9VAC25-91-130. Pollution prevention standards and procedures.
A. Pollution prevention standards and procedures for facilities are listed in this section. Aboveground storage tanks with an aggregate capacity of one million gallons or more shall comply with the requirements of subsections B and C of this section.
B. Requirements for aboveground storage tanks at facilities for 25,000 gallons or more. Section 62.1-44.34:15.1 of the Code of Virginia provides the following requirements for existing aboveground storage tanks at a facility with an aggregate aboveground storage capacity equal to or greater than 25,000 gallons of oil or for an existing individual aboveground storage tank with a storage capacity equal to or greater than 25,000 gallons of oil, unless otherwise exempted.
1. Inventory control and testing for significant variations.
(3) Aboveground storage tanks containing No. 5 or No. 6 oil for consumption on the premises where stored.
b. Each operator shall institute inventory control procedures capable of detecting a significant variation of inventory. A significant variation shall be considered a variation in excess of 1.0% of the storage capacity of each individual AST. Reconciliations of inventory measurements shall be conducted monthly. If a significant variation persists for two consecutive reconciliation periods, the operator shall conduct an investigation to determine the cause of the variation and reconcile physical measurements to 60°F at 14.7 pounds per square inch absolute. This investigation shall be completed within five working days of the end of the second reconciliation period. If this investigation does not reveal the cause of the inventory variation, the operator shall notify the board and the local director or coordinator of emergency services and shall conduct additional testing to determine the cause of the inventory variation. The testing method, schedule, and results of this additional testing shall be submitted to the board for review. For a refinery, a significant variation of inventory shall be considered a loss in excess of 1.0% by weight of the difference between the refinery's input and output of oil.
c. Inventory records shall be kept of incoming and outgoing volumes of oil from each tank. All tanks shall be gauged no less frequently than once every 14 days and on each day of normal operation. For a refinery, the operator shall calculate the input and output of oil at the refinery on a daily basis. The operator shall reconcile daily inventory records with the inventory measurements conducted monthly.
a. The operator shall have and maintain secondary containment or another method approved by the board for each AST. The containment structure must be capable of containing oil and shall be constructed in accordance with 40 CFR Part 112 so that any discharge from the AST will not escape the containment before cleanup occurs. The operator shall have each secondary containment or approved method evaluated and certified to be in compliance with the applicable requirements of 40 CFR Part 112, the Uniform Statewide Building Code and its referenced model codes and standards, and 29 CFR 1910.106. The operator of a facility existing on June 24, 1998, shall have had this evaluation or certification performed by a professional engineer or person approved by the board on or before June 30, 1998, and every 10 years thereafter, unless otherwise exempted.
b. If the secondary containment cannot be certified to be in compliance with the applicable requirements of 40 CFR Part 112, the Uniform Statewide Building Code and its referenced model codes and standards, and 29 CFR 1910.106, the operator must upgrade, repair, or replace the secondary containment to meet the applicable requirements listed in subdivision 2 a of this subsection unless the board accepts the certification with qualifications.
c. The operator of a facility shall have the evaluation and certification performed every 10 years by a professional engineer (PE) licensed in the Commonwealth of Virginia or other state having reciprocity with Virginia or by a person approved by the board unless otherwise exempted.
d. The professional engineer shall not certify the secondary containment until all of the applicable requirements of 40 CFR Part 112, the Uniform Statewide Building Code and its referenced model codes and standards, and 29 CFR 1910.106 have been met. In the event the professional engineer certifies the secondary containment with qualifications, such qualifications will be subject to review and approval by the board. If the certification contains qualifications that may impact the ability of the secondary containment to contain a discharge of oil as required by subdivision 2 a of this subsection, the deficiencies must be corrected and the secondary containment must be reevaluated and recertified by a professional engineer.
e. At a minimum, the certification statement for the secondary containment must contain the following statement: "Based on my evaluation, I hereby certify that each secondary containment structure for (insert the facility name and tank identification information) is in compliance with the applicable requirements of 40 CFR Part 112, the Uniform Statewide Building Code and its referenced model codes and standards, and 29 CFR 1910.106."
f. The certification must be signed and sealed by a professional engineer licensed in the Commonwealth of Virginia or other state having reciprocity or by a person approved by the board.
g. Operators of facilities existing on June 24, 1998, and exempted under § 62.1-44.34:17 D of the Code of Virginia (i.e., exempted facilities not engaged in the resale of oil) shall have had this evaluation completed on or before June 24, 2003, and every 10 years thereafter.
h. Operators of a newly installed AST shall have this evaluation completed prior to being placed into service and every 10 years thereafter.
i. Operators of an existing AST with a current engineering certification statement on November 1, 2015, may maintain their existing engineering certification statement until their next required certification, or 10 years, whichever is sooner. At such time, the certification statements must contain the statement required in 9VAC25-91-130 B 2 e.
3. Safe fill and shutdown procedures.
a. Each operator shall institute safe fill, shutdown, and transfer procedures, or equivalent measures approved by the board, that will ensure that spills resulting from tank overfills or other product transfer operations do not occur. Written safe fill, shutdown, and transfer procedures shall be maintained by the operator for use by facility personnel.
All receipts of oil shall be authorized by the operator or facility personnel trained by the operator who shall ensure the volume available in the tank is greater than the volume of oil to be transferred to the tank before the transfer operation commences. The operator shall ensure the transfer operation is monitored continually, either by manual or automatic means, until complete. The operator shall ensure that all tank fill valves not in use are secured and that only the tank designated is receiving oil.
b. All oil transfer areas where filling connections are made with vehicles shall be equipped with a spill containment system capable of containing and collecting those spills and overfills. The containment system shall be designed to hold at least the capacity as required by 40 CFR Part 112.
c. If installed, an automatic shutdown system utilized during transfer of oil shall include the capability to direct the flow of oil to another tank capable of receiving the transferred oil or the capability to shut down the pumping or transfer system. This automatic shutdown system shall be tested prior to each receipt of oil and records of testing shall be maintained at the facility.
d. All ASTs shall be equipped with a gauge that is readily visible and indicates the level of oil or quantity of oil in the tank. In addition, the storage capacity, product stored and tank identification number shall be clearly marked on the tank at the location of the gauge. These gauges shall be calibrated annually.
4. Pressure testing of piping. All piping shall be pressure tested as specified in this subsection or using an equivalent method or measure approved by the board at intervals not to exceed five years. The operator of a facility or AST existing on June 24, 1998, shall have completed the initial test on or before June 30, 1998, except operators of existing facilities or ASTs for which compliance was exempted under § 62.1-44.34:17 D of the Code of Virginia (i.e., exempted facilities not engaged in the resale of oil). These excepted operators shall have completed the initial test on or before June 24, 2003. All newly installed or repaired piping shall be tested before being placed into service.
a. A pressure test may be a hydrostatic test at 150% maximum allowable working pressure (MAWP) or an inert gas test at 110% MAWP.
b. A test conducted and certified by an American Petroleum Institute (API) authorized piping inspector to be in conformity with the API 570 Piping Inspection Code is deemed an equivalent method of testing approved by the board.
c. The board may consider on a case-by-case basis requests for approval of other equivalent methods or measures which conform to industry recommended practices, standards and codes. The operator shall submit a request for approval of a proposed equivalent method or measure to the board as specified in 9VAC25-91-160.
5. Visual daily inspection and weekly inspections.
(5) An evaluation of the condition of the aboveground storage tank and appurtenances.
b. The operator or a duly authorized representative shall conduct a weekly inspection each week in which normal operation occurs, but no less frequently than once every 14 days, of the facility in the areas where this chapter applies, using a checklist that contains at least the items found in subdivision 5 c of this subsection. The checklist is not inclusive of all safety or maintenance procedures but is intended to provide guidance to the requirements within this chapter. The weekly checklist shall be maintained at the facility and provided to the board upon request. This checklist shall be signed and dated by the facility person or persons conducting the inspection and shall become part of the facility record.
(1) The operator of a new AST/facility shall develop the checklist within 90 days after the date of installation.
(2) The operator of each facility existing on June 24, 1998, and exempted under § 62.1-44.34:17 D of the Code of Virginia (i.e., exempted facilities not engaged in the resale of oil) shall have developed the checklist by September 28, 1998.
(3) Operators of facilities existing on June 24, 1998, and not exempted under § 62.1-44.34:17 D of the Code of Virginia (i.e., exempted facilities not engaged in the resale of oil) and who have developed a checklist by September 28, 1993, shall be deemed to be in compliance with this checklist requirement as of June 24, 1998.
____ (1) Containment dike or berm in satisfactory condition.
____ (2) Containment area free of excess standing water or oil.
____ (3) Gate valves used for emptying containment areas secured.
____ (4) Containment area/base of tank free of high grass, weeds, and debris.
____ (5) Tank shell surface, including any peeling areas, welds, rivets/bolts, seams, and foundation, visually inspected for areas of rust and other deterioration.
____ (6) Ground surface around tanks and containment structures and transfer areas checked for signs of leakage.
____ (7) Leak detection equipment in satisfactory condition.
____ (8) Separator or drainage tank in satisfactory condition.
____ (9) Tank water bottom drawoffs not in use are secured.
____ (10) Tank fill valves not in use are secured.
____ (11) Valves inspected for signs of leakage or deterioration.
____ (12) Inlet and outlet piping and flanges inspected for leakage.
____ (13) All tank gauges have been inspected and are operational.
d. The operator shall promptly remedy unsatisfactory facility and equipment conditions observed in the daily and weekly inspections. The operator shall make repairs, alterations, and retrofits in accordance with American Petroleum Institute (API) Standard 653, Fourth Edition (April 2009), with Addendum 1 (August 2010) and Addendum 2 (January 2012), Steel Tank Institute (STI) standard STI-SP001, Fifth Edition (September 2011), industry standards, or methods approved by the board.
a. Each facility operator shall establish a training program for those facility personnel conducting the daily visual and weekly inspections of the facility. Facility records shall contain the basic information and procedures required by subdivision 6 c of this subsection. The required training may be conducted by the operator or by a third party. The training program established shall be maintained to reflect current conditions of the facility.
(1) The operator of a new facility shall establish the training program within six months after being brought into use.
(2) The operator of each facility exempted under § 62.1-44.34:17 D of the Code of Virginia (i.e., exempted facilities not engaged in the resale of oil) shall have established the training program by December 24, 1998.
(3) Operators of facilities not exempted under § 62.1-44.34:17 D of the Code of Virginia (i.e., exempted facilities not engaged in the resale of oil) and who developed a training program by December 31, 1993, shall be deemed to be in compliance with this training program requirement as of June 24, 1998, so long as that program reflects current conditions of the facility.
b. The required training shall be conducted for facility personnel as applicable. Personnel not receiving this initial training and who will be conducting these inspections shall receive the training prior to conducting any inspection.
(1) The operator of a new facility shall conduct the personnel training within 12 months after being brought into use and prior to personnel conducting any inspection.
(2) The operator of each facility exempted under § 62.1-44.34:17 D of the Code of Virginia (i.e., exempted facilities not engaged in the resale of oil) shall have conducted the personnel training by June 24, 1999.
(3) Operators of facilities not exempted under § 62.1-44.34:17 D of the Code of Virginia (i.e., exempted facilities not engaged in the resale of oil) and who have conducted the personnel training by June 30, 1994, shall be deemed to be in compliance with this personnel training requirement as of June 24, 1998, so long as the training provided reflects current conditions of the facility and all inspections are current.
(4) The procedure for evaluating the condition of the aboveground storage tank and appurtenances.
d. The operator of a facility shall train facility personnel upon any changes to the contents of the initial training program or every three years and shall document this training in the facility records.
7. Leak detection. The operator shall operate, maintain, monitor and keep records of the system established for early detection of a discharge to groundwater (i.e., a method of leak detection) as required by 9VAC25-91-170 A 18 and contained in the facility's approved ODCP. These activities shall be inspected and approved by the board.
C. Requirements for aboveground storage tanks at facilities for one million gallons or more. In addition to the requirements of subsection B of this section, the following requirements apply to existing aboveground storage tanks at facilities with an aggregate aboveground storage capacity of one million gallons or more of oil or for an existing individual aboveground storage tank with a storage capacity of one million or more gallons of oil, unless otherwise exempted.
a. Each AST shall undergo formal external and internal tank inspections. The initial formal internal and external inspections for an AST existing on June 24, 1998, shall have been completed on or before June 30, 1998, unless otherwise specified within this chapter.
(1) All newly installed ASTs shall have initial formal inspections within five years after the date of installation.
(2) Operators of facilities existing on June 24, 1998, and exempted under § 62.1-44.34:17 D of the Code of Virginia (i.e., exempted facilities not engaged in the resale of oil) shall have completed the initial formal inspections on or before June 24, 2003.
(3) An AST with a storage capacity of less than 12,000 gallons shall not be subject to the formal internal inspection unless the integrity of the AST is in question and an inspection is deemed necessary by the board.
b. Inspections shall be conducted in accordance with the provisions of American Petroleum Institute (API) Standard 653, Fourth Edition (April 2009), with Addendum 1 (August 2010) and Addendum 2 (January 2012); Steel Tank Institute (STI) standard STI-SP001, Fifth Edition (September 2011); or procedure approved by the board. If construction practices allow external access to the tank bottom, a formal external inspection utilizing accepted methods of nondestructive testing or procedure approved by the board may be allowed in lieu of the internal inspection.
c. An API Standard 653 inspection conducted between January 1, 1991, and June 24, 1998, may be accepted by the board if the operator provides supporting documentation to the board for review and approval.
d. All formal inspections and testing required by subdivisions 1 and 2 of this subsection shall be conducted by a person certified to conduct the inspection or test. This certification shall be accomplished in accordance with the provisions of API Standard 653, STI-SP001, or a procedure approved by the board. Proof of this certification shall be maintained in the facility records. The results of all tests and inspections required by subdivisions 1 and 2 of this subsection shall be maintained at the facility or at a location approved by the board for the life of the tank, but for no less than five years.
a. Each AST shall undergo an external reinspection every five years. Inspections shall be conducted in accordance with the provisions of API Standard 653, STI-SP001, or other procedure accepted by the board after the initial formal external inspection has been conducted.
b. Each AST with a storage capacity of 12,000 gallons of oil or greater shall undergo an internal reinspection in accordance with the provisions of API Standard 653 or STI-SP001 every 10 years after the initial formal internal inspection has been conducted.
(1) The board may require the internal reinspection sooner than 10 years if there is an indication that the corrosion rate established by the initial internal inspection or a subsequent reinspection has increased.
(2) The internal reinspection period may be extended beyond 10 years if the operator can demonstrate to the board that an extension of the reinspection period is warranted. The operator shall provide supporting documentation to the board for review and approval at least six months prior to the date the reinspection is due.
c. An AST with a storage capacity of less than 12,000 gallons shall not be subject to the formal internal reinspection unless the integrity of the AST is in question and an inspection is deemed necessary by the board.
3. Safe fill and shutdown procedures - high level alarm. If unattended during transfer operations, the AST shall be equipped with a high level alarm or other appropriate mechanism approved by the board that will immediately alert the operator to prevent an overfill event. Activation of the high level alarm or other appropriate mechanism shall initiate an immediate and controlled emergency shutdown of the transfer, either by manual or automatic means. Each operator shall include this emergency shutdown procedure in the facility records and shall ensure that all facility personnel involved in the transfer operation are trained in this procedure. The alarm shall consist of a visual and audible device capable of alerting the operator, both by sight and hearing, to prevent an overfill situation. If the operator is in a control station, this alarm shall activate a warning light and audible signal in that station. In addition, this system shall alarm on failure, malfunction, or power loss. This high level alarm shall be tested prior to each receipt of oil. Records of testing shall be maintained at the facility.
4. Cathodic protection of piping. The requirement for cathodic protection of piping shall apply to buried piping only. Cathodic protection shall be installed and maintained in accordance with the following applicable publications: American Petroleum Institute Standard (API) 1632, Third Edition (2002), the Uniform Statewide Building Code and its referenced model codes and standards, or National Association of Corrosion Engineers (NACE) SP0285-2011. All piping above ground shall be protected from corrosion using methods and procedures referenced in the Uniform Statewide Building Code and its referenced model codes and standards, or a procedure approved by the board. Piping that passes through the wall of the containment berm or dike or under road crossings shall be protected from corrosion and damage using practices recommended in the publications listed in this subdivision.


September 24, 1938. Opinion Conforming to Certified Questions February 4, 1939.
Appeal from District Court, Dallas County; W. L. Thornton, Judge.
Divorce suit by Jessica Patterson Scott against Winfield Scott, Jr., wherein Elizabeth Scott was made a party defendant. From orders overruling the defendants' pleas of privilege, defendants appeal.
Conforming to answers to certified questions in 123 S.W.2d 306.
Albert J. Baskin and Cantey, Hanger, McMahon, McKnight Johnson, all of Fort Worth, and Hamilton, Harrell, Hamilton Turner, of Dallas, for appellants.
Marvin B. Simpson, of Fort Worth, and Thompson, Knight, Baker, Harris Wright, of Dallas, for appellee.
This appeal is by Winfield Scott, Jr., and Mrs. Elizabeth Scott, from the judgment below overruling their pleas of privilege. On original submission, we affirmed the judgment of the trial court on May 21, 1938, in an opinion by Mr. Bond, Chief Justice. On rehearing, we adhered to our ruling as to Winfield Scott, Jr., hence overruled his motion for rehearing, but as to Mrs. Elizabeth Scott, a majority of the Court (Mr. Bond, Chief Justice, dissenting) having reached a tentative decision that the trial court erred in overruling her plea of privilege, that her motion for rehearing should be sustained, and that our former decision, as to her, be set aside, the judgment of the trial court reversed and judgment rendered in her favor, changing the venue of the cause to Tarrant County; tentative majority and minority opinions having been filed, the Court deemed it advisable to certify to the Supreme Court for adjudication, the issues of law arising in the case as to Mrs. Elizabeth Scott.
On November 12, 1937, Jessica Patterson Scott filed suit for divorce in a District Court of Dallas County against Winfield Scott, Jr., alleging jurisdictional facts as to inhabitancy of this State, and of residence in Dallas County, with sufficient facts to authorize the granting of a divorce, if sustained by proof.
After stating grounds for divorce, plaintiff (appellee) alleged that her husband, Winfield Scott, Jr., owned in his own right a vast estate, consisting of lands and personal property located in Tarrant, Johnson and Parker Counties, worth approximately $1,500,000, and during the existence of the marriage relationship he has received from his separate estate an income of approximately $15,000 per month; that the income is community property, of which she is vested with title in one-half thereof, and the separate estate is chargeable with just claims, contractual and equitable, payable on proper division of said estate; that she is without funds or means necessary for her support, is without an adequate home for her station in life, and without money to defray the expenses of this litigation; that since she has been separated from her husband she has created debts and liabilities in the sum of $10,000 for necessaries, which her husband failed and refused to furnish; that she is entitled to a home out of the rents and revenues from her husband's separate estate, alimony allowances pending the suit, and reasonable attorney's fees for the protection of her rights.
Plaintiff further alleged that, on February 20, 1935, prior to the time of their marriage, her husband executed and delivered to his mother, Elizabeth Scott, a deed of conveyance, transferring to her all of his estate, both real and personal; that the transaction was simulated, purporting to be an absolute deed, when in fact the same was only a conveyance in trust — his mother agreeing to hold the property in trust for the son, turn over all rents and revenues received, and finally reconvey the property to him. The mother, Elizabeth Scott, was made a party to the suit, plaintiff alleging that she is holding same in trust for her said son, that the rents and revenues therefrom are being retained by her as such trustee, and that she has refused to apprise plaintiff of the nature, location or extent of her said holdings.
Plaintiff's petition concludes with prayer: that pending the suit, defendant Winfield Scott, Jr., be ordered to file proper inventories of the properties owned by him, that he pay into the registry of the court, for the support of plaintiff, $1,000 per month as alimony; and that, on final hearing, defendant Elizabeth Scott be declared to be a trustee of the estate of her said son, holding the property conveyed in trust for the use and benefit of her said son, plaintiff be granted a divorce, a division of the properties, community and personal, and reasonable attorney's fee, and for fair and just marital charges, to be fixed on the separate property of Winfield Scott, Jr., in such amount as the court may determine.
In due time and in statutory form, each of the defendants filed pleas of privilege to be sued in Tarrant County, the county of their residence; plaintiff filed a controverting affidavit, incorporating therein and making a part thereof the allegations of her original petition; and, on hearing, the trial court overruled the defendants' pleas of privilege; each defendant appealed, and by agreement of all parties, the two appeals, as far as practicable, are prosecuted as one, with a single statement of facts, transcript and appeal bond; however, presenting assignments of error relating to and as effects the appellants separately.
On hearing the pleas and contest thereof, the only proof offered by plaintiff tending to show the existence of any fact or facts relied upon to confer venue of the cause on the court below as to Mrs. Scott was to the effect that she resided in Tarrant County, Texas, and that the major portion of the real estate involved is situated in that county; in other respects, plaintiff seems to have relied upon the sufficiency of the allegations of her petition to show venue, which were incorporated in and made a part of her contesting affidavit.
Opinion, on the Motion for Rehearing by Winfield Scott, Jr., and the Majority Opinion, on the Motion for Rehearing by Mrs. Elizabeth Scott.
On original submission the judgment of the trial court overruling the pleas of privilege filed by defendants, was affirmed in an opinion by Chief Justice Bond filed May 21, 1938.
On rehearing the court adheres to its decision that, as to Winfield Scott, Jr., plaintiffs allegations and proof show that venue was properly laid in the court below; hence, that the trial court did not err in overruling his plea of privilege. However, it is lengthily argued in his behalf, especially in the motion for rehearing, that the trial court erred in overruling his plea, the contention being that, Art. 4631 merely prescribes the qualifications, as to inhabitancy of the state and residence in the county where the suit is commenced, of a plaintiff filing a divorce suit, and as there is no requirement of law that the suit be tried in the county where it is commenced, and title to land being involved, that Subdivision 14 of Art. 1995, prescribing the venue of land suits, dominates, requiring that the cause be transferred for trial to a proper court of Tarrant County in which the major portion of the real estate involved is situated. This contention is based on certain decisions of our appellate courts, and courts of other states having statutes somewhat similar to the controlling statutes of this state, which will be briefly considered.
Construing Art. 2978 (now Art. 4631) designating the place for the commencement of a divorce action, Judge Reese, in Charlton v. Charlton, Tex. Civ. App. 141 S.W. 290, 291, involving a divorce granted on defendant's cross-bill, said: "that the requirements of the statute as to residence were only intended to apply to the plaintiff — in the language of the statute, `the petitioner for divorce,' the person who puts the machinery of the courts in motion in a divorce proceeding. * * *" In Root v. Root, 60 S.W.2d 525, 528, the Eastland Court of Civil Appeals said: "We see no reason why a divorce case is not subject to our venue laws the same as any other suit. * * * The jurisdictional facts as to inhabitancy of this state and of residence in a particular county have application up to the time of filing the suit and fix the place of filing, but, once those jurisdictional facts exist and the suit is filed, there is no obstacle, as we see it, to a transfer of the case to another district court for trial". The court was here speaking of a change of venue by agreement of parties, and had no reference to a change of venue under the provisions of any statute authorizing same.
In Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77, 79, 89 A.L.R. 1198, a divorce had been granted the defendant on his cross-action; it was contended that, the court being without jurisdiction to grant same, the judgment was void (this was the precise situation presented in Charlton v. Charlton, Tex. Civ. App. 141 S.W. 290, 291), with reference to which Judge Critz said: "It will here be noted that the six months' residence in the county provision of article 4631 is coupled with the twelve months' residence in the state provision of the same article. In this regard we think article 4631 has effect to define the qualifications of the plaintiff or petitioner in divorce cases, and is not intended to circumscribe the jurisdiction of the district courts of this state. In this respect we call attention to the fact that article 4631 applies to all district courts alike. Its effect is to disqualify the applicant for a divorce of the right to maintain the suit unless he has resided in the state for twelve months at the time of exhibiting his petition, and in the county in which the suit is filed for six months next preceding the filing of the same". In the same case, Judge Critz also said that: "An examination of subdivision 16 of article 1995, supra, demonstrates that it is purely a venue statute. This is evident if for no other reason because it appears in a purely venue article".
Our attention has also been called to certain decisions by courts of the states of Indiana, California, Colorado, South Dakota, Nevada and Minnesota, involving the right of a defendant to change the venue of a divorce suit. It appears that, in each of these states, there existed a statute similar to our Art. 4631, prescribing the qualification of the plaintiff and designating the place for the commencement of the action, but in each state there also existed a separate statute (altogether different from our subd. 16 of Art. 1995) under which a defendant could have the venue of a divorce suit changed. It follows that, as the venue statutes of the states mentioned differ materially from the venue statute of this state, the decisions of said courts, based upon statutes peculiar to each state, are of no value as authority in the instant case. Hence, we think it obvious that, while Art. 4631 defines the qualification of a plaintiff in a divorce case, and designates the county in which the same must be instituted, subd. 16 of Art. 1995 fixes the venue for the trial, in precisely the same county; these being the only statutory regulations of the subject, we think venue of the instant suit as to Winfield Scott, Jr., was properly laid in Dallas County, and was not subject to change under any other provision of the statute. It follows that, in our opinion, the court was authorized, by Art. 4638, R.C.S., to adjudicate the property rights of the spouses if and when the divorce is granted. We therefore overrule Winfield Scott Jr.'s motion for rehearing.
However, a majority of the court have concluded that Mrs. Elizabeth Scott cannot be forced, over her protest, to litigate the questions presented by plaintiff regarding property to which she holds legal title, in a venue other than one to which she has the statutory right to insist upon. We do not think the proceeding as to her is, in any sense, an incident to the divorce suit, but rather is a separate and independent action in which plaintiff seeks to have a deed based upon a recited valuable consideration (under which Mrs. Scott, Sr. held title twelve years before plaintiff filed suit, and six years before she and Winfield, Jr. were married) absolute in form, conveying a large landed estate situated in the counties of Tarrant, Parker and Johnson, declared to be merely a trust arrangement for the benefit of Winfield, Jr.; in effect, plaintiff asks that, the deed of conveyance under which Mrs. Scott, Sr., holds title to said properties, be nullified, that the property conveyed be wrested from her possession and control and placed in the hands of a trustee appointed by the court, with authority to collect rents, revenues, income, etc.; in other words, the relief sought by plaintiff, if granted, would divest Mrs. Scott, Sr., of title to these properties, and in legal effect, restore same to the estate of Winfield Scott, Jr., and as such charged and burdened for the benefit of plaintiff.
If the suit as to Mrs. Scott, Sr., is maintainable in Dallas County over her protest, it will be under subd. 29a of Art. 1995 R. S., Vernon's Ann.Civ.St. art. 1995, subd. 29a on the theory that she is a necessary party to the suit; no other theory has been advanced. So, the question arises, when can it be said that one is a necessary party within the meaning of subdivision 29a? This was answered by the Supreme Court in Commonwealth Bank Trust Co. v. Heid Bros. Inc., 122 Tex. 56, 60, 52 S.W.2d 74, 75, as follows: "A `necessary party' to a suit, according to the general understanding of that term, is one who is so vitally interested in the subject-matter of the litigation that a valid decree cannot be rendered without his presence as a party". Also in First Nat. Bank v. Pierce, 123 Tex. 186, 190, 69 S.W.2d 756, 757, referring to subd. 29a, the court said: "The purpose of the new exception as disclosed by its terms, was not to restrict the meaning or operation of any pre-existing exception contained in the article, but to leave them all in full operation as before. It is reasonably clear that the term `necessary parties' is used in the new exception in the strict sense of the term; that is to say, as embracing `only those persons without whose presence before the court no adjudication of any of the subject matter involved in the litigation can be had.' Townes Texas Pleading (2d Ed.) 258. The very fact that this is the meaning of the term `necessary parties,' as used in the new exception, tends to exclude the idea that the Legislature intended the provisions of the new exception to modify or in anywise control the operation of the provisions of the old exceptions. For it may be fairly presumed that, if the new enactment were intended to dominate or vary the meaning or operation of said pre-existing provisions, the Legislature, because of momentous and far-reaching results that would follow, would have more clearly disclosed such intention, and would not have left same to be discovered by uncertain implication". Many other cases in point could be cited, but these are so recent, conclusive and understandable we do not deem it necessary to refer to any others.
Applying the definition of "necessary parties" to the case alleged by plaintiff, can it be correctly said that Mrs. Elizabeth Scott is so vitally interested in the subject-matter of the litigation between plaintiff and Winfield, Jr., that a valid decree cannot be rendered adjudicating any part of the subject-matter involved without her presence in the suit? We do not think so. It cannot be said that she is at all interested in the divorce feature of the suit, or in the division of the community property belonging to the spouses; or in the amounts to which plaintiff is entitled for necessaries, alimony or attorney's fee, nor do we think she is legally concerned in regard to the amount the court may, under the facts, be justified in burdening the separate property of Winfield, Jr., for the benefit of plaintiff. As these matters comprehend the case in its entirety, presented by plaintiff against Winfield, Jr., we think a valid decree disposing of each and all could be rendered without the presence of Mrs. Elizabeth Scott in the case; in fact, if present she would have no right to be heard on either of these issues.
Admittedly, the adjudication of the property rights sought by plaintiff is merely an incident to the divorce action, and it is with reference to this incidental matter (as between plaintiff and Winfield, Jr.) that Mrs. Scott, Sr., is brought in as a party defendant, the purpose of the action as to her (separate and independent of both the main and incidental issues involved in the divorce suit), in legal effect, is the divestiture of title to real estate.
We do not think that venue of the suit as to Mrs. Scott, Sr., is in any sense controlled or affected by venue of the divorce action. As stated in 43 Tex.Jur. pp. 774-7, Sec. 53, "But if the proceeding, claimed to be an ancillary one, is a separate, distinct action, its venue will not of course be affected by the proper venue of the suit to which it is claimed to be ancillary". Also, see Blocker v. Commercial Nat. Bank, Tex. Civ. App. 295 S.W. 341; Fox v. Cone, 118 Tex. 212, 13 S.W.2d 65. In Umberson v. Krueger, 49 S.W.2d 528, the Amarillo Court of Civil Appeals held that an "alleged fraudulent grantee" of land (in the instant case an alleged trustee) was not a necessary party to a suit, against the alleged fraudulent grantor to subject the property to a lien, and that the nonresident grantee could not properly be sued in a county in which he did not reside. To the same effect see: Shipley v. Pershing, Tex. Civ. App. 5 S.W.2d 799; Wool Growers' Central Storage Co. v. Edwards, Tex. Civ. App. 10 S.W.2d 577; Matthews v. Hedley Motor Co., Tex. Civ. App. 47 S.W.2d 661.
But it is contended that Mrs. Scott, Sr., is a necessary party because a proper division of the estate between the spouses cannot be made, and an accounting had, without her presence in the suit. Plaintiff concedes, correctly, that the adjudication with reference to the property rights of the spouses is merely an incident to the main purpose of the suit; obviously, therefore, as an incident to a mere incident, Mrs. Scott, Sr., is sought to be made a party; in its last analysis, the contention being that her statutory privilege to be sued in a proper venue must yield to the exigencies of a divorce suit presenting incidental issues, in regard to which, in a legal sense, she is in no way concerned.
The precise question has not been decided by our courts, but kindred questions have been decided and doctrines announced which, in our opinion, are sufficiently comprehensive to include and rule the question under consideration. As heretofore shown, our courts have held that an alleged fraudulent grantee of land was not a necessary party to a suit against the alleged fraudulent grantor, to subject the lands to a lien. In effect, the same question is presented here, as plaintiff is seeking to impose charges and burdens upon the separate property of her husband, the legal title to which, allegedly, is held by his mother as trustee for his benefit.
In Gray v. Thomas, 83 Tex. 246, 251, 18 S.W. 721, 723, Judge Gaines said: "The rule now established in this court is that a decree of divorce which does not purport to make a partition of the property between the husband and wife, or to settle their rights to the property claimed by either, does not preclude a suit by either party for such partition, or for the establishment of such rights (Whetstone v. Coffey, 48 Tex. 269); and we see no reason why, when the decree is confined to certain specific property, the same rule should not apply to other property not brought within the scope of the adjudication. To hold that such a judgment would be conclusive as to property not included, it would have to be held that because the property had not been claimed in the divorce suit the right had been waived. This doctrine was announced in Hardin v. Hardin, 38 Tex. 616, but was expressly repudiated in Whetstone v. Coffey, supra. That it would be unjust to apply it in a case where the husband, in anticipation of a divorce, has fraudulently conveyed the property to a third party to hold for him, is quite clear. * * *" Also see Whetstone v. Coffey, 48 Tex. 269; Kirberg v. Worrell, Tex.Com.App., 44 S.W.2d 940. The language of the court, in Harris v. Harris, Tex. Civ. App. 44 S.W.2d 802, 804, is a nearer approach to the question under consideration. That was a divorce suit involving a division of property, the wife contending that her husband had transferred property in fraud of her rights, the alleged fraudulent grantee not being a party to the suit. The court held that an adjudication, as between the spouses, could be had in regard to the validity of the transaction alleged to be fraudulent, saying: "We know of no reason why the court would not have jurisdiction to enter that decree". Also in Turman v. Turman, Tex. Civ. App. 99 S.W.2d 947, 950, pending suit for divorce, the husband went into voluntary bankruptcy and the Federal Court enjoined the wife from prosecuting any proceeding for the purpose of fixing or foreclosing a lien upon, or taking possession of any of the property belonging to the bankrupt's estate. The trial court proceeded to try the divorce suit, notwithstanding the injunction, or the legal effect of the adjudication, transferring the bankrupt's property to the trustee in bankruptcy. The Court of Civil Appeals held that, as between the husband and wife, the District Court of Tarrant County had the unquestioned right to proceed as was done, regardless of the order of the United States District Court, saying: "We are of the opinion that it was not error for the district court to enter judgment partitioning the community property * * *."
The rationale of these pronouncements, in our opinion, is to the effect that, where, in a divorce suit, property is sought to be divided between the spouses, a third party who holds or claims property alleged to belong to the community or to one of the spouses, is not a necessary party; that as between the spouses the court may adjudicate their rights in or to the property so held or claimed by another, and that such a decree would be binding upon all persons, except the third party allegedly holding or claiming the property, and as to him, the spouse in whose favor a decree is rendered could proceed in a court of proper venue to have title to the property so held, adjudicated. In the light of these authorities, we do not think it can correctly be said that plaintiff's allegations show Mrs. Scott, Sr., to be a necessary party to the suit, hence, as a matter of law, are of opinion that her plea of privilege should have been sustained.
But, if it be conceded that plaintiff's allegations show that, within the meaning of subd. 29a, Mrs. Scott, Sr., is a necessary party, yet we think her plea of privilege should have been sustained and venue of the cause as to her changed, because of the utter failure of plaintiff to introduce any proof showing or tending to show the existence of any fact or facts relied upon conferring venue on the court below. The only proof offered as to her was to the effect that she resided in Tarrant County, Texas, and that the major portion of the real estate involved is situated in that county; in other words, plaintiff relied exclusively upon the allegations of her contesting affidavit (incorporating the allegations of her petition) to show that Mrs. Scott Sr. was a necessary party to the suit.
The statute (Art. 2007, R.S.) mandatorily requires the contesting plaintiff to allege specifically under oath the fact or facts relied upon to confer venue on the court where the cause is pending. Under the decisions, this doctrine is now axiomatic. Appellee insists, however, that having alleged and proved that Winfield, Jr., was properly sued in Dallas County, the suit as to Mrs. Scott, Sr., was maintainable in that county under subd. 29a, even though no proof was offered tending to show a joint cause of action — that plaintiffs allegations were determinative of that question.
The Waco Court of Civil Appeals, in Monte Oil Co. v. McFall, 114 S.W.2d 596, made a pronouncement that seemingly sustains the view advanced by appellee, but, for reasons which will be stated, we are of opinion that the rule announced, as applied to cases arising under subd. 29a, is erroneous, and that the learned judge who wrote the opinion advanced a doctrine contrary to that previously announced by his court, in Bender v. Armstrong, 59 S.W.2d 451. In Monte Oil Co. v. McFall, the Waco Court of Civil Appeals applied the rule to cases arising under subd. 29a that was applied by the Supreme Court in Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, that arose under subd. 4, Art. 1995. But, in First Nat. Bank v. Pierce, 123 Tex. 186, 189, 69 S.W.2d 756, 757, the Supreme Court had previously said that these subdivisions differ radically, that: "Subdivision 29a of article 1995 appears to have been enacted as an additional exception to the provision of said article which says that: `No person, who is an inhabitant of this State, shall be sued out of the county of his domicile.' The new exception thus created does not purport, in terms, to change in any respect the previously existing exceptions prescribed in said article, and we do not think that such a purpose is fairly implied. The purpose of the new exception, as disclosed by its terms, was not to restrict the meaning or operation of any pre-existing exception contained in the article, but to leave them all in full operation as before. * * *"
Among the first cases to arise under subdivision 29a, Art. 1995, was Bender v. Armstrong, 59 S.W.2d 451, 452, decided by the Waco Court of Civil Appeals. Disposing of the question, the court said: "When none of the defendants resides in the county in which suit is brought, but venue of such suit is maintainable therein against one or more of the defendants under some specific exception to article 1995 of our Revised Statutes, and venue is sought to be maintained against another defendant solely under the provisions of subdivision 29a of said article (as added by Acts 1927, 1st Called Sess., c. 72, § 2, Vernon's Ann.Civ.Stat. Art. 1995, subd. 29a), plaintiff must further show that the latter is a necessary party to this suit. [Citing numerous authorities.]" The case just mentioned was followed by the decision of the San Antonio Court of Civil Appeals, in Brown v. Neyland, 62 S.W.2d 227, 229 (that arose under subd. 29a), the court saying: "We are now relegated to the question of whether appellee presented sufficient of the facts alleged in support of venue in Nueces county. There was evidence to support the trial court's finding that the corporate appellant maintains an agency and representative in Nueces county, thus subjecting it to suit in that county, under subdivision 23 of the statute. But there the proof ended. No evidence was admitted showing or tending to show that appellee ever had any contract or other business relation with the appellants, or any of them, or that there exists in the case a good-faith controversy between the parties. Such a showing was necessary to sustain venue. * * *" The latest reported case on the subject is Citizens Nat. Bank v. Citizens State Bank, 116 S.W.2d 1154, 1156, by the Amarillo Court of Civil Appeals. Contrasting the required proof to maintain venue under subds. 4 and 29a, the court said: "The effect of the language used in subdivision 29a is quite different and places a more onerous burden upon him who seeks to subject the second defendant to non-resident venue. It provides that whenever there are two or more defendants in any suit which is lawfully maintainable under the provisions of article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto. This subdivision specifically designates the second defendant or defendants. They must be necessary parties to the suit before they can be subjected to the non-resident venue. The wording of the subdivision has the effect of establishing two fundamental elements of venue instead of one, as is the case in subdivision 4. Those two elements are, first, a cause of action against the first defendant and that the second defendant is a necessary party to the suit. We conceive of no reason for requiring proof of residence under subdivision 4 other than that the residence of one of the defendants is the substance of the venue. If the substance consists of two elements as in, subdivision 29a, the proof of one element is as essential as proof of the other would be".
The same question was presented to this court in Meadows Co., Inc. v. Turner, 270 S.W. 899, 900, with respect to which we said: "It will be observed that the only evidence offered by appellee on the trial of the contest, tending in any way to show the existence of a joint cause of action against appellant and the defendants residing in Dallas county, was the evidence afforded by the allegations of his original petition. In our opinion, plaintiff's petition cannot be used as evidence to support the contention that he has a joint cause of action against these defendants. * * * To hold otherwise would result in depriving a defendant of the valuable right to be sued in the county of his residence on the unproven allegations of the plaintiff's petition, or of casting on him the burden of showing that the cause did not belong to any of the exceptions to exclusive venue in the county of his residence. * * * It is thus seen that the net result of the rule contended for by appellee is either to defeat appellant's plea of privilege on the unproven allegations of appellee's petition, or of casting on it the burden of proof to sustain its plea of privilege. In our opinion, this is not the law. * * * The plaintiff can no longer rely on the allegations of his petition as prima facie proof of his right to maintain the suit where brought, but it is incumbent on him to contest the plea under oath and therein allege the specific fact, or facts, relied on to confer venue of the suit on the court where it is pending, and not only is he required to allege the specific fact, or facts, but the burden is on him to prove, at least prima facie, the existence of same. * * *"
In the case of Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 95, the Supreme Court, adopting an opinion by Judge Smedley of Commission "B", among other things, said: "`The right to maintain a suit in a county other than that in which the statute fixes the venue must depend upon the existence of the fact or facts which constitute an exception to the statute, and not upon the mere averment of such fact or facts.' Hilliard Bros. v. Wilson, 76 Tex. 180, 184, 13 S.W. 25, 26. The purpose of the hearing is to determine whether such fact or facts in truth exist, and the truth as to their existence or nonexistence is not even approximated by a hearing in which the evidence of only one of the parties is admitted or considered. It is true that this construction of the statute means that the issue as to the commission of the crime or offense [in the instant case, the fact or facts showing that Mrs. Scott Sr. is a necessary party] may be twice tried, once in the hearing of the plea of privilege and once in the trial on the merits, with added expense and delay and sometimes with inconsistent results. But proof of the venue facts is the price which the plaintiff pays for the benefits which he expects to derive from the exception. He may avoid the hardship of twice proving that the crime or offense was committed by filing his suit in the county of the defendant's residence. It is better to put the parties to the inconvenience of two trials of the issue than to deprive the defendant of the valuable privilege of making his defense on the merits in the county of his residence, when the facts to bring the case within the exception do not actually exist. Furthermore, under most of the exceptions in article 1995, the venue facts do not go in any great extent to the merits of the case * * *"
Therefore, we are of opinion that venue of the cause as to Mrs. Scott, Sr., should have been changed to Tarrant County, for either of the following reasons — that is, because a major portion of the lands involved is situated in that county; but if not for that reason, then because her residence is in that county.
In the early case of Thomson v. Locke, 66 Tex. 383, 1 S.W. 112, Judge Stayton said: "An examination of the several subdivisions of article 1198, Rev.St. [now Art. 1995], shows an intention on the part of the Legislature to require such actions as may affect or are brought to secure title, either legal or equitable, to land, to be brought in the county in which the land is situated. * * *" (page 387, 1 S.W. page 114). To the same effect see Babno v. Compton, Tex. Civ. App. 230 S.W. 240; Miller v. Hoppe, Tex. Civ. App. 238 S.W. 729; Grogan-Cochran Lumber Co. v. McWhorter, Tex. Civ. App. 4 S.W.2d 995; Id., Tex. Civ. App. 15 S.W.2d 126, and Liles v. McDonald, Tex. Civ. App. 63 S.W.2d 886.
That the relief sought by plaintiff against Mrs. Scott, Sr., if granted, would not simply affect her title to the lands involved, but, to all intents and purposes, would divest and extinguish same, hence we think she has the legal right to insist that venue of the cause as to her be changed to Tarrant County, in which the major portion of the land involved is situated. However, if it can be correctly said that the relief sought will not affect her title, and that venue of the suit is not controlled by subd. 14 of Art. 1995 relating to land suits, the result, in our opinion, would be the same, because, in such event, she would be entitled to have the suit transferred to Tarrant County, where she resides, under the general provision of Art. 1995, which provides that, "No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases" (naming various exceptions to exclusive venue in the county of one's residence).
So, we have reached the conclusion that the trial court erred in overruling the plea of privilege urged by Mrs. Scott, Sr., that this court erred in affirming the judgment of the trial court in that respect; that her motion for rehearing should be and is hereby granted and the judgment heretofore rendered affirming the trial court as to her is set aside, and judgment is here rendered, sustaining her plea of privilege and transferring the cause for trial to a court of proper venue in Tarrant County.
The questions of law certified to the Supreme Court for adjudication were these: 1. Assuming the allegations of plaintiff's petition, in substance set out above, to be true, is it shown that Mrs. Elizabeth Scott is a necessary party to the action by plaintiff against Winfield Scott, Jr. within the meaning of subdivision 29a of Art. 1995, R.C.S., Vernon's Ann.Civ.St. art. 1995, subd. 29a?
2. Assuming plaintiff's allegations, as substantially set out above, to be true, can Mrs. Elizabeth Scott be compelled to defend the action over her plea of privilege to be sued in the county of her residence, or in the county where a major portion of the land is situated, on the theory that there can be no proper division of the estate between the spouses (as authorized by Art. 4638, R.C.S.), unless she is a party to the suit?
3. If either of the above questions is answered in the affirmative, was the proof sufficient to show the existence of the fact or facts relied upon to confer venue of the cause on the court below as to Mrs. Elizabeth Scott? Phrasing the question differently: Can plaintiff rely upon the unproven allegations of her petition to establish the existence of the venue fact or facts relied upon?
In an opinion by Associate Justice Critz, 123 S.W.2d 306, filed January 4, 1939, the Supreme Court answered questions Nos. 1 and 2 in the negative, and left unanswered question No. 3, for the reason that it was propounded only on condition that either question No. 1 or question No. 2 was answered in the affirmative.
So, it being obvious that the Supreme Court sustained the views of the majority of this Court, therefore, in harmony with the adjudication by the Supreme Court, the motion for rehearing by Mrs. Elizabeth Scott is sustained, the former judgment of this Court, affirming the judgment of the trial court as to her, is set aside, and the judgment below is reversed and judgment is here rendered, sustaining her plea of privilege and changing the venue of the cause as to her, to a court of competent jurisdiction of Tarrant County; and in consummating the change of venue, the clerk of the court below will follow the directions prescribed by Article 2020, R.C.S., Vernon's Ann.Civ.St. art. 2020.
Briefly, it is my opinion that First National Bank in Dallas v. Pierce, 123 Tex. 186, 69 S.W.2d 756, is decisively against the contention of appellee as to Mrs. Elizabeth Scott. It was there held that the purpose of the new exception (subd. 29a) was not to restrict or abrogate the meaning of any preexisting provision (with particular reference to subd. 4) but to leave them all in full operation as before. West Texas Construction Co. v. Guaranty Bldg. Loan Co. Galveston Court of Civil Appeals, 93 S.W.2d 774. The entire venue statute has been construed by the courts favorably to the rights of defendants, Fox v. Cone, 118 Tex. 212, 13 S.W.2d 65; and strictly, and must be clearly established, Spinnler v. Armstrong, Tex. Civ. App. 63 S.W.2d 1071; and are not to be denied upon strained constructions thereof. Southwestern Surgical Co. v. Scarborough, Tex. Civ. App. 15 S.W.2d 65. This strict interpretation plainly excludes equitable situations, embracing "all those that may be directly or indirectly involved in order that full and complete relief may be accorded the complainant"; or the "avoidance of a multiplicity of suits"; and appellate decisions that have heretofore liberalized the word are now considered as overruled. No facts constituting a joint liability as to Mrs. Elizabeth Scott has been plead, even under Commonwealth Bank Trust Co. v. Heid Bros., 122 Tex. 56, 52 S.W.2d 74, 75, where a "necessary party" was defined to mean "one who is so vitally interested in the subject-matter of the litigation that a valid decree cannot be rendered without his presence as a party". Quaere: And, has not the Heid Bros. case been necessarily overruled by the more recent interpretation of the term in First Nat. Bank v. Pierce, supra? Plaintiff's suit against defendant, Winfield Scott, Jr., is simply for a divorce and the establishment of various money demands; and as to Mrs. Elizabeth Scott, the allegations and prayer are no more than in the nature of an accounting suit for monies allegedly in her possession and claimed as community property. All of plaintiff's demands against Winfield Scott, Jr., can be established by a judgment for whatever amounts the facts may warrant, without prejudice to any right to a later recovery of plaintiff's community interest, as fixed in such judgment, if in the possession of a third party. 15 Tex.Jur. (Divorce) Sec. 136, page 626; Whetstone v. Coffey, 48 Tex. 269.
In the matter of proof to support the controverting affidavit as to Mrs. Elizabeth Scott, plaintiff (appellee) tacitly admits in her briefs that no evidence was adduced on the venue issue concerning this defendant; and that the allegations of her petition are solely relied upon in such connection. It is under subd. 4 of Art. 1995, R.S., that the pleadings are controlling as to the non-resident defendant, where a case is properly plead, together with prima facie proof against the resident defendant. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300. However, to sustain venue of an alleged necessary party under subd. 29a of the article, the introduction of facts appropriate to such a hearing is required. See Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91; also the logical reasoning of Judge Stokes of the Amarillo Court of Civil Appeals, in Citizens National Bank v. Citizens State Bank, 116 S.W.2d 1154, to this effect.
BOND, C. J., dissented from the views of the majority, but, in view of the Supreme Court's adjudication in answer to the certified questions propounded, withdrew the dissenting opinion filed by him, and, in harmony with the views of the Supreme Court, joins in the final disposition made of the case. BOND, Chief Justice (dissenting).


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In this 42 U.S.C. 1983 case, Appellant Lillian Freeman challenges the district court's entry of summary judgment granting Officer John Jennings and Detective George Saidler qualified immunity. We affirm.
This is the second time we have entertained an appeal from the district court's grant of summary judgment in this matter.1 In Freeman I we reversed and remanded to the district court so that it could consider the affidavit of Appellant Freeman's expert witness, Ray Hildebrand. On remand, the district court did so and again granted summary judgment to Detective Saidler and Officer Jennings ruling that they were entitled to qualified immunity.
We review a grant of summary judgment de novo, viewing the facts and inferences in the light most favorable to the party opposing the motion. See Hall v. Gillman, Inc., 81 F.3d 35, 36-37 (5th Cir. 1996). Summary judgment is appropriate if the record discloses "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In order to prevail in the instant case, Freeman must demonstrate that a genuine issue of material fact exists as to whether the Appellees knowingly provided false information to secure the arrest warrants or gave false information in reckless disregard of the truth. See Franks v. Delaware, 438 U.S. 154, 171 (1978). Since we must draw all disputed inferences in the Appellant's favor, we must disregard any such properly contested statements in the affidavits and then determine whether the warrant would establish probable cause without the allegedly false information. See id.2 Appellant must then demonstrate an issue of material fact as to whether any reasonably competent officer possessing the information that each officer had at the time he swore his affidavit could have concluded that a warrant should issue. See Malley v. Briggs, 475 U.S. 335, 341 (1986). We must look to the totality of circumstances in making this decision. See Illinois v.Gates, 462 U.S. 213, 238-39 (1983). Even if officers of reasonable competence could disagree on this issue, the Appellees are still entitled to qualified immunity. See Malley, 475 U.S. at 341.
Freeman contends that Saidler acted unreasonably in his swearing of the probable cause affidavit recommending her first arrest. She alleges that Saidler both included false information in his affidavit and excluded exculpatory information from it.
Saidler based his affidavit upon: the sworn statements of bank tellers Susan Rios and Joey King that the woman pictured in an FBI surveillance picture shown to them was the one who had committed the first robbery; Robert Marley's confidential disclosure that he had worked with Freeman and recognized her from a local broadcast of the FBI picture on a "crime stoppers" segment; the affidavit of Christina Hansen, Freeman's former co-worker, in which she stated that she "recognized the girl as Lillian Freeman" and that Freeman had sunglasses "like the one [s] in the pictures;" the affidavit of Matthew Huizar, Freeman's former co-worker, who looked at a series of surveillance pictures and stated in his affidavit that he "told [Saidler] it was Lillian Freeman;" and the fact that the police seized from Freeman's house a sweatshirt, pants, sunglasses and a wig similar to those pictured in the FBI surveillance photo. On the whole, this information is sufficient to support a reasonable officer's belief that probable cause existed. Still, we must determine whether Freeman's allegations create a material issue of fact as to the truthfulness of any of the information and/or whether Saidler excluded allegedly exculpatory material that might call into question the reasonableness of his probable cause determination.
Freeman alleges that Saidler falsely stated that Rios and King had positively identified her as the robber. This allegation is wholly without merit. Saidler's affidavit reads simply that "the black female in the photograph developed by the FBI was the individual that robbed the San Antonio Credit Union at gunpoint on 6-4-91." The record clearly indicates that both Rios and King stated that the unnamed person in the picture looked like the person that had robbed them. They did not indicate that the robber was Freeman, and Saidler did not suggest that they did.
Freeman contends that under Aguilar v. Texas, 378 U.S. 108, 110-114 (1964) abrogated on other grounds by Gates, 462 U.S. at 238-39, Marley's confidential identification of her as the robber lacked sufficient supporting facts to establish probable cause. Freeman's reliance on Aguilar is misplaced. Unlike Saidler's affidavit, the affidavit in question in Aguilar contained only unsupported allegations of a confidential informant. See id. at 109, n.1. Saidler listed Marley's testimony as but one factor in his probable cause determination. Moreover, Marley informed the police that he had worked with Freeman and thus provided some indication that his information was credible. Accordingly, we cannot read Aguilar to suggest that Saidler's partial reliance upon Marley's testimony was unreasonable.
Freeman insists that Saidler coerced Hansen and Huizar into identifying her and misstated the strength of their testimony in his affidavit. Freeman's alleged evidence of coercion consists of each witnesses' subsequent statements that Saidler appealed to his or her civic duty to testify and Hansen's references to Saidler's size and physical build. While evidenceof reliance upon coerced testimony may be enough to defeat a summary judgment grant of immunity, see Geter v. Fortenberry, 882 F.2d 167, 170-71 (5th Cir. 1989), Freeman's allegations do not permit any inference of coercion. Both Hansen and Huizar admitted to being reluctant to testify in this matter. There is no evidence that Saidler did anything more than request that each reluctant witness testify. Appealing to an uncooperative witness' civic duty to testify is fundamentally different from coercing a witness to testify to a certain fact. Cf. Coolidge v. New Hampshire, 403 U.S. 443, 488 (1971) ("But it is no part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals."). Neither Hansen's nor Huizar's testimony suggests that Saidler appealed to their civic duty specifically to implicate Freeman. Moreover, the mere fact that Detective Saidler is a large man does not permit a reasonable inference of coercion.
As there is no credible evidence of coercion, Saidler's reliance upon the exact wording of Hansen's and Huizar's sworn statements is undoubtedly reasonable. He simply could not have predicted their later recanting.3 Because we look to the totality of circumstances as they existed at the time that the officer determines whether probable cause exists, Hansen's and Huizar's subsequent disavowals do not create an issue of material fact as to the truthfulness of Saidler's affidavit.
Freeman insists that the items seized from her house are so common that they cannot form the basis of probable cause. Again, while the seized items alone may not provide probable cause, when taken as a whole the information included in Saidler's affidavit is sufficient to permit a reasonable officer to infer that probable cause existed for Freeman's arrest.
Freeman alleges that Saidler was aware of exculpatory information that he did not include in his affidavit. Freeman cites first to Saidler's alleged awareness of the United States Attorney's and the FBI's respective determinations that they did not have probable cause to arrest her. This evidence demonstrates little more than that reasonable officers disagreed. It does nothing to show that Saidler acted unreasonably. Next, Freeman notes that the results of a latent fingerprint analysis did not implicate her. As the district court reasoned, this evidence is inconclusive at best. It neither implicated, nor exonerated Freeman and we cannot read it to do either.
Freeman's final assertions of error concern Saidler's failure to investigate another anonymous tip given to the crime stoppers program and the failure of any police officer to identify Freeman as the robber by comparing the surveillance photos with other photos of Freeman. We agree with the district court that there is no evidence to suggest that either of these allegations calls into question the reasonableness of Saidler's actions.
Freeman insists that Jennings acted unreasonably in relying upon Saidler's investigation of the first robbery in determining probable cause for her arrestin the second robbery. Because there is no genuine issue of material fact concerning the reasonableness of Saidler's investigation, it follows that Jennings was reasonable in his reliance upon the information gleaned from this investigation. See United States v. Walker, 960 F.2d 409, 416 (5th Cir. 1992) (holding that determination of probable cause may rest upon the collective knowledge of the police force if there is communication between the officers). Freeman demonstrates no issue of material fact as to the truthfulness of any of the information relied upon by Jennings4 ; and, accordingly, there is no question as to the reasonableness of his actions.
For the above stated reasons, we AFFIRM the trial court's grant of summary judgment to Detective Saidler and Officer Jennings.
For an in depth recitation of the events underlying Appellant's claim see Freeman v. County of Bexar, 142 F.3d 848 (5th Cir. 1998) ("Freeman I"). Briefly, the San Antonio Police Department arrested Freeman twice on suspicion that she had committed two separate bank robberies. The state eventually charged Freeman in connection with these two robberies. Later, during a third similar robbery, the police apprehended another suspect, Carolyn Yvonne Butler. The federal government indicted and convicted Butler for all three robberies. The state ended its prosecution of Freeman several weeks after Butler's conviction. Freeman sued a number of county and municipal actors including Detective Saidler, the investigating officer in the first robbery, and Officer Jennings, the investigating officer in the second robbery, for deprivation of her civil rights.
Appellant correctly notes that the district court ventured beyond the proper scope of review on summary judgment when it stated that it "does not find the testimony of Huizar and Hansen credible.". See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Still, whether or not the district court found Huizar and Hansen credible is irrelevant for determining the reasonableness of Saidler's actions at the time he swore his affidavit. Saidler could not have predicted that the witnesses would later recant their testimony and did not have any information suggesting that they were not telling the truth in their sworn statements.
Once again, Freeman misstates the officers' reliance upon the King and Rios testimony. She insists that Jennings's claimed in his affidavit that Saidler informed him that Rios and King had identified Freeman as the robber. Just like Saidler's affidavit, Jennings's states merely that King and Rios recognized the unnamed woman in the FBI photo as the woman who had robbed them. Neither officer suggested that King and Rios indicated that the pictured woman was Freeman.

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HARLEY-DAVIDSON, INC., Plaintiff-Appellee-Cross-Appellant, v. Ronald GROTTANELLI, doing business as The Hog Farm, Defendant-Appellant-Cross-Appellee.
Before: NEWMAN, McLAUGHLIN, and PARKER, Circuit Judges. Peter K. Sommer, Buffalo, N.Y. (Joseph N. Del Vecchio, Phillips, Lytle, Hitchcock, Blaine & Huber, Buffalo, N.Y., on the brief), for defendant-appellant. Michael E. Husmann, Milwaukee, Wis. (Dyann L. Kostello, Katherine W. Schill, Michael, Best & Friedrich, Milwaukee, Wis.; Charles Sullivan, Sullivan & Gallion, New York, N.Y., on the brief), for plaintiff-appellee.
This appeal primarily involves trademark issues as to whether the mark “HOG” as applied to large motorcycles is generic and whether a logo is insulated from an infringement claim as a permissible parody. These issues arise on an appeal by Ronald Grottanelli d/b/a The Hog Farm (“Grottanelli”) from the October 1, 1997, judgment of the District Court for the Western District of New York (Edmund F. Maxwell, Magistrate Judge 1 ), entered in a suit brought by Harley-Davidson, Inc. (“Harley-Davidson,” “Harley,” or “the company”). The judgment enjoins Grottanelli from using the word “hog” in reference to some of his products and services and from using his logo modeled on Harley-Davidson's bar-and-shield design mark; however, the injunction permits Grottanelli's continued use of the mark “THE HOG FARM” to identify his motorcycle service business within a geographically defined trading area. Harley-Davidson cross-appeals, contending that the Court should have narrowed the geographic area in which Grottanelli may use the mark “THE HOG FARM”.
We affirm the judgment to the extent that it found Grottanelli liable for infringement of Harley-Davidson's bar-and-shield design mark and enjoined his future use of that mark. However, we conclude that the word “hog” had become generic as applied to large motorcycles before Harley-Davidson began to make trademark use of “HOG” and that Harley-Davidson's attempt to withdraw this use of the word from the public domain cannot succeed. We therefore affirm in part, reverse in part, and remand.
Harley-Davidson, a corporation based in Milwaukee, Wisconsin, manufactures and sells motorcycles, motorcycle parts and accessories, apparel, and other motorcycle-related merchandise. Two sets of Harley-Davidson's marks are at issue in this case: the word “hog,” used either to refer to its motorcycles or to an officially sponsored bikers association, and its bar-and-shield logo.
Public use of the word “hog”. In the late 1960s and early 1970s, the word “hog” was used by motorcycle enthusiasts to refer to motorcycles generally and to large motorcycles in particular. The word was used that way in the press at least as early as 1965,2 and frequently thereafter,3 prior to the 1980s when Harley first attempted to make trademark use of the term. Several dictionaries include a definition of “hog” as a motorcycle, especially a large one.4 The October 1975 issue of Street Chopper contained an article entitled “Honda Hog,” 5 indicating that the word “hog” was generic as to motorcycles and needed a tradename adjective.
Beginning around the early 1970s and into the early 1980s, motorcyclists increasingly came to use the word “hog” when referring to Harley-Davidson motorcycles.6 However, for several years, as Harley-Davidson's Manager of Trademark Enforcement acknowledged, the company attempted to disassociate itself from the word “hog.” The Magistrate Judge drew the reasonable inference that the company wished to distance itself from the connection between “hog” as applied to motorcycles and unsavory elements of the population, such as Hell's Angels, who were among those applying the term to Harley-Davidson motorcycles.
Harley-Davidson's use of the word “hog”. In 1981, Harley-Davidson's new owners recognized that the term “hog” had financial value and began using the term in connection with its merchandise, accessories, advertising, and promotions. In 1983, it formed the Harley Owners' Group, pointedly using the acronym “H.O.G.” In 1987, it registered the acronym in conjunction with various logos. It subsequently registered the mark “HOG” for motorcycles. That registration lists Harley-Davidson's first use as occurring in 1990.
Grottanelli's use of the word “hog”. Grottanelli opened a motorcycle repair shop under the name “The Hog Farm” in 1969. Since that time his shop has been located at various sites in western New York. At some point after 1981, Grottanelli also began using the word “hog” in connection with events and merchandise. He has sponsored an event alternatively known as “Hog Holidays” and “Hog Farm Holidays,” and sold products such as “Hog Wash” engine degreaser and a “Hog Trivia” board game.
Harley-Davidson's use of the logo. Since approximately 1909, Harley-Davidson has used variations of its bar-and-shield logo-a shield traversed across the middle by a horizontal bar. The words “Motor” and “Cycles” (or sometimes “Company”) appear at the chief and base of the shield, respectively, and the name “Harley-Davidson” appears on the horizontal bar. Variations of the bar-and-shield logo were registered with the United States Patent and Trademark Office in 1982 and thereafter.
The District Court, applying New York's anti-dilution statute, N.Y. Gen. Bus. L. § 368-d, enjoined Grottanelli from making various trademark uses of the word “hog” (other than in the previously used tradename “The Hog Farm”). Harley-Davidson acknowledged at oral argument that its state law claim fails if “hog” is generic as applied to large motorcycles. No manufacturer can take out of the language a word, even a slang term, that has generic meaning as to a category of products and appropriate it for its own trademark use, see Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir.1976) (applying Lanham Act); Restatement (Third) of Unfair Competition § 15 & cmt. b; 2 McCarthy on Trademarks and Unfair Competition §§ 12:1, 12:2, 12:11, 12:18 (4th ed.1998) [hereinafter “McCarthy”] and New York applies this same principle to its anti-dilution statute, see Telford Home Assistance, Inc. v. TPC Home Care Services, Inc., 211 A.D.2d 674, 674, 621 N.Y.S.2d 636, 636-37 (2d Dept.1995) (term “extended care” generic as to health services); see also Eastern Air Lines, Inc. v. New York Air Lines, Inc., 559 F.Supp. 1270, 1274-75 (S.D.N.Y.1983) (applying New York law) (term “shuttle” generic as to airline services).
However, rather than recognize that the word “hog,” originally generic as applied to motorcycles, cannot subsequently be appropriated for trademark use, the Magistrate Judge upheld Harley-Davidson's anti-dilution claim on the ground that its “HOG” mark has become a strong trademark. This was error. Even the presumption of validity arising from federal registration, see Reese Publishing Co. v. Hampton International Communications, Inc., 620 F.2d 7, 11 (2d Cir.1980), cannot protect a mark that is shown on strong evidence to be generic as to the relevant category of products prior to the proprietor's trademark use and registration.
Supporting the generic nature of “hog” as applied to motorcycles is Harley-Davidson's aversion to linking the word with its products until the early 1980s, long after the word was generic. Harley's Manager of Trademark Enforcement acknowledged that in the past Harley had attempted to disassociate itself from the term “hog.” As the Magistrate Judge noted, Harley's own history of the company, “The Big Book of Harley-Davidson,” makes no reference to “hog” as relating to its products before the early 1980s. Though Harley-Davidson was not shown to have used the word “hog” in a generic sense, cf. Loglan Institute, Inc. v. Logical Language Group, Inc., 962 F.2d 1038, 1041 (Fed.Cir.1992) (proprietor's own generic use of mark strong evidence of genericness), its deliberate resistance to linking the word to its products is nonetheless probative.
Harley-Davidson cites the rulings in Harley-Davidson Motor Co. v. Pierce Foods Corp., 231 U.S.P.Q. 857 (T.T.A.B.1986), and Harley-Davidson, Inc. v. Seghieri, 29 U.S.P.Q.2d 1956 (N.D.Cal.1993), but we are not bound by those decisions, and, more significantly, there is no indication that the bodies making those rulings had the extensive record of early generic usage that we have. In Pierce Foods, the litigation did not even raise the issue of the genericness of “hog.” Seghieri apparently had scant evidence of genericness; the Court relied on articles from Harley's own newsletter, which indicated that “hog” meant Harley-Davidson motorcycles. See 29 U.S.P.Q.2d at 1958.
Professor McCarthy contends that, in some contexts, there might be a doctrine whereby trademark use can be reacquired in a generic term, and he cites the “SINGER” and “GOODYEAR” marks as examples. See 2 McCarthy §§ 12:30-12:32. But Professor McCarthy recognizes that his examples are words that were originally proper names of the manufacturer and that the cases he enlists, Singer Mfg. Co. v. Briley, 207 F.2d 519 (5th Cir.1953), and Goodyear Tire & Rubber Co. v. H. Rosenthal Co., 246 F.Supp. 724 (D.Minn.1965), “do not stand for the proposition that a commonly used name of an article like ‘computer,’ ‘typewriter’ or ‘flashlight’ can be appropriated by one seller as a trademark.” 2 McCarthy § 12:30, at 12-68 to -69. Moreover, if a generic word could ever be infused with trademark significance, the word must have ceased to have current generic meaning. See Miller Brewing Co. v. Falstaff Brewing Corp., 655 F.2d 5, 9 (1st Cir.1981). The recent editions of the dictionaries cited by the District Court demonstrate that generic usage of “hog,” applied to motorcycles, still exists.
Nor does Professor McCarthy's discussion of so-called “dual usage” terms provide any help to Harley-Davidson. See 2 McCarthy § 12:51. “Dual usage” in trademark law refers to a mark that starts out as proprietary and gradually become generic as to some segments of the public. If such a mark “retains” trademark significance, injunctive relief must be carefully tailored to protect only the limited trademark use and not to bar the generic use. See id. at 12-99; Restatement (Third) of Unfair Competition § 15, cmt. d (1995). Our case, however, concerns a mark that starts out generic and is sought to be given trademark significance by a manufacturer. That is what Abercrombie and other cases forbid.
Grottanelli's claimed parodic use of Harley-Davidson's logo is vulnerable not only because he uses it to market competing services but also because whatever protection is to be afforded a trademark parody must be informed by the Supreme Court's recent elucidation in the copyright context of parodies allegedly protected by the defense of fair use. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994). “[T]he heart of any parodist's claim to quote from existing material[ ] is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works.” Id. at 580, 114 S.Ct. 1164 (emphasis added). The comment must have some “critical bearing on the substance or style of the original composition.” Id. The Supreme Court's parody explication as to copyrights, set forth in the context of an expressive work, is relevant to trademarks, see Robert S. Shaughnessy, Note, Trademark Parody, 72 Va. L.Rev. 1079 (1986), especially a trademark parody that endeavors to promote primarily non-expressive products such as a competing motorcycle repair service. Grottanelli's mark makes no comment on Harley's mark; it simply uses it somewhat humorously to promote his own products and services, which is not a permitted trademark parody use. See Deere, 41 F.3d at 44-45; Hard Rock Cafe Licensing Corp. v. Pacific Graphics, Inc., 776 F.Supp. 1454, 1462 (W.D.Wash.1991); Grey v. Campbell Soup Co., 650 F.Supp. 1166, 1175 (C.D.Cal.1986), aff'd, 830 F.2d 197 (9th Cir.1987).
Disclaimer defense. Grottanelli gains no protection by coyly adding to his version of the bar-and-shield logo the wording “UNAUTHORIZED DEALER.” We have alluded to commentary questioning the capacity of brief negating words like “not” or “no” in disclaimers adequately to avoid confusion. See Home Box Office, Inc. v. Showtime/The Movie Channel Inc., 832 F.2d 1311, 1316 (2d Cir.1987) (citing Jacoby & Raskoff, Disclaimers as a Remedy for Trademark Infringement Litigation: More Trouble Than They Are Worth?, 76 Trademark Rep. 35, 54 (1986)). Whatever the worth of such disclaimers in other contexts, the use of the prefix “UN” before “AUTHORIZED DEALER” provides Grottanelli with no defense when used on signage designed to attract speeding motorcyclists. See Restatement (Third) of Unfair Competition § 21 cmt. c (noting that “[a]lthough in theory a prominent disclaimer of association with the prior user can reduce or eliminate confusion, the courts have ordinarily found the use of disclaimers insufficient to avoid liability for infringement”) (emphasis added).
Laches defense. Grottanelli's defense of laches with respect to the bar-and-shield logo was also properly rejected. His intention to confuse undermines any claim of good faith, see Cuban Cigar Brands, N.V. v. Upmann International, Inc., 457 F.Supp. 1090, 1099 (S.D.N.Y.1978), and the Magistrate Judge found that Grottanelli would not be prejudiced if precluded from using his version of the bar-and-shield logo. Furthermore, Harley-Davidson has previously communicated its concern about earlier versions of Grottanelli's logo, and there is no evidence that Harley-Davidson was aware of Grottanelli's recent use of his current version of the logo.
For all of these reasons, Grottanelli was properly enjoined from using his current bar-and-shield logo and any mark that so resembles Harley-Davidson's trademarked logo as to be likely to cause confusion.
The judgment of the District Court is affirmed to the extent it enjoined Grottanelli's use of his bar-and-shield logo and reversed to the extent that it enjoined his use of the word “hog.” No costs.
1. By consent of the parties, the Magistrate Judge conducted all proceedings in this matter. See 28 U.S.C. § 636(c).
2. See California: The Wild Ones, Newsweek, March 29, 1965, at 25 (“The state wide clan [of Hells' Angels] has its own beat argot (sample: a ‘hog’ is a big motorcycle)․”); Hell's Angels, Saturday Evening Post, Nov. 20, 1965, at 37 (“Some angels can dismantle a motorcycle in two hours. When they get through tinkering with it, the hog is a lean, dangerous beast.”); see also Hunter S. Thompson, Hell's Angels 97 (1967) ( “A columnist for the Los Angeles Times once described hogs as ‘the kind of cycle the German couriers used to run down dogs and chickens-and people-in World War II: low brutish machines, with drivers to match.’ ”). The earliest reference in the record to “hog” as referring to large motorcycles is the caption “Hog Heaven” in the June 1935 issue of Popular Mechanics. See Time Machine, Popular Mechanics, June 1995, at 16 (reprinting cover and caption of June 1935 issue).
3. See, e.g., Outlaw Biker, May 1989, cover (“4,000 Find Hog Heaven at․ California Love Run”); Street Chopper, March 1975, at 10 (“HOG + $ = CHOPPER”); see also Easyriders, May 1982, advertisement for Denver motorcycle shop (“HAWG STUFF”). The Magistrate Judge noted seven exhibits showing the word “hog” or “hawg” referring generally to motorcycles.
4. See The Oxford Dictionary of Modern Slang (1992) (“hog noun U.S. A large, often old, car or motorcycle.1967 -.”); American Heritage Dictionary (3d ed.1992) (“hog ․ 4. Slang. A big, heavy motorcycle”); Eric Partridge, A Dictionary of Slang and Unconventional English (8th ed.1984) (“hog n ․ 8. a homebuilt motorcycle ․”); see also Glossary of Sportscycle Terms, Bike and Rider, Aug. 1992, at 84 (“HOG Old fashioned, heavyweight sportscycle.”).A likely etymology of “hog” to mean a motorcycle is suggested in the entry for “road-hog” in Eric Partridge, A Dictionary of Slang and Unconventional English (6th ed.1996), which reports that in the United States as early as 1891 “road-hog” was applied to an “inconsiderate” cyclist and somewhat later to motorists.
5. The phrase “Honda Hog” also appeared in the September 8, 1991, edition of USA Weekend.
6. See Eric Partridge, A Concise Dictionary of Slang and Unconventional English (1989) (repeating the generic definition in the 1984 edition, see note 4, supra, and adding “Hibbert, 1983, however states that it is used for a Harley-Davidson, esp. one ridden by a Hell's Angel.”).
7. Although Harley-Davidson initially sought both legal and equitable relief, it withdrew its claim for money damages before the District Court resolved the issues raised on this appeal.
8. See The Oxford Dictionary of Modern Slang (1992) (“hog noun U.S. A large, often old, car or motorcycle.1967 -.”).
9. See American Heritage Dictionary (3d ed.1992) (“hog ․ 4. Slang. A big, heavy motorcycle”); Eric Partridge, A Dictionary of Slang and Unconventional English (8th ed.1984) (“hog n ․ 8. a homebuilt motorcycle ․”); see also Glossary of Sportscycle Terms, Bike and Rider, Aug. 1992, at 84 (“HOG Old fashioned, heavyweight sportscycle.”).
10. See Time Machine, Popular Mechanics, June 1995, at 16 (reprinting cover and caption of June 1935 issue) (reference to “Hog Heaven”); see also note 2, supra.
11. See note 2, supra.
12. This impermissible use of a generic term is to be contrasted with the public's use of a word that is in the language (with one or more meanings) to identify a product within a category to which the word has not previously been applied. For example, though “coke” was in the language to mean a fuel (and, in slang usage, a drug), the word had no previous meaning as a beverage until consumers began calling Coca-Cola “Coke.” The public may also take a trademark and give it a generic meaning that is new. See Lucasfilm, Ltd. v. High Frontier, 622 F.Supp. 931 (D.D.C.1985) ( “Strategic Defense Initiative” referred to as “Star Wars Program” without infringing movie trademark STAR WARS); 2 McCarthy § 12:3.
13. In light of our ruling, we need not consider, with respect to Grottanelli's use of the term “hog,” his defense of laches or both parties' challenge to the geographic scope of the injunction.
14. As the Restatement explains:Use of another's trademark, not as a means of identifying the user's own goods or services, but as an incident of speech directed at the trademark owner, however, raises serious free speech concerns that cannot be easily accommodated under traditional trademark doctrine. The expression of an idea by means of the use of another's trademark as a parody, for example, will often lie within the substantial constitutional protection accorded noncommercial speech and may thus be the subject of liability only in the most narrow circumstances.Restatement (Third) of Unfair Competition § 25, cmt. i (1995) (emphasis added).


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