Jennings v. Joshua Independent School District Petition for Rehearing or Rehearing En Banc
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May 10, 1988

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Brief Collection, LDF Court Filings. Jennings v. Joshua Independent School District Petition for Rehearing or Rehearing En Banc, 1988. ab5417f0-b59a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/a24a574d-3038-4597-9f50-d731eb3c6254/jennings-v-joshua-independent-school-district-petition-for-rehearing-or-rehearing-en-banc. Accessed July 30, 2025.
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88-1089 3n the Initeii Elates Court of Appeals FO R TH E F IF T H C IR C U IT NO. 88-1089 WILLIAM JENNINGS, et al., versus Plaintiffs/ Appellants JOSHUA INDEPENDENT SCHOOL DISTRICT, et al., Defendants/ Appellees APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS PETITION FOR REHEARING OR REHEARING EN BANC BY APPELLANTS WILLIAM JENNINGS AND DON GLADDEN Jerold S. Solovy Laura A. Raster Jenner & Block One IBM Plaza Chicago, Illinois 60611 Daniel H. Pollitt Law School University of North Carolina Chapel Hill, N.C. 27514 OF COUNSEL George Cochran Law Center University, MS 38677 (601) 232-7361 Morton Stavis Center For Constitutional Rights 666 Broadway New York, N.Y. 10012 Georgene Vairo Law School Fordham University 40 West 62nd Street New York, N.Y. 10036 A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555 CERTIFICATE OF INTERESTED PERSONS The undersigned, counsel of record for Appellants, certifies that the following listed persons have an interest in the outcome of the case. These representations are made in order that the judges of this Court may evaluate possible disqualifications or recusal. Williams Jennings Naomi Jennings Don Gladden Joshua Independent School District Charles Greenwalt Larry Loftin David Stevens Francesca Raines Royce Ingersoll Institute of Criminal & Civil Investigation Security Associates International David Owen Lawrence Ackels Hollye Fisk Mark M. Donheiser Attorney for Appellants STATEMENT OF COUNSEL I believe that the panel decision is contrary to the following decisions of the United States Supreme Court and this Court and that consideration by the full court is necessary to secure and maintain uniformity of decisions in this Court. Horton v. Goose Creek Ind. School Dist., 690 F.2d 470 (5th Cir. 1982) Adickes v. S.H. Kress S. Co., 398 U.S. 144 (1970) Luqar v. Edmonson Oil Co.,~457 U.S. 922 Malley v. Briggs, 475 U.S. 335 (1986) Thomas v. Caplral Sec. Servs., Inc., 836 F.2d 866 (5th Cir. 1988)(en banc) West v. Atkins, 108 S.Ct. 2250 (1988) I further express the belief, based on a reasoned and studied professional judgment, that this appeal involves one or more questions of exceptional importance. Georae Cochran Attorney for Appellants ii CONTENTS Certificate of Interested Persons ....................... . i Representation of Counsel ........ .......................... ii Table of Contents & Citations ............................... iii Issue Warranting En Banc Consideration ..................... 1 Course of Proceedings & Disposition ........................ 2 Statement of facts Necessary for En Banc Determination .... 3 Argument .... ................................................ 8 Conclusion ................ ................................... 15 CASES Adlckes v. S.H.Kress & Co, 398 U.S. 144 (1970) ............. 11 Blum v. Yaretsky, 457 U.S. 991, 1011 (1982) ................ 12 Brown v. Byer, No. 87-1323 (5th Cir. April 24, 1989)....... 7 Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961) .... 12 Doe v . Renfrow, 631 F.2d 91 (7th Cir. 1980), cert. cTenled, 451 uTs. 1022 (1981) ................................ 11 Horton v. Goose Creek Ind. School Dist., 690 F.2d 470 (5th Cir. 1982) ..................... 2,13 Jones v. Latexo ind. School Dist., 499 F. Supp. 223 (E.D. Texas 1980) ......... ........................... ...... n Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982) ............. 11 Malley v. Briggs, 475 U.S. 335 (1986 ) ...................... 1,7, 13Monell v. Dept, of Social Serv., 436 U.S. 858 )(1978) ..... 2,12 Thomas v. Capital Sec. Serv., Inc., 836 F.2d 866 (5th Cir. 1988) ......................................... 1,8, 9 ' TABLE OF CONTENTS & CITATIONS iii SECONDARY AUTHORITIES Comment, Katz & Dogs: Canine Sniff Inspections & The Fourth Amendment,.44 LA.L.REV. 1092 (19847 ........ . ........ 13 Note, Dog Searches in Schoolrooms — State Action or PrlvateActlon, 15 VALTl .REV. 137 (1980) ... ............... 14 West v. Atkins, 108 S.Ct. 2250 (1988) .................... . 12 iv IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 88-1089 WILLIAM JENNINGS, et al., Plaintiffs/Appellants versus JOSHUA INDEPENDENT SCHOOL DISTRICT, et al., Defendants/Appellees ISSUES WARRANTING EN BANC CONSIDERATION I. In light of this Court's en banc opinion in Thomas v. Capital Sec. Servs. Inc., is a full fee-shifting sanction of $84,113.01 proper when granted: (a) without prior notice or warning to counsel of the conduct which may be the basis for sanctions; (b) without consideration of alternate "least severe" sanctions; and (c) on the basis of an allegedly "frivolous" complaint following the denial of three motions for summary judgment and a five-day trial? II. Is a police officer and those acting in concert with him entitled to good-faith immunity under Malley v. Briggs, 475 U.S. 335 (1986), when they participate in a set sequence of events designed to obtain a search warrant and they know or should have known that the sniffer-dog used in the underlying investigation 1 could not reliably detect the presence of current contraband as required by this Court's decision in Horton v. Goose Creek Ind. School_Dist^ 690 F .2d 470 (5th Cir. 1982), cert, denied, 463 U.S. 1207 (1983)? III. Is a school system liable under the policy requirement of of Social Serv., 436 U.S. 658 (1978), when it is the "moving force" behind a sniffer-dog program resulting in searches which violate the Fourth Amendment? COURSE OF PROCEEDINGS AND DISPOSITION This section 1983 action was initiated on August 29, 1985 by Appellant Jennings on behalf of himself and his daughter. The original complaint named as defendants the school district, the school's vice principal, its superintendent, a city police officer, the city itself, and a private company with which the school had contracted to provide a sniffer-dog service. The complaint was amended when the company which trained the dogs was added as a third-party defendant. Following discovery, the complaint was again amended to drop the city as a defendant. On November 7, 1986, the court denied summary judgment motions filed by the three school defendants and the dog handlers. Similar motions later filed by the dog-training company and the city police officer were denied. Following a five-day trial, directed verdicts were granted for all defendants except for the city policeman on the basis of issues which had been fully presented at the summary-judgment stage. Subsequently, the jury returned a verdict in the policeman's favor. The 2 district court then entertained motions for sanctions. This resulted in a joint and several judgment of $84,113.01 against the plaintiff and his attorney. This amount reflected full compensation for fees and costs incurred by all defendants with the exception of the police officer. A panel composed of Judges Jolly, Garwood and Wisdom affirmed the district court's decision in all respects. It is this decision that forms the basis for the instant petition for rehearing or rehearing en banc. STATEMENT OF FACTS NECESSARY FOR EN BANC DETERMINATION A. THE DRUG PROGRAM AND ITS SNIFFER-DOG COMPONENT In 1984, the Board of Trustees of the Joshua Independent School District (JISD) voted to use "sniffer dogs" as a means of detecting contraband at the school. Slip op. at 2889. It entered into a contract with Security Associates International (SAI), a private company engaged in the business of training dogs and providing, through another company, investigative personnel for the program.1 At the time, the board knew that the dogs were trained to react to at least sixty-two different substances, including aspirin and a number of safe, over-the-counter drugs. R.E. at 290-4, 302. With this knowledge, the board nonetheless established a policy of full police involvement through the use of the private company supplying the dogs and school officials. , ‘ The agent designated by SAI to carry out the contract (with dogs trained by SAI) was the Institute for Criminal & Civil Investigations (ICCI), headed by Mr. Royce Ingersoll. All private defendants are referred to as "SAI." 3 As explained by the superintendent, Mr. Greenawalt, if a student or parent refused consent "[t]he next step in the policy was to contact the law enforcement official." Id. at 308.2 The owner of the company employing SAI's dogs stated that the dogs were to be used to establish probable cause for the issuance of search warrants. Id. at 566. The manual prepared by SAI for its employees was also written to reflect the directions given by the trustees. In the section describing appropriate responses to "possible confrontation situations," handlers (referred to as "technicians") were instructed to "contact the superintendent requesting that the police be involved" when students and/or parents refused entry to a vehicle. Id. at 37. The manual explained that this action was appropriate since "[t ]he canines may be used to establish probable cause for a search warrant and a subsequent forcible entry." Id. The manual proceeds with the proposition that it is SAI1s policy "[n]ever to let anyone off the hook." Id. at 40. It concludes with a "Recommended Pre-Search Warning" instructing technicians to advise students that, if consent is not given, "the matter will be turned over to the police department for appropriate action." Id, at 41. B. THE MARCH 29, 1985 INCIDENT (1) Events Prior to the Jenning's Search: -- On March 29, 1985, SAI assigned a dog named King and its uniformed 2 See also id. at 291-2 (Greenawalt discussing trustees' policy) 4 handler/technician Francesca Raines to the JISD facility. They proceeded to the parking lot to determine which cars King would signal to be searched. Id. at 744. "Incident Maintenance Reports" filed for that day reflect the following results for the searches of eight cars based on student consent. From the first, a 25 caliber pistol (given to the student by her parents); the second, nothing save the smell of stale vomit; the third, sixteen 12-gauge shells and beer caps; the fourth, nine empty beer bottles and four empty cans; the fifth, two 12-gauge shells and two empty beer cans; the sixth, asthma tablets; the seventh, five empty beer cans and an asthma inhaler; and, the eighth, a toy cap pistol and caps. Id. at 46-54. None of these searches resulted in any criminal charges or other disciplinary action. (2) The Jenning1s Search: — King then responded to a car owned by William Jennings and driven to school by his daughter, Naomi. On the basis of his experience as a law enforcement officer working for the postal service, Mr. Jennings had previously advised Naomi that under no circumstances was she to allow a search of the family car in response to a dog alert. Slip op. at 2897. Naomi, therefore, refused to sign the consent form. Approximately five hours elapsed from the time Naomi refused to sign the consent until the search of the car. She was taken to the principal's office and allowed to call her mother at home. After her father arrived, he refused to agree with Raines and principal Underwood's suggestions that "if Naomi [didn't] have 5 anything to hide she would let them search the car." Id. at 308. Superintendent Greenawalt then followed the trustee's policy and requested Officer Stevens to secure a search warrant. Id. at 299-300; 346. Mr. Jennings was not given the option of removing the vehicle from the lot. Id. at 300. In fact, vice-principal Loftin was assigned, by Stevens and Underwood, to watch the car. Id. at 409-10; 432-33. For the next four hours, the Jennings and vice-principal Loftin remained at the lot. Id. at 174. At approximately 3:30, Officer Stevens, accompanied by handler Raines and King returned with a search warrant. In full view of students leaving the school for home, id. at 668-69, Stevens immediately began a search. It took approximately twenty minutes and revealed nothing. Id. at 175. (3) Officer Stevens and the Quest for a Search Warrant: — On March 29, Stevens had been on the force for approximately a year. This was the first time he had ever executed a search warrant and his first encounter with "sniffer dogs." Id. at 525. Handler/technician Raines talked with her superiors, id. at 735 and, before Stevens' departure to secure a warrant, demonstrated King's capabilities and reviewed with him that portion of the SAI manual relating to the company's position on searches. Slip op. 2891; R.E. at 512-15. Based on the manual's analysis of this Court's decision in Horton v. Goose Creek Ind. School Dlst., 690 F .2d 470 (5th Cir. 1982), and his discussions with Raines, Officer Stevens concluded "that the dog had been 6 held up in court," and that this Court "had decided that the dogs [were] reliable." R.E. at 512-515. After a call to Dale Hanna, the county attorney, Stevens and Ms. Raines proceeded to the county courthouse to speak with him. The result: Hanna's secretary typed an affidavit charging Naomi and William Jennings with criminal possession of "dangerous drugs," "controlled substances (including marijuana)," "pyrotechnics," and "alcoholic beverages," for Stevens' signature. Id. at 44-5. It was on the basis of this affidavit that a warrant was issued for the search of the Jennings' car. (4) Litigation: -- Appellant Gladden has been an active, cooperating attorney with the ACLU since the early 1960s.3 Following an ACLU referral, he agreed to take the Jennings' case on a pro bono basis. He developed extensive arguments on the complicated issues of probable cause criteria vis-a-vis dog sniffs; the state action doctrine in the unique setting of public school authorities delegating police responsibilities to a private company; the scope of Horton; and the impact of the Supreme Court's ruling in Malley v. Briggs. In addition, Gladden successfully opposed summary judgment motions filed by defendants which were denied on the basis "that the reliability of the dog [had not] been affirmatively established." Subsequently, however, the court effectively In addition to two appearances before the United States Supreme Court, Mr. Gladden has appeared before this Court in sixteen different cases. The latest, Brown v. Byer. No 87-1323 (5th Cir. April 24, 1989) affirmed an award of punitive damages against certain Texas constables. 7 reversed itself and granted directed verdict motions for all defendants except Stevens on the basis of arguments previously presented in support of summary judgment: furnishing information to police officers does not give rise to a cognizable 1983 claim and school authorities and private defendants lacked the necessary involvement to have been named as defendants. R.E. 23- 4. Following the grant of motions for a directed verdict and a jury verdict in favor of Stevens, the district court concluded that the case had been "frivolous from inception" and awarded $84,113.01 in fees and expenses. ARGUMENT A. THOMAS V. CAPITAL SECURITIES As will be explained, on the merits this case presents serious justiciable claims against all defendants; by no stretch of the imagination can the claims be viewed as "frivolous." Moreover, the district court's decision to impose sanctions occurred prior to this Court's landmark en banc decision in Thomas v. Capital Sec. Serv., Inc., 836 F.2d 866 (5th Cir. 1988) which sets forth certain procedural and substantive criteria to be employed in Rule 11 cases. Although the "abuse of discretion" standard is to be employed, "[i]f the sanctions imposed are substantial in amount . . the appellate review of such awards will be inherently more vigorous." 836 F.2d at 883. In Thomas, this Court noted and rejected the natural tendency of district courts to impose monetary sanctions in the form of fee awards. This Court held 8 that a sanctions award must be evaluated exclusively for its deterrent effect. "[T]he least severe sanction adequate to serve the purpose should be imposed." Id. at 878. Fees against counsel may be granted only if found to be the "least severe sanction" adequate to deter future conduct. Under Thomas, there are three criteria for their use. First, the sanction must be closely tailored to the "conduct and resources" of those sanctioned and may be properly limited to a stern warning in some cases. Second, the Rule's reference to "reasonable" fees and expenses does not mean those actually incurred. Id. at 878, 881. Third, there is a duty to mitigate which, if not fulfilled by moving counsel, authorizes the district judge to reduce the award or "in some instances, decline to award any expenses," No longer may counsel "remain idle" after a "motion, pleading, or other paper" is perceived to have been filed in violation of the Rule. Id. at 879. Counsel and the court have an obligation to give "prompt notice of an alleged violation" and that sanctions will be assessed at the end of trial. The "early notice" requirement serves to warn lawyers of "substantial sanctions" if they persist in litigation "as well as prevent unsuspecting parties from suffering a large punitive award at the end of the proceedings." Id. at 881. The panel opinion ignores the Thomas criteria. An $84,000 sanction is affirmed in what the panel described as a "close case." No reference is made of the "vigorous review" component, the deterrent function or the "least severe sanction" to prevent 9 recurrence. Slip op. at 2896. Instead, the amount awarded is the aggregate of all time and expenses incurred by opposing counsel. No mention is made of "prompt notice" requirements of a possible violation of the Rule or the duty to mitigate. Reference to the trial court's observation that a failure to "submit any evidence as to whether the dog had any ability to detect contraband," id. at 2895, as the reason for keeping school and private defendants in the case up to the directed verdict stage ignores the fact that the burden was on the defendants to produce this evidence. Moreover, if the court was correct in granting the directed verdict, it should have acted much earlier at the summary judgment stage when the same arguments were before it. The failure of the panel to adhere to Thomas and the importance of the issue to all members of the bar warrant en banc review. B. 'THE MERITS (1) State Action/Causal Connection/"Moving Force" Issues: - - The panel opinion views the presence of Officer Stevens and "his own independent investigation," slip op. at 2894, as sufficient to eliminate the school authorities' and SAI's responsibility for the search. From the panel's perspective, what occurred at the JISD produced nothing more than a run-of-the mill case involving a section 1983 suit against a private person who furnishes information to the police. Id. at 2891. The panel failed to analyze such factors as: (a) the board of trustees' decision to use the police in all instances when consent was not 10 forthcoming after a sniff and signal by the dog; (b) the in terrorem effect of the "Recommended Pre-Search Warning" using the police department as leverage to secure consent; (c) the mandatory requirement that Superintendent Greenawalt carry out school policy by notifying the police; (d) the use of a school official, vice-principal Loftin,-to secure the Jennings' car during the time taken by Officer Stevens to procure a warrant; (e) the unequivocal position of the company employing SAI’s dogs that they were to be used to establish probable cause and the school's knowing participation with the entire program; and (f) authorization by handler Raines' superiors to give Officer Stevens a demonstration, inform him of representations in SAI's manual and, most important, have her stay with him for the entire four-hour period needed to secure a warrant. Previous decisions dealing with public schools and private canine companies which provide police functions on school property have never viewed causal connection/state action issues as significant.4 By definition, a program put in place by school authorities which contemplates, prior to any real or suspected violation of the law, the ultimate use of police authorities as a means of carrying out educational goals falls somewhere between the conspiracy requirements of Adickes v. S.H.Kress & Co, 398 4 See Doe v. Renfrow, 451 U.S. 1022 (1981)(Brennan, J., dissenting from denial of certiorari and noting that trainer of German shepherd was party defendant); Jones v. Latexo Ind. School Dlst., 499 F. Supp. 223, 230 (E.D.Tex. 1980) (joint activity — sufficient for purposes of joining handlers and school officials). 11 U.s. 144 (1970) and joint activity as defined in Lugar v, Edmonson Oil Co., 457 U.S. 922 (1982). Because the school board's policy was the "moving force" behind what is argued to have been a constitutional deprivation, the case also raises issues of liability under Monell v. Department of Social Services, 436 U.S. 658 (1978). SAI and its dog handlers who performed a police function for the school and later established the necessary condition for a search warrant, the dog's reliability, clearly fall within the symbiotic relatipnship requirement of Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961). By providing a service which is "the exclusive prerogative of the State," SAI also falls within the "public function" doctrine. Blum v. Yaretsky, 457 U.S. 991, 1011 (1982). Indeed, like private physicians who contract their services to state institutions, West v. Atkins, 108 S.Ct. 2250 (1988), private companies who enter into contracts with public school authorities must and should be called to task for constitutional injuries which occur within the scope of their employment. It was part of handler Raines' job description to accompany Officer Stevens in his quest for the warrant. Without question, it was vitally important to the economic interests of her employer, SAI, that the warrant be procured. The four hours of paid time spent with Officer Stevens were perhaps the most profitable ever for any company employee. It produced an opinion establishing reliability of SAI dogs, where there is no evidence 12 of reliability. The scope of the state action/causal connections doctrines and the applicability of Monell warrant en banc review by the Court. (2) Public Schools & Search Requirements: — There is a dearth of case law on the subject of canine searches in the school environment.® The panel opinion in Horton v. Goose Creek Ind. School Dist., 690 F.2d 470 (5th Cir. 1982), arose out of an SAI contract in which dogs were given free reign to search students, lockers and automobiles. Id. at 474. Sniffing of lockers and cars was held not to be searches. Id. at 475-9. If a canine "alerts" in this context, however, a further search is authorized only if there is "reasonable suspicion that the search will produce something — i.e., reasonable suspicion that contraband is currently present." Id. at 482 (Emphasis in original). Malley v. Briggs, 475 U.S. 335 (1986), requires the use of an objective test to determine whether "a reasonably competent officer" would have concluded that a warrant should issue. In this case, therefore, the critical issue is whether there was sufficient evidence to warrant a "reasonable suspicion" of the current presence of contraband in the Jennings' car. The only evidence in this record on the issue of reliability, however, was presented by the plaintiffs in support of their contention that 8 There are few cases but an enormous number of law review commentaries on the subject. Comment, Katz & Dogs: Canine Sniff Inspections & The Fourth Amendment, 44 LA.L.REV. 1092, 1097 & n.32 (1984)(gathering commentaries). 13 the dog could not reliably discover current contraband. The trial judge, in response to this showing, concluded that there was "no material dispute as to . . . the dog's limited abilities . . . R.E. 29.(Emphasis added.) That there is no dispute on this issue is reflected by the following finding of fact by the lower court: King would alert to narcotics including marijuana, alcohol, pyrotechnics, prescription drugs, over-the- counter drugs including Excedrin and antihistamines, firecrackers, ammunition, firearms, beer bottle caps, empty beer bottles, and caps from a toy pistol. King would also alert to "dead scents," meaning the dog would alert to a vehicle that no longer contained any of the above items, with the items having been removed as many as two to three weeks before. [Id. at 21] Thus, the vast majority of materials that triggered King's searches were not contraband at all. This finding is in accord with the skepticism expressed by this Court in Horton6 and secondary authority.7 The panel ignored the district court's findings and 6 The panel noted that SAI's dogs reacted to over sixty different substances, 690 F.2d at 474, and that SAI failed to keep any comprehensive records when "the dogs reacted positively in the absence of contraband." The record was described as failing to present any credible evidence on the reliability of the dogs. Id. See also 693 F.2d 524 (denial of rehearing in Horton pointing to "absence of a record.") 7 See, e .g ., Note, Dog Searches in Schoolrooms — State Action or Private Action" 15 VAL.L.REV. 137, 166 (1980)("dog searches alone have not ~been shown to establish probable cause to search . . . and must be prohibited [by] the courts.") Another interesting aspect of the case is the fact that SAI's "Recommended Pre-Search Warning" incorporates the proposition that its dogs are unreliable by requiring the handler to state: "The fact that the animal alerted on does not necessarily mean that you are in possession of an illegal or controlled substance." R.E. 41. 14 determined that evidence produced by the plaintiffs to demonstrate that King was unreliable, justified a finding of "proven reliability." Slip op. at 2893. The panel made the unprecedented determination that an alert by a dog, without any other evidence of a crime, is sufficient to establish reasonable suspicion that contraband is currently present despite the fact that the district court found to the contrary. This unprecedented holding as well as the Malley and Horton issues in the case demand en banc review. For the foregoing reasons, Appellants' motion for rehearing or, in the alternative, rehearing en banc, should be granted. CONCLUSION Respectfully submitted George Cochran Law Center University, MS 38677 (601)232-7361Jerold S. Solovy Laura A. Raster Jenner & Block One IBM Plaza Chicago, Illinois 60611 Morton Stavis Center For Constitutional Rights 666 Broadway New York, N.Y. 10012Daniel H. Pollitt Law School Georgene V University of North Carolina Law School Chapel Hill, N.C. 27514 Fordham UnFordham University 40 West 62nd Street New York, N.Y. 10036 Georgene Vairo OF COUNSEL 15 CERTIFICATE OF SERVICE I hereby certify that a copy of Appellants' Petetion for Rehearing or Rehearing En Banc was mailed to: Lawrence E, Ackels, Jr. Ackels, Ackels & Ackels 4th Floor Landmark Center 1801 North Lamar Street Dallas, Tx. 75202 Mark M. Donheiser Strasburger & Price 4300 First RepublicBank Plaza Dallas, Tx. 75202 David Owen Quillin, Owen & Thompson 550 Bailey Suite 530 Ft. Worth, Tx. 76107 Hollye C. Fisk 400 Stemmons Tower North 2710 Stemmons Freeway Dallas, Tx. 75207 This, the 10th day c S-tF