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Gold's Gym Franchising LLC ("Gold's Gym") appeals the trial court's take-nothing summary judgment in favor of appellees Jerry T. Brewer ("Brewer") and the Jerry and Kay Brewer Revocable Trust (the "Trust"). In three issues, Gold's Gym contends the trial court erred by: (1) failing to find that its own affirmative defense of ratification precluded the grant of summary judgment; (2) granting summary judgment on appellees' affirmative defense of forgery; and (3) presumptively overruling its objections to appellees' summary judgment evidence. We reverse the trial court's judgment on the affirmative defense of forgery; in all other respects we affirm the trial court's summary judgment Order.
In 2005, Brewer, his son Chad Brewer ("Chad"), and Dennis Tan formed a corporation named GGNYC 2, Inc. Each of the three men owned one third of the stock in the corporation; Tan served as its president. Later that year, GGNYC 2, Inc. entered into a franchise agreement with Gold's Gym (the "2005 Franchise Agreement"), whereby GGNYC 2, Inc. agreed to develop and operate a Gold's Gym in New York City. Tan signed the 2005 Franchise Agreement as president of the franchisee, which was identified as GGNYC 2, Inc. Exhibit B to the 2005 Franchise Agreement was a document titled "Full Continuing Guaranty," in which guarantors agreed to be personally liable for any breach by the franchisee of the 2005 Franchise Agreement (the "2005 Guaranty"). The 2005 Guaranty bears signature lines for Brewer, Chad, and Tan, and each of the three names is signed on its signature line. Brewer contends, however, that his signature on the 2005 Guaranty was forged.
During the final days of 2007 and the beginning of 2008, Gold's Gym and GGNYC 2, Inc. entered into a new franchise agreement for the same gym (the "2008 Franchise Agreement"). The 2008 Franchise Agreement contained an agreement to terminate the 2005 Franchise Agreement, so that development and operation of the New York City Gold's Gym would be governed, going forward, by the 2008 Franchise Agreement. The 2008 Franchise Agreement again identified the franchisee as GGNYC 2, Inc.; the agreement was once again signed on behalf of GGNYC 2, Inc. by Tan, the corporation's president.
Exhibit B to the 2008 Franchise Agreement was a guaranty of personal liability for any breach of the 2008 Franchise Agreement by the franchisee (the "2008 Guaranty").*fn2 The 2008 Guaranty contained four signature lines, each bearing the name of one of GGNYC 2, Inc.'s shareholders at that time: Tan, Chad, Max Pierre, and the Trust. Again, names are signed on each signature line; the name Jerry Brewer is signed as trustee for the Trust. Brewer contends he did not sign the 2008 Guaranty either for himself or for the Trust. He contends his name was forged on this document as well.
Brewer and the Trust answered the lawsuit together. Pursuant to rule 93 of the Texas Rules of Civil Procedure, Brewer included verified denials: (1) that he executed--either individually or on behalf of the Trust--any guaranty made the basis of Gold's Gym claims; (2) that he authorized--individually or on behalf of the Trust--anyone to execute those guaranties; and (3) that he is liable in his individual capacity. Brewer and the Trust also pleaded a number of affirmative defenses, including forgery with respect to the guaranties.
Gold's Gym pleaded its own affirmative defense to the forgery defense: it claimed that Brewer--individually and on behalf of the Trust--and Chad had ratified the franchise agreements.
Brewer and the Trust filed their Traditional Motion for Summary Judgment (the "First Motion"), contending they were entitled to judgment as a matter of law on the breach-of- guaranty claims against them. The movants' primary argument was that their signatures were forged on both guaranties. They offered summary judgment evidence to support their forgery argument, specifically affidavits from Brewer and forensic document examiner Robert G. Foley. (Both franchise agreements and both guaranties were also included in appellees' summary judgment evidence.) In his own affidavit, Brewer denied executing either guaranty or authorizing anyone else to execute either guaranty on his own behalf or on behalf of the Trust. Foley testified in his affidavit that he had compared the signatures on the 2008 Guaranty with other examples of Brewer's signature. He found "significant dissimilarities" between the signatures and ultimately concluded that the signer of the examples of Brewer's handwriting "was eliminated as the signer of [the 2008 Guaranty]." The movants also argued that when the parties terminated the 2005 Franchise Agreement they also terminated the 2005 Guaranty, because a guaranty cannot exist absent a primary obligation to be guaranteed.
Before the trial court ruled on the First Motion, Brewer and the Trust filed their Traditional and No Evidence Summary Judgment Motion (the "Second Motion"). The traditional portion of the motion sought summary judgment on the breach-of-franchise- agreement claims and on Gold's Gym's affirmative defense of ratification. As to the breach claims, the Second Motion posited that the franchise agreements themselves establish that GGNYC 2, Inc. is the franchisee, responsible for compliance with both the 2005 Franchise Agreement and the 2008 Franchise Agreement. Neither Brewer nor the Trust was a party to the franchise agreements. Thus, neither could be liable for breach of those agreements. As to Gold's Gym's ratification defense, the movants argued that one cannot ratify a contract if one is not a party to the contract. They also argued that one cannot ratify a contract without knowledge of its material terms, and Gold's Gym could not prove that the Trust had such knowledge of the 2008 Guaranty.
In the no-evidence portion of the Second Motion, Brewer and the Trust challenged the breach-of-franchise-agreement claims, contending Gold's Gym had no evidence: that a valid contract existed between it and Brewer or the Trust, that it had tendered performance, or that Brewer or the Trust had breached a franchise agreement.
And as to the ratification defense urged by Gold's Gym, Brewer and the Trust contended Gold's Gym had no evidence: that the Trust had approved the terms of the 2008 Guaranty, that the Trust had full knowledge of the terms of the 2008 Guaranty, or that the Trust had the intent to give validity to the 2008 Guaranty.
Appellees' two motions for summary judgment included traditional grounds and no- evidence grounds; we review both types of motion under well-settled standards. In a traditional motion, the party moving for summary judgment has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Swilley v.
Hughes, 488 S.W.2d 64, 67 (Tex. 1972). A traditional movant has the burden of proving all essential elements of its cause of action or affirmative defense as a matter of law. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990). By contrast, when a party moves for summary judgment under rule 166a(i), asserting that no evidence exists as to one or more elements of a claim on which the non-movant would have the burden of proof at trial, the burden is on the non-movant to present enough evidence to raise a genuine issue of material fact on each of the challenged elements. TEX. R. CIV. P. 166a(i); Gen. Mills Rest., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex. App.-Dallas 2000, no pet.). If the non-movant fails to do so, the trial judge must grant the motion. Id. With these rules in mind, we review the trial court's summary judgment decision de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
In its second issue, Gold's Gym contends the trial court erred in granting summary judgment on its beach-of-guaranty claims. To recover on each of its breach-of-guaranty claims, Gold's Gym had to prove (1) the existence and ownership of the guaranty contract, (2) the terms of the underlying contract by the holder, (3) the occurrence of the conditions upon which liability is based, and (4) the failure or refusal to perform the promise by the guarantor. Wiman v. Tomaszewicz, 877 S.W.2d 1, 8 (Tex. App.--Dallas 1994, no writ). Brewer and the Trust filed a traditional motion for summary judgment on the guaranty claims. To prevail on this motion, they needed to negate at least one element of Gold's Gym's claim. The motion focused on the first element, the existence and ownership of the guaranty contract. See id.
Brewer and the Trust presented summary judgment evidence that no guaranty contract existed between them and Gold's Gym. In his affidavit, Brewer denied that he signed the 2005 Guaranty or the 2008 Guaranty or that he authorized anyone else to sign either guaranty on behalf of himself or the Trust. Brewer claimed that the signatures on both guaranties were forged. As summary judgment evidence, Brewer presented his own affidavit and the expert testimony of Robert G. Foley, a forensic document examiner, to that effect. Foley testified that, in his opinion, the signature on the 2008 Guaranty was forged.
Gold's Gym's summary judgment evidence included the 2005 and 2008 Guaranties that bear Brewer's name, purportedly signed on behalf of himself on the 2005 document and for the Trust on the 2008 document. Gold's Gym also offered the expert testimony of a forensic document examiner, Linda James. James challenged the correctness of Foley's analysis. She also concluded the signature on the 2005 Guaranty was Brewer's, although her findings as to the 2008 Guaranty were inconclusive.
We conclude the summary judgment evidence raises a fact issue as to whether the signatures on both guaranties were authentic; Brewer and the Trust did not conclusively establish that the signatures were forged. Accordingly, we cannot affirm the summary judgment on the forgery ground.
Agreement, they terminated the principal obligation which was guaranteed by the 2005 Guaranty. Thus, they argue, the parties effectively terminated the 2005 Guaranty as well. However, as Gold's Gym points out, the 2005 Guaranty included a provision that stated the 2005 Guaranty "shall apply to . . . any license or franchise agreements between the parties replacing the Agreement." Brewer and the Trust counter that a guarantor's obligations will not be extended beyond its terms. See Beal Bank, SSB v. Biggers, 227 S.W.3d 187, 192 (Tex. App.-- Houston [1st Dist.] 2007, no pet.) ("A guarantor may require that the terms of his guaranty be followed strictly, and the guaranty agreement may not be extended beyond its precise terms by construction or implication."). And here, the 2005 Guaranty states that it guarantees payment and performance of obligations pursuant to the "Agreement," which is defined to be the 2005 Franchise Agreement.
Although it is true that a guarantor will not be held to obligations beyond his agreement, we conclude that the 2005 Guaranty's provision concerning continued applicability was part of Brewer's agreement when he signed that document. The 2008 Franchise Agreement was a "franchise agreement between the parties replacing the [2005 Franchise] Agreement." Thus, on its face, the 2005 Guaranty applies to the 2008 Franchise Agreement. Brewer argues the guaranty must terminate when the principal obligation terminates, but the continued-applicability provision of the 2005 Guaranty expanded the scope of the principal obligation to the replacement franchise agreement. Brewer's summary judgment motion does not establish any legal basis for refusing to enforce this expanded scope to which Brewer agreed. We conclude Brewer and the Trust did not establish as a matter of law that the 2005 Guaranty terminated when the 2005 Franchise Agreement terminated.
We reverse the trial court's summary judgment on Gold's Gym's claims for breach of the two guaranties.
Gold's Gym pleaded that if in fact there had been a forgery of any of the contracts, then Brewer and the Trust had ratified the contracts by their conduct. Brewer and the Trust filed both no-evidence and traditional motions for summary judgment on this defense. "Whether a party has ratified a contract may be determined as a matter of law if the evidence is not controverted or is incontrovertible." Missouri Pac. R. Co. v. Lely Dev. Corp., 86 S.W.3d 787, 793 (Tex. App.-- Austin 2002, pet. dism'd).
To prevail on a breach-of-contract claim, it must be proven that (1) a valid contract between plaintiff and defendant existed, (2) the plaintiff performed or tendered performance, (3) the defendant breached the contract, and (4) the plaintiff sustained damages as a result of the breach. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 150 (Tex. App.--Houston [1st Dist.] 2005, pet. denied). Brewer and the Trust's no-evidence motion challenged the first three elements as to both franchise agreements, requiring Gold's Gym to come forward with sufficient evidence to raise a material fact issue on each element. Our review of the record establishes that the motion succeeds on the first element: Gold's Gym produced no evidence that the franchise agreements were valid contracts between it and Brewer or the Trust. Indeed, the undisputed evidence in the summary judgment record established that Gold's Gym entered into the franchise agreements with GGNYC 2, Inc. as franchisee. Accordingly, neither Brewer nor the Trust could have breached either franchise agreement.
Similarly, there can be no ratification of a contract by one who is not a party to it unless the original contract purported to be in the name of, or for, the person alleged to have ratified it. Huginnie v. Loyd, 483 S.W.2d 696, 702 (Tex. Civ. App.--Tyler 1972, writ ref'd n.r.e.). Gold's Gym points to conduct by Brewer that was in compliance with contractual duties of the corporate franchisee. But those acts were no more than the acts of agents of the corporation. Corporations, by their nature, can function only through human agents. However, the agents' acts are the acts of the corporation. See Holloway v. Skinner, 898 S.W.2d 793, 795 (Tex. 1995). Gold's Gym has not pleaded or proved the ability to pierce the corporate veil in this case, so those agents' acts cannot be attributed to individual parties.
Gold's Gym has pleaded the franchise agreements make their respective guaranties a condition precedent for granting the franchise and provide that the guaranty is fully integrated into the franchise agreement. We do not disagree with these contentions. However, Gold's Gym argues this integration makes the guarantors actual parties to the franchise agreements, and we reject that conclusion. The guaranties and the franchise agreements are separate contracts between and among separate parties. Integration of the guaranty speaks to an obligation of the franchisee: it will not be awarded the franchise absent a satisfactory guaranty. It also serves to clarify, in case of later confusion, the agreement for which the guaranty takes financial responsibility. However, incorporating a guaranty into a franchise agreement cannot serve to make the guarantor a party to the franchise agreement. Gold's Gym cites no authority supporting such a transformation, and we have found none.
Gold's Gym did not produce any evidence indicating Brewer and the Trust were legally capable of ratifying the franchise agreements to which they were not parties. We conclude that Gold's Gym's argument that Brewer and the Trust have ratified the franchise agreements fails as a matter of law, and we affirm the trial court's grant of summary judgment on this ground.
Gold's Gym also argues that even if Brewer and the Trust were not initially parties to the 2005 Guaranty and the 2008 Guaranty, they ratified the guaranties by their conduct. Ratification occurs if a party recognizes the validity of a contract by acting or performing under the contract. Lely Dev. Corp., 86 S.W.3d at 792. It is undisputed that any money paid to Gold's Gym through Brewer was paid on behalf of the franchisee, GGNYC 2, Inc. Indeed, Gold's Gym has asserted that when it attempted to collect on the guaranties from Brewer and the Trust, they refused to pay. Gold's Gym produced no evidence that appellees ratified the guaranties by performing under them. Nor did Gold's Gym produce evidence that appellees knowingly remained silent about forgeries of the guaranties to their benefit and Gold's Gym's detriment. Instead, the summary judgment record indicates that when presented with a claim under the guaranty, appellees stated they had not signed the guaranty and refused to pay.
We conclude the trial court did not err in granting summary judgment on Gold Gym's defense of ratification of the guaranties.
In its third issue, Gold's Gym contends the trial court erred by impliedly overruling its objections to appellees' summary judgment evidence, specifically to the affidavits of Jerry Brewer and Robert G. Foley. Gold's Gym acknowledges it did not obtain rulings on its objections, but it argues its objections are to the substance of the affidavits. The failure to obtain rulings waives any objections to defects in the form of the affidavits; it does not waive objections to defects in the substance of the affidavits. Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.-- Dallas 2004, pet. denied). However, we need not determine whether Gold's Gym's objections are to form or substance, because both affidavits speak only to the appellees' defense of forgery. We have already concluded the trial court's summary judgment on the forgery defense must be reversed. Thus, we need not address objections and evidence that bear only on that issue.
* IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Defendants' Motion is GRANTED in its entirety.
* IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff's breach of continuing guaranty claim (Count I - referring to the December 30, 2005 guaranty) asserted against Brewer and the Trust is dismissed in its entirety with prejudice.
* IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff's breach of continuing guaranty claim (Count II - referring to the December 31,  guaranty) asserted against Brewer and the Trust is dismissed in its entirety with prejudice.
* IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff's request for attorney's fees and/or other requests for damages against Brewer and the Trust is denied in its entirety with prejudice.
* IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a take nothing judgment is entered on all claims asserted by Plaintiff against Brewer and the Trust.
We remand Gold's Gym's claims for breach of the 2005 Guaranty and 2008 Guaranty to the trial court for further proceedings in accordance with this opinion. In all respects other than those listed above, we affirm the trial court's Order.
Trial Court Cause No. 11-07141. Opinion delivered by Justice Richter. Justices Bridges and Lang participating. Based on the Court's opinion of this date, the Order of the trial court is REVERSED and REMANDED in part, and AFFIRMED in part.
Motion is GRANTED in its entirety.
We REMAND Gold's Gym Franchise, LLC's claims for breach of guaranty to the trial court for further proceedings consistent with this opinion.
In all respects other than those listed above, we AFFIRM the trial court's Order. It is ORDERED that all parties bear their own costs of this appeal.
Judgment entered this 22nd day of April, 2013.
*fn1 The Honorable Martin E. Richter, Retired Justice, sitting by assignment.
*fn2 The second guaranty was actually signed in December 2007, but to clarify that it applies to the 2008 Franchise Agreement, we refer to it as the 2008 Guaranty.
*fn3 Gold's Gym contends GGNYC 2, Inc. was doing business as GGNYC Holdings, Inc. at the time of the execution of the 2008 Franchise Agreement.
*fn4 Gold's Gym has not appealed the trial court's summary judgment on its unjust enrichment and tort claims. Thus we will address only the claims placed at issue in this appeal: breach of the franchise agreements and breach of the guaranties.

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Appeal from Circuit Court, Multnomah County, MacCORMAC SNOW, Judge.
Catherine Zorn, Assistant Attorney General, of Salem, argued the cause for appellant. With her on the briefs was Robert Y. Thornton, Attorney General, of Salem.
P.A. Schwabe, of Portland, argued the cause for respondents. On the brief were Haas Schwabe, of Portland.
Before LATOURETTE, Chief Justice, and WARNER, ROSSMAN and LUSK, Justices.
This is an appeal by the state of Oregon acting through the State Land Board from an order of the Circuit Court for Multnomah County, Probate Department, allowing an attorneys' fee and certain costs and expenses.
"That the Administrator of the estate and its attorney have diligently searched for heirs of the said deceased, and have been unable to find any in the United States, but have been advised that the deceased has heirs in the Union of Soviet Socialistic [sic] Republics; that notice has been served on the Administrator by the State Land Board of the State of Oregon that under the provisions of Section 61-107-OCLA the said heirs in Russia would be unable to inherit and that the State Land Board of the State of Oregon claims an escheat in this estate.
"After payment of such additional expenses as may be incurred in the closing of this estate, the compensation of the Administrator and of its attorney, E.F. Doyle, the State Land Board of the State of Oregon is entitled to have the balance of the money and property of the estate distributed to it in accordance with the provisions of Section 61-107-OCLA."
"That upon payment of such additional expenses as may be necessary to closing this estate and the Administrator's fee and Attorney's fee as may be allowed by the court, The Administrator be authorized and directed to transfer and deliver unto the STATE LAND BOARD of the State of Oregon, the balance of the moneys and property remaining on hand."
The estate consisted entirely of personal property.
On September 10, 1946, the State Land Board filed a petition for an order escheating the clear proceeds of the estate to the state of Oregon.
Thereafter Kirill Grigorievich Sovenko and Tatiana Grigorievna Polozhanskaya, residents and nationals of the Ukrainian Soviet Socialist Republic, one of the republics of the Union of Soviet Socialist Republics, filed their answer to such petition praying that the estate be distributed to them as the sole next of kin and heirs at law of Peter Lappy, deceased, and also filed objections to the final account and petition for distribution based upon the same grounds. The claimants were represented by their attorneys, Messers Haas and Schwabe. There was an extensive hearing in which the issue presented was whether or not, at the time of the death of Peter Lappy on January 27, 1946, the claimants could inherit personal property under the statute which makes the right of a nonresident alien to take personal property in this state by descent or inheritance dependent upon the existence of a reciprocal right upon the part of citizens of the United States to take personal property in like manner within countries of which such alien is an inhabitant or citizen. OCLA § 61-107. See In re Estate of Krachler, 199 Or. 448, 263 P.2d 769. The court held that there was no such reciprocal right at the time in question, and entered a decree escheating the clear proceeds of the estate to the state of Oregon, but further decreed that the claimants were entitled to recover from the estate "their costs and expenses hereby fixed and allowed in the sum of $502.55, and an attorneys' fee to Haas Schwabe, their attorneys, hereby fixed and allowed in the sum of $2,000.00." It is from this portion of the decree that the state has appealed. The principal question is upon the propriety of the court's allowance of an attorneys' fee. Various items of the so-called "costs and expenses" are also challenged, though the state does not contend that the court did not have discretion to order claimants' statutory costs and disbursements to be paid out of the estate. We will consider first the question of attorneys' fees.
"* * * It is also established by sufficient authority that, where one of many parties having a common interest in a trust fund, at his own expense takes proper proceedings to save it from destruction and to restore it to the purposes of the trust, he is entitled to reimbursement, either out of the fund itself, or by proportional contribution from those who accept the benefit of his efforts. This has long been the rule in relation to proceedings for restoring property to the uses of a charity, which has been unjustly diverted therefrom."
See, to the same effect: Kinney v. Uglow, 163 Or. 539, 584, 98 P.2d 1006; Re Faling Estate, supra, 113 Or. 20; Wemme v. First Church of Christ, Scientist, 110 Or. 179, 212, 219 P. 618, 223 P. 250; 107 ALR 750, annotation.
The opinion in the Faling Estate case calls attention to the fact that the authorities are divided on the question of the allowance of attorneys' fees payable out of the estate to one contesting a will — some denying the right altogether, others making the allowance depend upon whether there is reasonable ground for the contest, and still others upon the contestant's success. See cases in annotations 69 ALR 1058, 1059, 10 ALR 806-809. In the Faling Estate case, as we have seen, attorneys' fees were allowed to the successful contestant.
"* * * The usual objection to paying costs from an estate in a proceeding to contest a will is where the contestant is unsuccessful, and such a provision might tend to promote litigation. Here the situation is different. The will was probated in common form, and it was to the interest of all concerned that the question be finally settled and adjudicated."
"The general rule is that no allowance may be made out of the estate of a deceased person for the services of an attorney not employed by the personal representative of the estate, where the services were rendered for the sole benefit of an individual or group of individuals interested in the estate."
"It is well settled that the employment of counsel by one of several heirs or legatees will not, of itself, create a liability on the part of the other heirs or legatees for the compensation of the counsel so employed, even though his services were beneficial to all of them, excepting where they have resulted in bringing a fund into court, and, under the local law, attorney fees may be allowed therefrom. Nor will the employment of an attorney by an heir or legatee create a liability on the part of the estate involved."
The court recognized the general rule that "where a testator has expressed himself so ambiguously as to make it necessary or advisable to institute an action or suit to obtain a construction of the will, it is proper to order payment out of the estate, of reasonable fees of attorneys of the party instituting the action or suit." (79 ALR 536), but declined to follow it in that case, saying ( 139 Or. 55) that the litigation did not "arise from the use of obscure language by the testator in making his disposition of his real and personal property."
In re Estate of MacMullen, 117 Or. 505, 243 P. 89, 244 P. 664, involved a claim of an administrator who had secured his appointment wrongfully. He resisted the petition of the heir for his removal and her own appointment. The court held that he was not entitled to attorney's fees chargeable to the estate because his expenses were not "incurred for the benefit of the estate as a whole." Among other authorities cited in support of the decision were Upham v. Bramwell, 105 Or. 597, 209 P. 100, 210 P. 706, 25 ALR 919, and Ford v. Gilbert, 44 Or. 259, 75 P. 138, both involving insolvents. In the former case we held that there was no authority empowering a court which is administering a fund under its control to allow costs and attorneys' fees payable out of the fund for services performed by one creditor in establishing that he and all other creditors of a certain class are entitled to shares in the distribution of that fund. In Ford v. Gilbert we rejected a claim for the allowance of fees to attorneys who had represented the insolvent in bankruptcy and other proceedings brought against him by creditors. Both decisions are put upon the ground that the attorneys did not recover a fund for the benefit of the creditors or add to the assets being administered by the court.
"* * * After the fund or property has been brought in and made available by the decree of the court, and nothing remains but its proper administration and distribution, contests which may arise between claimants, in respect to priorities or the right to share in the fund, are individual matters involving antagonistic interests, and the counsel fees of those conducting such contests cannot therefore be made a charge on the fund or on the property, but must be paid by the parties themselves."
"* * * A reasonable discretion over the allowance or refusal of attorney's fees in cases of this sort should rest with the probate court. In view of the facts and circumstances of this particular case, we see no sufficient reason for disturbing the court's order."
"The court was in error, however, in awarding the widow $75 attorney's fees. There is no statute covering this matter nor do the decisions sustain the allowance. In some cases we have held that where the litigation in the probate of an estate is of benefit to the estate, attorney's fees may be allowed. In the present case, however, the support proceedings could in nowise be of any value to the estate; they were prosecuted solely for the widow's advantage. In re Faling Estate, 113 Or. 6, 228 P. 821, 231 P. 148; In re Gratton's Estate, 136 Or. 224, 298 P. 231."
"In such cases unsuccessful contestants have uniformly been denied costs for a good, sound reason, namely, because to award costs to unsuccessful contestants would be to encourage contest on weak and frivolous grounds."
Of course, different reasons come into play where the question relates to the claims for compensation of executors who may have a duty to defend a will.
We have carefully considered the argument, ably presented in the brief of counsel for the claimants, in support of the view that this litigation benefited the estate by furnishing "the administrator with an order and judicial sanction permitting it to terminate the estate" and constituted a public service, in that the decision that no reciprocal rights of inheritance existed between the United States and the Soviet Union, "freed numerous estates" in a like situation with the Lappy estate, and will be a guide to draftsmen of wills for clients having potential heirs or beneficiaries residing in the Soviet Union, and, even, that it may induce a revision by the rulers of Soviet Russia of that country's laws of inheritance so as to accord to Americans equal rights of inheritance with Russians.
"The policy of the law seems to be that administration of escheated estates should be conducted expeditiously in order to decrease the expenses and avoid lessening the amount of the proceedings to be paid to the school fund."
This estate would have been long since closed and the expenses of administration long since terminated, but for this litigation.
The other considerations that are pressed upon us in argument reveal no benefits to the estate of Peter Lappy, deceased, but merely benefits, real or fanciful, to others. At most they are incidental benefits which afford no basis for the allowance of compensation. Re Faling Estate, supra, 113 Or. 18. As stated in 4 Page on Wills (Lifetime ed) 611 § 1613, in discussing the allowance of attorneys' fees in suits to construe a will, "If the services of the attorneys are rendered solely for the benefit of certain parties and not for the benefit of the estate, attorneys' fees can not be awarded out of the estate, even though the estate is incidently benefited by having adverse claims decided."
This case has been ably presented on both sides. In the briefs there are cited a large number of cases from other jurisdictions, but we feel that we are not called upon to discuss them in this opinion, since the rules which govern the controversy are sufficiently determined by our own decisions. As we view the case, in its ultimate analysis the escheat proceeding, brought on behalf of the state and resisted by the Russian heirs, was one of those "contests between claimants", an individual matter "involving antagonistic interests" ( Upham v. Bramwell, supra), the cost of conducting which cannot be made a charge on the fund of the estate.
"* * * The court should exercise great caution in the allowance of counsel fees from a fund." 20 CJS 361, Costs § 123.
"The allowance of counsel fees from a fund is capable of great abuse and should be exercised with the most zealous caution in regard to the rights of litigants, lest thereby the administration of justice is brought into reproach." 14 Am Jur 48, Costs § 74.
"The * * * clear proceeds of all property which may accrue to the state by escheat * * * shall be set apart as a seperate [sic] and irreducible fund, to be called the common school fund".
The legislature has enacted laws to carry the constitutional mandate into effect (ORS 120.010 et seq). It is difficult to believe that it was within the contemplation either of the framers of the Constitution or of the legislature that such proceeds should be diminished by the payment of expenses and attorneys' fees incurred by persons who, claiming to be heirs, resist the efforts of the state to recover escheated property, and further diminished by enhanced administrative expenses resulting from prolonged and fruitless litigation.
The other question in the case arises upon the state's first assignment of error, which reads, "The court erred in awarding costs and disbursements beyond those authorized by statute." It is conceded that the allowance of statutory costs and disbursements to the claimants was discretionary with the court under ORS 116.560, but the order goes beyond this by awarding an expert witness fee of $250, the sum of $195.64 for the travel and hotel expenses and costs of meals of a witness, and other items for which there is no statutory authorization. In view of our determination relative to attorneys' fees this was error.
The portion of the decree appealed from is reversed and the cause will be remanded to the Circuit Court for the retaxing of costs and disbursements to the claimants in accordance with the applicable statutes. No costs or disbursements will be allowed to either of the parties in this court.


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SLOAN SHIPYARDS CORP. v. US SHIPPING BD. EMERGENCY FLEET CORP.
[258 U.S. 549, 551] Messrs. Stephen V. Carey, James A. Kerr, and Evan S. McCord, all of Seattle, Wash., for appellants Sloan Shipyards Corporation and others.
Messrs. Wm. M. Cake, of Portland, Or., and Gibbs L. Baker, of Washington, D. C., for plaintiff in error Astoria Marine Iron Works.
Mr. Assistant Attorney General Goff and Mr. Wm. Marshall Bullitt, of Louisville, Ky., for Shipping Board.
[258 U.S. 549, 564] Mr. Godfrey Goldmark, of New York City, for respondent Wood.
These cases present in different ways the question of the standing of the United States Shipping Board Emergency Fleet Corporation in the Courts- the first two, whether it so far embodies the United States that these suits should have been brought in the Court of Claims; the third whether it is entitled to a preference against a bankrupt which it is asserted would belong to the United States if the United States claimed in its own name. The facts material at this stage can be told in a few words. The Shipping Act of September 7, 1916, c. 451; 39 Stat. 728 (Comp. St. 8146a et seq.) passed no doubt in contemplation of the possibility of war, to create a naval reserve and merchant marine, established the United States Shipping Board and gave it power to form a corporation under the laws of the District of Columbia for the purchase, construction and operation of merchant vessels-the corporation to be dissolved 'at the expiration of five years from the conclusion of the present European war.' The stock was not to exceed $50,000,000, and the Board was authorized to purchase not less than a majority of such stock. War was declared on April 6, 1917, and the corporation was formed on the 16th of the same month. [258 U.S. 549, 565] The first case is a bill brought by the Sloan Shipyards Corporation, the Capital City Iron Works and Anacortes Shipbuilding Company. According to the allegations, on May 18, 1917, the new corporation made an elaborate contract with the Sloan Shipyards Corporation for the building by the latter of sixteen wooden vessels. At that time the Emergency Fleet Corporation had only the powers given by the incorporation laws of the District. The work was begun by the Sloan Shipyards Corporation and by the two other complainants, which were subsidary companies organized for the purpose of carrying out that contract, and went on until December 1, 1917, at which time the Fleet Corporation refused to make further payments required by the contract, unlawfully took possession of all the property of the three companies named, has retained it ever since and has done a series of acts causing them great loss. It is alleged that the defendant having thus got the Sloan Shipyards Corporation wholly within its power compelled it to execute another contract set forth. The bill seeks to have this contract set aside, to have an accounting on the footing of the original contract of May 18, to have the defendant charged with all indebtedness incurred since December 1, 1917, and required to restore the properties described in the bill. The bill was dismissed by the District Court on the ground that as the claim was for more than $10,000 the suit must be brought in the Court of Claims. 268 Fed. 624; 272 Fed. 132.
These provisions sufficiently indicate the enormous powers ultimately given to the Fleet Corporation. They have suggested the argument that it was so far put in place of the sovereign as to share the immunity of the sovereign from suit otherwise than as the sovereign allows. But such a notion is a very dangerous departure from one of the first principles of our system of law. The soverign properly so called is superior to suit for reasons that often have been explained. But the general rule is that any [258 U.S. 549, 567] person within the jurisdiction always is amenable to the law. If he is sued for conduct harmful to the plaintiff his only shield is a constitutional rule of law that exonerates him. Supposing the powers of the Fleet Corporation to have been given to a single man we doubt if any one would contend that the acts of Congress and the delegations of authority from the President left him any less liable than other grantees of the power of eminent domain to be called upon to defend himself in court. An instrumentality of Government he might be and for the greatest ends, but the agent, because he is agent, does not cease to be answerable for his acts. Osborn v. Bank of United States, 9 Wheat. 738, 842, 843; United States v. Lee, 106 U.S. 196, 213 , 221 S., 1 Sup. Ct. 240. The opposite notion left some traces in the law (1 Roll. Abr. 95, Action sur Case, T.), but for the most part long has disappeared.
If what we have said is correct it cannot matter that the agent is a corporation rather than a single man. The meaning of incorporation is that you have a person, and as a person one that presumably is subject to the general rules of law. The only serious question is whether special remedies have been provided by statute that displace those that otherwise would be at the plaintiff's command. The Acts of April 22, 1918, c. 62, 3, 40 Stat. 535, and the Act of July 18, 1918, c. 157, 13, 40 Stat. 913, 916, give compensation for a plant taken by the President under the powers conferred by the Act of June 15, 1917, c. 29, 40 Stat. 182, and otherwise, with a resort for claims exceeding $10,000 to the Court of Claims; in the later act, by a suit against the United States. But the taking possession of the plaintiffs' plants on December 1, 1917, is alleged to have been unlawful and it cannot be assumed at this stage that the act of the Fleet Corporation was in pursuance of any powers then delegated to it or was within the ratification of December 3, 1918. The plaintiffs are not suing the United States but the Fleet Corporation, and if its act [258 U.S. 549, 568] was unlawful, even if they might have sued the United States, they are not cut off from a remedy against the agent that did the wrongful act. In general the United States cannot be sued for a tort, but its immunity does not extend to those that acted in its name. It is not impossible that the Fleet Corporation purported to act under the contract giving it the right to take possession in certain events, but that the plaintiffs can show that the events had not occurred. The District Judge gave weight to the phrase in the general incorporation law of the District that corporations formed under it shall be capable of suing and being sued in any Court in the District. Code D. C. 607. But we do not read those words as putting District corporations upon a different footing from those formed under the laws of the states.
We attach no importance to the fact that the second contract, alleged to have been illegally extorted, was made with the Fleet Corporation 'representing the United States of America.' The Fleet Corporation was the contractor, even if the added words had any secondary effect. But the bill alleges that it was brought about by the wrongful act of the Fleet Corporation. The conclusion that we reach is that the District Court erred in dismissing the bill and we regard it as led up to and almost required by the decisions heretofore reached in The Lake Monroe, 250 U.S. 246 , 39 Sup. Ct. 460, and United States v. Strang, 254 U.S. 491 , 41 Sup. Ct. 165. See, further, Dakota Central Telephone Co. v. South Dakota, 250 U.S. 163, 177 , 178 S., 39 Sup. Ct. 507, 4 A. L. R. 1623; Northern Pacific Railway Co. v. North Dakota, 250 U.S. 135, 152 , 39 S. Sup. Ct. 502. The transfer of the property of the Fleet Corporation to the Shipping Board by the Act of June 5, 1920, c. 250, 4, 41 Stat. 988, 990, may affect the value of the remedy afforded by the present suit but not the jurisdiction of the Court.
It is suggested that there will be lack of uniformity if suits can be brought in state courts. This consideration cannot control our conclusion from the statutes. But it [258 U.S. 549, 569] is not very serious since such suits against this corporation can be removed to the Courts of the United States, Pacific Railroad Removal Cases, 115 U.S. 1 , 5 Sup. Ct. 1113, and afterwards are subject to review here. Creswill v. Grand Lodge Knights of Pythias, 225 U.S. 246, 258 , 32 S. Sup. Ct. 822; Southern Pacific Co. v. Stewart, 245 U.S. 359 , 38 Sup. Ct. 130; Id., 248 U.S. 562 , 38 Sup Ct. 203. The change in the law by the Act of January 28, 1915, c. 22, 5, 38 Stat. 803, 804 (Comp. St. 1233a), extends only to railroads. The decree of the District Court must be reversed.
In the next case the Astoria Marine Iron Works sued in a state court for breach of a contract set forth. The suit was removed to the District Court and there dismissed upon demurrer on the same ground as the last- that the only remedy was in the Court of Claims. Astoria Marine Iron Works v. U. S. Shipping Board E. F. Corp., 270 Fed. 635. This contract was made on February 1, 1919, when the character of the Fleet Corporation had been more fully developed and determined than in the previous case, and purported to be made with the Fleet Corporation, 'a corporation organized and existing under the laws of the District of Columbia (herein called the 'Corporation') representing the United States of America, party of the second part.' Throughout the contract the undertakings of the party of the second part are expressed to be undertakings of the corporation and it is this corporation and its officers that are to be satisfied in regard to what is required from the Iron Works. It is recognized that it may be necessary for the United States to exercise complete control over the furnishing of supplies to the Iron Works and it is agreed that if required by the Corporation 'and/or the United States' the Iron Works will furnish schedules, etc. The whole frame of the instrument seems to us plainly to recognize the Corporation as the immediate party to the contract. The distinction between it and the United States is marked in the phrase last quoted. If we are right in this, further reasoning seems to us unnecessary to show that there was jurisdiction [258 U.S. 549, 570] of the suit. The fact that the corporation was formed under the general laws of the District of Columbia is persuasive, even standing alone, that it was expected to contract and to stand suit in its own person, whatever indemnities might be furnished by the United States. The judgment in this case also must be reversed.
The third case, as we have said, is a claim of priority in bankruptcy. It was asserted against the estate of the Eastern Shore Shipbuilding Corporation, in the District Court for the Southern District of New York, under a contract similar to that last described, made by that company with the Fleet Corporation 'representing the United States of America' to construct six harbor tugs. The claim was presented by the Fleet Corporation in its own name, but was put forward by it as an instrumentality of the Government of the United States. It was denied successively by the referee, the District Court and the Circuit Court of Appeals on the ground that the Fleet Corporation was a distinct entity, and that, whatever might be the law as to a direct claim of the United States, the Fleet Corporation stood like other creditors and was not to be preferred. In re Eastern Shore Shipbuilding Corp., 274 Fed. 983. The considerations that have been stated apply even more obviously to this case. The order is affirmed.
I differ with the majority in the first two of these three cases. The question presented is one of the interpretation of the will of Congress. No one can contend that Congress in using the Fleet Corporation for its purposes might not have given it express immunity from suit as a [258 U.S. 549, 571] representative of the United States. What we have to decide is whether in the mass of urgent legislation in respect to the government's construction and operation of shipping made indispensable by the peculiar exigencies of the great war, Congress intended that this corporate agent should be subject to suit only as its principal is. I concede that the legislation originally creating this corporation, without express immunity from suit, naturally gives rise to the inference that Congress concluded that the greater freedom of action secured by carrying on business in corporate form was desirable and that in the absence of express provision for it, and in respect to what the corporation was originally intended to do, immunity cannot be reasonably implied from the relation of the government to the corporation and its interest in its business. As I read the record, however, the transactions in the two cases I am discussing, and which we have to consider, took place after the situation prompting the creation of this corporation had greatly changed and after much additional legislation. The power to do the things which were here done, and which are the subjects of these suits, is not to be found in the act creating the Fleet Corporation or in legislation expanding its original faculties. It was power vested directly in the President himself, the exercise of which he was given express authority to delegate to an agent, who might be the Fleet Corporation. The act conferring this presidential power provided a specific remedy for compensation to those whose property rights were invaded by its exercise through award by the President and immediate payment of part due thereunder, with the right to the claimant to litigate the justice of the whole award in the Court of Claims. The Fleet Corporation in the arrangements which it forced upon the claimants in these two cases to their detriment expressly declared that it acted as a representative of the United States. I think the proper construction to be put upon [258 U.S. 549, 572] the facts and the law is that these suits are in fact against the United States and cannot be brought except in the manner and under the procedure provided by the statute for claims for compensation for acts done by authority of the President under the act vesting him with it.
The opinion of the Court is carefully drawn and if its conclusion is to rest merely on the nice distinction that it does not clearly appear from a proper construction of the pleadings that the acts here complained of were acts done under authority delegated by the President to the Fleet Corporation, as his agent, then the question I have been discussing and which seems to me to be in these cases is not here decided, and will only arise on answer and evidence.
I do not think that either the case of The Lake Monroe, 250 U.S. 246 , 39 Sup. Ct. 460, or that of United States v. Strang, 254 U.S. 491 , 41 Sup. Ct. 165, requires the conclusion reached herein by the majority of the Court, and, indeed, their opinion is not clear and unqualified in reference to the effect of those cases.
I should not think it necessary to record a difference with my brethren of the majority but for considerations of high public expediency which may properly weigh with us in construing a doubtful statute of Congress because they must have been in the mind of Congress in the enactment of the legislation. We are made aware of the very great number of suits pending and likely to arise out of the work of the Fleet Corporation and the enormous total involved in them. This was to be expected. Can Congress be supposed to have intended that these suits might be brought in 48 different states and in courts of first instance of those states with the lack of uniformity in the findings of fact and the conclusions of law likely to be encountered where trials are had by courts and by courts and juries in so many varying jurisdiction? Did it propose to allow the United States to be made liable in litigation anywhere or under any form of procedure [258 U.S. 549, 573] without any regulation on its part to secure a reasonable limitation of its own as to the time within which such suits shall be brought? The Court suggests that judgments thus obtained will be good only against the Fleet Corporation and the claimants must run the risk of getting a judgment against a debtor which cannot pay. Congress has taken over all the assets of the Fleet Corporation so that such judgments will be valueless except as Congress shall conclude to pay them. If, in the judgments obtained in the various courts of the country Congress shall find such variety of view as not to commend them to its sense of fairness, it will be slow to recognize its obligation to pay them, and we shall have a repetition of the history of the French spoliation claims which for many decades occupied the attention of appropriation committees of Congress and wore out their patience with results that have put in the hearts of claimants a deep sense of the injustice of governments. On the other hand, a construction which will bring into one tribunal, the Court of Claims, the hearing and decision of this class of cases, will secure uniformity and dispatch and these two elements will make for justice and peace, because Congress pays the judgments of the Court of Claims against the United States in due course. The result reached by the Court if it is to go as far as I fear it must, even with the careful limitation of the language of the judgment, will make the existing confusion as to the claims against the Fleet Corporation worse confounded. It is to be hoped that if the ultimate view of the Court of the effect of the statutes under discussion is to spread this litigation all over the country with ineffective and doubtful results dependent on future approval of Congress, that Congress itself may by further remedial legislation avoid such an undesirable condition, unfavorable both to the United States and the litigants. [258 U.S. 549, 574] As to the preference claimed against a bankrupt in No. 526 by the Fleet Corporation, I concur in the conclusion of the Court that it can not be allowed under the statute as to preferences in bankruptcy because I do not think it extends to claims of the United States except those for taxes.
I am authorized to say that Mr. Justice VAN DEVANTER and Mr. Justice CLARKE concur in these views.

matches: v. V. v. v. v. v. v. v. v. v. v.


JEFFERSON COUNTY KENTUCKY LOUISVILLE METRO GOVERNMENT, et al., Defendants.
Plaintiffs Jacob Healey and Larry Louis Hibbs, Jr., bring this putative class action against Louisville-Jefferson County Metro Government and Director of Louisville Metro Department of Corrections Mark Bolton, alleging violations of state law and seeking relief under 42 U.S.C. § 1983 for alleged violations of their constitutional rights. (Docket No. 3) The action arises from Defendants' alleged practice of detaining individuals past their release dates and failing to comply with state-court orders concerning work release and home incarceration. Defendants move to dismiss the class allegations, arguing that Plaintiffs' proposed class fails to satisfy the requirements of Federal Rule of Civil Procedure 23. (D.N. 5) Defendants have also moved for an extension of time to file their answer to Plaintiffs' complaint, as well as to strike one of Plaintiffs' attached exhibits. (D.N. 6; D.N. 9) Meanwhile, Plaintiffs have filed several motions, including (i) a motion for a hearing on preliminary injunction and class certification; (ii) a motion for leave to file a second amended complaint; and (iii) a motion for a status conference. (D.N. 7; D.N. 8; D.N. 15) For the reasons set forth below, the Court will deny Defendants' motion to dismiss and motion for an extension of time to file their answer. The Court will deny without prejudice Defendants' motion to strike Plaintiffs' attached exhibit. Additionally, the Court will grant Plaintiffs' motion for leave to file a second amended complaint and their request for a status conference but deny their motion for a hearing as premature.
The following facts are set out in the complaint and accepted as true for purposes of the present motions. See Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)).
Plaintiffs' complaint depicts a troubling practice in which Defendants have systematically failed to comply with state court orders pertaining to individuals' release dates, work releases, and home incarcerations. (See D.N. 3) The complaint names as class representatives Jacob Healey and Larry Louis Hibbs, Jr.
Although Defendants “move to dismiss” Plaintiffs' class allegations, they are essentially asking the Court to strike the class allegations from the complaint. A defendant may move to strike class allegations even before a plaintiff has filed a motion for class certification. 1 McLaughlin on Class Actions § 3:4 (10th ed. 2013); see also Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 949 (6th Cir. 2011) (noting that a motion to strike may come before a motion to certify and that “either plaintiff or defendant may move for a determination of whether the action may be certified under Rule 23(c)(1)” (alteration removed)). Motions to strike are rare, “but are appropriate where the unsuitability of class treatment is evident on the face of the complaint and incontrovertible facts.” McLaughlin, supra, § 3:4.
Courts within this circuit have held that for purposes of a motion to strike class allegations, “[t]he moving party has the burden of demonstrating from the face of [Plaintiffs'] complaint that it will be impossible to certify the class as alleged, regardless of the facts [P]laintiffs may be able to prove.” Schilling v. Kenton Cty., Ky., No. 10-143-DLB, 2011 WL 293759, at *4 (E.D. Ky. Jan. 27, 2011) (citing Jimenez v. Allstate Indem. Co., No. 07-cv-14494, 2010 WL 3623176, at *3 (E.D. Mich. Sept. 15, 2010)). In other words, “before a motion to strike class allegations is granted, the [C]ourt must be convinced that any questions of law are clear and not in dispute, and that under no set of circumstances could the claims succeed in class action form.” Modern Holdings, LLC v. Corning Inc., No. 13-405-GFVT, 2015 WL 1481459, at *2 (E.D. Ky. Mar. 31, 2015) (quoting Sanders v. Apple Inc., 672 F.Supp.2d 978, 990 (N.D. Cal. 2009) (alterations omitted)).
Thus, even when the class-action issue is before the Court in the context of a motion to strike, the central question is whether the Rule 23 prerequisites are met. Schilling, 2011 WL 293759 at *4 (citing Thomas v. Moore USA, Inc., 194 F.R.D. 595, 597 (S.D. Ohio 1999)); see also Bearden v. Honeywell Int'l, Inc., 720 F.Supp.2d 932, 942 (M.D. Tenn. 2010) (citing Smith v. Bayer Corp. (In re Baycol Prods. Litig.), 593 F.3d 716, 721 n.2 (8th Cir. 2010)). If the Court determines that it would be impossible for Plaintiffs to satisfy the Rule 23 prerequisites, the class allegations must be stricken. Schilling, 2011 WL 293759 at *4.
In support of their motion to dismiss Plaintiffs' class allegations, Defendants present three arguments: (i) Plaintiffs' class definition constitutes an impermissible “fail-safe class”; (ii) Plaintiffs' putative class fails to satisfy Rule 23(a)'s prerequisites; and (iii) Even if the proposed class satisfies the prerequisites, Plaintiffs cannot demonstrate a common scheme by the Defendants, as required for certification under Rule 23(b)(2), or that common questions of law or fact predominate over individual questions, as required for certification under subsection (b)(3). (D.N. 5-1, PageID # 34) In light of Defendants' burden, however, the Court finds the arguments unpersuasive. Defendants fail to show that it would be impossible to certify the Plaintiffs' proposed class as currently defined. See Schilling, 2011 WL 293759 at *4.
Plaintiffs' primary claim is a request for relief under § 1983 for Defendants' alleged unconstitutional practice of detaining class members past their release date. (D.N. 3, PageID # 18-19) In Shorts v. Bartholomew, the Sixth Circuit recognized a constitutional claim for over-detention, explaining that “an incarcerated inmate has ‘a liberty interest in being released at the end of imprisonment.'” 255 F. App'x 46, 51 (6th Cir. Oct. 17, 2007) (quoting Schultz v. Egan, 103 F. App'x 437, 440 (2d Cir. 2004); Davis v. Hall, 375 F.3d 703, 712-13 (8th Cir. 2004)). Such a claim “is most often attributed to the Due Process Clause of the Fourteenth Amendment, ” id., although “[t]he Eighth Amendment . . . may also be implicated when a prisoner has been detained past his maximum release date.” Thome v. Bevin, No. 3:17-CV-269-CRS, 2017 WL 3671314, at *3 (W.D. Ky. Aug. 25, 2017) (citing Beil v. Lake Erie Corr. Records Dep't, F. App'x 363, 368 (6th Cir. 2008)).
In Shorts, the Sixth Circuit adopted a three-prong test for Fourteenth Amendment claims of over-detention. To succeed on his claim, a plaintiff must eventually demonstrate (1) “that a prison official had knowledge of the prisoner's problem and thus of the risk that unwarranted punishment was being, or would be, inflicted”; (2) “that the [defendant] either failed to act or took only ineffectual action under circumstances indicating that his or her response to the problem was a product of deliberate indifference to the prisoner's plight”; and (3) that “a causal connection between the [defendant's] response to the problem and the infliction of the unjustified detention” exists. Shorts, 255 F. App'x at 55 (quoting Sample v. Diecks, 885 F.2d 1099, 1110 (3d Cir. 1989)). When Shorts is read alongside Monell v. Department of Social Services, 436 U.S. 658, 694 (1978), it is clear that a plaintiff may state a claim of over-detention against a municipality by connecting his extended detention to a municipal policy or custom and showing that his particular injury was incurred as a consequence of that policy. See North v. Macomb Cty., No. 10-11377, 2011 WL 4576848, at *4 (E.D. Mich. Sept. 30, 2011).
The Sixth Circuit has held that individuals do not have an inherent liberty interest in work-release programs. Canterino v. Wilson, 869 F.2d 948, 954 (6th Cir. 1989); see also Etheridge v. Adams, No. 5:05 CV P197 R, 2005 WL 3307093, at *3 (W.D. Ky. Dec. 1, 2005) (“The Sixth Circuit Court of Appeals has specifically held that the Fourteenth Amendment's Due Process Clause does not create a protected liberty interest in participating in prison employment, including work release.” (citing Codd v. Brown, 949 F.2d 879 (6th Cir. 1991)). District courts in this circuit and elsewhere have reached the same conclusion even where work release was court-ordered. See Carter v. McCaleb, 29 F.Supp.2d 423, 428 (W.D. Mich. 1998) (“[R]egardless of the source-a regulation, a statute, or a court order-a liberty interest is not implicated in a condition of sentence unless an ‘atypical hardship' must be endured in its absence.” (citing Sandin v. Conner, 515 U.S. 472 (1995))); see also Goodwin v. Woods, No. 2:15-CV-006-RWS, 2015 WL 2255053, at *7 (N.D.Ga. May 13, 2015) (“Plaintiff asks this Court to enforce the [state-court] order . . . that he serve his custodial sentence on work release . . . . [B]ut it also appears that Plaintiff does not have a federal constitutional right . . . to serve his sentence on work release.”); Laroque v. Beck, No. 5:09-CT-3025-H, 2009 WL 6617608, at *1 (E.D. N.C. Mar. 3, 2009) (“The court ordered recommendation for work release is merely a recommendation and does not create a constitutional right to work release.”); Martin v. Blue Ridge Reg'l Jail, No. 7:08-cv-00296, 2008 WL 1944232 (W.D. Va. May 2, 2008) (holding that a state official's failure to comply with court-ordered work release did not amount to a federal due process violation). Additionally, given the lack of a constitutional liberty interest in work- release programs, courts have asked whether an interest is established under state law. This Court has held that Kentucky has not created such a liberty interest. Etheridge, 2005 WL 3307093 at *3.
The fact that Plaintiffs seek to certify a class consisting both of individuals with colorable constitutional claims and individuals without such claims is problematic. As explained below, however, there are mechanisms to mitigate this concern such that the Court cannot conclude that it would be impossible to certify the proposed class.
In support of their motion to dismiss Plaintiffs' class allegations, Defendants first argue that the proposed class constitutes an impermissible fail-safe class. (D.N. 5-1, PageID # 36-37) An implicit requirement for Rule 23 certification is that the “class must be presently ascertainable based on objective criteria that do not require the [C]ourt to delve into the merits of the claims.” McLaughlin, supra, § 4:2; see also Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015) (“[For] a class to be sufficiently defined, the court must be able to resolve the question of whether class members are included or excluded from the class by reference to objective criteria.”). A fail-safe class is thus impermissible because such a class is “defined by the merits of the plaintiffs['] legal claims, and is therefore unascertainable prior to finding of liability in the plaintiffs' favor.” Schilling, 2011 WL 293759 at *1 (alterations omitted); see also Randleman v. Fidelity Nat'l Title Ins. Co., 646 F.3d 347, 352 (6th Cir. 2011) (“Either the class members win or, by virtue of losing, they are not in the class, and therefore, not bound by the judgment.”).
Yet “a ‘fail-safe' class is one that includes only those who are entitled to relief.” Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012). In other words, where a proposed class includes both those entitled to relief and those not entitled, the class is not a failsafe class. See id.; see also Kissling v. Ohio Cas. Ins. Co., No. 5:10-22-JMH, 2010 WL 1978862, at *2 (E.D. Ky. May 14, 2010) (explaining that in a fail-safe class, “[i]f a putative class member is in fact a member of the class, then he necessarily prevails on his claim, as class membership is also determinative of liability”). Indeed, “[t]he possibility that some members of the class may fail to prevail on their individual claims will not defeat class membership on the basis of the ascertainability requirement.” McLaughlin, supra, § 4:2.


Service by publication; how made; contents.
The publication shall be made once in each week for three successive weeks in some newspaper printed in the county where the complaint is filed if there is any printed in such county and, if there is not, in some newspaper printed in this state of general circulation in that county. It shall contain a summary statement of the claim for relief of the complaint, mention the court wherein it is filed, and notify the person or persons thus to be served when they are required to answer.
Laws 2002, LB 876, § 16.
For publication of legal notices, see sections 25-2227, 25-2228, 33-141, and 33-142.
In the case of substitute service by publication under this section, service is not "made" until the third publication, and prior to the third publication, a defendant is "not served" under section 25-217. State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co., 268 Neb. 439, 684 N.W.2d 14 (2004).
Where service by publication has been approved, a defendant is not served within 6 months from the date the petition was filed under section 25-217 unless the third publication under this section has occurred within 6 months from the date the petition was filed. State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co., 268 Neb. 439, 684 N.W.2d 14 (2004).
Publication seven times in semi-weekly newspaper was not sufficient in foreclosure of tax lien. Davis v. American Inv. & Trust Co., 94 Neb. 427, 143 N.W. 464 (1913).
Publications need not be on same day of week; "week" defined. Burr v. Finch, 91 Neb. 417, 136 N.W. 72 (1912).
Notice must be published in all regular issues during week. Smith v. Potter, 90 Neb. 298, 133 N.W. 437 (1911); Claypool v. Robb, 90 Neb. 193, 133 N.W. 178 (1911).
Notice takes place of summons; publication requiring defendant to answer on second Monday is irregular and may be set aside on motion. Calkins v. Miller, 55 Neb. 601, 75 N.W. 1108 (1898).
Four weekly publications are sufficient. Taylor v. Coots, 32 Neb. 30, 48 N.W. 964 (1891); Fouts v. Mann, 15 Neb. 172, 18 N.W. 64 (1883).
Notice requiring defendant to answer in forenoon is valid; but has whole day to answer. Armstrong v. Middlestadt, 22 Neb. 711, 36 N.W. 151 (1888).
Notice once each week for four successive weeks is completed upon distribution of last publication. Davis v. Huston, 15 Neb. 28, 16 N.W. 820 (1883).
Publication notice must contain a summary statement of the object and prayer of the petition, mention the court wherein it is filed, and notify the person or persons to be served when they are required to answer. Coffin v. Maitland, 146 Neb. 477, 20 N.W.2d 310 (1945).
Plaintiff's cause of action is not required to be set out in notice. Smith v. Potter, 92 Neb. 39, 137 N.W. 854 (1912).
Notice stating that action was for "partition" of lands was sufficient without reciting "partition or sale." McCormick v. Paddock, 20 Neb. 486, 30 N.W. 602 (1886).
Notice in attachment containing general description of property attached is not void. Grebe v. Jones, 15 Neb. 312, 18 N.W. 81 (1883).
Notice to nonresident herein complied with this section. Armstrong v. Bates, 94 Neb. 462, 143 N.W. 477 (1913).


On March 31, 2010, the United States District Court for the Eastern District of Tennessee issued a memorandum opinion on the issue of whether two projects at a coal-fired electric generating facility owned by the Tennessee Valley Authority (“TVA”)constituted “routine maintenance, repair and replacement” RMRR”) under the Clean Air Act (“CAA”) and, therefore, were exempted from the requirements of New Source Review (“NSR”). In the case, Plaintiffs asserted that two 1988 projects constituted “major modifications” of TVA’s Bull Run facility and, therefore, TVA was required to get a Prevention of Significant Deterioration (“PSD”) preconstruction permit under the NSR program. TVA contended that no physical change occurred at Bull Run because the projects constituted RMRR and, therefore, were not subject to NSR. Importantly, as discussed below, the court found that because the projects are routine in the industry the requirements of NSR were not triggered.
In 1977, Congress amended the CAA to add the NSR program. NSR is a preconstruction permitting program that requires, among other things, that a PSD permit be obtained for a “modification . . of any source or facility” as defined in CAA § 7411(a). “Modification” is defined as ‘‘any physical change in, or change in the method of operation of a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted.” CAA § 7411(a)(4). The RMRR exemption is not contained in the CAA, but was created by the United States Environmental Protection Agency as an exception to the definition of “modification.” See 40 C.F.R. § 52.21(b)(2). Projects that fall under the RMRR exemption are not subject to NSR requirements.
TVA owns and operates 11 coal-fired electric generating facilities, including Bull Run in Clinton, Tennessee. Bull Run is a single unit that began operation in 1967 and is a “major stationary source,” as that term is defined by the CAA. During the 1988 outage, TVA conducted a full-scale replacement of the economizer. TVA also replaced approximately three-quarters of the tubing in the finishing superheater at Bull Run. When combined, these two projects represented the removal and replacement of more than a quarter of all the tubing in the Bull Run boiler.
TVA had the burden of proof to demonstrate that the 1988 projects did not constitute a “major modification” because they fell within the RMRR exemption. In determining whether the RMRR exemption applied, the court considered the following four factors: (1) the nature and extent of the projects; (2) the purpose of the projects; (3) the frequency of the projects; and (4) the cost of the projects. With respect to the nature and extent of the economizer superheater replacement projects, the court found that this factor weighed in favor of TVA because replacing an economizer and superheater were not “extraordinary tasks.” The court also found that the purpose of the replacements were to reduce the number of forced outages, and not to generate more electricity. Importantly, the court found economizer and superheater replacements to be common in the industry and that the costs were not uncommonly high.
This decision stands for the proposition that, in order to determine what is routine, the experience of similar plants in the industry should be reviewed and not just the experience of the individual facility. Examining what is routine in the industry, instead of what is routine for a particular facility, provides regulatory flexibility by reducing the amount of projects that are subject to NSR requirements. Other courts have looked at this issue in the past and came to a different result. For example, in United States v. Ohio Edison, 276 F. Supp. 2d 829 (S.D. Ohio 2003) and Sierra Club v. Morgan, 2007 WL 3287850 (W.D. Wis. Nov. 7, 2007), the courts concluded that many of the projects at issue did not fall under the RMRR exemption because, among other reasons, the types of projects would only occur once or twice in a units lifetime and, therefore, NSR was applicable.
In addition to the federal RMRR exemption, New York State’s NSR regulations also provide an NSR exemption for RMRR projects. 6 N.Y.C.R.R. §§ 231-4.1(b)(28), 200.1(c)(l). New York State, however, has warned that the RMRR exemption should not be interpreted too broadly. Instead, the State believes that the RMRR exemption must be viewed in the nature of a narrow, de minimis exclusion from NSR requirements and not as a broad exemption or measure to provide regulatory flexibility. This approach is based on the fact that the RMRR exemption is a product of regulatory action that is not found in the CAA, as well as the District Court’s decision in New York v. EPA II, 443 F.3d 880 (D.C. Cir. 2006), cert. denied, 127 S. Ct. 2127 (2007).
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