text:
A. Hamadeh, G. de Loubens, V. V. Naletov, J. Grollier, C. Ulysse, V. Cros, O. Klein, Autonomous and forced dynamics in a spin-transfer nano-oscillator: Quantitative magnetic-resonance force microscopy. Physical Review B. 85, 140408 (2012).
A. Dussaux, A. V. Khvalkovskiy, P. Bortolotti, J. Grollier, V. Cros, A. Fert, Field dependence of spin-transfer-induced vortex dynamics in the nonlinear regime. Physical Review B. 86, 014402 (2012).
M. Gradhand, D. - V. Fedorov, P. Zahn, I. Mertig, Y. Otani, Y. Niimi, L. Vila, A. Fert, Perfect alloys for spin hall current-induced magnetization switching. SPIN. 02, 1250010 (2012).
M. O. Nestoklon, O. Krebs, H. Jaffrès, S. Ruttala, J. - M. George, J. - M. Jancu, P. Voisin, Anisotropic magneto-resistance in a GaMnAs-based single impurity tunnel diode: A tight binding approach. Applied Physics Letters. 100, 062403 (2012).
B. Dlubak, M. - B. Martin, R. - S. Weatherup, H. Yang, C. Deranlot, R. Blume, R. Schloegl, A. Fert, A. Anane, S. Hofmann, P. Seneor, J. Robertson, Graphene-Passivated Nickel as an Oxidation-Resistant Electrode for Spintronics. ACS Nano. 6, 10930–10934 (2012).
M. Bibes, N. Reyren, E. Lesne, J. - M. George, C. Deranlot, S. Collin, A. Barthélémy, H. Jaffrès, Towards electrical spin injection into LaAlO3-SrTiO3. Philosophical Transactions of the Royal Society A. 370, 4958–4971 (2012).
A. - D. Belanovsky, N. Locatelli, P. N. Skirdkov, F. Abreu Araujo, J. Grollier, K. A. Zvezdin, V. Cros, A. K. Zvezdin, Phase locking dynamics of dipolarly coupled vortex-based spin transfer oscillators. Physical Review B. 85, 100409 (2012).
P. Bortolotti, A. Dussaux, J. Grollier, V. Cros, A. Fukushima, H. Kubota, K. Yakushiji, S. Yuasa, K. Ando, A. Fert, Temperature dependence of microwave voltage emission associated to spin-transfer induced vortex oscillation in magnetic tunnel junction. Applied Physics Letters. 100, 042408 (2012).
M. Fechner, P. Zahn, S. Ostanin, M. Bibes, I. Mertig, Switching Magnetization by 180 degrees with an Electric Field. Physical Review Letters. 108, 197206 (2012).
A. N. Khodan, S. L. Kanashenko, D. - G. Crété, Kinetics of formation and growth of epitaxial SrTiO3 films of single-crystal (001) SrTiO3 supports. Protection of Metals and Physical Chemistry of Surfaces. 48, 59–67 (2012).
A. Manchon, R. Matsumoto, H. Jaffrès, J. Grollier, Spin transfer torque with spin diffusion in magnetic tunnel junctions. Physical Review B. 86, 060404 (2012).
P. - J. Metaxas, R. L. Stamps, J. - P. Jamet, J. Ferre, V. Baltz, B. Rodmacq, Expansion and relaxation of magnetic mirror domains in a Pt/Co/Pt/Co/Pt multilayer with antiferromagnetic interlayer coupling. Journal of Physics: Condensed Matter. 24, 024212 (2012).
P. Seneor, B. Dlubak, M. - B. Martin, A. Anane, H. Jaffrès, A. Fert, Spintronics with graphene. MRS Bulletin. 37, 1245–1254 (2012).
T. Wang, D. Zhu, B. Wu, C. Graves, S. Schaffert, T. Rander, L. Mueller, B. Vodungbo, C. Baumier, D. - P. Bernstein, B. Braeuer, V. Cros, S. de Jong, R. Delaunay, A. Fognini, R. Kukreja, S. Lee, V. Lopez-Flores, J. Mohanty, B. Pfau, H. Popescu, M. Sacchi, A. - B. Sardinha, F. Sirotti, P. Zeitoun, M. Messerschmidt, J. - J. Turner, W. - F. Schlotter, O. Hellwig, R. Mattana, N. Jaouen, F. Fortuna, Y. Acremann, C. Gutt, H. - A. Duerr, E. Beaurepaire, C. Boeglin, S. Eisebitt, G. Gruebel, J. Luening, J. Stoehr, A. - O. Scherz, Femtosecond Single-Shot Imaging of Nanoscale Ferromagnetic Order in Co/Pd Multilayers Using Resonant X-Ray Holography. Physical Review Letters. 108, 267403 (2012).
Y. Niimi, Y. Kawanishi, D. - H. Wei, C. Deranlot, H. X. Yang, M. Chshiev, T. Valet, A. Fert, Y. Otani, Giant Spin Hall Effect Induced by Skew Scattering from Bismuth Impurities inside Thin Film CuBi Alloys. Physical Review Letters. 109, 156602 (2012).
J. Bartolomé, A. I. Figueroa, L. - M. Garcia, F. Bartolomé, L. Ruiz, J. - M. Gonzalez-Calbet, F. Petroff, C. Deranlot, F. Wilhelm, A. Rogalev, N. - B. Brookes, Perpendicular magnetic anisotropy in Co-Pt granular multilayers. Low Temperature Physics. 38, 835–838 (2012).
C. Visani, Z. Sefrioui, J. Tornos, C. Leon, J. Briatico, M. Bibes, A. Barthélémy, J. Santamaria, J. - E. Villegas, Equal-spin Andreev reflection and long-range coherent transport in high-temperature superconductor/half-metallic ferromagnet junctions. Nature Physics. 8, 539–543 (2012).
A. - F. Santander-Syro, C. Bareille, F. Fortuna, O. Copie, M. Gabay, F. Bertran, A. Taleb-Ibrahimi, P. Le Fevre, G. Herranz, N. Reyren, M. Bibes, A. Barthélémy, P. Lecoeur, J. Guevara, M. - J. Rozenberg, Orbital symmetry reconstruction and strong mass renormalization in the two-dimensional electron gas at the surface of KTaO3. Physical Review B. 86, 121107 (2012).
P. N. Skirdkov, A. - D. Belanovsky, K. A. Zvezdin, A. K. Zvezdin, N. Locatelli, J. Grollier, V. Cros, Influence of shape imperfection on dynamics of vortex spin-torque nano-oscillator. SPIN. 02, 1250005 (2012).
P. Perna, C. Rodrigo, M. Munoz, J. - L. Prieto, A. Bollero, D. Maccariello, J. - L. F. Cunado, M. Romera, J. Akerman, E. Jimenez, N. Mikuszeit, V. Cros, J. Camarero, R. Miranda, Magnetization reversal signatures in the magnetoresistance of magnetic multilayers. Physical Review B. 86, 024421 (2012).
J. Zarpellon, H. Jaffrès, J. Frougier, C. Deranlot, J. - M. George, D. - H. Mosca, A. Lemaitre, F. Freimuth, Q. - H. Duong, P. Renucci, X. Marie, Spin injection at remanence into III-V spin light-emitting diodes using (Co/Pt) ferromagnetic injectors. Physical Review B. 86, 205314 (2012).
B. Dlubak, M. - B. Martin, C. Deranlot, B. Servet, S. Xavier, R. Mattana, M. Sprinkle, C. Berger, W. - A. De Heer, F. Petroff, A. Anane, P. Seneor, A. Fert, Highly efficient spin transport in epitaxial graphene on SiC. Nature Physics. 8, 557–561 (2012).
I. Swiecicki, C. Ulysse, T. Wolf, R. Bernard, N. Bergeal, J. Briatico, G. Faini, J. Lesueur, J. - E. Villegas, Strong field-matching effects in superconducting YBa2Cu3O7-δ films with vortex energy landscapes engineered via masked ion irradiation. Physical Review B. 85, 224502 (2012).
L. Aviles Felix, M. Sirena, L. A. Agueero Guzman, J. Gonzalez Sutter, S. Pons Vargas, L. B. Steren, R. Bernard, J. Trastoy, J. - E. Villegas, J. Briatico, N. Bergeal, J. Lesueur, G. Faini, Structural and electrical characterization of ultra-thin SrTiO3 tunnel barriers grown over YBa2Cu3O7 electrodes for the development of high T-c Josephson junctions. Nanotechnology. 23, 495715 (2012).
A. Jain, J. - C. Rojas-Sanchez, M. Cubukcu, J. Peiro, J. - C. Le Breton, E. Prestat, C. Vergnaud, L. Louahadj, C. Portemont, C. Ducruet, V. Baltz, A. Barski, P. Bayle-Guillemaud, L. Vila, J. - P. Attane, E. Augendre, G. Desfonds, S. Gambarelli, H. Jaffrès, J. - M. George, M. Jamet, Crossover from Spin Accumulation into Interface States to Spin Injection in the Germanium Conduction Band. Physical Review Letters. 109, 106603 (2012).
N. Reyren, M. Bibes, E. Lesne, J. - M. George, C. Deranlot, S. Collin, A. Barthélémy, H. Jaffrès, Gate-Controlled Spin Injection at LaAlO3/SrTiO3 Interfaces. Physical Review Letters. 108, 186802 (2012).
A. Jain, C. Vergnaud, J. Peiro, J. - C. Le Breton, E. Prestat, L. Louahadj, C. Portemont, C. Ducruet, V. Baltz, A. Marty, A. Barski, P. Bayle-Guillemaud, L. Vila, J. - P. Attane, E. Augendre, H. Jaffrès, J. - M. George, M. Jamet, Electrical and thermal spin accumulation in germanium. Applied Physics Letters. 101, 022402 (2012).
A. Thiaville, S. Rohart, E. Jue, V. Cros, A. Fert, Dynamics of Dzyaloshinskii domain walls in ultrathin magnetic films. Europhysics Letters. 100, 57002 (2012).
E. Y. Tsymbal, A. Gruverman, V. Garcia, M. Bibes, A. Barthélémy, Ferroelectric and multiferroic tunnel junctions. MRS Bulletin. 37, 138–143 (2012).
M. Sirena, L. Aviles Felix, G. A. Carvacho Vera, H. L. Navarro Fernandez, L. B. Steren, R. Bernard, J. Briatico, N. Bergeal, J. Lesueur, G. Faini, Structural and transport characterization of ultra thin Ba0.05Sr0.95TiO3 layers grown over Nb electrodes for the development of Josephson junctions. Applied Physics Letters. 100, 012602 (2012).
M. Bibes, Nanoferronics is a winning combination. Nature Materials. 11, 354–357 (2012).
P. Laczkowski, L. Vila, V. - D. Nguyen, A. Marty, J. - P. Attane, H. Jaffrès, J. - M. George, A. Fert, Enhancement of the spin signal in permalloy/gold multiterminal nanodevices by lateral confinement. Physical Review B. 85, 220404 (2012).
B. Dlubak, A. Anane, M. - B. Martin, P. Seneor, A. Fert, dans 2012 IEEE INTERNATIONAL ELECTRON DEVICES MEETING (IEDM) (IEEE, 2012)p. .
S. Nicolodi, L. - G. Pereira, A. Harres, G. M. Azevedo, J. - E. Schmidt, I. Garcia-Aguilar, N. M. Souza-Neto, C. Deranlot, F. Petroff, J. Geshev, Negative rotatable anisotropy in IrMn/Cr/Co thin films. Physical Review B. 85, 224438 (2012).
J. - E. Rault, W. Ren, S. Prosandeev, S. Lisenkov, D. Sando, S. Fusil, M. Bibes, A. Barthélémy, L. Bellaiche, N. Barrett, Thickness-Dependent Polarization of Strained BiFeO3 Films with Constant Tetragonality. Physical Review Letters. 109, 267601 (2012).
P. - R. Kidambi, C. Ducati, B. Dlubak, D. Gardiner, R. - S. Weatherup, M. - B. Martin, P. Seneor, H. Coles, S. Hofmann, The Parameter Space of Graphene Chemical Vapor Deposition on Polycrystalline Cu. Journal of Physical Chemistry C. 116, 22492–22501 (2012).
A. I. Figueroa, F. Bartolomé, J. Bartolomé, L. - M. Garcia, F. Petroff, C. Deranlot, F. Wilhelm, A. Rogalev, Breakdown of Hund's third rule in amorphous Co-W nanoparticles and crystalline Co3W alloys. Physical Review B. 86, 064428 (2012).
V. Garcia, M. Bibes, ELECTRONICS Inside story of ferroelectric memories. Nature. 483, 279–281 (2012).
V. Uhlir, J. Vogel, N. Rougemaille, O. Fruchart, Z. Ishaque, V. Cros, J. Camarero, J. - C. Cezar, F. Sirotti, S. Pizzini, Current-induced domain wall motion and magnetization dynamics in CoFeB/Cu/Co nanostripes. Journal of Physics: Condensed Matter. 24, 024213 (2012).
E. Coronado, A. Forment-Aliaga, E. Pinilla-Cienfuegos, S. Tatay, L. Catala, J. - A. Plaza, Nanopatterning of Anionic Nanoparticles based on Magnetic Prussian-Blue Analogues. Advanced Functional Materials. 22, 3625–3633 (2012).

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There will be no more fishing in Texas in unrelated claim files. The Supreme Court of Texas has summarily ended any debate as to whether discovery of an insurer’s claim files for other policyholders is permissible — it is not. The brevity and simplicity of the analysis of this issue in the court’s opinion in In Re National Lloyds Ins. Co., 2014 WL 5785871 (Tex.), indicates that such discovery will almost always be considered impermissibly overbroad.
Erving’s Cedar Hill home was allegedly damaged by two hail storms, one occurring in September 2011, and the other in June 2012. The claims were adjusted by different independent adjusters and paid by National Lloyds. Erving then brought a lawsuit against National Lloyds alleging it had undervalued both of her claims. Although the trial court narrowed the discovery at issue, it nevertheless ordered the carrier to produce all claim file materials in its possession for all claims that that the two independent adjusters. Team One Adjusting Services and Ideal Adjusting adjusted on behalf of National Lloyds in Cedar Hill arising from the September 2011 or June 2012 storms. The appropriateness of this discovery order made its way to the Supreme Court of Texas via petition for writ of mandamus.
Erving argued to the Supreme Court that she needed the discovery “to establish a baseline” by compiling the presumably good faith claim handling methods used by the two independent adjusters, including the time spent and the pricing applied, in their adjustment of the claims of the other National Lloyds’ policyholders. By comparing the facts of her claim to that alleged baseline, Erving argued that “significant differences would … evidence bad faith and support other legal claims including fraud.” The court summarized Erving’s position by stating that she “has proposed to compare National Lloyds’ evaluation of the damage at her house with the National Lloyds’ evaluation of the damage to other homes to support her contention that her claims were undervalued.” National Lloyds, at *3.
Texas courts generally permit discovery of any unprivileged information that is relevant to the subject of the action, even if it would be inadmissible at trial, as long as the information sought is “reasonably calculated to lead to the discovery of admissible evidence.” TEX.R. CIV.P. 192.3(a); see also Eli Lilly & Co. v. Marshall, 850 S.W.2d 155, 160 (Tex. 1993). However, even these liberal bounds have limits and discovery requests must not be overbroad. See, e.g., In re Allstate Cnty. Mut. Ins. Co., 227 S.W.3d 667, 669-70 (Tex. 2007) (per curiam); In re CSX Corp., 124 S.W.3d 149, 153 (Tex. 2003) (per curiam).
Whether a request for discovery is overbroad is distinct from whether it is burdensome or harassing. Allstate, 227 S.W.3d at 670. In fact, the Texas Supreme Court has held that “[o]verbroad requests for irrelevant information are improper whether they are burdensome or not.” Id. In determining if a request is overbroad, the court will examine whether the request can be more narrowly tailored. The Supreme Court of Texas has long indicated that requests must be “tailored” with regard to time, location and scope. Texaco Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995); Allstate, 227 S.W.3d at 669.
Broad discovery seeking documents in hopes of establishing a pattern of a defendant’s alleged wrongful behavior of which the plaintiff is one of many alleged victims has been found improper in several matters. See In Re Graco Children’s Products Inc., 210 S.W.3d 598, 601 (Tex. 2006) (overbroad requests seeking corporate “state of mind”); Dillard Dep’t Stores Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995) (overbroad discovery sought in hopes of discovering racial discrimination in false arrest case); Texaco Inc. v. Sanderson, 898 S.W.2d 813, 815 (overbroad discovery sought to prove “corporate strategy to ignore safety laws”).
These cases are consistent with the Supreme Court of Texas’ view that Rule 404 of the Texas Rules of Evidence must be considered in this analysis. In Re Graco, at 601. Moreover, the court has held that an alleged tortfeasor could not defend itself “by proving it is generally a good corporate citizen, any more than the [alleged injured party] can prosecute it by proving otherwise.” Id.. Furthermore, the Supreme Court of Texas has recognized “American jurisprudence goes to some lengths to avoid the spurious inference that defendants are either guilty or liable if they have been found guilty or liable of anything before.” Allstate, at 669 (discovery seeking information on any prior reneging on settlement agreements).
One can assume the attorneys for Erving felt comfortable that they had met the “tailoring requirements” previously set out by the Supreme Court of Texas in In re American Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998); Dillard Dep’t Stores Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995); and Texaco Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995). In fact, Erving specifically argued in her brief that the requests were tailored in time and location by the trial court. Upon review, the Supreme Court of Texas agreed the breadth of the requests had been tailored by the trial court to some degree, but nevertheless determined the order was still overbroad without much explanation other than “such limits in and of themselves do not render the underlying information discoverable.” In Re National Lloyds, at *5.
This is especially true given the variables associated with a particular claim, such as when the claim was filed, the condition of the property at the time of filing (including the presence of any pre-existing damage) and the type and extent of damage inflicted by the covered event. Scouring claim files in hopes of finding similarly situated claimants whose claims were evaluated differently from Erving’s is at best an ‘impermissible fishing expedition.’ Id. at *4.
In the end, the court simply vacated the lower court’s discovery order by citing Texas Rule of Civil Procedure 192.3(a). That decision is perfectly consistent with the decision in In Re: State Farm Lloyds, No. 04-98-00018-CV, 1998 WL 161260, *5 (Tex.App. — San Antonio April 8. 1998, orig. proceeding)(not designated for publication) in which the court refused to acknowledge that an insurer’s actions with regard to claims of other policyholders might be relevant to its actions in a claim of a particular plaintiff.
In this matter, the policyholder argued it needed files relating to other policyholders’ claims to establish a baseline of presumably good faith claim handling practices used by National Lloyds in the adjustment of other claims, thereby allowing her to establish that the claim handling for her own claim was inferior.
In rejecting this argument, the Supreme Court of Texas provides a clear signal that discovery of other policyholder claim files is overbroad and will not be allowed. While the second footnote in the opinion stating “we do not hold that evidence of third-party insurance claims can never be relevant in coverage litigation” may provide some glimmer of hope for lawyers wanting to discover such information, in light of the court’s broad ruling, it will clearly be difficult to craft an argument that any particular set of facts warrants a contrary result. One will have to tell an extraordinary fish story to be allowed discovery of other policyholders’ claim files.
Brad Brewer is a partner and Jennifer Gibbs is a senior associate in Zelle Hofmann Voelbel & Mason's Dallas office.

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1. William1 DeHart was born Abt. 1550. He married (1) Elizabeth Unknown. He married (2) Unknown Wife Unknown.
During the St. Bartholomew, the family refuged to Holland from France. Elizabeth died enroute with child. He remarried in Holland.
+ 2 i. Simon Jacobus2 DeHart.
2. Simon Jacobus2 DeHart (William1). He married Unknown Female Unknown.
+ 7 i. Aart Symonsz3 DeHart, born 1607 in North Holland.
7. Aart Symonsz3 DeHart (Simon Jacobus2, William1) was born 1607 in North Holland. He married Gerritjen Stoffels 18 Dec 1639 in Nieuwkoop, Netherlands.
Came to New Amsterdam in 1664. Had up to ten children. Settled in Long Island. When he got married, he was living in South Holland.
10 iii. Simon DeHart, born Bef. 1643; died in bef 1643.
+ 11 iv. Simon Aertszen DeHart, born 11 Oct 1643; died Abt. 1745.
11. Simon Aertszen4 DeHart (Aart Symonsz3, Simon Jacobus2, William1) was born 11 Oct 1643, and died Abt. 1745. He married (1) Gertje Cornelissen Bef. 1670. He married (2) Annetje Andriaes Willyard 19 Jun 1691.
Immigrated to New Amsterdam (NY) in 1667 from Holland in the ship Calderland along with his sister Lysbeth.
+ 16 v. Elias Simon DeHart, born 21 Mar 1676/77 in Brooklyn, New Amsterdam.
17 vi. Dorothea DeHart, born 01 Aug 1680.
18 vii. Gertje DeHart, born 20 Aug 1682.
19 viii. Simon Dehart, born 30 Mar 1684.
20 ix. Simon DeHart, born 03 May 1685.
21 x. Annetji DeHart, born 06 Jul 1687.
16. Elias Simon5 DeHart (Simon Aertszen4, Aart Symonsz3, Simon Jacobus2, William1) was born 21 Mar 1676/77 in Brooklyn, New Amsterdam. He married Catherine Lane, daughter of Gisbert Lane and Jannetji Ariens.
+ 22 i. Simon6 DeHart, born in New York, NY.
22. Simon6 DeHart (Elias Simon5, Simon Aertszen4, Aart Symonsz3, Simon Jacobus2, William1) was born in New York, NY. He married (1) Aylse Eleson. He married (2) Kalrya Schenck.
29 i. Unknown Female7 DeHart. She married Unknown Male White.
30 ii. Unknown Female DeHart.
31 iii. Unknown Female DeHart.
32 iv. Unknown Female DeHart.
33 v. Gabriel DeHart, died 1774.
+ 35 vii. Richard Elias DeHart, born 10 Mar 1729/30 in Spartanburg Cty, SC; died 01 Apr 1821 in Wayne Co., KY.
+ 36 viii. Aaron DeHart, born 1735 in Spartanburg, SC; died Abt. 1793 in Amherst, VA.
35. Richard Elias7 DeHart (Simon6, Elias Simon5, Simon Aertszen4, Aart Symonsz3, Simon Jacobus2, William1) was born 10 Mar 1729/30 in Spartanburg Cty, SC, and died 01 Apr 1821 in Wayne Co., KY. He married Elizabeth Tolleson 1760, daughter of Unknown Tolleson and Unknown Unknown.
Had a land patent for 300 acres on Porridge Creek in what was then Albemarle Co., VA, and is now in Amherst Co., VA, dated 1760. Listed for Elias DeHart. He sold his land to his brothers and moved to Rowan Co., NC, and then to Wayne Co., KY.
+ 42 vi. John DeHart, born 18 Jul 1777; died in Wayne Co., KY.
43 vii. Nathan DeHart, born 23 Feb 1781 in Rowan Co., NC. He married Catherine Ramsey 06 Nov 1803 in Burke Co., NC.
After 1804 moved to Tennessee, then back to Wayne Co., KY. In 1828 the family moved to Macon Co., NC (presently Swain Co.).
36. Aaron7 DeHart (Simon6, Elias Simon5, Simon Aertszen4, Aart Symonsz3, Simon Jacobus2, William1) was born 1735 in Spartanburg, SC, and died Abt. 1793 in Amherst, VA. He married Malinda Ellender Dennis.
44 i. Gabriel8 DeHart, born Abt. 1780 in Amherst, VA; died Aft. 1870 in Patrick Co., VA. He married Hannah Charity Hubbard Abt. 1801 in Patrick Co., VA.
Eleven children by this marriage.
45 ii. James DeHart, born Abt. 1760. He married (1) Catherine Hubbard 25 Jan 1797. He married (2) Adelphia Unknown 03 Dec 1831.
Four children by this marriage.
46 iii. Elijah DeHart, born Abt. 1777. He married Mary Eleson Jordan 28 Jan 1797 in Patrick Co., VA.
Twelve children by this marriage.
47 iv. Susannah DeHart, born Abt. 1782. She married Stephen Hubbard.
Two children by this marriage.
48 v. Mary DeHart, born Abt. 1775. She married Thomas Tennison.
42. John8 DeHart (Richard Elias7, Simon6, Elias Simon5, Simon Aertszen4, Aart Symonsz3, Simon Jacobus2, William1) was born 18 Jul 1777, and died in Wayne Co., KY. He married Lettie Larkin in Wayne Co., KY.
49 i. Larkin9 DeHart, born 19 Mar 1804.
50 ii. Nancy DeHart, born 15 Dec 1806.
+ 51 iii. John DeHart, born 26 Oct 1808.
52 iv. Elizabeth (Betsy) DeHart, born 18 Jan 1811.
53 v. Martin DeHart, born 19 Jun 1813.
54 vi. Joshua DeHart, born 15 Jun 1815.
55 vii. Sally DeHart, born 14 May 1822.
56 viii. Tolleson DeHart, born 18 Jul 1820.
51. John9 DeHart (John8, Richard Elias7, Simon6, Elias Simon5, Simon Aertszen4, Aart Symonsz3, Simon Jacobus2, William1) was born 26 Oct 1808. He married Amy Ally 04 May 1837 in Wayne Co., KY.
57 i. James10 DeHart, born 1832.
58 ii. Elizabeth DeHart, born 1836.
59 iii. Mary E. DeHart, born 1839.
60 iv. John S. DeHart, born 1841.
61 v. G. W. DeHart, born 1843.
+ 62 vi. Lucinda Ann Dehart, born 1846 in Russell Cty, KY; died 17 Jan 1883.
63 vii. Larkin DeHart, born 1847.
64 viii. Joshua DeHart, born 1849.
62. Lucinda Ann10 Dehart (John9, John8, Richard Elias7, Simon6, Elias Simon5, Simon Aertszen4, Aart Symonsz3, Simon Jacobus2, William1) was born 1846 in Russell Cty, KY, and died 17 Jan 1883. She married (1) James C. Prock 15 Feb 1864 in Casey Co., KY. She married (2) Peter Thomas Powell 29 Oct 1866 in Adair Cty, KY, son of William Powell and Caroline Womack.
Died in Nashville, TN, during Civil War. Enlisted in Co. H, 1st Regiment of Kentucky (?) Vols.
65 i. James Oliver11 Prock, born 17 Dec 1864.
66 i. Amanda "Marida"11 Powell, born Abt. 1879 in Adair Cty, KY.
67 ii. Thomas Powell, born 1868 in Adair Cty, KY.
68 iii. Mary B. Powell, born 1870 in Adair Cty, KY.
69 iv. Myra A. Powell, born 1872 in Adair Cty, KY.
70 v. Caroline Powell, born 1874 in Adair Cty, KY.
71 vi. Emily L. Powell, born 1876 in Adair Cty, KY.
72 vii. Martha H. Powell, born 1878 in Adair Cty, KY.
73 viii. William Henry Harrison Powell, born 20 Jul 1882 in Columbia, KY; died 24 Nov 1942. He married (1) Effie M. Roy in Adair Cty, KY. He married (2) Clara Ina Albertson 05 Feb 1920 in Columbia, KY.


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Ponomarev Yu.N. Investigations on high-resolution spectroscopy at V.E. Zuev Institute of Atmospheric Optics SB RAS. // Optika Atmosfery i Okeana. 2015. V. 28. No. 05. P. 377-378 [in Russian].
Nikitin A.V. Calculation of vibrational energy levels of symmetric molecules from potential energy surface. // Optika Atmosfery i Okeana. 2015. V. 28. No. 05. P. 379-390 [in Russian].
Kochanov R.V., Tashkun S.A., Tyuterev Vl.G. On the modeling of potential energy surfaces for molecular spectroscopy. // Optika Atmosfery i Okeana. 2015. V. 28. No. 05. P. 391-407 [in Russian].
Lyulin O.M. Determination of parameters of spectral lines from several absorption spectra with the MultiSpectrum Fitting computer code. // Optika Atmosfery i Okeana. 2015. V. 28. No. 05. P. 408-416 [in Russian].
Lyulin O.M. Determination of Spectral Line Parameters from Several Absorption Spectra with the MultiSpectrum Fitting Computer Code. // Atmospheric and Oceanic Optics, 2015, V. 28. No. 06. pp. 487–495.
Bykov A.D., Lavrent'eva N.N., Sinitsa L.N. Effects of strong vibrational excitation in water vapor spectroscopy. // Optika Atmosfery i Okeana. 2015. V. 28. No. 05. P. 417-429 [in Russian].
Petrova T.M., Ponomarev Yu.N., Solodov A.A., Solodov A.M., Boldyrev N.Yu. Spectroscopic complex for investigation of selective and nonselective absorption spectra of gases in a wide spectral range. // Optika Atmosfery i Okeana. 2015. V. 28. No. 05. P. 430-435 [in Russian].
Petrova T.M., Ponomarev Yu.N., Solodov A.A., Solodov A.M., and Boldyrev N.Yu. Spectrometric Complex for Investigation of Spectra of Selective and Nonselective Gas Absorption in a Wide Spectral Range. // Atmospheric and Oceanic Optics, 2015, V. 28. No. 05. pp. 400–405.
Kalugina Yu.N., Cherepanov V.N. Multipole electric moments and higher polarizabilities of molecules: The methodology and some results of ab initio calculations. // Optika Atmosfery i Okeana. 2015. V. 28. No. 05. P. 436-442 [in Russian].
Kalugina Yu.N. and Cherepanov V.N. Multipole Electric Moments and Higher Polarizabilities of Molecules: Methodology and Some Results of ab initio Calculations. // Atmospheric and Oceanic Optics, 2015, V. 28. No. 05. pp. 406–414.
Ptashnik I.V. Water vapour continuum absorption: Short prehistory and current status. // Optika Atmosfery i Okeana. 2015. V. 28. No. 05. P. 443-459 [in Russian].
Rodimova O.B. Spectral line shape and absorption in atmospheric windows. // Optika Atmosfery i Okeana. 2015. V. 28. No. 05. P. 460-473 [in Russian].
Kochanov V.P. Algebraic approximation of the spectral line profile with accounting for strong and weak velocity-changing collisions. // Optika Atmosfery i Okeana. 2015. V. 28. No. 05. P. 474-479 [in Russian].
Kochanov V.P. Algebraic Approximation of the Spectral Line Profile with Allowance for Hard and Soft Speed-Related Collisions. // Atmospheric and Oceanic Optics, 2015, V. 28. No. 05. pp. 394–399.
Akhlyostin A.Yu., Voronina S.S., Lavrent'ev N.A., Fazliev A.Z. Spectroscopic information resources at Institute of Atmospheric Optics SB RAS. // Optika Atmosfery i Okeana. 2015. V. 28. No. 05. P. 480-488 [in Russian].
Chesnokova T.Yu., Chentsov A.V., Rokotyan N.V., Zakharov V.I. Retrieval of content of greenhouse gases from atmospheric spectra of solar radiation with the use of different spectroscopic data on absorption lines. // Optika Atmosfery i Okeana. 2015. V. 28. No. 05. P. 489-495 [in Russian].
Chesnokova T.Yu., Chentsov A.V., Rokotyan N.V., and Zakharov V.I. Retrieval of Content of Greenhouse Gases from Atmospheric Spectra of Solar Radiation with the Use of Different Spectroscopic Data on Absorption Lines. // Atmospheric and Oceanic Optics, 2015, V. 28. No. 05. pp. 469–475.

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§ 605.010 Tent Shows — Circus, Menagerie, Carnival, Etc.
§ 605.015 No Tax Due Statement Required.
§ 605.030 License To Authorize Business Specified Only.
§ 605.040 Licenses — Form — Not Transferable.
§ 605.050 Issuance and Term of License.
§ 605.060 Persons Not To Be Charged for Business License.
§ 605.070 Violation and Penalty — Delinquency.
Section 605.010 Tent Shows — Circus, Menagerie, Carnival, Etc.
Section 605.015 No Tax Due Statement Required.
Section 605.030 License To Authorize Business Specified Only.
Section 605.040 Licenses — Form — Not Transferable.
Section 605.050 Issuance and Term of License.
Section 605.060 Persons Not To Be Charged for Business License.
Section 605.070 Violation and Penalty — Delinquency.
Every person or persons who shall within the City of Marshfield set up or conduct any circus, menagerie, carnival or other tent show, shall pay to the City a license tax therefor as follows: For circus or menagerie the sum of fifty dollars ($50.00) for each day; for a carnival or other collection of shows the sum of twenty dollars ($20.00) for one (1) day showing and ten dollars ($10.00) for each additional showing; for a stock company or vaudeville show the sum of five dollars ($5.00) for each day showing; and all other shows the sum of ten dollars ($10.00) for each day showing.
Each applicant for a business license under this Chapter shall submit a statement from the Missouri Department of Revenue pursuant to Section 144.083.4, RSMo., stating no tax is due, which statement is a prerequisite to the issuance or renewal of a City business license. The statement required by this Section shall be dated within ninety (90) days of submission of the business license application or renewal application.
Automobile agencies, dealers, public garages, automobile repair shops or a combination of such.
Dray, transfer or any other vehicle for the transportation for hire or merchandise or any other property.
Express company and express agent.
General notion store commonly known as a dime store.
Jitney, taxi or any other vehicle for the transportation of persons and/or baggage.
Loan agent by loaning monies of other persons, companies or corporations.
Plumber or dealer in plumbing supplies.
Restaurant, cafe, soda fountain or ice cream and soft drink stands or combination thereof, at which food or drink is served at tables.
Stockyards or sales barn where cattle, horses, sheep, hogs or other livestock are bought, sold, kept or fed, either by the owner or keeper of such stockyards or sales barn or by other persons.
Wholesale business or any kind of manufacturing establishments.
Every license to set up, keep, conduct, operate or engage in any business, occupation or avocation, issued under the provisions of this Chapter, shall authorize the conducting of such business, or the keeping or selling of such goods and wares as is customary in the business, occupation or avocation for which such license was issued, and no other; any local custom to the contrary notwithstanding.
Every license required by this Chapter shall show upon its face for what business, occupation or avocation the same was issued, and shall be signed by the Mayor and City Clerk and countersigned by the City Collector, and shall have the Corporate Seal affixed thereto. No license issued under this Chapter shall be transferred or assigned and a separate license shall be required for each separate business or place of business.
No license shall be issued under the provisions of this Chapter, unless the amount prescribed therefor, shall have been paid to the City Collector. Each year licenses shall expire on December thirty-first (31st).
No person following for a livelihood the profession or calling of minister of the gospel, duly accredited Christian Science practitioner, teacher, professor in a college, priest, lawyer, certified public accountant, dentist, chiropractor, optometrist, chiropodist, or physician or surgeon in this City shall be taxed or made liable to pay any municipal or other corporation tax or license fee of any description whatever for the privilege of following or carrying on such profession or calling, and after December 31, 2003, no investment funds service corporation as defined in Section 143.451, RSMo., may be required to pay any such license fee in excess of twenty-five thousand dollars ($25,000.00) annually, any law, ordinance or Charter to the contrary notwithstanding.
No person following for a livelihood the profession of insurance agent or broker, veterinarian, architect, professional engineer, land surveyor, auctioneer, or real estate broker or salesman in this City shall be taxed or made liable to pay any municipal or other corporation tax or license fee for the privilege of following or carrying on his/her profession unless that person maintains a business office within the City of Marshfield.
All license fees not paid to the City by the person required to remit the same on the date when the same becomes due and payable to the Director of Revenue shall bear interest at the rate determined by Section 32.065, RSMo., from and after such date until paid.
In case of failure to apply for any license fee required by this Chapter on or before the date prescribed therefor, determined with regard to any extension of time for making an application, unless it is shown that such failure is due to reasonable cause and not the result of willful neglect, evasion or fraudulent intent, there shall be added to the amount required to be shown as tax on such return five percent (5%) of the amount of such tax if the failure is not for more than one (1) month, with an additional five percent (5%) for each additional month or fraction thereof during which such failure continues, not exceeding twenty-five percent (25%) in the aggregate.
In case of failure to pay the full amount of any license fee due hereunder on or before the date prescribed therefor, determined with regard to any extension of time for payment, unless it is shown, by the applicant, that such failure is due to reasonable cause and not the result of willful neglect, evasion or fraudulent intent, there shall be added to the tax an amount equal to five percent (5%) of the deficiency. The City shall, upon request by a taxpayer, apprise the taxpayer of the factual basis for the finding of negligence, or the specific rules or regulations disregarded if the City assesses a penalty under this Subsection.


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Artificial vision techniques were used to evaluate its application in the control of the coffee roasting stage. Coffee samples of Colombia and Castillo varieties were obtained and analyzed by comparing images during the roasting stage. A one-way ANOVA analysis exhibited 94.28% of similarity of the coffee varieties studied; a multivariate analysis showed significant differences (p<0.05) for the time factor and its interaction with the variety factor, no differences were observed (p>0.05) for the coffee varieties. Additionally, a Principal Component, with two components demonstrated 90.77% of the variance by differentiating the samples in the different roasting times. Therefore, the proposed technique could be used in the control of the coffee roasting stage.
GARCÍA-LUNA, F.; MORALES-DÍAZ, A. Towards an artificial vision-robotic system for tomato identification. IFAC-PapersOnLine, v. 49, n. 16, p. 365-370, 2016.
GIRÓN, J.; BARAT, J.; SÁNCHEZ, A.; GRAU, R. Aplicación de la espectrofotometría de infrarrojo (SW-NIR) para la clasificación de grasa de cerdos ibéricos. Agronomía Colombiana, Bogotá, v. 34 (1Supl.), p. S473-S476, 2016.
HERNÁNDEZ, J.; HEYD, B.; TRYSTRAM, G. Prediction of brightness and surface area kinetics during coffee roasting. Journal of Food Engineering, v. 89, n. 2, p. 156-163, 2008.
IVORRA, E.; SÁNCHEZ, A.; VERDÚ, S.; BARAT, J.; GRAU, R. Shelf life prediction of expired vacuum-packed chilled smoked salmon based on a KNN tissue segmentation method using hyperspectral images. Journal of Food Engineering, v. 178, p. 110-116, 2016.
PRATS-MONTALBÁN, J.; DE JUAN, A.; FERRER, A. Multivariate image analysis: A review with applications. Chemometrics and Intelligent Laboratory Systems, v. 107, (1), pp 1-23, 2011.
Specialty coffee association SCAA. Grading Green Coffee, Specialty Coffee Association of America, USA, 2009. (September -2018).
SUN, X.; YOUNG, J.; LIU, J.; NEWMAN, D. Prediction of pork loin quality using online computer vision system and artificial intelligence model. Meat Science, v. 140, p 72-77, 2018.
VALA. H.; ASTHA, B. A review on Otsu image segmentation algorithm. International Journal of Advanced Research in Computer Engineering and Technology, v. 2, n. 2, p. 387-389, 2013.
VERDÚ, S.; VÁSQUEZ, F.; IVORRA, E.; SÁNCHEZ, A.; BARAT, J.; GRAU, R. Hyperspectral image control of the heat-treatment process of oat flour to model composite bread properties. Journal of Food Engineering, v. 192, p. 45-52, 2017.

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7 Divorce Litig. 116 (July, 2004).
Unfair Part 1, Family Law Commentator, Sep. 1996.
Unfair Part 2, Family Law Commentator, Dec. 1996.
Do Attorneys Risk More Than Embittered Clients?, 70 Fla. B.J. 62 (May 1996).
Trading Pension Rights in Divorce Settlements, 83 Ill. B.J. 302 (June 1995).
of Retirement Plan Benefits, Family Law Commentator, May 1995.
A Malpractice Waiting to Happen Part 1, 69 Fla. B.J. 43 (Feb. 1995).
I started my career as a Health Actuary in the early 70s. The problem with runaway costs began with the introduction of "Usual and Customary" by Blue Cross & Blue Shield. The coverage before that provided a fixed schedule of benefits (see page 6 of treatise). The schedule of benefits controlled costs because the consumer had limited funds and only sought services that could be afforded. Usual and Customary gave ordinary people access to huge sums of money and it is responsible for an explosion of expanded services largely responsible for increased longevity. But it also led to runaway costs. I had been working on the solution to the problem (in the early 70s) which involved identifying and controlling the two drivers of cost: Incidence and Utilization.
Incidence is the rate by which people incur illness in the insured population. Utilization is how often they use the insurance. The solution was remarkably simple. The Affordable Care Act identified what those drivers are and sensible solutions. What was enacted fell far short of what is needed because politics got in the way. We will not be able to solve the problem with only market-based solutions, nor will it be solved without a 100% mandate, nor can it be solved without addressing limiting utilization for end of life care. Without limiting the latter, restricting what kind of profit players can make, and severely eliminating the ability to sue, the rich in their 80s are provided more affordable coverage at the expense of the working poor having less or no access to health care. People of means can always opt out of insurance coverage and get more quality care if they pay for it themselves. Once and for all we must decide as a society whether health care is a right or a privilege. The lobbyists have always turned this question on its head.
Surely, what we have provides the best care in the world, which is why the very rich come here for care. At the heart of this question is not whether we have the best health care system, but what percentage of our population has access to it (as discussed in the Newsweek article, which you can access by the link provided above). This is why we need to pay far more attention to how the World Health Organization rates our health care (ranked 38 overall behind 37th ranked Third World Costa Rica and dead last among western civilizations) than how the Heritage Foundation rates it. Even the Affordable Care Act had it shortcomings providing three levels of coverage based on economic circumstances. Because longevity is correlated with where you live, your level of education, and your economic situation, we must compare what we have against what Europe offers, not based on availability of coverage, but based on access to care and what care most of our citizenry are provided.
Had the studies in the 70s been implemented with the intended solutions, we would have solved the problem with the creation of HMO's. Health Maintenance Organizations were supposed to follow those principles, which were to control costs by keeping people healthy. If people are healthy they do not need expensive procedures nor do they need to use health insurance that often. They did not because instead of operating under the long view, where controlling costs were the main objective, they instead opted to maximize profits each year, which works diametrically opposite to the reason the HMO was created in the first place: controlling costs by keeping people healthy. This was accomplished by encouraging wellness visits by paying 100% upfront coverage.
The sick population doesn't magically disappear when you change the public policy on how costs should be managed. This forces prices up before they can decrease. You start new policy with scores of sick people. Implementing this new policy cannot be done in a pure vacuum, meaning costs go up temporarily before utilization of services and incidence of illnesses decrease, driving costs down. This is the inherent problem in seeking a market-based solution, which involve corporation that have stockholders who don't give a damn about people's health.
Conservative politics sees market -based solutions as a panacea to all the ills of the world. This runs countermand to the way most western countries view these issues. Inasmuch as they have far lower infant mortality, and health care rated far higher than we rate under the World Health Organization, and at a much lower per capita cost, just maybe they are right and we are wrong.
Family Law attorneys are making huge mistakes dividing non-deferred Compensation programs as deferred compensation programs, thereby employing circular reasoning and committing malpractice. What is Deferred Compensation and why mislabeling it cause such concern is the focus of this short newsletter?
Retirement Benefits include defined benefit plans and defined contribution plans. Defined benefit plans include traditional monthly benefit plans, floor and floor offset plans and cash balance plans. Defined Contribution plans include Profit Sharing and Defined Contribution Pension Plans. Profit Sharing plans include discretionary contribution plans with or without corporate profit, 401(k) plans, or its government equivalent, 457 Plans, ESOPs, and Thrift Plans. Defined Contribution Pension Plans include money purchase pension plans or its government equivalent, 403(b), and target benefit plans. There are other plans that are hybrids of one or more general classifications. All of these plans have earnings and vesting definitions, must vest upon attaining the conditions for retirement, must vest upon plan termination, and what was earned can never be reduced.
Welfare Benefit Plans need not ever vest (and seldom do) and do not contain earnings definitions. These plans are generally insurance type plans, like Health and Disability Insurance Plans and Life Insurance. Benefit rights flow from events randomly occurring in nature like, accident, illness or death. For that reason prepaid legal service is a welfare benefit. Coverage can be withdrawn based on the contract and the contract alone and all rights terminate except those establishing benefits based on these random event occurring while the contract was in force. The only marital property associated with these benefits are cash value rights created during the marriage or in some cases payments made during the marriage. Weisfeld v. Weisfeld, 513 So.2d 1278, 1281 (Fla. 1989) citing Goode, 692 S.W. 2d at 757; In Re: the Marriage of Burt, 494 N.E. 2d at 868; Lukas, 404 N.E. 2d at 505; Johnson, 838 S.W. 2d 703; Quiggins v. Quiggins, 637 S.W. 2d 666; 668-69 (Ky 1982); Platek, 454 A.2d at 1059; Orszula, 356 S.E.2d at 114; see Queen, 521 A.2d at 324.
Other deferred compensation programs need never vest because they are often unfunded and seek to reward employees for future services that may or may not be paid. Because Welfare and non-retirement deferred distribution benefits may not be paid, may never vest, and often don't have clear definitions of what was earned, when it may be earned, vesting may substitute for what was earned except when it can be shown by the way the benefit works that vesting involves tangential effort. Tangential effort can involve great effort but be passive because the effort did not result in earning the asset or the growth. Thus, this entails a thorough understanding of the four types of effort recognized under Florida Law: Passive (little or no effort), Tangential, Active (significant effort, yet passive), and a Foundation of Active Efforts during various measurement periods.
But not all compensation paid in the future fits into F.S. 61.075(6)a.1d. If an asset has yet to be created, it may not create marital property even though it may create property in the future. A clear example of that is when a right to the property is created after the cutoff date, such as the adoption of a 61.075(6)a.1d program developed after the cutoff date which awards benefits or compensation after the cutoff date, but may give earning credit during the marriage. When deferred compensation is used loosely where nothing has been acquired, simply categorizing it as deferred confuses whether the asset was acquired. In the instance of deferred compensation programs, a contract or plan was acquired before the cutoff date, and whether something was earned and how much may befall on the person who participates in the contract or program to demonstrate a non-marital portion because then at least a future right was acquired during the marriage. But when it is not a F.S. 61.075(6)a.1d asset, it must be scrutinized to understand the compensation purpose. If for example it is compensation rewarded if an injury occurs after the cutoff date, it is not marital property. Such might be triggered by an executive agreement delineating what occurs on firing or constructive firing pursuant to a merger/acquisition. But that same merger/acquisition may vest a right to a stock option, and there it is 100% marital property, not based on the actual merger/acquisition but because vesting it upon said occurrence makes the company so much less saleable demonstrating vesting is a golden handcuff because its vesting works against the company's interest, speaks volumes that the award was fully earned when granted. If it's based on disability, it's a 61.075(6)a.1d asset excluding income after the cutoff date. See Weisfeld.
But many compensation programs may be designed as signing bonuses (as is often accomplished with forgivable loans), which could create marital property or be created when conditioned are met because the purpose of many such programs is to sell a book of business at retirement. Then, the property right has not been created, and when it is created, that book of business involves personal goodwill, and not marital property (See Thompson v. Thompson, 576 So.2d 267, 270 (Fla. 1991) citing Taylor v. Taylor, 386 N.W. 2d 851, 858 (Neb. 1986)) the existence of which is revealed by non-compete clauses extending into retirement. Held v. Held, 912 So. 2d 637, 640 (Fla. 4th DCA 2005) citing Williams v. Williams, 667 So.2d 915, 916 (Fla. 2nd DCA 1996). When the purpose is to buy a book of business at retirement it can involve two separate compensation programs because what that business is worth is determined by two things: 1) The general revenues produced at the moment of transfer, and the persistency of what clients remain, which will require working those clients after the transfer takes place. That is why it can involve multiple programs coordinating with one another and different non-compete clauses with each of the coordinating programs.
Over the last four years about half of my testimony deals with these complex financial instruments and at least a third deals with post judgment contract disputes. In April of this year my testimony was favored over a national consulting actuarial firm dealing with a benefit rights dispute applying to a class of employees. My testimony has been favored in every single trial this year and this has been a very active year for trials.
* D/b/a Jerry Reiss, ASA. Enrolled Actuary Member of the American Statistical Association. Listed in Best Experts in America: Family Law 2007-2012; Employment Law 2006-2012.
Are Professional Organizations Operating Like Criminal Enterprises?
Are Professional Organizations like the Society of Actuaries, that exist ostensible to feed itself by collecting enormous fees from its members, operating as a criminal enterprise when it uses its power to prevent former members from doing any type of work without paying them tribute. Is this a violation of RICOH? I think so. Here’s my story.
I passed the associateship level of the SOA in 1982 and joined the Society of Actuaries and became a member. At that time membership was voluntary. I passed 7EA in 1983. Thereafter I applied for and became a federally licensed pension Actuary. In 1984, I started my own firm. Defined benefit plans started to become scarce after the Tax Reform Act of 1986 became fully effective in 1989, causing me to look for another profession. I applied my skill to forensic work in 1993 and fully transitioned into that line of work by 1999 when I closed my TPA, terminating my last defined benefit plan. That was when I stopped paying the Society of Actuaries dues. I still provided another firm actuarial certification until it terminated its last defined benefit plan, which was before 12/31/2000. Thereafter, I did not make one dime from actuarial work from 1/01/2001 through 12/31/2007. Shortly thereafter, I created my website.
The Great Recession affected many businesses and especially those that depended on new clients for their current income. My income was slashed by more than 70%. That caused me to update my site and advertise my credentials to see if I could attract a large pension company to offer me a job. It did do just that but because I allowed my enrollment status to go inactive, no one was going to wait for me to activate it by acquiring the necessary continuing education requirements, which would have taken and did take about six months. I reactivated my status as of April 2011 and sought actuarial certification work to pay continuing education credits and nothing more. My income as one of the nation’s top experts fully rebounded by 2015.
In January 2015, a trader making $1,000,000 per year was forced to pay back child support in a proceeding that I was involved as an expert witness. My role in that case was showing that his compensation included forgivable loans, which is a rather typical way people on WallStreet are paid today. Owing more than one-quarter million dollars and having to pay he swore vengeance against me in court that was overheard by many. He reported the matter to the Joint Board, of which I was a member, which refused to discipline me because I did nothing wrong. He made the same complaint to the SOA that began to investigate me as a non-member. It ordered me in writing to remove all references to passing the actuarial exams unless I applied for reinstatement. It also ordered me to change my business name, Jerry Reiss, ASA, advising me it had a trade mark of it and therefore advised me I was in violation of that trademark. I complied with all they asked to avoid litigation but refused to change my business name which I had been using since 1993.
I checked in 2015 and learned that it had no such trademark rights on neither the ASA designation nor the FSA designation, but 50 other organizations did, including the American Statistical Association, which I since joined, and the American Society of Appraisers, which conducts a vigorous examination process, similar to the actuaries, and its ASA designation is the most prestigious in America for business valuations. Since I refused to change my business name or pay them tribute (involving over $10,000 in back dues) it threatened litigation and first applied for trademark rights three months before it filed against me in federal court on December 1, 2016. As it was not economically viable over a mere $10,000 I was used to no doubt send a strong message to the 100s of other pension actuaries who stopped paying dues. How is what they do different than what the American Mafia did for so-called protection rackets?


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805 F.2d 611 (6th Cir. 1986), 84-1362, Rabidue v. Osceola Refining Co., a Div. of Texas-American Petrochemicals, Inc.
481 U.S. 1041 (1987), 86-1472, Rabidue v. Osceola Refining Co.
510 U.S. 17 (1993), 92-1168, Harris v. Forklift Systems Inc.
989 F.2d 959 (8th Cir. 1993), 92-2059, Burns v. McGregor Electronic Industries, Inc.
858 F.2d 345 (6th Cir. 1988), 87-1505, Davis v. Monsanto Chemical Co.
50 F.3d 428 (7th Cir. 1995), 94-2837, Baskerville v. Culligan Intern. Co.
819 F.2d 630 (6th Cir. 1987), 86-5288, Yates v. Avco Corp.
805 F.2d 644 (6th Cir. 1986), 85-3587, Highlander v. K.F.C. Nat. Management Co.
845 F.2d 104 (5th Cir. 1988), 87-3474, Bennett v. Corroon & Black Corp.
913 F.2d 463 (7th Cir. 1990), 89-1284, Guess v. Bethlehem Steel Corp.
40 F.3d 796 (6th Cir. 1994), 93-6004, Pierce v. Commonwealth Life Ins. Co.
990 F.2d 893 (6th Cir. 1993), 92-1681, Pasternak v. C.I.R.
42 F.3d 439 (7th Cir. 1994), 94-1424, Doe v. R.R. Donnelley & Sons Co.
842 F.2d 1010 (8th Cir. 1988), 87-1900, Hall v. Gus Const. Co., Inc.
335 F.3d 325 (4th Cir. 2003), 01-1648, Ocheltree v. Scollon Productions, Inc.
879 F.2d 1304 (6th Cir. 1989), 88-1331, Booker v. Brown & Williamson Tobacco Co., Inc.
81 F.3d 48 (6th Cir. 1996), 95-3045, Fleenor v. Hewitt Soap Co.
67 CBJ 429. HUMAN RIGHTS COMMENTATOR.
123 F.3d 868 (6th Cir. 1997), 96-3084, Blankenship v. Parke Care Centers, Inc.

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A. The public entity advertising for bids for work shall require the bidders to attach a certified check, cashier's check, or bid bond for not more than five percent of the contract price of work to be done, as an evidence of good faith of the bidder. The public entity advertising for bids for work may require the bidders to attach a certified check, cashier's check, or bid bond for not more than five percent of the estimated price of supplies or materials, as evidence of good faith of the bidder.
B. Repealed by Acts 2001, No. 138, § 1, eff. July 1, 2001.
C. If bid bond is used, it shall be written by a surety or insurance company currently on the U.S. Department of the Treasury Financial Management Service list of approved bonding companies which is published annually in the Federal Register, or by a Louisiana domiciled insurance company with at least an A- rating in the latest printing of the A.M. Best's Key Rating Guide to write individual bonds up to ten percent of policyholders' surplus as shown in the A.M. Best's Key Rating Guide or by an insurance company in good standing licensed to write bid bonds which is either domiciled in Louisiana or owned by Louisiana residents.
Acts 1977, No. 103, § 1. Amended by Acts 1983, No. 105, § 1; Acts 1990, No. 139, § 1; Acts 1991, No. 748, § 1, eff. July 18, 1991; Acts 1995, No. 718, § 1, eff. June 21, 1995.

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Martin L. Fisher of Fisher, Fisher & Groetken, P.C., Adair, for Kent and Juliann Sinn. Matthew J. Hemphill of Bergkamp, Hemphill & McClure, P.C., Adel, for appellee.
Appeal from the Iowa District Court for Adair County, John D. Lloyd, Judge. The parties in a combined action for breach of contract and declaratory judgment appeal and cross-appeal the district court's ruling. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Martin L. Fisher of Fisher, Fisher & Groetken, P.C., Adair, for Kent and Juliann Sinn. Matthew J. Hemphill of Bergkamp, Hemphill & McClure, P.C., Adel, for appellee. Heard by Vogel, P.J., and Potterfield and Bower, JJ. POTTERFIELD, Judge.
The underlying proceedings are based on the purchase agreement entered into by Kent and Juliann Sinn and Wallace Auto Supply, Inc. whereby Wallace Auto would purchase the Sinns's Greenfield True Value store for $1 million. As part of the purchase agreement, the Sinns were to leave $618,000 worth of certain inventory in the store. Additionally, the agreement included a non-compete provision that prevented the Sinns from "directly or indirectly" competing "within a ten mile radius of Greenfield, Iowa" for three years after the closing date.
After the parties entered into the agreement, the Sinns filed a petition for declaratory judgment in June 2014, seeking to have the district court interpret the non-compete provision. In October 2015, Wallace Auto filed a petition at law, alleging the Sinns had breached the contract by violating the non-compete agreement and by leaving approximately $96,000 less inventory in the store than the purchase agreement required. The two actions were later consolidated.
Following a bench trial, the district court granted declaratory relief interpreting the non-compete agreement in favor of the Sinns. On Wallace Auto's breach-of-contract claim, the court found the Sinns had breached the contract by removing more inventory from Greenfield True Value than the purchase agreement allowed, but the court reduced the damages Wallace Auto requested by 30%.
The Sinns appealed and Wallace Auto cross-appealed.
On appeal, the Sinns maintain there was no reasonable basis from the evidentiary record from which the court could properly infer or approximate the damages awarded and the award of damages unjustly enriched Wallace Auto. In the alternative, the Sinns argue that if Wallace Auto is entitled to any damages, it should be only nominal damages for the Sinns's breach of contract. The Sinns request reasonable appellate attorney fees based on the language of the agreement. The Sinns failed to appear for oral argument.
On cross-appeal, Wallace Auto asks us to affirm the district court's ruling the Sinns breached the contract by failing to have $618,000 of inventory in the store and asks us to reverse the court's ruling reducing the amount of damages requested by 30%. Wallace Auto also challenges the district court's ruling determining the Sinns did not breach the non-compete provision of the contract. Wallace Auto also requests reasonable appellate attorney fees.
The Sinns owned and operated the Greenfield True Value store from 1997 until 2014, when Wallace Auto purchased and took possession of the store. The purchase agreement provided that Wallace Auto would pay the Sinns $1 million total, with $618,000 being allocated to inventory; $305,000 for the real estate; $76,500 for "all other assets" (fixtures and other non-merchandise in the store); and $500 for the non-compete clause.
The agreement further specified the $618,000 in inventory would not include "vehicles, new lawnmowers, new mower parts, major appliances, automotive parts, trailers, and rental equipment ('the inventory')." Because the Sinns usually kept more than $618,000 inventory in the store, it was agreed they would remove any excess and place it in their True Value store in Creston.
The Creston store was more than ten miles from the Greenfield store.
For the consideration set forth above, to be paid at closing, Seller and Kent Sinn and Juliann Sinn in their individual capacities, shall not directly or indirectly engage in, and shall have no Interest In any business, firm, person, partnership, or corporation, whether as an employee, officer, director, agent, security holder, creditor, consultant or otherwise, that engages In the sale of any types of items sold True Value stores within a ten (10) mile radius of Greenfield, Iowa at any time within three (3) years immediately following the closing date.
The closing of the sale took place on February 7, 2014. Per the agreement, the Sinns had an additional thirty days "to remove the excepted items from the premises."
Kent testified that as his employees removed items from the Greenfield store, they scanned them at the register as if they were being purchased in order to remove them from the store's inventory (and transfer them to the Creston store's inventory). A number of employees helped remove the items.
During the negotiations, the parties discussed that the inventory in the store may include obsolete, unsellable items. As a result, they agreed that the nuts, bolts, and fasteners located in the Greenfield store would not be inventoried but would be transferred to Wallace Auto outside of the inventory to offset the obsolete items.
However, the Sinns misunderstood the agreement, and, as a result, they removed approximately $32,000 more in inventory than necessary to get the store to $618,000. Kent realized the mistake while his employees were still removing items from the store—during the thirty days after closing—and he testified that he then told them to stop. According to Kent, at the time they ceased removing items, there was still a number of excluded items in the store.
As the parties did, we refer to the categories Wallace Auto did not agree to purchase as the "excluded." Namely, "vehicles, new lawnmowers, new mower parts, major appliances, automotive parts, trailers, and rental equipment."
Kent began returning items to Wallace Auto from the Creston True Value store as Wallace Auto requested them. As the relationship between the parties began to sour, the Sinns chose to pay Wallace Auto the balance of the outstanding $32,000 and cut ties.
During the same period, Wallace Auto continued to use the Sinns's inventory system for the Greenfield store. The Sinns had used one software inventory system for both their Greenfield and Creston stores. The two stores' inventories were kept separately, so the person using the program had to enter information identifying which store was involved in the order or sale. Before Wallace Auto had their own system installed, some sales and orders were completed in the Greenfield store that ultimately showed up in the records of the Creston store. Kent testified that once it became clear the errors were being made, the workers at the Greenfield True Value were told and the errors that had been made were corrected.
The purchase agreement provided for Wallace Auto's use of the system for a period of time until it could get its own up and running.
As Kent testified, the same system was used for both stores, but you had to first enter a portal for either the Creston store or the Greenfield store before you could take further actions.
In the year following the sale, a dispute arose over the interpretation of the non-compete provision in the contract. The Sinns filed a petition for declaratory judgment. In it, they advised the court the specific disputes were over the following: whether the Sinns could sell retail products, mowers, appliances, hardware, etc. to individuals who bought items in their True Value store in Creston but who live within the ten-mile radius of Wallace Auto's Greenfield True Value; whether the Sinns could deliver items purchased in their Creston store to individuals who lived within the ten-mile radius of the Greenfield store; and whether the Sinns could operate their company vehicles advertising the Creston True Value store within the ten-mile radius. In its response, Wallace Auto agreed with the Sinns's list of disputes and added others, including whether the Sinns could—in the ten-mile radius—advertise in newspapers; "pick up or deliver sold, rented, or repaired items"; or directly contact or solicit individuals for the purpose of sales, rentals, or repairs. Wallace Auto also asked for clarification whether the Sinns's employees were subject to the same restrictions.
Before the declaratory judgment was decided, in October 2015, Wallace Auto filed a petition at law for breach of contract. Wallace Auto claimed the Sinns had breached the purchase agreement in two ways. First, Wallace Auto maintained it had paid for items it believed it was getting and that had been counted toward the $618,000 worth of inventory but that it had not actually received. Wallace Auto presented evidence showing the items that had been counted toward the inventory but were not present in the store at the time of closing totaled $96,563.87. Second, Wallace Auto maintained the Sinns had breached the non-compete provision by "engaging in sales of items and services sold at True Value stores within the prohibited radius." Referencing a provision in the purchase agreement, Wallace Auto asked for costs and attorney fees.
At the time it filed its petition, Wallace Auto asserted the damages totaled $98,091.69. Later accounting showed there had been some errors in adding the value of the allegedly missing items; Wallace Auto amended its request.
The Sinns moved to consolidate the breach-of-contract action with the petition for declaratory judgment, and the district court granted the motion.
The two matters were tried to the court in June 2016.
At trial, David Wallace—the owner of Wallace Auto—testified that he stopped using the Sinns's inventory system sometime within a few months of the sale being final. When they switched inventory systems, the data from the Sinns's system was imported into the new system—there was no manual entering of the inventory in the new system. In the late fall or early winter of 2014, the employees at the Greenfield True Value began checking some inventory in preparation for ordering products to sell for spring and noticed some discrepancies between what was listed as inventory in the computer and what was actually in the store. Wallace Auto contacted their software company and asked for a printout of the entire inventory; they were provided a list as to what the inventory was listed in the computer on February 27. David Wallace tasked an employee, Jeremy Rohner, with comparing the inventory list to the actual physical items in the store. According to Rohner's testimony, over two or three days in December, he highlighted any item that was listed in the inventory that he could not find in the store. He also, as instructed, highlighted any items that were listed in the inventory that had been excluded from the purchased inventory pursuant to the contract, including auto and lawn mower parts, equipment to be rented to customers, and appliances. Another employee, Ann Culver, was tasked with adding up the values of the items listed in the inventory but not found in the store. Her initial calculations resulted in a sum of $98,091.69. It appears some human errors were made, as later use of a computer to add the values resulted in the sum of $96,563.87.
It is unclear why the inventory list was not printed for February 7, the date the purchase was completed. Several witnesses were asked, and none was sure. It seems there may have been a misunderstanding between the employee in charge of requesting it and the software company about which date to use.
Rohner testified that he also helped customers and completed other work tasks during those days.
We make different buys from time to time. Like True Value will have ten pallets of merchandise at scratch and dent. They say you bid on it. I would bid on it and buy it. We would bring it back in the store and sell it under basically what I call a dump number, which means it's not in inventory, but every time it's sold it's calculated under that number. So we would give X amount of dollars—we would sell these products under a generic dump number so they were not in the system as inventory yet. They were out on the floor.
In its written ruling, the district court concluded that the non-compete provision did not prevent the Sinns from delivering lawn mowers that were purchased by customers in their Creston store to the customers' homes located within the ten-mile radius created by the clause. As such, the court concluded the Sinns had not breached the non-compete provision of the purchase agreement in doing so.
was prepared by a different software program with imported information from the Sinn's system. The court also recognizes that the employee who verified [the inventory list] and the items not in the store was performing this task while also performing other tasks including waiting on customers. The court recognizes as well that some erroneous information was input by Wallace's employees shortly after the sale, although that would more likely have caused items not to be listed in the Greenfield inventory than to list items that were not in the store. As well, time had passed between the time the inventory was dated and the time it was verified, raising the possibility that some items were no longer in the store because they had been sold. The court concludes that a 30% reduction in the amount claimed by Wallace would appropriately account for all of these factors. Wallace [Auto] is therefore entitled to damages in the amount of $67,500 and judgment should be entered in favor of Wallace Auto Supply, Inc. and against Kent and Juliann Sinn in that amount.
The Sinns appealed, and Wallace Auto cross-appealed.
We review a claim of breach of contract for correction of errors at law. Iowa Mortg. Ctr., L.L.C. v. Baccam, 841 N.W.2d 107, 110 (Iowa 2013). We are bound by a district court's findings of fact when the findings are supported by substantial evidence in the record, but the "court's conclusions of law or its application of legal principles do not bind us." Id.
Although the questions regarding the interpretation and scope of the non-compete clause were originally pled in equity, the issue was ultimately combined with that of the breach-of-contract petition, and the combined matter was tried at law. "A declaratory judgment action tried at law limits our review to correction of errors at law." American Family Mut. Ins. Co. v. Petersen, 679 N.W.2d 571, 575 (Iowa 2004).
We note that not only did the district court rule on multiple objections throughout the trial, it also captioned its ruling as "Findings of Fact, Conclusions of Law, and Judgment Entry" as opposed to a "decree." See Sutton v. Iowa Trenchless, L.C., 808 N.W.2d 744, 748 (Iowa Ct. App. 2011).
On appeal, the Sinns concede they breached the purchase agreement. However, they challenge whether Wallace Auto met its burden of providing sufficient evidence to award damages, arguing there is no reasonable basis from which the court could determine damages and that any award is improperly speculative in nature. In the alternative, the Sinns maintain that if Wallace Auto is entitled to any damages, it should be only nominal damages.
In its cross-appeal, Wallace Auto also challenges the district court's award of damages, maintaining the court committed a legal error when it reduced damages by 30%. Wallace Auto maintains there is no evidence in the record from which to base the reduction.
We start first with the Sinns's contention that exhibit 4, the printout from the software company of the computer's listed inventory as of February 27, 2014, that Rohner used to compare with the inventory in the actual store and highlighted accordingly, was unreliable to determine damages. The Sinns maintain the basis of their argument is the best-evidence rule, found in Iowa Rule of Evidence 5.1002. But the Sinns may not base their argument on these grounds. As they admit, they first raised the issue of "best evidence" in a posttrial brief filed with the court. They did not raise the issue during trial, and, in fact, they conceded the admission of the exhibit at the start of Wallace Auto's case. This proceeding was tried at law. See Sille v. Shaffer, 297 N.W.2d 379, 381 (Iowa 1980) (noting ruling on evidentiary objections "is normally the hallmark of a law trial, not an equitable proceeding"). Raising an objection about evidence after conceding to its admission and after the trial has concluded does not preserve error, as neither the court nor the opposing party was given a chance to correct the alleged defect in the proceedings. See Segura v. State, 889 N.W.2d 215, 219 (Iowa 2017) ("[O]ne purpose of our error preservation rules is to ensure that the opposing party and the district court are alerted to an issue at a time when corrective action can be taken or another alternative pursued." (alteration in original) (citation omitted)). Moreover, nothing in the court's written ruling indicates that it considered the Sinns's best-evidence argument. See Peters v. Burlington N. R.R. Co., 492 N.W.2d 399, 401 (Iowa 1992) ("Ordinarily, issues must be raised and decided by the trial court before they may be raised and decided on appeal."). This contention has not been preserved for our review, and we do not consider it further. See Mitchell v. Cedar Rapids Cmty. Sch. Dist., 832 N.W.2d 689, 695 (Iowa 2013) ("It is well-settled that a party fails to preserve error on new arguments or theories raised for the first time in a posttrial motion. . . . Although our error preservation rules are not designed to be hypertechnical, we require that the nature of any alleged error be timely brought to the attention of the district court." (citations omitted)).
Even if there is a dispute over whether the declaratory judgment was tried at law or in equity, the breach-of-contract claim was pled at law.
Next, we consider the Sinns's argument there was not sufficient evidence in the record to support the court's award of damages and Wallace Auto's competing counter-argument there was no evidence in the record to support the court's reduction of their damages by 30%.
Case law distinguishes between proof of the fact that damages have been sustained and proof of the amount of those damages. See Olson v. Nieman's, Ltd., 579 N.W.2d 299, 309 (Iowa 1998). Damages should not be awarded "where the evidence is speculative and uncertain whether damages have been sustained." Id. (emphasis added). "But '[if] the uncertainty lies only in the amount of damages, recovery may be had if there is proof of a reasonable basis from which the amount can be inferred or approximated." Id. (alteration in original) (emphasis added). Here, the Sinns do not appear to contest that some damages were suffered; rather, they maintain there is no reasonable basis to determine the amount of damages suffered. We disagree.
Wallace Auto moved to admit, without an objection from the Sinns, a 671-page document purporting to be a list comprised of everything the computer inventory system showed for the Greenfield True Value on February 27. One of Wallace Auto's employees, store manager Douglas Buckner, testified he called the True Value and the inventory software company and asked if it was possible to get the listed inventory for a certain date. He requested the list and exhibit 4—without highlights—was the information Buckner received. Buckner then printed the document on December 12 from the office computer. Rohner testified he was told by David Wallace to "go through anything that you notice that was—you know, that obviously something that was here that we didn't have as far as automotive and lawn and garden and appliances." He testified he did as asked and, to his knowledge, he did not "over highlight items."
With his testimony, Kent Sinn attempted to raise questions about the reliability of the exhibit, testifying about the amount of time that had passed between the date the inventory was printed and when Rohner's search took place. He also questioned how well Rohner could complete the search for the listed inventory over only two or three days, while also helping customers and completing other tasks. Otherwise, Kent's only testimony directly at odds with the testimony of the witnesses for Wallace Auto was that at the time he learned he had already removed too much inventory from the store and told his employees to stop removing inventory, "[t]here was just multiple parts in every direction in the parts room that we hadn't had time to transfer. . . . Parts were still in the parts room." The district court assumed those automotive parts were no longer in the Greenfield True Value when Rohner searched for them in December 2014 because they had been sold to customers in the meantime. But according to the print-out from the Sinns's inventory program as of the morning of February 7—the day the sale of the store and inventory was finalized—there was only $3404 cost value in automotive parts in the store. Thus, even if the Sinns failed to remove any of the automotive parts (pursuant to their contract) and Wallace Auto sold the items, Wallace Auto's damages would be reduced by $3404.
To support its 30% reduction in Wallace Auto's claimed damages, the court implied there may have been a problem when the inventory data was imported from one system to another, noted there could have been some mistakes made by Rohner, and considered that the amount of time between the inventory list date and the date of the search meant some items could have been sold. While logical, none of these considerations was based on quantitative evidence actually presented at trial "sufficient to remove the issue of [the reduction of] damages from the realm of speculation." Bushman v. Cuckler Bldg. Sys., a Div. of Lear Siegler, Inc., 421 N.W.2d 145, 148 (Iowa Ct. App. 1988), rejected on other grounds by Chiafos v. Mun Fire & Police Ret. Sys. of Iowa, 591 N.W.2d 199, 203 (Iowa 1999).
We reverse the district court's reduction in damages and remand for entry of an order awarding Wallace Auto $93,159.87 in damages for the Sinns's breach of contract.
In doing so, we reject the Sinns's claim that Wallace Auto was entitled to only nominal damages for the Sinns's breach.
2. Breach of Non-Compete Provision.
Next, Wallace Auto challenges the district court's ruling the Sinns did not breach the non-compete provision in the purchase agreement. Wallace Auto maintains the court erred in its determination that the Sinns's delivery of lawn mowers purchased in its Creston store to the homes of customers within a ten- mile radius of the Greenfield store did not violate the provision. As a remedy, Wallace Auto requests a monetary award of damages in the amount of $7929.27 and asks that the period of the non-compete provision be extended "so that Wallace Auto is able to receive the full three-year benefit."
In response, the Sinns ask us to affirm the district court's ruling on the non-compete provision. In the alternative, they maintain that even if we find a breach, Wallace Auto failed to timely raise the issue of damages for a violation of the non-compete provision.
Here, we are asked to interpret and construe the contractual terms chosen by the parties. "Interpretation involves ascertaining the meaning of contractual words; construction refers to deciding their legal effect." Dental Prosthetic Servs. Inc. v. Hurst, 463 N.W.2d 36, 39 (Iowa 1990). Insofar as extrinsic evidence was presented at trial, we are allowed to consider it to "as an aid to interpretation when it throws light on the situation of the parties, antecedent negotiations, the attendant circumstances and the objects they were striving to attain." Id.
The parties disagree whether the final clause is missing a word, with Wallace Auto arguing the phrase is meant to be, "that engages in the sale of any types of items sold in True Value stores," and the Sinns arguing there is no error in the phrase as it is written in the contract. (Emphasis added.) For what it is worth, the district court agreed with Wallace Auto, stating it was "obvious to the court that there is a word omitted from the contract."
At trial, Kent Sinn agreed that the non-compete provision meant he could not "build a store within 10 miles of" the Greenfield True Value or "sell True Value items within 10 miles of" the Greenfield store. Insofar as Kent sells lawnmowers in his Creston store—more than twenty miles from the Greenfield store—all parties agree he is not in breach of the agreement. The question becomes whether his delivery of lawn mowers within the ten-mile radius somehow causes the sale to be improper. The non-compete provision is silent as to the Sinns's authority to deliver products, and we will not read additional terms into the contract. As noted, both parties were represented by counsel in their negotiation of the agreement.
Because we find no error in the district court's determination the Sinns did not breach the non-compete provision when they delivered lawn mowers to their customers' homes, we need not consider whether Wallace Auto properly pled its request for damages.
Each party asks that we award them appellate attorney fees. Generally, attorney fees are not allowed unless authorized by statute or contract. W.P. Barber Lumber Co. v. Celania, 674 N.W.2d 62, 66 (Iowa 2003). Iowa Code section 625.22 provides, "When judgment is recovered upon a written contract containing an agreement to pay an attorney fee, the court shall allow and a tax as part of the costs a reasonable attorney fee to be determined by the court." (Emphasis added.) We have previously applied this section to an award of appellate attorney fees. See e.g., Fed. Land Bank of Omaha v. Woods, 480 N.W.2d 61, 70 (Iowa 1992) (concluding the prevailing party was "entitled to appellate attorney fees because the attorney fee language in the note does not prohibit such fees"); Snyder v. Baker, No. 15-0440, 2016 WL 6902322, at *3 (Iowa Ct. App. Nov. 23, 2016) (same).
7.1 INDEMNIFICATION BY SELLER: . . . .
b. Any and all liabilities, loss, damages, deficiencies, judgments, claims or expenses, including reasonable attorneys' fees, relating to, arising out of, or resulting from, any inaccuracy in any representation or warranty, or non-fulfillment of any covenant, agreement or other obligation of Seller under this agreement or any agreement or instrument delivered pursuant to this agreement.
7.2 INDEMNIFICATION BY BUYER: Buyer shall defend, indemnify and hold Seller harmless from and against any and all liabilities, losses, damages, claims and expenses, including reasonable attorneys' fees, arising in connection with or resulting from any breach of warranty, misrepresentation or non-fulfillment of any agreement on the part of Buyer under this Agreement.
Based on the contractual language, Wallace Auto may recover reasonable attorney fees as related to their appeal of the breach-of-contract for the missing inventory, as they were both successful and the purchase agreement contemplates their receipt of "reasonable attorneys' fees . . . arising out of or resulting from . . . non-fulfillment of any convenant . . . of Seller."
We cannot say the same for the Sinns. Although the Sinns have been successful in their defense of the district court's ruling as to the non-compete provision, the attorney fees incurred did not "arise in connection with or resulting from any breach of warranty, misrepresentation or non-fullment of any agreement" by Wallace Auto.
We have nothing in the record before us to determine the appropriate amount of a "reasonable attorney fee" in this case; thus, we remand to the district court for the limited purpose of determining the award of reasonable fees incurred by Wallace Auto on appeal. See NevadaCare, Inc. v. Dep't of Human Servs., 783 N.W.2d 459, 470 (Iowa 2010) ("When a contract contains a clear and express provision regarding attorney fees, the court's award must be for reasonable fees.").
We affirm the district court's ruling that the Sinns breached the purchase agreement by failing to provide $618,000 in inventory but did not breach the non-compete clause by delivering lawn mowers within the prohibited ten-mile radius. However, we reverse the court's reduction of damages, as the amount of the reduction is too speculative. We remand for the district court to enter an order awarding Wallace Auto $93,159.87 in damages and, after a hearing on the matter, reasonable appellate attorney fees incurred in the appeal of the damages award.

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The contents of a recent Drug Enforcement Administration (“DEA”) policy statement on electronic prescriptions for controlled substances (“EPCS”) sound simple enough—you can use a mobile device for EPCS if it meets the latest Federal Information Processing Standards security requirements (FIPS 140-2), and you can use it as a “hard token” if it is separate from the device used to create the EPCS. But what does that mean? Are there any more limitations?
The Controlled Substances Act regulates drugs and other substances that have a potential for abuse and psychological and physical dependence, i.e., “controlled substances.” Controlled substances are organized into five schedules. Schedule I drugs have a high risk of abuse and no current accepted medical uses in the United States. Drugs in Schedules II through IV have currently accepted medical uses, but they also have a high potential for abuse. Drugs in Schedule II can only be issued pursuant to a written prescription, whereas drugs in Schedules III and IV may be issued pursuant to written or oral prescriptions. The written prescription may be an electronic one, if it satisfies certain requirements.
An EPCS may be created with input and data entry from the DEA registrant (the prescribing practitioner) or his or her agent, provided that only the registrant can actually sign the prescription using the EPCS application. To sign the application, however, the registrant has to complete a two-factor authentication process while at the same time viewing certain information about the EPCS (date of issuance; full name of patient; drug name; dosage strength and form, quantity prescribed, and directions for use; number of refills authorized; earliest date on which a pharmacy may fill each prescription; name, address and DEA number of the registrant) and a statement of acknowledgement regarding the EPCS, as prescribed by regulation. The provider’s completion of the two-factor authentication process in the EPCS application is the equivalent of signing a hard-copy paper prescription.
The two-factor authentication process includes the use of two of the following authentication factors: (1) something only the practitioner knows (e.g., a password or response to a challenge question); (2) biometric data (e.g., a fingerprint or iris scan); or (3) a device, known as a hard token, which is separate from the computer or other device used to access the EPCS application (i.e., the hard token could be your phone, as long as you are not electronically prescribing the EPCS through an EPCS application on your phone). The hard token is subject to FIPS 140-2 Security Level 1 requirements, and the system used to validate biometric data must comply with other regulatory requirements, all of which are beyond the scope of this article and beyond this author’s expertise. Whichever factors are used in the two-factor authentication process, the prescribing practitioner/registrant must not share the authentication factors with any other person or allow it to be used to electronically sign an EPCS. Additionally, if a practitioner/registrant loses his or her hard token (if applicable), he must notify the appropriate access control managers for the EPCS application (either in his/her individual practice or through an institutional provider such as a hospital) within one business day of the discovery, or he or she may be held responsible for any controlled substances written using his or her two-factor authentication credential.
In addition to the requirements above and the responsibilities the practitioner normally has when issuing paper or oral prescriptions for controlled substances, there are more practitioner responsibilities when it comes to EPCS. To the extent an EPCS is not successfully delivered, the practitioner must ensure that any paper or oral prescription issued as a replacement for a failed EPCS indicates that the prescription was originally transmitted electronically to a particular pharmacy and that the transmission failed. The practitioner must also exercise certain reasonable precautions to ensure that the EPCS application complies with all applicable regulatory requirements, especially if the practitioner is on notice that the EPCS system may not meet all the requirements.
An exhaustive discussion of all the applicable requirements for EPCS is beyond the scope of this article. However, practitioners should be thinking about the vendors they are using for their EPCS system, the system’s capabilities and process control limitations, and the information security or physical safeguards they must maintain to ensure their two-factor authentication credentials are secure. In addition, it should be noted that EPCS are subject to other laws, such as the Ryan Haight Online Pharmacy Consumer Protection Act of 2008, which generally requires a practitioner to conduct at least one in-person medical examination for a patient if they are prescribing controlled substances for the patient.
From a process standpoint, EPCS may be easier to work with, but it implicates substantial compliance concerns with a variety of laws. Practitioners should carefully consider the volume of legal and regulatory requirements applicable to EPCS and ensure their operations conform to all applicable requirements.
This article was originally printed in the Medical Association of the State of Alabama's Rotunda e-newsletter in September, 2018. The article may be found on the Medical Association of the State of Alabama's website.
 Drugs in Schedule V may only be distributed or dispensed for medical purposes, but are not grouped in with either Schedule II or Schedules III and IV for purposes of the prescription requirements. See 31 U.S.C. § 829.
 “By completing the two-factor authentication protocol at this time, you are legally signing the prescription(s) and authorizing the transmission of the above information to the pharmacy for dispensing. The two-factor authentication protocol may only be completed by the practitioner whose name and DEA registration number appear above.” 21 C.F.R. § 1311.140(a)(3).
 Incorporated by reference in 21 C.F.R. § 1311.08.
 See 21 C.F.R. § 1311.116.
 This author suggests consulting with information technology experts in order to verify applications meet regulatory requirements, or at least include in agreements with vendors that the service they are providing complies with the applicable regulatory requirements.
 See 21 C.F.R. § 1311.102.
 See 21 U.S.C. § 829(e).