulged in aid thereof.[12] In the light of these principles, it is clear that the judgment under consideration was not responsive to the information filed in the contempt proceeding, and that the adjudication of Mary's guilt, on a charge of which she had no legal notice, was void.
Furthermore, in a contempt case the facts and circumstances constituting the offense, and not simply the legal conclusions of the court, should be recited in the judgment[13] and likewise in the commitment.[14] In sweeping generalities, Mary was adjudicated "guilty of contributing to the neglect of children who are wards of the Juvenile Court of Douglas County" and was committed under a "capias execution" reciting only that she "was convicted of the offense of contempt of court." Under the authorities cited, both the judgment and the commitment were insufficient for failure to set forth the facts and circumstances constituting the alleged contempt.
The interest of the state, as parens patriae, in Mary's neglected children found appropriate expression in the neglect proceeding. But judges, "likened unto priests attending between the horns of the altar in the Temple of Justice," must not permit their concern for the welfare of neglected children (proper and necessary as such concern is) to result in disregard or neglect of their solemn charge to keep "the lamp of personal liberty in oil, well trimmed and brightly burning," for "the liberty of the citizen is an immediate jewel of the law to be sacredly cherished and hedged about withal." Ex parte Clark, supra, 208 Mo. loc. cit. 143, 106 S.W. loc. cit. 996; Ex parte Creasy, 243 Mo. 679, 698, 148 S.W. 914, 920. Whatever may have been the depth, degree or duration of Mary's moral degeneracy or degradation, her constitutional rights and guaranties must be safeguarded and preserved with the same watchful zeal which protects the innocent and virtuous. Ex parte Fuller, 330 Mo. 371, 379, 50 S.W.2d 654, 657.
With the facts of Mary's detention laid bare by our writ of habeas corpus, it is plain that she should be discharged from custody. It is so ordered.
McDOWELL, P. J., and RUARK, J., concur.
NOTES
[1]  "After any child shall have come under the care or control of the juvenile court as herein provided, any person who shall thereafter knowingly or negligently contribute to the delinquency or neglect of such child, or shall knowingly or negligently disobey, violate or interfere with any lawful order of said court with relation to said child, shall be guilty of contempt of court, shall be proceeded against as now provided by law and punished by imprisonment in the county jail for a term not exceeding six months or by a fine not exceeding five hundred dollars or by both such fine and imprisonment." See also Section 211.540. All statutory references herein are to RSMo 1949, V.A.M.S.
[2]  See definitions of "order" in Black's Law Dictionary (4th Ed.), p. 1247; Carolina Aluminum Co. v. Federal Power Commission, 4 Cir., 97 F.2d 435, 436; Brady v. Interstate Commerce Commission, D.C. W.Va., 43 F.2d 847, 850; Webster's New International Dictionary (2nd Ed.), par. 22, loc. cit. 1716.
[3]  Compare Ex parte Le Mond, 295 Mo. 586, 593-594, 245 S.W. 1057, 1058-1059 (1); Pogue v. Smallen, 241 Mo.App. 707, 712-713, 238 S.W.2d 20, 22(3, 4).
[4]  Middleton v. Tozer, Mo.App., 259 S.W.2d 80, 88; Kelly v. City of Cape Girardeau, 230 Mo.App. 137, 89 S.W.2d 693, 696(6, 7); Oliver v. Orrick, 220 Mo.App. 614, 288 S.W. 966, 969(6); 17 C.J.S. Contempt § 12, loc. cit. 16. See, also, Terminal Railroad Ass'n v. United States, 266 U.S. 17, 29, 45 S.Ct. 5, 8, 69 L.Ed. 150, 155; Star Bedding Co. v. Englander Co., 8 Cir., 239 F.2d 537, 542, affirming D.C.Mo., 133 F.Supp. 704, 705(3).
[5]  For discussions of the classifications of contempts as direct or indirect (or constructive) and as criminal or civil, see State ex inf. Crow v. Shepherd, 177 Mo. 205, 228-229, 76 S.W. 79, 86(2-7); Ex parte Clark, 208 Mo. 121, 144-146, 106 S.W. 990, 996-997(4-7), 15 L.R.A.,N.S., 389; State v. Norman, Mo.App., 193 S.W. 2d 391, 392(2-4); 12 Am.Jur., Contempt, §§ 4-6, pp. 390-394.
[6]  Zeitinger v. Mitchell, Mo., 244 S.W.2d 91, 97(10); State ex inf. Crow v. Shepherd, supra, 177 Mo. loc. cit. 218-228, 76 S.W. loc. cit. 83-86(1); White v. Held, Mo. App., 269 S.W.2d 125, 128(3).
[7]  State ex inf. Crow v. Shepherd, supra, 177 Mo. loc. cit. 229, 76 S.W. loc. cit. 86(8); Ex parte Clark, supra, 208 Mo. loc. cit. 149, 106 S.W. loc. cit. 997(10); Ex parte Nelson, 251 Mo. 63, 105, 157 S.W. 794, 808; Osborne v. Purdome, Mo., 244 S.W.2d 1005, 1011(5), 29 A.L.R.2d 1141, certiorari denied 343 U.S. 953, 72 S.Ct. 1046, 96 L.Ed. 1354, rehearing denied 343 U.S. 988, 72 S.Ct. 1072, 96 L.Ed. 1375.
[8]  Sands v. Richardson, Mo.App., 252 S.W. 990, 992(1), 994(3); 12 Am.Jur., Contempt, § 68, p. 435; 17 C.J.S. Contempt § 72b(1), pp. 90-91. See, also, State ex rel. Smith v. Empie, 221 Mo.App. 721, 725, 285 S.W. 765, 767(1).
[9]  Compare Hoppe v. St. Louis Public Service Co., 361 Mo. 402, 406, 235 S.W. 2d 347, 350(7), 23 A.L.R.2d 846; In re Jackson's Will, Mo.App., 291 S.W.2d 214, 225(22, 23); State v. Pogue, Mo.App., 282 S.W.2d 582, 585.
[10]  Osborne v. Purdome, supra, 244 S.W. 2d loc. cit. 1012; Conley v. United States, 8 Cir., 59 F.2d 929, 935; 17 C.J.S. Contempt § 72a, p. 88.
[11]  Osborne v. Purdome, supra, 244 S.W. 2d loc. cit. 1011; State ex rel. Smith v. Empie, supra, 221 Mo.App. loc. cit. 727, 285 S.W. loc. cit. 768; Sands v. Richardson, supra, 252 S.W. loc. cit. 994; Ex parte Heffron, 179 Mo.App. 639, 651, 162 S.W. 652, 656; 12 Am.Jur., Contempt, § 67, p. 434.
[12]  Sands v. Richardson, supra, 252 S.W. loc. cit. 994; Ex parte Heffron, supra, 179 Mo.App. loc. cit. 651, 162 S.W. loc. cit. 656. See, also, Ex parte Stone, Mo., 183 S.W. 1058, 1059(3); Ex parte Shull, 221 Mo. 623, 628, 121 S.W. 10, 11(1).
[13]  Ex parte Fuller, 330 Mo. 371, 378, 50 S.W.2d 654, 657(3); Ex parte Stone, supra, 183 S.W. loc. cit. 1059(4); Ex parte Creasy, 243 Mo. 679, 704, 148 S.W. 914, 922; Ex parte Shull, supra, 221 Mo. loc. cit. 629, 121 S.W. loc. cit. 12.
[14]  Section 532.410(3); Reardon v. Frace, 344 Mo. 448, 126 S.W.2d 1167; Ex parte Stone, supra, 183 S.W. loc. cit. 1059; Ex parte Shull, supra, 221 Mo. loc. cit. 627, 121 S.W. loc. cit. 11; Ex parte Heffron, 179 Mo.App. loc. cit. 651, 162 S.W. loc. cit. 656. Consult also Osborne v. Purdome, supra, 244 S.W.2d loc. cit. 1011. And, see Sections 476.140 and 476.110(3); Novak v. Weismantel, Mo.App., 261 S.W. 2d 491, 493; White v. Hutton, Mo.App., 240 S.W.2d 193, 200(9).


151 F.3d 813
77 Fair Empl.Prac.Cas. (BNA) 1052,73 Empl. Prac. Dec. P 45,478Debra A. SMITH and Mark A. Thomas, Appellees,v.RICELAND FOODS, INC., Appellant.
No. 97-3891.
United States Court of Appeals,Eighth Circuit.
Submitted June 9, 1998.Decided Aug. 5, 1998.

1
Spencer Fox Robinson, Pine Bluff, AR, argued (David R. Bridgforth, on the brief), for appellant.

2
Mark T. Burnette, Little Rock, AR, argued, for appellees.

3
Before WOLLMAN and MURPHY, Circuit Judges, and KYLE, District Judge.1

4
KYLE, District Judge.

5
Riceland Foods, Inc.  ("Riceland") appeals following a jury verdict in favor of the Appellees, Debra Smith ("Smith") and Mark Thomas ("Thomas"), on their retaliation claims under Title VII of the Civil Rights Act of 1964.  Riceland argues that the district court erred in denying its motions for judgment as a matter of law and that it was prejudiced by comments that the district court made to the jury after it returned an inconsistent verdict and before the judge directed them to continue deliberating.  Riceland further appeals the district court's award of attorneys' fees to the Appellees.  We affirm in part and reverse in part.

I. Background

6
Riceland is an Arkansas corporation that processes raw agricultural commodities, such as soybean, into finished products.  It has a soybean processing division in Stuttgart, Arkansas.  During the relevant time period, Leo Gingras ("Gingras") was the manager of this division.

7
In 1981, Thomas, an African American, began working for Riceland as a bin and leg fitter in the Stuttgart soybean processing division.  At the time of his discharge in 1995, Thomas was employed as a meal loader.  In 1994, Riceland hired Smith, an African American, as an assistant plant operator in the Stuttgart soybean processing division.  Shortly after Smith began working for Riceland, she and Thomas became romantically involved, and the two lived together.  Management personnel at Riceland were aware of this relationship and knew that Smith and Thomas were contemplating marriage.

A. The Plant Operator Position

8
In September 1995, Thomas applied for a plant operator position.  Donnie McFerrin ("McFerrin"), who made the hiring decision, told Thomas that he could not select him for the position because company policy prohibited married people from working together, and Smith already worked in that department.  McFerrin stated that Gingras had informed him of this policy when he spoke with Gingras about the open position.  Smith also applied for the plant operator position.  McFerrin selected John McNally ("McNally"), a white employee, for the plant operator position, even though he had three months less seniority than Smith.

9
Smith believed that McFerrin's decision to hire McNally was motivated by discrimination on the basis of both gender and race, and as a result, she filed a charge of discrimination with the EEOC on October 12, 1995.  Although Thomas did not file a charge of discrimination, he assisted Smith in filing her charge.

B. The Case Center

10
In December 1994, Riceland opened the Case Center, a computer learning center for its employees.  Riceland required its employees to spend at least four hours per month working on educational computer programs in the Case Center, but it would pay employees up to twelve hours per month for such work.  Myra McNeil ("McNeil") was in charge of administering the Case Center.

11
Riceland paid its employees for the number of hours that they spent in the Case Center (hereinafter "door time"), rather than for the amount of time they actually spent working on the computer programs (hereinafter "lesson time").  Riceland kept track of the amount of door time by having employees scan their employee badges when they entered the Case Center.  Most employees had discrepancies between their door time and their lesson time because of the time it took them to log onto the computer and select a program.  Lesson time also did not account for time an employee spent talking with McNeil or taking bathroom or smoking breaks.

C. Investigation of Case Center Abuse

12
In late November 1995, employees informed McNeil that employees were entering the Case Center but not utilizing the computer lessons while they were there.  McNeil relayed this information to Gingras, who then directed her to conduct an investigation into the alleged abuse.

13
During the course of her investigation, McNeil compared the pay records and computer records of the employees who were using the Case Center.  McNeil acknowledged that many employees had discrepancies between their door time and lesson time.  If a discrepancy was large enough, McNeil would look at the employee's lesson time for the days the employee had been paid to see if she could verify whether the employee had spent any time on a computer lesson that day.  If the employee's lesson time indicated that he or she had spent some time working on a lesson for the days in question, McNeil would not report this employee to Gingras.  At least eight employees had time discrepancies larger than those of the Appellees, but they were not reported to Gingras.

14
On approximately December 7, 1995, McNeil reported to Gingras that Smith had been abusing the Case Center.  McNeil told Gingras that a comparison of the door time and the lesson time showed that Smith had been paid for 16.5 hours in the Case Center, but that she had only spent 8.5 hours working on lessons.  The records also showed that Smith had been paid for 4 hours of time spent in the Case Center on two days, but her lesson time revealed that Smith could have been working on lessons for only a few minutes on those days.  McNeil also claimed that she had received verbal statements from three employees implicating Smith in Case Center abuse.

15
Based on McNeil's report, Gingras decided to fire Smith.  Gingras testified that he decided to terminate her because Riceland had "multiple statements from employees" which indicated that Smith had abused the Case Center by clocking into the Case Center, logging onto the computers, and then leaving and coming back at a later time to log out.  On December 8, 1995, Gingras met with Smith and told her that she was being fired for falsifying company records.

16
The evidence at trial, however, revealed that only one of the employees implicating Smith actually gave a statement to McNeil before Smith was fired.  Garland Peterson ("Peterson") told McNeil that on November 28, 1995, Smith and Thomas were logged onto a computer when he arrived in the Case Center, and he was there for approximately 30 minutes before they returned to log out.2  The time records from November 28, 1995, indicated that neither Smith nor Thomas had abused the Case Center on that day.  Moreover, the records revealed that Peterson had been paid for over two hours of time spent in the Case Center on November 28, 1995, but he had no time registered on the computer for that day.  McNeil did not investigate Peterson's discrepancy, and Peterson was not reported to Gingras.  Finally, the testimony at trial established that another employee, Bobbie Fread ("Fread"), had been implicated in only one employee statement for being absent from the Case Center for approximately 20 minutes when she was logged onto a computer.  Because the records could not verify the employee's statement, Fread was only given a warning.

17
Thomas did not have any discrepancies between his door time and his lesson time.  Riceland had paid him for fewer hours than he had spent in the Case Center because he was still on the clock in the plant during some of this time.  Riceland allowed employees, with their supervisor's permission, to go to the Case Center and work on computer lessons when plant activity was slow.  On approximately December 18, 1995, McNeil reported Thomas to Gingras because he was allegedly implicated in the three statements that she had received regarding Smith.3  Gingras met with Thomas on December 19, 1995, and advised him that other employees had given written statements that he was abusing the Case Center, and that Riceland had decided to terminate him for falsifying company records.

18
Riceland disciplined three other employees for abusing the Case Center.  Gingras claimed that these employees were not fired because Riceland did not have employee statements implicating them in abusing the Case Center.

19
After their terminations, Smith and Thomas filed claims against Riceland.  Smith alleged that Riceland had denied her a promotion and subsequently terminated her because of her race and gender, in violation of Title VII and 42 U.S.C. § 1981.  She further alleged that Riceland discharged her in retaliation for filing a charge of discrimination with the EEOC, in violation of Title VII.  Thomas alleged that Riceland had denied him a promotion and terminated him because of his race and that it also discharged him in retaliation for assisting Smith with the filing of her discrimination charge, in violation of Title VII.

20
The case proceeded to a trial by jury in June 1997.  The district court denied motions for judgment as a matter of law.  The jury returned a verdict in favor of Riceland on Appellees' failure to promote and discriminatory discharge claims.  With respect to Appellees' retaliation claims, the jury returned a verdict in favor of Smith and Thomas, awarding Smith $20,750 in damages and Thomas $31,500 in damages.

21
II. Denial of Riceland's Motions for Judgment as a Matter of Law

22
Riceland claims that the district court erred in denying its motions for judgment as a matter of law on the Appellees' retaliation claims.  It contends that both Smith and Thomas failed to establish the third element of their prima facie cases of retaliation--a causal connection between their statutorily protected activity and their termination--and that both failed to produce evidence that Riceland's legitimate, nonretaliatory reasons for their discharges were pretextual.

23
This Court reviews a district court's denial of a motion for judgment as a matter of law de novo.  Coffman v. Tracker Marine, 141 F.3d 1241, 1245 (8th Cir.1998).  We must determine whether there was sufficient evidence to support a jury verdict.  Id. A jury's verdict must be affirmed "unless, viewing the evidence in the light most favorable to the prevailing party, we conclude that a reasonable jury could not have found for that party."  Cross v. Cleaver, 142 F.3d 1059, 1066 (8th Cir.1998).  If, however, reasonable persons could differ as to the conclusion to be drawn from the evidence, the motion must be denied.  Ryther v. KARE 11, 108 F.3d 832, 844 (8th Cir.)  (en banc), cert. denied, --- U.S. ----, 117 S.Ct. 2510, 138 L.Ed.2d 1013 (1997).

24
Title VII prohibits employers from retaliating against employees who file charges of discrimination or who assist others in opposing discrimination.  42 U.S.C. § 2000e-3(a).  The legal framework for analyzing retaliation claims under Title VII is the familiar three-stage, burden-shifting test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).  See, e.g., Stevens v. St. Louis Univ.  Med. Ctr., 97 F.3d 268, 270 (8th Cir.1996).

25
Under this analysis, a plaintiff must first establish a prima facie case of retaliation.  Coffman, 141 F.3d at 1245.   To do this, a plaintiff must show that:  (1) she engaged in statutorily protected activity;  (2) she suffered an adverse employment action;  and (3) there was a causal connection between the adverse employment action and the protected activity.  Stevens, 97 F.3d at 270.   A defendant must then rebut the plaintiff's prima facie case by presenting evidence of a legitimate, non-retaliatory reason for the action it took against the plaintiff.  Coffman, 141 F.3d at 1245.   If the defendant makes this showing, the plaintiff must then show that the defendant's proffered reason was a pretext and that illegal retaliation was a motivating reason for the defendant's decision.  Id. The fundamental issue is whether the Appellees produced sufficient evidence to allow a jury reasonably to find that Riceland intentionally retaliated against them because of their statutorily protected conduct.  See Ryther, 108 F.3d at 838.

A. Thomas

26
Riceland contends that Thomas failed to produce sufficient evidence to support the third element of his prima facie case--that there was a causal connection between his statutorily protected activity and his termination.  It argues that there was no evidence presented at trial upon which a reasonable jury could conclude that anyone at Riceland knew that Thomas had helped Smith file her charge of discrimination, and that without such knowledge, a causal connection between Thomas' assistance of Smith and his termination cannot exist.

27
In order to establish the third element of his prima facie case of retaliation, Thomas needed to present evidence that Riceland knew that he had engaged in statutorily protected activity.  See Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir.1995) (stating that a plaintiff must show that "the employer had actual or constructive knowledge of the protected conduct" in order to establish a prima facie case of retaliation);  Wolff v. Berkley, Inc., 938 F.2d 100, 103 (8th Cir.1991) (stating that a causal link between statutorily protected activity and an adverse employment action "does not exist if the employer is not aware of the employee's statutorily protected activity").  We find that, based upon the evidence at trial, no reasonable jury could have found that Riceland knew that Thomas had helped Smith in filing her charge of discrimination, and therefore, no reasonable jury could have found that a causal connection existed between Thomas' assistance of Smith and his termination.

28
Thomas acknowledges that there was no direct evidence at trial that anyone at Riceland knew that he had helped Smith file her charge of discrimination.  Despite this, he contends that because Riceland knew that he and Smith were living together and had treated them as a married couple in the past, and because Riceland knew that Smith had filed a charge of discrimination, the jury could reasonably have concluded that Riceland must have known that Thomas aided Smith in filing her charge.  We conclude that this evidence is insufficient to support a reasonable finding that Riceland knew that Thomas had engaged in statutorily protected activity.  Instead, the jury's verdict was based upon complete speculation, rather than any reasonable inferences created by the evidence, that Riceland knew that Thomas had helped Smith file her charge.  Riceland, therefore, was entitled to judgment as a matter of law on Thomas' retaliation claim.

29
In the alternative, Thomas argues that he is not required to show that he engaged in statutorily protected activity about which Riceland had knowledge in order to establish his prima facie case.  Instead, he asks this Court to expand the protection given by Title VII's anti-retaliation provision to prohibit employers from taking adverse action against employees whose spouses or significant others have engaged in statutorily protected activity against the employer.

30
Title VII prohibits employers from discriminating against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."  42 U.S.C. § 2000e-3(a).  This Court's decisions on retaliation claims have consistently held that, in order to establish a prima facie case of discrimination, the employee must have engaged in statutorily protected activity.  See, e.g., Smith v. St. Louis Univ., 109 F.3d 1261, 1265-66 (8th Cir.1997);  Stevens, 97 F.3d at 270.   We believe that the rule advocated by Thomas--that a plaintiff bringing a retaliation claim need not have personally engaged in statutorily protected activity if his or her spouse or significant other, who works for the same employer, has done so--is neither supported by the plain language of Title VII nor necessary to protect third parties, such as spouses or significant others, from retaliation.  See Holt v. JTM Indus., Inc., 89 F.3d 1224, 1226-27 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1821, 137 L.Ed.2d 1029 (1997).  Title VII already offers broad protection to such individuals by prohibiting employers from retaliating against employees for "assist[ing] or participat[ing] in any manner"in a proceeding under Title VII.  Accordingly, we hold that a plaintiff bringing a retaliation claim under Title VII must establish that she personally engaged in the protected conduct.

31
Because we conclude that the district court erred in denying Riceland's motion for judgment as a matter with respect to Thomas' retaliation claim, we reverse the decision of the district court on Thomas' retaliation claim.4

B. Smith

32
Riceland argues that Smith failed to establish the third element of her prima facie case--that there was a causal connection between the filing of her charge of discrimination and her termination.  Riceland contends that the timing between Smith's charge of discrimination and her discharge is insufficient, as a matter of law, to create an inference of a causal connection between the two.

33
We find that Riceland's position is not supported by Eighth Circuit precedent.  This Court has noted that a plaintiff can establish a causal connection between statutorily protected activity and an adverse employment action through circumstantial evidence, such as the timing between the two events.5  See Reich v. Hoy Shoe Co., Inc., 32 F.3d 361, 365 n. 4 (8th Cir.1994).   Moreover, this Court has found that periods of time between statutorily protected activity and adverse employment actions longer than the three-month period in the instant case were sufficient to create an inference of the requisite causal connection.  See, e.g., Smith, 109 F.3d at 1266.   Finally, we believe that Smith has presented evidence, in addition to the timing between the filing of her charge and her termination, that creates a causal connection between the two events.  She presented evidence that management at Riceland confronted her about filing her charge and that other employees who had not filed charges of discrimination were not investigated as closely or punished as severely as she was, even though they had been paid for time spent in the Case Center on days when they had no lesson time.  Based upon this evidence, we find that Smith has presented sufficient evidence upon which a jury could reasonably conclude that a causal connection existed between the filing of her charge of discrimination and her termination.

34
Riceland also argues that Smith failed to present evidence that its legitimate, non-retaliatory reason for her termination--that computer records and other employees demonstrated that she had abused the Case Center--was a pretext for illegal retaliation.  After having reviewed the record carefully, we find that Smith presented sufficient evidence to allow a reasonable jury to find that Riceland intentionally discriminated against her on the basis of having filed a charge of discrimination against Riceland.

35
In addition to the evidence establishing her prima facie case of retaliation, Smith presented evidence at trial showing that Riceland's explanation for her termination was a fabrication.  McNeil testified that, at the time she reported Smith to Gingras, three employees had given her oral statements implicating Smith for getting paid for time in the Case Center when she was not present.  In addition, Gingras testified that he decided to fire Smith because the company had numerous statements from other employees implicating her in Case Center abuse.  The evidence at trial, however, indicated that at the time of Smith's termination, McNeil had received only one such oral complaint implicating Smith.  Moreover, this complaint came from an individual who had been paid for time spent in the Case Center when he had no registered lesson time, but he was not investigated further.  Thus, the jury could have reasonably concluded that Gingras' stated reason for firing Smith was not true.  In addition, the testimony revealed that other employees who had not filed charges of discrimination but had been paid for time spent in the Case Center on days when they had no lesson time were not investigated as closely or punished as harshly as Smith and that their explanations for the discrepancies in their time were accepted by Riceland.  This evidence is sufficient to support the jury's verdict in favor of Smith on her retaliation claim.  We conclude, therefore, that the district court properly denied Riceland's motions for judgment as a matter of law.

III. Inconsistency in the Verdict Form

36
The verdict form submitted to the jury on Smith's retaliation claim required the jury to answer the following interrogatory if it found in favor of Smith:  "Has it been proved by the greater weight of the evidence that Defendant would have discharged Plaintiff regardless of her filing an EEOC charge of discrimination?"   The verdict form also instructed the jury that it should answer questions regarding Smith's damages only if it answered the previous question "no," and if it answered "yes," then it had completed its deliberations on Smith's retaliation claim.

37
When the jury originally returned its verdict, it indicated that it had found in favor of Smith on her retaliation claim.  The jury also answered "yes" to the question of whether Riceland would have fired Smith even if she had not filed an EEOC charge.  Despite the district court's instruction to the contrary, the jury answered the damages question, finding that Smith had lost wages and benefits equaling $20,750.

38
After publishing the jury's verdict, the district court discussed the jury's findings on Smith's retaliation claim with the attorneys.  The district court indicated that it believed that there was a conflict in the jury's verdict on the retaliation claim and that the jury had been confused by the court's instruction because it had awarded Smith damages, in contradiction to the instruction it had been given about when to answer the damages questions.  After hearing objections from counsel, the district court made the following statement to the jury:

39
There appears to be a conflict in the verdict.  Now, relative to on the retaliation claim of plaintiff Debra Smith as submitted in instruction number 12, we find in favor of Debra A. Smith plaintiff.  Then you move down and here is what the question is:  Has it been proved by the greater weight of the evidence that defendant would have discharged plaintiff regardless of her filing an EEOC charge of discrimination?   Now let me say this.  The question could have been drafted more clear.  The answer you put is yes.

40
Let me explain what the question is really saying.  What you did, you went ahead and found that she lost wages of $20,750, no compensatory damages.  The question is this:  if she had not filed the EEOC discrimination charge would she not have been discharged?   Would Riceland have not discharged her if she had not filed the EEOC claim?   But the way the question--the lawyers drafted this.  The Court went along with it.  It could have been clearer.  But there is a conflict, because in order to justify recovery, it should have been no.

41
...

42
What I'm going to do is return these forms to you and let you retire to the jury room and consider these two verdicts.

43
(Tr. 830-833.)  The jury deliberated for a brief period of time, and then returned a verdict that had one change from their previous verdict;  they answered "no" to the question of whether Riceland would have discharged Smith even if she had not filed a charge of discrimination.  Next to this question, the foreperson wrote the word "error."

44
Riceland argues that the district court abused its discretion in the manner that it instructed the jury about the discrepancy between its answer to the interrogatory regarding whether Riceland would have discharged Smith if she had not filed a charge of discrimination and its answering of the damages questions.  Riceland contends that the district court's comments caused the jury to believe that it was required to go back and change its answer to the interrogatory.

45
A district court has discretion to decide whether a jury's findings on a verdict form are incomplete, confusing, or inconsistent and whether to resubmit the claim to the jury.6  Williams v. KETV Television, Inc., 26 F.3d 1439, 1443 (8th Cir.1994);  Hauser v. Kubalak, 929 F.2d 1305, 1308 (8th Cir.1991).  "The district judge, who has observed the jury during the trial, prepared the special verdict questions and explained them to the jury, is in the best position to determine whether the answers reflect confusion or uncertainty."  Hauser, 929 F.2d at 1308.   If a district court decides to address a jury on an inconsistency in its findings, the court must not pressure or coerce the jury, either explicitly or subtly, to reach a certain result through its direction to the jury to reconsider its findings.  See Karl v. Burlington North R.R. Co., 880 F.2d 68, 73 (8th Cir.1989).

46
We find that the district court did not abuse its discretion by the manner in which it addressed the jury and instructed it on the inconsistency between its answer to the interrogatory and its award of damages on Smith's retaliation claim.  Riceland argues that the exchange that took place between the district court and the jury foreperson after the court read the second verdict on the retaliation claims demonstrates that the district court pressured the jury to change its verdict.7  We disagree.  A review of the record indicates that the jury foreperson initially made a mistake and did not answer the interrogatory in a manner consistent with how the jury intended to answer that question.  While the district court could have been more clear in its instructions to the jury on the inconsistency in its verdict, we do not believe that it pressured the jury, through its comments to the jury, to change its verdict in favor of Smith.8

47
We affirm the district court with respect to Smith's retaliation claim, reverse with respect to Thomas' retaliation claim, and remand the case to the district court for proceedings consistent with this opinion.

1
 The Honorable Richard H. Kyle, United States District Judge for the District of Minnesota, sitting by designation

2
 The evidence at trial revealed that another of the three employees who had allegedly given a statement implicating Smith and Thomas, Vernon Moore ("Moore"), did not give McNeil his statement until after both Smith and Thomas were terminated.  The third statement was allegedly given by James Collum ("Collum"), but neither party has directed the Court to any portion of the record indicating the substance of his statement or when he orally gave it to McNeil.  Collum did provide a written statement to McNeil on December 15, 1995, but this statement was not admitted into evidence

3
 At the time Thomas was fired, McNeil had received Peterson's verbal and Collum's written statement, both accusing Thomas of abusing the Case Center

4
 In its appeal, Riceland argues that the district court improperly excluded statements that Thomas had made at the meeting where Gingras informed him that he was fired.  Because we conclude that Riceland was entitled to judgment as a matter of law with respect to Thomas' retaliation claim, we need not address this issue

5
 In support of its contention, Riceland relies upon Nelson v. J.C. Penney Co., Inc., 75 F.3d 343 (8th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 61, --- L.Ed.2d ---- (1996), in which we held that, in light of all of the circumstances of the case, including the facts that the supervisors who made the decision to fire the plaintiff did not discuss his charge of discrimination before he was fired and that the plaintiff had been disciplined and warned about the status of his job before his employer became aware of his charge of discrimination, "we cannot agree with the trial court that the mere coincidence of timing established a submissible case of retaliatory discharge."  Id. at 346.   In making this determination, it is unclear whether the Nelson court was addressing the issue of whether the plaintiff had established his prima facie case of retaliation or the issue of whether he had submitted sufficient evidence to show that the defendant's proffered reason for his termination was a pretext for retaliation.  We believe that Nelson should not be read to stand for the proposition that timing alone is never sufficient to establish the third element of a prima facie case of retaliation

6
 Smith argues that Riceland did not object to the manner in which the district court instructed the jury about the inconsistency.  We reject this contention.  In its objections to the district court on this issue, Riceland stated:  "Just for purposes of the record, Your Honor, I think your oral statements to the jury before they went back out changed the verdict form."  (Tr. 841.)   This objection did raise the issue of the manner in which the district court addressed the jury, thus preserving the issue for appeal

7
 After the district court read the jury's second verdict on Smith's retaliation claim, the following exchange took place between the court and the jury foreperson:
The Court:  In order to make the record crystal clear the clerk did not read, on the left side of this question, has it been proved by the greater weight of the evidence that defendant would have discharged plaintiff regardless of her filing an EEOC charge of discrimination?   Presently no is checked.  Previously yes was checked and there's a notation "error."
...
Was there a misunderstanding of that term is the reason that was checked?
The Foreman:  I thought we had to--I thought we had them wrong.  The way we had them marked yes, so I thought we were supposed to go back--I asked everybody in there and they said mark no.  So I marked no.
The Court:  What I'm saying initially yes was checked and an error was made initially in checking yes.  Is that what you are saying?
The Foreman:  Yes, Your Honor.
...
The Court:  And as I understand it, initially you checked yes, but you had planned to check no, is that correct?
The Foreman:  Yes, Your Honor.
(Tr. 836-38.)  The district court then asked the jurors individually whether they had initially intended to answer no to the interrogatory question but had mistakenly checked yes, and they all indicated that the court accurately described what had occurred.  (Id. at 838-840.)

8
 Riceland has also argued on appeal the district court abused its discretion in the amount of attorneys' fees and costs it awarded Appellees.  In light of the fact that we have determined that Thomas is no longer a prevailing party because Riceland was entitled to judgment as a matter of law on his retaliation claim, we remand the issue of the appropriate amount of attorneys' fees to the district court


                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-15-00243-CR

ROBERT NEAL CARTER                                                    APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE

                                      ----------

      FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
                    TRIAL COURT NO. 1412807R

                                      ----------

                         MEMORANDUM OPINION 1

                                      ----------

      Appellant Robert Neal Carter attempts to appeal from his conviction and

180-day sentence for possession of less than a gram of methamphetamine. 2 On

the same day that the trial court sentenced appellant, it signed a certification of

his right to appeal. The certification stated that this is “a plea-bargain case, and

      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Health & Safety Code Ann. § 481.115(b) (West 2010).
[appellant] has NO right of appeal.” Appellant and his trial counsel signed the

certification. Nonetheless, appellant filed a notice of appeal.

      On August 25, 2015, we sent a letter to appellant, through his appointed

counsel, that informed him of the statement in the certification and that explained

that unless he filed a response showing grounds for continuing the appeal by

September 4, 2015, the appeal could be dismissed.             See Tex. R. App. P.

25.2(a)(2), (d), 44.3.    Appellant has not responded to our letter.        Thus, in

accordance with the trial court’s certification that appellant has no right to appeal,

we dismiss the appeal. See Tex. R. App. P. 25.2(d), 43.2(f); Chavez v. State,

183 S.W.3d 675, 680 (Tex. Crim. App. 2006).

                                                    PER CURIAM

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

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

DELIVERED: October 22, 2015

                                          2


                                         IN THE DISTRICT COURT OF APPEAL
                                         FIRST DISTRICT, STATE OF FLORIDA

CHRISTOPHER G. WALKER,                   NOT FINAL UNTIL TIME EXPIRES TO
                                         FILE MOTION FOR REHEARING AND
      Petitioner,                        DISPOSITION THEREOF IF FILED

v.                                       CASE NO. 1D13-5864

MICHAEL D. CREWS,
SECRETARY, FLORIDA
DEPARTMENT OF
CORRECTIONS,

     Respondent.
___________________________/

Opinion filed July 23, 2014.

Petition for Writ of Certiorari -- Original Jurisdiction.

Christopher G. Walker, pro se, Petitioner.

Jennifer Parker, General Counsel, and Barbara Debelius, Assistant General Counsel,
Florida Department of Corrections, Tallahassee, for Respondent.

PER CURIAM.

      The petition for writ of certiorari is denied on the merits.

ROBERTS, MARSTILLER, and SWANSON, JJ., CONCUR.


293 F.Supp.2d 252 (2003)
Jack R. SMITH, Plaintiff,
v.
Jo Anne B. BARNHART, Commissioner of Social Security, Defendant.
No. 02-CV-5678.
United States District Court, E.D. New York.
November 29, 2003.
*253 Jack R. Smith, Patchogue, NY, pro se.
Roslyn R. Mauskopf, United States Attorney, by: Assistant United States Attorney Charles P. Kelly, Central Islip, NY, for Defendant.

MEMORANDUM OF DECISION AND ORDER
SPATT, District Judge.
On October 25, 2002, Jack R. Smith ("Smith" or the "plaintiff"), proceeding pro se, filed this action seeking judicial review of the August 20, 2001 denial by the Bureau of Disability Insurance of the Social Security Administration ("SSA") of his claims for a period of disability, disability insurance benefits, and supplemental security income. Presently before the Court is a motion by Jo Anne B. Barnhart, the Commissioner of Social Security (the "Commissioner"), to dismiss the plaintiff's action based on a lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. ("Fed. R. Civ.P"). In particular, the Commissioner claims that the plaintiff failed to exhaust his administrative appeal remedies with respect to his claim for benefits. Therefore, says the Commissioner, he has not received a "final decision" of the Commissioner that is required to obtain judicial review under 42 U.S.C. §§ 405(g) and 1383(c)(3).

I. BACKGROUND
The facts are taken from the complaint unless otherwise noted. The plaintiff alleges that he became entitled to receive insurance benefits and/or Supplemental Security Income benefits by virtue of a July, 1997 accident in which he became "severely disabled [,] physically [and] mentally." Compl. ¶ 5. Thereafter, on February 7, 2001, the plaintiff filed applications for disability insurance benefits and supplemental security income. Aumont Aff. ¶ 3(a). These applications were denied on August 20, 2001. Id. The plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"). On August 13, 2002 a hearing was held. See id.; see also Comm's. Ex.1, p. 4.
However, on October 25, 2002, prior to the issuance of the ALJ's decision, the plaintiff commenced this action. Subsequent to the filing of this action, on November 25, 2002, the ALJ issued a partially favorable decision granting the plaintiff supplemental security income benefits. Aumont Aff., Ex. 1. Although the complaint states that the plaintiff requested a review by the Appeals Council which was denied on August 25, 2002, a review of the claim file and of the electronic case control system maintained by the Office of Appellate Operations does not show that the plaintiff had requested that the ALJ's November 25, 2002 decision be reviewed by the Appeals Council. Id. ¶ 3(b).
It is therefore clear that the plaintiff had not received a final decision from the Commissioner when he commenced this action. Presently before the Court is the Commissioner's motion to dismiss the plaintiff's complaint pursuant to Rule 12(b)(1) on the ground that the Court lacks subject matter jurisdiction over this action.

*254 II. DISCUSSION

A. The Rule 12(b)(1) Standard of Review
Rule 12(b)(1) provides for the dismissal of a claim where a federal court "lacks jurisdiction over the subject matter" of the action. In considering a Rule 12(b)(1) motion, a court must assume that all factual allegations in the complaint are true and must draw all reasonable inferences in the light most favorable to the plaintiff. See Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.1998); see also Atlantic Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir.1992). "However, argumentative inferences favorable to the party asserting jurisdiction should not be drawn." Atlantic Mut. Ins., 968 F.2d at 198 (citations omitted).
In support of its motion, the Commissioner submits an affidavit by Jean-Claude Aumont, Acting Chief, Court Case Preparation and Review Branch 1 of the Office of Appellate Operations, Office of Hearings and Appeals, Social Security Administration (the "Aumont Aff."). The Commissioner also submitted other exhibits which were not included in the complaint. The Court may consider this material because "[o]n a motion under [Rule] 12(b)(1) challenging the district court's subject matter jurisdiction, the court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings, such as affidavits." Antares Aircraft, L.P. v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir.1991), vacated for reconsideration on other grounds, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992), reaff'd on remand, 999 F.2d 33 (2d Cir.1993), cert. denied, 510 U.S. 1071, 114 S.Ct. 878, 127 L.Ed.2d 74 (1994); see also Alonso v. Saudi Arabian Airlines Corp., No. 98 Civ. 7781, 1999 WL 244102, at *1 (S.D.N.Y. April 23, 1999).

B. The Exhaustion Requirement
A district court's subject matter jurisdiction over the denial of Social Security disability benefits is limited. The Court has jurisdiction exclusively pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), which provides:
Any individual, after an final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow.
In addition, 42 U.S.C. § 405(h) provides:
(h) Finality of Commissioner's decision
The findings and decision of the [Commissioner] after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the [commissioner] shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the [Commissioner], or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter.
42 U.S.C. § 405(h) (emphasis added). Thus, unless the plaintiff complies with section 405(g), the Court will not have subject matter jurisdiction over this matter.
The term "final decision" as set forth in 42 U.S.C. § 405(g), is undefined in the Act. However, the Social Security regulations explicitly set forth the administrative remedies available to an aggrieved claimant. See 20 C.F.R. § 404.900(a). Under the Social Security Administration regulations, following the initial determination of his *255 claim, the plaintiff has the opportunity to seek a hearing before an ALJ, 20 C.F.R. §§ 404.933, 404.936, 404.955, and to have that determination reviewed by the Appeals Council. 20 C.F.R. § 404.968; see also Mathews v. Chater, 891 F.Supp. 186 at 188. The Appeals Council may either grant the request for review and issue its own decision or deny the request for review and allow the ALJ's decision to stand as the final decision of the Commissioner. See 20 C.F.R. § 404.981. After receiving the "final decision" of the Appeals Council, the claimant may then properly seek judicial review of this decision by filing an action in federal district court within sixty days after receiving notice of the Appeals Council's action. Id.; see also 42 U.S.C. § 405(g).
Thus, under the Act and the regulations a claimant may only seek judicial review from a district court if he completes the administrative appeals process and receives either (1) a decision by the Appeals Council or (2) a notice from the Appeals Council denying the claimant's request for review. Id. "It is well settled that under 42 U.S.C. §§ 405(g) and (h), judicial review of Social Security benefit determinations is limited to `final' decisions of the Commissioner made after a hearing[;] that available administrative procedures must be exhausted and that a final decision is a prerequisite for subject matter jurisdiction in the District Court." Mathews v. Chater, 891 F.Supp. 186, 188 (S.D.N.Y.1995) (citations omitted); see also Stoothoff v. Apfel, 98 Civ. 5724, 1999 WL 493356, at *2 (S.D.N.Y. July 12, 1999).
Here, the plaintiff commenced this action before the ALJ issued an opinion with regard to the August 13, 2002 hearing. Although the ALJ issued an opinion on November 25, 2002 after this action was commenced, the plaintiff failed to request Appeals Council Review. Therefore, there is no "final decision" for this Court to review. See 42 U.S.C. §§ 405(g) and (h).
Furthermore, the plaintiff fails to present any facts which entitle him to a waiver of the exhaustion requirement. See Smith v. Schweiker, 709 F.2d 777, 780 (2d Cir. 1983) (Stating that "[a] waiver of the exhaustion requirement may be inferred where the plaintiffs' legal claims are collateral to their demand for benefits, where exhaustion would be a pro forma or futile gesture, or where the harm suffered in the interim would be irreparable in the sense that no post hoc relief would be adequate."); see also Mathews, 891 F.Supp. at 188 (citations omitted).
Accordingly, the Court is without jurisdiction to review either the SSA's August 20, 2001 denial of the plaintiff's claims for a period of disability, disability insurance benefits, and supplemental security income or the ALJ's November 25, 2002 decision. Accordingly, the Commissioner's motion to dismiss the complaint for lack of subject matter jurisdiction is granted.

III. CONCLUSION
Based on the foregoing, it is hereby
ORDERED, that the motion to dismiss the complaint against Jo Anne B. Barnhart, Commissioner of Social Security is GRANTED; and it is further
ORDERED, that the complaint is dismissed; and it is further
ORDERED, that the Clerk of the Court is directed to close this case.
SO ORDERED.


835 P.2d 856 (1992)
114 N.M. 140
Celia AMAYA, Plaintiff-Appellant,
v.
Leonard SANTISTEVAN d/b/a Angel's Restaurant, Defendant-Respondent, and
Rio Grande Credit Union, Garnishee-Appellee.
No. 13059.
Court of Appeals of New Mexico.
May 1, 1992.
*857 Victor S. Lopez, Law Offices of Victor S. Lopez, Albuquerque, for plaintiff-appellant.
Will Jeffrey, Lynch, Printz, Aldridge & Grammer, P.A., Albuquerque, for garnishee-appellee.

OPINION
MINZNER, Judge.
This court's opinion, filed March 24, 1992, is withdrawn on the court's own motion and the following opinion is substituted in its place.
Amaya appeals from the district court's decision discharging the writ of garnishment she had served upon Rio Grande Credit Union (RGCU). We conclude that the district court erred in entering judgment for RGCU, and we reverse and remand.

BACKGROUND.
In January 1990, Amaya secured a compensation order in her workers' compensation claim against her employer, Leonard Santistevan. When he failed to pay, she applied for a supplementary compensation order from the Workers' Compensation Division and then petitioned the district court *858 to enter judgment on that order. See NMSA 1978, § 52-5-10 (Repl.Pamp. 1991) (effective until January 1, 1991). The court entered a default judgment against Santistevan in May 1990.
After other enforcement efforts failed, in October 1990, Amaya applied to the district court for several writs of garnishment, including one she served on RGCU. See NMSA 1978, §§ 35-12-1 to -19 (Repl.Supp. 1988). RGCU answered that it "[has] in [its] possession the sum of $3374.22 in a Share Account (savings account). This sum is being held as security for the repayment of loans made to Leonard Santistevan by the Garnishee and is subject to said prior lien." The garnishee's attorney signed the answer. No one signed for the garnishee, although a space was provided for "an officer, partner, or authorized representative of the named Garnishee" to:
[V]erify that he has read the above and foregoing Answer by Garnishee, that he knows the contents thereof, and that the same are true to the best of his knowledge and belief; that he is the custodian of the records upon which such Answer is based, and that said Answer is true and correct based upon said records.
Amaya filed a "controversion" of the garnishee's answer, see § 35-12-5(A), in which she argued that "no valid security interest can be obtained, claimed, or held in cash money of a savings account." She also requested a hearing.
A hearing was held before the district court, at which both parties relied on Article 9 of the Uniform Commercial Code. Amaya argued that the legislature had excluded this account from Article 9. See NMSA 1978, § 55-9-104(1) (Repl.Pamp. 1987) (excluding from Article 9 a transfer of any interest in any deposit account, except as provided with respect to proceeds and priorities in proceeds); see also NMSA 1978, § 55-9-105(1)(e) (Repl.Pamp. 1987) (defining "deposit account"). RGCU contended that it had "advanced money to Mr. Santistevan in two different loans. Each of the loans provided that some security was offered." RGCU also contended that it had possession of the funds in the share account, and that consequently it had a perfected security interest pursuant to NMSA 1978, Section 55-9-305 (Repl.Pamp. 1987) ("A security interest in ... money ... may be perfected by the secured party's taking possession of the collateral."). Amaya argued that RGCU was not in possession because Santistevan had drawn the account down below the required minimum.
The district court concluded that Section 55-9-305 controlled and RGCU had a security interest in Santisteven's share account with priority over Amaya's writ of garnishment. The district court therefore rejected Amaya's controversion of the garnishee's answer and discharged the writ.
The record indicates that RGCU possessed some documents that were relevant, which the district court may have reviewed and of which Amaya was aware, but those documents are not part of the record. The record indicates that the parties relied in argument on documents other than the pleadings, and neither party suggested to the district court judge that there were disputed issues of material fact. Cf. Transamerica Ins. Co. v. Sydow, 97 N.M. 51, 54, 636 P.2d 322, 325 (Ct.App. 1981) (where matters outside the pleadings are considered, a motion to dismiss will be treated as a motion for summary judgment). The record supports a conclusion that the district court in effect either granted RGCU judgment on the pleadings or summary judgment.
We first discuss the nature of garnishment and then analyze the respective claims of the parties on appeal. We conclude that the district court erred in granting judgment to RGCU, which had not established that it was entitled to judgment as a matter of law, and that the cause should be remanded for trial.

NATURE OF GARNISHMENT.
Garnishment proceedings provide a remedy, in the form of attachment, which is controlled by statute. Behles v. Ellermeyer (In re Lucas), 107 B.R. 332, 334 (Bankr.D.N.M. 1989); Jemko, Inc. v. Liaghat, 106 N.M. 50, 52, 738 P.2d 922, 924 *859 (Ct.App. 1987). In pursuing this remedy, the plaintiff seeks subrogation "to defendant's rights against the garnishee." Id. at 54, 738 P.2d at 926. The primary issue in a garnishment proceeding is whether the garnishee owes a debt to the debtor or holds property in its possession that belongs to the debtor. Putman & Putman, Inc. v. Capitol Warehouse, Inc., 775 S.W.2d 460, 463 (Tex. Ct. App. 1989).
Under New Mexico statutes, a writ may issue "only upon the filing of a civil complaint together with a certified copy of the judgment and an affidavit of the plaintiff that the defendant has no property in his possession within this state subject to execution to satisfy the judgment," § 35-12-1(C), and that the plaintiff believes the garnishee "is indebted to the defendant and that the debt is not exempt from garnishment[,] or ... holds personal property belonging to the defendant." § 35-12-1(D).
Service of the writ "has the effect of attaching all personal property, money, wages or salary in excess of the amount exempt under Section 35-12-7 NMSA 1978, rights, credits, bonds, bills, notes, drafts and other choses in action of the defendant in the garnishee's possession or under his control," § 35-12-3(A), and it confers upon the garnishor "a priority status senior to any other writ which is served at a later date." Behles v. Ellermeyer (In re Lucas), 107 B.R. at 335 (citing §§ 35-12-3, -9). Subsequent pleadings control the garnishor's right to entry of judgment against the garnishee, and the method by which the issues are resolved. See § 35-12-5(A) (which provides that "[i]f the plaintiff or defendant is not satisfied with the answer of any garnishee, he may controvert it by stating how he believes it is incorrect, and the issue shall be tried and determined by the magistrate court"); see also Putman & Putman, Inc. v. Capitol Warehouse, Inc., 775 S.W.2d at 463 (discussing the effect of the garnishee's answer on the garnishor's burden of proof).
If, for example, the garnishee:
[A]nswers under oath that he is not at the time of answer, and was not, at the time the garnishment was served on him, indebted to the defendant or in possession of any personal property of the defendant, and if the garnishee's answer is not controverted within twenty days after being made, the magistrate shall enter judgment discharging the garnishee.
§ 35-12-4(A). However, if "the garnishee answers simply that it does hold funds which belong to the debtor [, the] answer ... establishes prima facie that the debtor owns the funds...." Putman & Putman, Inc. v. Capitol Warehouse, Inc., 775 S.W.2d at 463 (emphasis in original). Under these circumstances, the court may enter judgment for the garnishor against the garnishee without a trial. See § 35-12-4(C).
If the garnishee's answer "raises doubt about who actually owns funds admittedly held by the garnishee for another," the issues must be tried. See Putman & Putman, Inc. v. Capitol Warehouse, Inc., 775 S.W.2d at 463. The garnishor must establish the debtor's right to the fund, id., but if the garnishee raises an affirmative defense in its answer, which the garnishor controverts, the garnishee has the burden of proving that defense. See generally 6 Am.Jur.2d Attachment and Garnishment § 383, at 828-29 (1963) (discussing the rules of evidence in the trial of garnishment issues).

THE RIGHTS OF THE PARTIES.
After Amaya filed her controversion, she was entitled to a trial of any issues raised by the pleadings. A garnishee's answer may only be construed as one would construe a pleading; on disputed issues, a garnishee's answers are not evidence. See Zanz v. Stover, 2 N.M. (Gild.) 29 (1880). We think the issue raised by the pleadings was a matter of affirmative defense. RGCU answered that it had a sum in a savings account, but it claimed that amount as security for loans it had extended. RGCU thus admitted that Santistevan had deposited the sum it held in the share account, but claimed a right in the account that was superior to the right created by service of the writ. However, this answer was not verified and cannot be viewed as *860 evidence. Cf. Archuleta v. Goldman, 107 N.M. 547, 761 P.2d 425 (Ct.App. 1987) (unsworn statements of counsel in pleadings not evidence on summary judgment motions).
The proof required of a garnishee bank depends in part on the nature of the right it asserts. Cf. Peoples Nat'l Bank v. United States, 777 F.2d 459 (9th Cir.1985) (when garnishee extends credit subject to an agreement that garnishee could charge the indebtedness to defendant's account, a pledge of a deposit account is effective only upon the transfer from the pledgor to the pledgee of an indispensable instrument such as a passbook) with Heffernan v. Wollaston Credit Union, 30 Mass. App. Ct. 171, 567 N.E.2d 933 (1991) (recognizing bank's superior equitable interest in credit union account in bank in action by codepositor, when bank had placed a computer "hold" on the account pursuant to written agreement with the two depositors). It also depends on state law.
Case law as well as scholarly commentary supports the conclusion that Article 9 does not govern the question of whether RGCU had an interest that prevails over the lien Amaya acquired by serving the writ of garnishment. See Duncan Box & Lumber Co. v. Applied Energies, Inc., 165 W. Va. 473, 270 S.E.2d 140, 143 (1980); Gillman v. Chase Manhattan Bank, 73 N.Y.2d 1, 537 N.Y.S.2d 787, 794 n. 1, 534 N.E.2d 824, 831 n. 1 (1988); see also 8 William D. Hawkland et al., Uniform Commercial Code Series § 9-104:13 (1990); 1 Peter F. Coogan et al., Bender's Uniform Commercial Code Service, Secured Transactions Under the Uniform Commercial Code § 3.14 (1991). Under Article 9, the legislature has excluded both rights of set-off and deposit accounts. See §§ 55-9-104(i), (l). In excluding these rights, the legislature has left in place several principles as a result of which RGCU may have an interest that prevails over the lien Amaya acquired by serving the writ.
For example, a bank has the well-established common-law right to set off funds on general deposit against a debt owed by a depositor to the bank. See Frierson v. United Farm Agency, Inc., 868 F.2d 302 (8th Cir.1989); Martens v. Hadley Memorial Hosp., 729 F. Supp. 1391, 1396 (D.D.C. 1990); Tri State Bank v. Colby, 141 Ill. App.3d 807, 96 Ill.Dec. 1, 490 N.E.2d 1037 (1986). A bank may have rights created by written agreement, see Duncan Box & Lumber Co. v. Applied Energies, Inc., or by common law pledge. See generally Dwight L. Greene, Deposit Accounts as Bank Loan Collateral: Beyond Setoff to Perfection  The Common Law Is Alive and Well, 39 Drake L.Rev. 259 (1989-90). Such interests may give a bank a right in a depositor's account that prevails over a subsequent attachment of that account. See Duncan Box & Lumber Co. v. Applied Energies, Inc., (common-law pledge created by written agreement); Frierson v. United Farm Agency, Inc. (common-law right of set-off and written agreement); Martens v. Hadley Memorial Hosp. (bank's common-law right of set-off against demand deposits); Tri State Bank v. Colby (same, but noting common-law right only applies to matured debts; absent express authority, bank cannot apply funds on deposit to an unmatured indebtedness).
When a bank has asserted a right of set-off to protect a matured debt created by written agreement, under the law of some states, the bank's interest will prevail over that of a judgment creditor, even if the bank has not yet exercised its right of set-off. See Jersey State Bank v. United States, 926 F.2d 621 (7th Cir.1991) (applying Illinois law); Jefferson Bank & Trust v. United States, 684 F. Supp. 1542 (D.Colo. 1988), aff'd, 894 F.2d 1241 (10th Cir.1990) (applying Colorado law); see also Frierson v. United Farm Agency, Inc. (bank need only show that loan is in default; time of default identified by language of written agreement between bank and depositor); Martens v. Hadley Memorial Hosp. (same). In other states, a bank must either establish a common law pledge or make a showing that the bank or credit union has exercised its right of set-off. United States v. Bell Credit Union, 860 F.2d 365 (10th Cir.1988) (applying Kansas law).
*861 Because the record indicates that RGCU failed to offer into the record any evidence of its interest in Santisteven's account that would give it priority over Amaya's right, we must remand for trial, see Zanz v. Stover, unless, as RGCU has argued, we may affirm the judgment entered in its favor as right for the wrong reason, see SCRA 1986, 12-201(C) ("Review without cross-appeal"); see also Williams v. Williams, 109 N.M. 92, 95, 781 P.2d 1170, 1173 (Ct.App. 1989), or unless Amaya is entitled to an order from this court directing that the district court enter judgment in her favor. We think the matter must be remanded for trial, at which time RGCU will have the burden of proving facts to support its claim to an interest that is superior to Amaya's.
On appeal, RGCU has not relied on the Code or common law principles. Rather, RGCU has relied on NMSA 1978, Section 58-11-46 (Repl.Pamp. 1991) of the Credit Union Regulatory Act, NMSA 1978, §§ 58-11-1 to -65 (Repl.Pamp. 1991), which is modeled on the Federal Credit Union Act, 12 U.S.C. Sections 1751 to 1795k (1988); see N.M. AG Op. No. 82-3 (1982).
Section 58-11-46 creates a lien on share accounts for any sum owed to a credit union. It also creates the credit union's right to an immediate set-off in each share account. Id. The statute reads:
A credit union shall have a lien on the membership shares, share accounts and deposit accounts and accumulated dividends and interest of a member in his individual, joint or trust account for any sum owed the credit union from that member or for any loan endorsed or guaranteed by him. A credit union may refuse to allow withdrawals and shall have a right of immediate set-off with respect to every such account. The credit committee, credit manager or loan officer may waive the credit union's rights to a lien, to immediate set-off, to restrict withdrawals or to any combination of those rights with respect to any share or deposit account or groups of those accounts.
However, without any evidence showing that the garnishee is a credit union as defined under Section 58-11-2(C), or that the credit union extended credit to Santistevan, we are not in a position to affirm the trial court under Section 58-11-46. Further, because the nature of the interest on which the bank relies does not appear in the record, we are reluctant to construe Section 58-11-46 definitively at this time.
We note that the statute does not expressly change common-law rules. At common law, a bank's right of set-off was often described as a "banker's lien." That term is something of a misnomer, because the right of set-off existed at common law only after a debt was in default or had matured. See Tri State Bank v. Colby; see also Ray A. Brown, The Law of Personal Property § 13.12, at 443 (3d ed. 1975). Absent express authority, under common law a bank could not apply funds on deposit to an unmatured indebtedness. Id. We assume but need not decide that Section 58-11-46 at least codifies the common law rules governing pledges and the right of set-off. Cf. National Temple Non-Profit Corp. v. National Temple Community Fed. Credit Union, 603 F. Supp. 807, 809 (E.D.Pa. 1985) (nothing in Federal Credit Union Act indicates Congress was concerned with "mechanics of establishing a legally enforceable lien nor how to foreclose upon it"). Nevertheless, as the cases cited above reveal, the terms of the written agreement between the bank and its depositor are relevant and may be dispositive. Under these circumstances, we remand for further proceedings. On this record, we cannot hold that Section 58-11-46 allows us to affirm the district court as right for the wrong reason.
We do not think Amaya is entitled to an order from this court directing the district court to enter judgment in her favor. At the time of the hearing, neither party suggested to the district court that there was any genuine issue of material fact.

CONCLUSION.
In summary, we conclude that the pleadings raised a triable issue of fact. Although the hearing in district court resulted *862 in judgment for RGCU, during that hearing RGCU failed to show that it was entitled to judgment as a matter of law. Therefore, we reverse the decision of the trial court and remand for a trial on the merits. Amaya shall recover her costs on appeal. See SCRA 1986, 12-403(B)(2).
IT IS SO ORDERED.
APODACA and BLACK, JJ., concur.


Order                                                                                Michigan Supreme Court
                                                                                Lansing, Michigan

  May 8, 2020                                                                                Bridget M. McCormack,
                                                                                Chief Justice

                                                                                David F. Viviano,
                                                                                Chief Justice Pro Tem
  160596
                                                                                Stephen J. Markman
                                                                                Brian K. Zahra
                                                                                Richard H. Bernstein
                                                                                Elizabeth T. Clement
  PEOPLE OF THE STATE OF MICHIGAN,                                                                     Megan K. Cavanagh,
            Plaintiff-Appellee,                                                                                Justices

  v                                                                 SC: 160596
                                                                    COA: 345173
                                                                    Oakland CC: 2017-263755-FH
  MARK STANFORD KATZMAN,
           Defendant-Appellant.

  _________________________________________/

          On order of the Court, the application for leave to appeal the October 3, 2019
  judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in
  lieu of granting leave to appeal, we VACATE that part of the judgment of the Court of
  Appeals stating that the United States and Michigan Constitutions are “coextensive” with
  regard to protection against unreasonable searches and seizures. See People v Slaughter,
  489 Mich 302, 311 (2011) (“This Court has ruled that the Michigan Constitution is to be
  construed to provide the same protection as that secured by the Fourth Amendment,
  absent compelling reason to impose a different interpretation.”) (internal quotation marks
  and citation omitted; emphasis added); see also Sitz v Dep’t of State Police, 443 Mich 744
  (1993). In all other respects, leave to appeal is DENIED, because we are not persuaded
  that the question presented should be reviewed by this Court.

                           I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           May 8, 2020
           s0505
                                                                               Clerk


410 So.2d 42 (1982)
The HEN HOUSE, INC., an Alabama Corporation
v.
William Gary ROBERTSON and Mary Vann Robertson.
80-543.
Supreme Court of Alabama.
February 19, 1982.
*43 Sam R. Shannon, Jr. and Joseph L. Boohaker, Birmingham, for appellant.
James R. Bowles, Tallassee, for appellees.
BEATTY, Justice.
This is an appeal from an order of the Circuit Court of Elmore County denying the defendant's motion for relief from judgment filed under Rule 60(b), ARCP. We reverse and remand with directions.
The judgment from which relief was sought was a default judgment. The defendant's sole contention on appeal is that the default judgment was void because the plaintiffs failed to give the required three-day notice due a party who has appeared in the action under Rule 55(b)(2), and that, therefore, defendant was entitled to Rule 60(b) relief. Whether the defendant had "appeared in the action" is the question, then, which is dispositive. The answer to that question requires a review of the proceedings between the parties.
The Robertsons (and others not material here) entered into a lease of premises with The Hen House, Inc., as tenant. A dispute arose between them. On October 24, 1980, the Robertsons filed an action against The Hen House, Inc., No. CV-80-435, in the Circuit Court of Elmore County seeking damages for breach of that lease agreement. A copy of this summons and complaint was served upon the president of The Hen House, Inc., on November 11, 1980.
No pleading or other document was filed in this case by the defendant; consequently on December 15, 1980, the plaintiffs filed an application and affidavit for entry of a default judgment, and on December 23, 1980, the circuit court entered a default judgment against the defendant and in favor of the plaintiffs.
On March 16, 1981, the defendant filed a motion for relief from judgment. In this motion the defendant alleged, among other things, that it was never notified of either the plaintiffs' application for default judgment or the trial court's action in granting it, even though counsel for the parties had discussed the case during the period of pleadings. Moreover, the defendant maintains that circumstances disclose a "constructive appearance" which in law would have required the requisite three days' notice before taking a default judgment.
Those circumstances include several other lawsuits between these parties together with a letter from defendant's counsel to plaintiffs' counsel. According to defendant's counsel, defendant sent its own summons and complaint to the Elmore County circuit clerk on October 22, 1980, with the request that it be filed. This action also alleged a breach of the same lease which was the subject of the plaintiffs' action which was filed two days later. However, the defendant's action was not filed until October 27, 1980, when it was given the designation: CV-80-438. Because the plaintiffs here did not file an answer to CV-80-438, the effect of this exchange, according to the defendant, was that CV-80-435, the plaintiffs' action, was a response to defendant's CV-80-438.
The letter referred to above, dated November 14, 1980, acknowledged receipt of a copy of plaintiffs' summons and complaint (CV-80-435), called attention to defendant's action (CV-80-438) and invited negotiations to clear up any misunderstandings "in a way that will permit your clients to receive their rent on a regular basis."
The circumstances also include another lawsuit filed by the plaintiffs against the defendant, this one being a wrongful detainer action filed in the district court of Elmore County, No. DV-80-255, and alleging *44 a breach of the same lease agreement which was the subject of the two circuit court actions. The defendant appeared in this action by filing a motion to dismiss and an answer.
It was not until March 5, 1981, that the defendant learned of the default judgment rendered in CV-80-438 whereupon on March 16, 1981, it filed the motion for relief of judgment. Following the denial of that motion the defendant gave notice of appeal, and as parts of the record on appeal sought to have included the complaints in CV-80-435, CV-80-438, DV-80-255, and the answer contained in DV-80-255, as well as defendant's memorandum brief submitted to the trial court in support of defendant's motion for relief from the default judgment. The trial court, after a hearing prompted by the plaintiffs' rejection of this designation, ordered the circuit clerk to include in the clerk's record only the pleadings in CV-80-435, i.e., the plaintiffs' action on the lease.
On the question of whether or not the defendant made an appearance in this case, CV-80-435, the relevancy of the complaints in other cases, even though they were not consolidated with CV-80-435, has been decided in our case of Cockrell v. World's Finest Chocolate Co., Inc., Ala., 349 So.2d 1117 (1977) and Dial v. State, Ala.Civ.App., 374 So.2d 361 (1979). See also Lawler Mobile Homes, Inc. v. Ellison, Ala.Civ.App., 361 So.2d 1092 (1978).
In Cockrell, supra, this Court expressed its policy favoring the determination of cases on the merits and disfavoring default judgments. In that case a default judgment had been granted without notice to the defendant who had filed a document as an "answer." A majority of this Court held that the filing of that document was an "appearance" which necessitated notice to the defendant, and that the default judgment rendered without proof of such notice was due to be vacated regardless of whether or not the defendant had shown a meritorious defense to the action.
Pointing out that courts have refused to apply an overly technical and restrictive definition of "appearance," the Court of Civil Appeals in Dial v. State, supra, found the existence of multiple actions, civil and criminal, in which the district attorney knew that the defendant was represented by the same lawyer, to whom the district attorney had recommended continuances in all pending cases, constituted an "appearance" in the case in which a judgment by default had been entered. See also United States v. One 1966 Chevrolet Pickup Truck, 56 F.R.D. 459 (1972). The Court of Civil Appeals found persuasive the federal cases dealing with multiple actions between the same parties and pertaining to Rule 55 judgments:
They hold that where two actions have been filed and plaintiff knows that counsel who appeared for the defendant in the first action also represents the same defendant in the second action where no formal appearance is made, by legal construction, there is a technical appearance under Rule 55(b)(2) requiring notice. See, Gomes v. Williams, 420 F.2d 1364 (10th Cir. 1970); Press v. Forest Laboratories, Inc., 45 F.R.D. 354 (S.D.N.Y.1968).
In Press, supra, the federal district court vacated a default judgment when it was later shown that the defendant's representatives, who had made an earlier appearance in a case involving the same parties and general subject matter, had sufficient contact with the plaintiff's attorney to constitute an appearance. In H. F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689 (D.C.Cir.1970), it was held that a defendant had "appeared" in an action when the parties had exchanged letters seeking a settlement, and a default was ordered set aside when the defendant had not received the required notice.
Given the subject matter of the cases filed in district and circuit court, and the defendant's counsel's correspondence with plaintiffs' counsel, it is our conclusion that defendant in this case had also filed an "appearance" for the purposes of Rule 55(b)(2). Having made an appearance, it was necessary that he be given notice in order to perfect the default judgment.
*45 The plaintiffs argue, however, that the final orders in the cases, DV-80-255 and CV-80-438 are res judicata and bar recovery for the defendant in any event. Such an argument is premature since the plea of res judicata, if made subsequently and successfully, would be applied to the merits of this controversy. Those merits, of course, have not been considered by virtue of the default which proceeded only upon the plaintiffs' complaint.
Having found that the defendant "appeared" for the purposes of Rule 55, we adhere to our view contained in Cockrell, supra, that the failure of notice requires the reversal of the trial court's order on the defendant's Rule 60(b) motion. Accordingly, that order is reversed and the trial court is directed to vacate the default judgment heretofore entered. It is so ordered.
REVERSED AND REMANDED WITH DIRECTIONS.
TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.