Dodson International v. Arrendadora Internacional, S.A. De C v. and Atlantic Aviation Corporation

Opinion issued April 10, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00654-CV

__________

DODSON INTERNATIONAL, Appellant

V.

ATLANTIC AVIATION CORPORATION, Appellee

On Appeal from the 61st District Court

Harris County, Texas

Trial Court Cause No. 2001-30088

MEMORANDUM OPINION

Appellant, Dodson International ("Dodson"), challenges the trial court's

summary judgment rendered in favor of appellee, Atlantic Aviation Corporation

("Atlantic"), on Dodson's cross-claims against Atlantic for contribution, negligent

misrepresentation, unjust enrichment, and fraudulent inducement. In four issues,

Dodson contends that the trial court erred in granting summary judgment on the

grounds asserted by Atlantic because Atlantic failed to establish its affirmative

defense of limitations as a matter of law, Atlantic is estopped from relying on the

statute of limitations as a result of its own fraudulent actions, Atlantic failed to

conclusively establish that the terms of the sale in question negated the element of

reliance, and Atlantic "failed to establish that its representatives did not 'recklessly'

make false representations."

We affirm.

Factual and Procedural Background

In 1991, Arrendadora Internacional, S.A. de C.V. ("Arrendadora") leased an

aircraft to Aerovanguardia, S.A. de C.V. ("Aerovanguardia"). In 1993,

Aerovanguardia took the aircraft to Atlantic for repairs, but, after Atlantic completed

the repairs, Aerovanguardia failed to pay Atlantic. Atlantic then filed suit against

Aerovanguardia, obtained a default judgment, and, on May 12, 1998, seized the

aircraft and sold it at a judicial sale to Dodson.

In May 1999, Dodson informed Arrendadora that it had bought the aircraft and

was trying to get its name on the aircraft's title. On July 9, 1999, Arrendadora sent

a letter to Dodson informing Dodson that Arrendadora was the owner of the aircraft

and that it was aware that Dodson had taken possession of the aircraft after a judicial

sale conducted by Atlantic. In the letter, Arrendadora further explained that it had

"leased the [aircraft] to Aerovanguardia . . . and at no point did Aerovanguardia have

any present or future ownership interest in the [aircraft]." Rather, Arrendadora noted

that "Aerovanguardia was simply a lessee." Finally, Arrendadora further explained

that it "need[ed] to take steps to protect its interests," its "focus" was on Atlantic

because it believed Atlantic had "wrongfully levied upon and sold" the aircraft, and

Arrendadora anticipated that Atlantic would soon involve Dodson in the matter.

Robert Dodson, the corporate representative for Dodson, admitted in his deposition

that Dodson received this letter.

Arrendadora filed suit on June 15, 2001, against Atlantic and Dodson, asserting

causes of actions for conversion and violations of the Texas Property Code. (1) Dodson

filed a general denial on August 13, 2001, the date its answer was due. On October

2, 2001, Dodson filed its first amended original answer and cross-claim, asserting that

it was bringing "a cross-claim against Atlantic as a potentially responsible party" and

that, "in the unlikely event of a finding that Dodson is liable," Dodson was entitled

to contribution. Approximately three years and four months later, on January 20,

2005, Dodson added contingent cross-claims for unjust enrichment and fraudulent

inducement against Atlantic and, over one year later, on February 16, 2006, Dodson

added a cross-claim for negligent misrepresentation against Atlantic.

On March 24, 2006, Dodson filed its fifth amended answer, cross-claims and

counterclaims, which was Dodson's live pleading at the time the trial court granted

Atlantic summary judgment. Dodson specifically pleaded that " [i]n the unlikely

event of a finding that Dodson is liable to [Arrendadora] ," Dodson was bringing

cross-claims against Atlantic for unjust enrichment and fraudulent inducement and,

as damages, was "seeking all monies paid to Atlantic for the purchase of the aircraft

in question." (Emphasis added). Dodson did not include this contingent language

on its negligent misrepresentation cross-claim, but, as with its other claims, requested

as damages only the "monies paid to Atlantic for the purchase of the aircraft." In its

prayer for relief, Dodson again requested "monies paid to Atlantic for the purchase

of the aircraft" and further just relief.

Pursuant to a settlement with Atlantic, Arrendadora non-suited its claims

against Atlantic on April 1, 2006, and, as represented by the parties in their briefing,

Arrendadora assigned its claims against Dodson to Atlantic. (2) Despite Arrendadora's

non-suiting of its claims, Dodson continued with its cross-claims against Atlantic.

On July 26, 2006, Atlantic filed a summary judgment motion on Dodson's

cross-claims, asserting that, as pleaded, "Dodson's only cross-claim that is not

derivative of Arrendadora's claims against Dodson is [Dodson's] negligent

misrepresentation claim." (Emphasis added). Atlantic again contended that Dodson

had pleaded its cross-claims for unjust enrichment and fraudulent inducement as

contingent upon a finding of liability against Dodson in favor of Arrendadora.

Atlantic noted that it had settled the dispute over the aircraft with Arrendadora,

Arrendadora had non-suited its claims against Atlantic based on the settlement, and

Arrendadora was also willing to non-suit its claims against Dodson based on this

settlement. Atlantic asserted that it had received an assignment of Arrendadora's

claims against Dodson only because Dodson refused to non-suit its cross-claims and

Atlantic was willing to non-suit these assigned claims if the trial court granted it

summary judgment. (3)

In support of its defense that Dodson's cross-claims were time barred , Atlantic

asserted that, by Dodson's own admissions, Dodson's cross-claims accrued in May

1999, when Dodson learned that there was a problem with its title to the aircraft, or

at the latest, when Dodson received Arrendadora's July 9, 1999 letter again notifying

it that there was a problem with its title. Atlantic quoted Dodson's admissions in its

pleadings that "the undisputed summary judgment evidence establishe[d] that

[Arrendadora] ha[d] notice . . . that Dodson was claiming an ownership interest in the

aircraft inconsistent with [Arrendadora's] true ownership of the aircraft--by May

1999" and that, by May of 1999, "Dodson had informed [Arrendadora] that it was

claiming it had bought the aircraft at a judicial sale and was trying to get Dodson's

name on the title as the owner of the aircraft." (4)

After Atlantic filed its summary judgment motion, and, after the trial court's

deadline to amend pleadings had passed, on February 28, 2007, Dodson filed its sixth

amended answer, cross-claims, and counterclaims, in which Dodson sought to change

the nature of its pleadings by deleting the contingent language, "In the unlikely event

of a finding that Dodson is liable to Plaintiff [Arrendadora] ," from its cross-claims

for unjust enrichment and fraudulent inducement. Dodson also sought to add a claim

against Atlantic for violations of the Texas Deceptive Trade Practices Act (5) and to

expand its damages claim from only those "monies paid to Atlantic for the purchase

of the aircraft in question" to now include out-of-pocket expenses, unspecified "other

damages," and attorney's fees.

On April 25, 2007, Atlantic filed an objection and motion to strike Dodson's

sixth amended original answer, cross-claims, and counter claims. Atlantic noted that

the case had been on file since June 15, 2001, the case was set for trial on May 28,

2007, the trial court's docket control order established February 17, 2006 as the

pleadings amendment deadline, Dodson did not file its sixth amended pleading until

over one year after the pleadings deadline, and Dodson had "wholly changed the

nature of its previously asserted cross-claims against Atlantic." Atlantic further noted

that "[o]ver the years, Dodson [had] asserted cross-claims against Atlantic for

contribution, unjust enrichment, and fraudulent inducement" with the express

qualification that these claims were brought only "in the unlikely event of a finding

that Dodson [was] liable to [Arrendadora]." Atlantic contended that it had proceeded

in the case in reliance upon the fact that Dodson brought its cross-claims only

contingent upon a finding of liability against Dodson in favor of Arrendadora. (6) Atlantic further stated that "[i]ndeed, once the pleadings deadline had passed

and Atlantic had settled [Arrendadora's] claims against it, Atlantic filed no evidence

and traditional motions for summary judgment, seeking dismissal of each of those

cross-claims, as asserted in Dodson's live pleading ." (Emphasis added). Atlantic

complained that Dodson was now, after the pleadings deadline, amending the

previously asserted contingent claims as "independent cross claims," and Dodson's

attempt to amend these cross-claims operated to surprise and prejudice Atlantic.

Atlantic further complained that, "[u]ntil now, Dodson would not have been entitled

to any recovery under the [c]ontingent [c]laims absent a finding of liability against

Dodson and in favor of [Arrendadora]," that "in the absence of a submission of

[Arrendadora's] claims against Dodson, Dodson's contingent claims against Atlantic

would have automatically failed," and that Dodson's "late amended pleading [would]

force Atlantic to trial as a direct defendant to Dodson and require Atlantic to defend

those reshaped claims on different substantive grounds than those reasonably

anticipated by Atlantic for more than a year now." Atlantic requested that if the trial

court did allow Dodson to amend its pleadings at this late stage, then it be granted a

continuance to prepare for trial on cross-claims as now amended by Dodson's late

pleading.

On June 15, 2007, the trial court sustained Atlantic's objection to Dodson's

sixth amended original answer, cross-claims, and counter claims and granted

Atlantic's motion to strike "in its entirety." (7) Subsequently, on July 9, 2007, the trial

court, without specifying the basis of its order, granted Atlantic summary judgment

on Dodson's cross-claims and ordered that Dodson take nothing against Atlantic.

Standard of Review

To prevail on a summary judgment motion, a movant has the burden of proving

that it is entitled to judgment as a matter of law and that there is no genuine issue of

material fact. Tex. R. Civ. P. 166a(c); Cathey v. Booth , 900 S.W.2d 339, 341 (Tex.

1995). When a defendant moves for summary judgment, it must either (1) disprove

at least one element of the plaintiff's cause of action or (2) plead and conclusively

establish each essential element of its affirmative defense, thereby defeating the

plaintiff's cause of action. Cathey , 900 S.W.2d at 341 . When deciding whether there

is a disputed, material fact issue precluding summary judgment, evidence favorable

to the non-movant will be taken as true. Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d

546, 548-49 (Tex. 1985). Every reasonable inference must be indulged in favor of

the non-movant and any doubts must be resolved in its favor. Id . at 549.

When, as in this case, a summary judgment does not specify the grounds on

which the trial court granted it, the reviewing court will affirm the judgment if any

theory included in the motion is meritorious. Harwell v. State Farm Mut. Auto. Ins.

Co. , 896 S.W.2d 170, 173 (Tex. 1995); Summers v. Fort Crockett Hotel, Ltd. , 902

S.W.2d 20, 25 (Tex. App.--Houston [1st Dist.] 1995, writ denied). Moreover, if

summary judgment may have been rendered, properly or improperly, on a ground not

challenged on appeal, the judgment must be affirmed. Ellis v. Precision Engine

Rebuilders, Inc. , 68 S.W.3d 894, 898 (Tex. App.--Houston [1st Dist.] 2002, no pet.).

Limitations

In its first issue, Dodson argues that the trial court erred in granting summary

judgment in favor of Atlantic on Atlantic's affirmative defense of limitations because

Atlantic failed to provide "concrete proof" that Dodson's claims accrued in May 1999

or on July 9, 1999. Dodson does not suggest that its claims accrued on any certain

date, provide any specific argument as to when its claims accrued, or address the

effect of its own admissions establishing that its dispute with the other parties over

the aircraft's ownership arose in May 1999. Rather, Dodson only asserts that,

assuming its claims were otherwise time barred, "the relation back doctrine contained

in section 16.068 of the Texas Civil Practice and Remedies Code" applies to save its

claims. See Tex. Civ. Prac. & Rem. Code Ann. § 16.068 (Vernon 1997).

Dodson's negligent misrepresentation and unjust enrichment claims are

governed by a two-year statute of limitations. See id. § 16.003(a) (Vernon Supp.

2007); Elledge v. Friberg-Cooper Water Supply Corp. , 240 S.W.3d 869, 869-70

(Tex. 2007) (unjust enrichment); HECI Exploration Co. v. Neel , 982 S.W.2d 881,

885 (Tex. 1998) (unjust enrichment and negligent misrepresentation). Dodson's

fraudulent inducement claim is governed by a four-year statute of limitations. See

Tex. Civ. Prac. & Rem. Code Ann. § 16.004 (a)(4) (Vernon 2002).

A limitations period begins to run when a cause of action accrues, and the date

of accrual is a question of law. J.M.K. 6, Inc. v. Gregg & Gregg, P.C. , 192 S.W.3d

189, 196 (Tex. App.--Houston [14th Dist.] 2006, no pet.) (citing Moreno v. Sterling

Drug, Inc. , 787 S.W.2d 348, 351 (Tex. 1990)); Waxler v. Household Credit Services,

Inc. , 106 S.W.3d 277, 279 (Tex. App.--Dallas 2003, no pet.). When applicable, the

discovery rule defers accrual of a cause of action until a plaintiff discovers or,

through the exercise of reasonable care and diligence, should discover the nature of

his injury. Wagner & Brown, Ltd. v. Horwood , 58 S.W.3d 732, 735 (Tex. 2001);

Childs v. Haussecker , 974 S.W.2d 31, 40 (Tex. 1998). Discovering the nature of the

injury "requires knowledge of the wrongful act and the resulting injury." Wagner &

Brown, Ltd. , 58 S.W.3d at 735 . "Thus, when the discovery rule applies, accrual is

tolled until a claimant discovers or in the exercise of reasonable diligence should have

discovered the injury and that it was likely caused by the wrongful acts of another."

Id .

Here, Atlantic presented summary judgment evidence conclusively establishing

that Dodson became aware of the dispute among the parties and the competing claims

to the aircraft in May 1999. Therefore, we conclude that Dodson's claims accrued in

May 1999. Thus, the two-year limitations period in which Dodson could have

brought its negligent misrepresentation and unjust enrichment claims expired in May

2001 and the four-year limitations period in which Dodson could have brought its

fraudulent inducement claims expired in May 2003. See Tex. Civ. Prac. & Rem.

Code Ann. §§ 16.003 (a), 16.004(a)(4).

Arrendadora filed suit on June 15, 2001, after the expiration of the limitations

period on Dodson's claims for negligent misrepresentation and unjust enrichment.

In these circumstances, we apply section 16.069 of the Civil Practice and Remedies

Code to determine if Dodson timely asserted its negligent misrepresentation and

unjust enrichment claims. (8) See id. § 16.069 (Vernon 1997). Section 16.069 provides,

(a) If a counterclaim or cross claim arises out of the same transaction

or occurrence that is the basis of an action, a party to the action

may file the counterclaim or cross claim even though as a separate

action it would be barred by limitation on the date the party's

answer is required.

(b) The counterclaim or cross claim must be filed not later than the

30th day after the date on which the party's answer is required.

Id .

The parties agree that Dodson's original answer was due, and was timely filed,

on August 13, 2001. In its original answer, Dodson made a general denial, but did

not make any affirmative claims for relief. Dodson filed his claims for unjust

enrichment and negligent misrepresentation later than the 30th day after the date on

which its answer was required. Because Dodson did not file its cross-claims for

unjust enrichment and negligent misrepresentation within 30 days from the date its

answer was required, these claims were barred under section 16.069. Id .

Accordingly, we hold that the trial court did not err in granting Atlantic summary

judgment based on limitations as to Dodson's claims for negligent misrepresentation

and unjust enrichment.

In regard to Dodson's fraudulent inducement claim, Dodson first asserted the

claim on January 20, 2005. As the applicable limitations period expired in May 2003,

Dodson's fraudulent inducement claim, absent any other exception, would have been

barred by the statute of limitations. See id. § 16.004(a)(4). However, Dodson argues

that its fraudulent inducement claims survived (9) because it related back to its

"contribution/and or indemnity claims" (10) filed on October 2, 2001. Section 16.068

of the Texas Civil Practice and Remedies Code provides,

If a filed pleading relates to a cause of action, cross action, counterclaim,

or defense that is not subject to a plea of limitation when the pleading

is filed, a subsequent amendment or supplement to the pleading that

changes the facts or grounds of liability or defense is not subject to a

plea of limitation unless the amendment or supplement is wholly based

on a new, distinct, or different transaction or occurrence.

Id. § 16.068.

Even assuming that Dodson's fraudulent inducement claim related back to

Dodson's first amended original answer and cross-claim and, thus, would not have

been time barred, Dodson failed to challenge the trial court's summary judgment on

Dodson's fraudulent inducement claim on other grounds raised by Atlantic's

summary judgment motion and further articulated in Atlantic's motion to strike. (11) After Arrendadora non-suited its claims against Atlantic, Atlantic moved for

summary judgment on Dodson's cross-claims, specifically asserting that Dodson's

fraudulent inducement claim, as well as Dodson's unjust enrichment claim, were

pleaded as being derivative of or contingent upon a finding of liability against

Dodson and in favor of Arrendadora. Atlantic also asserted in its summary judgment

motion that it had settled the dispute over the aircraft with Arrendadora, Arrendadora

had non-suited its claims against Atlantic and was willing to non-suit its claims

against Dodson based upon this settlement, and Atlantic received Arrendadora's

claims against Dodson by assignment only because Dodson refused to non-suit its

cross-claims and end the litigation. Atlantic represented to the trial court that it

would non-suit its assigned claims. Subsequent to Atlantic's filing of the summary

judgment motion, and after the pleadings deadline, in an apparent effort to cure its

derivative pleadings and to respond to Atlantic's summary judgment motion, Dodson

filed an amended pleading seeking to delete the language establishing that its

fraudulent inducement claim was contingent upon a finding of liability against it in

favor of Arrendadora. Atlantic then filed a motion to strike Dodson's late-filed

pleading, objecting to Dodson's attempt to "wholly change" the nature of some of its

cross-claims and noting that it had proceeded in the litigation, entered into a

settlement, and filed a summary judgment motion all in reliance upon the fact that

Dodson had pleaded certain of its cross-claims as existing only upon a finding of

liability being entered against Dodson and in favor of Arrendadora. Consistent with

its summary judgment motion, Atlantic explained that it was not going to pursue the

assigned claims because Dodson's cross-claims, as pleaded throughout the litigation,

would automatically fail without a submission as to Dodson's liability to

Arrendadora.

One of the grounds upon which Atlantic sought summary judgment was that

certain of Dodson's cross-claims, including its fraudulent inducement claim,

automatically failed based on the fact that, after the settlement with Arrendadora,

there could be no finding of liability against Dodson and in favor of Arrendadora.

The trial court, without specifying its reasons in its order, sustained Atlantic's

objection to Dodson's amended pleading and granted Atlantic's motion to strike "in

its entirety," thereby precluding Dodson from amending its contingent cross-claims

and deleting the contingent language upon which Dodson has been specifically

pursuing those cross-claims. The trial court then, again without specifying its

reasons, granted Atlantic summary judgment on Dodson's cross-claims. On appeal,

Dodson neither addresses the trial court's order striking its amended pleading, nor

does it challenge Atlantic's arguments that it would have been prejudiced by allowing

these amended pleadings. Moreover, on appeal, Dodson does not challenge

Atlantic's arguments in its summary judgment motion that Dodson's cross-claim for

fraudulent inducement would have automatically failed based on the manner in which

the claim was pleaded and based upon the fact that, after Atlantic's settlement with

Arrendadora, there could be no finding of liability against Dodson in favor of

Arrendadora. Because the trial court did not specify the ground upon which it

granted summary judgment and because summary judgment on Dodson's fraudulent

inducement claim could have been rendered on this ground, which is not challenged

by Dodson on appeal, the summary judgment as to the fraudulent inducement claim

must be affirmed. See Ellis , 68 S.W.3d at 898 .

We overrule Dodson's first issue.

Fraudulent Concealment

In its second issue, Dodson argues that the trial court erred in granting

summary judgment in favor of Atlantic because Atlantic is estopped from relying on

the statute of limitations as a result of its own fraudulent actions. Dodson asserts that

Atlantic fraudulently concealed the true nature of the judicial sale, the status of the

aircraft's rightful owner, and its failure to comply with the mechanic's lien statute

regarding notification.

The doctrine of fraudulent concealment defers the accrual of a cause of action

until the plaintiff discovers or should have discovered the deceitful conduct or facts

giving rise to the cause of action. Earle v. Ratliff , 998 S.W.2d 882, 888 (Tex. 1999).

The estoppel effect of fraudulent concealment ends when a party learns of facts,

conditions, or circumstances which would cause a reasonably prudent person to make

inquiry, which, if pursued, would lead to discovery of the concealed cause of action.

Borderlon v. Peck , 661 S.W.2d 907, 909 (Tex. 1983).

Here, the summary judgment evidence conclusively established that Dodson

had knowledge of the facts giving rise to its claims by May 1999. Other than

Dodson's complaint that Atlantic committed wrongful conduct in the course of the

judicial sale, Dodson did not adduce any evidence that, after this date, Atlantic

committed any additional conduct during and beyond the limitations to fraudulently

conceal facts that prevented Dodson from asserting its claims after the sale.

Accordingly, we hold that Atlantic was not estopped from relying on the statute of

limitations as an affirmative defense and that the trial court did not err in granting

Atlantic summary judgment on the basis of limitations as to Dodson's negligent

misrepresentation and unjust enrichment cross-claims.

We overrule Dodson's second issue.

Conclusion

Having held that the trial court did not err in granting Atlantic summary

judgment on its affirmative defense of limitations against Dodson's negligent

misrepresentation and unjust enrichment claims, and, having held that we must affirm

the summary judgment granted in favor of Atlantic on Dodson's fraudulent

inducement claim, we need not address Dodson's third and fourth issues.

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

1.

See Tex. Prop. Code Ann. § 70.301 (Vernon 2007).

2.

Because these assigned claims were subsequently non-suited, we do not consider the

validity of the assignment of Arrendadora's claims to Atlantic.

3.

In its briefing, Atlantic represents that it non-suited its assigned claims against

Dodson, rendering the summary judgment order final. See Lehmann v. Har-Con

Corp. , 39 S.W.3d 191, 205 (Tex. 2001) (stating that when there has not been

conventional trial on merits, an order or judgment is not final for appellate purposes

unless it disposes of every pending claim and party or clearly and unequivocally states

that it finally disposes of all claims and parties). Neither party contends that there are

any remaining claims before the trial court.

4.

These statements, included in Dodson's reply to Dodson's second amended summary

judgment motion, were made in support of Dodson's argument that Arrendadora's

claims against Dodson were time barred.

5.

See Tex. Bus. & Com. Code Ann. § 17.41 -.63 (Vernon 2002 & Supp. 2007).

6.

Atlantic also complained that Dodson had added a new cause of action for violations

of the Texas Deceptive Trade Practice Act against Atlantic in its pleading.

7.

In its appeal, Dodson does not raise any complaints about, nor does it address, the

arguments made in Atlantic's motion to strike or the effect of the trial court's order

granting the motion to strike. Thus, Dodson has waived any argument that the trial

court erred in granting the motion to strike. See Tex. R. App. P. 38.1.

8.

Dodson does not discuss section 16.069 in its briefing on appeal.

9.

Dodson actually argues that all of its claims survived because they all related back to

its "contribution/and or indemnity claims" under section 16.068. However, having

held that section 16.069 barred Dodson's claims for unjust enrichment and negligent

misrepresentation, we address only Dodson's fraudulent inducement claim in this

section of the opinion.

10.

Despite Dodson's characterization of its claims, Dodson never filed an indemnity

claim in the trial court. Dodson's pleadings solely refer to a claim for contribution.

11.

Atlantic argues that Dodson's fraudulent inducement claim could not have related

back to its contribution claim because a contribution claim does not even accrue, for

limitations purposes, until a plaintiff recovers damages or settles its suit against a

defendant, a contribution claim is derivative of the plaintiff's right to recover damages

from the defendant against whom contribution is sought, and "[n]o defendant has a

right of contribution against any settling person." See J.M.K. 6, Inc. v. Gregg &

Gregg, P.C. , 192 S.W.3d 189, 200, 202 (Tex. App.--Houston [14th Dist.] 2006, no

pet.); see also Tex. Civ. Prac. & Rem. Code Ann. § 33.015 (a), (d) (Vernon 1997).

Atlantic also argues that Dodson's fraudulent inducement claim could not have related

back to Dodson's contribution claim because the fraudulent inducement claim

constitutes a new, distinct, or different transaction or occurrence from the transaction

or occurrence underlying the contribution claim. See Ware v. Everest Group, L.L.C. ,

238 S.W.3d 855, 866 (Tex. App.--Dallas 2007, pet. filed) (setting forth two-part test

that must be satisfied in order for amended pleading to relate back to an original

pleading under section 16.068). Because Dodson's fraudulent inducement claim fails

for other reasons, we do not address these arguments.