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March 2, 2026 Get Citation Alerts Download PDF Add Note

Crothersville Lighthouse Tabernacle Church, Incor v. Church Mutual Insurance Company

Court of Appeals for the Seventh Circuit

• Citations: None known
• Docket Number: 22-1082

• Judges: Sykes

• Opinion

• Authorities (26)

• Cited By (0)

• Summaries (0)

• Similar Cases (6.4K)

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Combined Opinion

                        by [Diane S. Sykes](https://www.courtlistener.com/person/3156/diane-s-sykes/)

In the

United States Court of Appeals
for the Seventh Circuit

---

No. 22-1082
CROTHERSVILLE LIGHTHOUSE
TABERNACLE CHURCH, INCORPORATED,
Plaintiff-Appellant,

v.

CHURCH MUTUAL INSURANCE COMPANY, S.I.,
Defendant-Appellee.

---

Appeal from the United States District Court for the
Southern District of Indiana, New Albany Division.
No. 4:20-cv-00153 — Tanya Walton Pratt, Judge.

---

ARGUED APRIL 5, 2023 — DECIDED MARCH 2, 2026

---

Before BRENNAN, Chief Judge, and SYKES and HAMILTON,
Circuit Judges.
SYKES, Circuit Judge. This insurance dispute arises from a
fire at the Lighthouse Tabernacle Church in Crothersville,
Indiana, a small community in the southeastern part of the
state. The fire caused significant damage, and Lighthouse
Tabernacle promptly notified its insurer, Church Mutual
Insurance Company. The property was insured for
2 No. 22-1082

$2.3 million, and the policy provided baseline coverage for
its actual cash value, which accounts for depreciation. The
policy also promised to pay higher replacement-cost benefits
if the insured actually repaired or replaced the damaged
property and did so “as soon as reasonably possible after the
loss or damage.”
Lighthouse Tabernacle sought payment at replacement-
cost value, but disputes arose over estimates of the cost to
replace the building. While the parties worked through their
differences, Church Mutual sent Lighthouse Tabernacle a
$1.2 million check for the undisputed cash value of the
property and separate payments for business property
losses. In the months that followed, Church Mutual in-
creased its replacement-cost estimate and sent several checks
covering additional agreed amounts, bringing its total
payment on the claim to nearly $1.7 million. In the mean-
time, Lighthouse Tabernacle continued to dispute the insur-
er’s replacement-cost estimate and did not move forward to
repair or replace its building.
Instead, about two years after the fire, Lighthouse Taber-
nacle sued Church Mutual in state court for breach of con-
tract and bad-faith denial of its replacement-cost claim. The
insurer removed the case to federal court and moved for
summary judgment, explaining that the church had not
complied with its contractual obligation to repair or replace
the damaged property as soon as reasonably possible, so no
further payment was owed. In response Lighthouse Taber-
nacle raised factual issues concerning the cost-estimate
dispute and the credibility of two insurance adjusters—none
of which was responsive to Church Mutual’s legal argument
about the church’s failure to comply with the contractual
No. 22-1082 3

conditions for replacement-cost benefits. Unsurprisingly, the
district judge granted the motion and entered judgment for
Church Mutual.
With new counsel on appeal, Lighthouse Tabernacle be-
latedly raises an argument in response to the legal basis for
the summary-judgment motion. Citing a pair of decisions
from the Indiana Court of Appeals, the church maintains
that it was relieved of its contractual obligation to timely
rebuild. This argument comes far too late, but the church
asks us to review it and grant relief under the civil version of
the plain-error doctrine.
We decline the invitation. By choosing to advance certain
arguments at summary judgment while omitting others,
Lighthouse Tabernacle waived the argument it now presses
on appeal. Even if the church merely forfeited the argument,
plain-error review in civil cases is rare and available only in
extraordinary circumstances. This case does not qualify. We
affirm the judgment.
I. Background
Lighthouse Tabernacle is a small Apostolic Pentecostal
church in Crothersville, Indiana. Its church building caught
fire in early June 2018, causing extensive damage to the
sanctuary, offices, classrooms, and baptismal area. Light-
house Tabernacle promptly notified its insurer, Church
Mutual, of the loss.
The insurance policy carried a property-loss limit of
$2.3 million and provided replacement-cost coverage under
certain conditions. Replacement-cost insurance covers “the
difference between what [a] property is actually worth and
what it would cost to rebuild or repair that property.”
4 No. 22-1082

12A JORDAN R. PLITT ET AL., COUCH ON INSURANCE § 176:56
(3d ed. 2025 update). In contrast to the standard measure of
property loss—actual cash value, which deducts for depreci-
ation, see id. § 175:18—replacement-cost coverage focuses on
the cost of replacing the damaged property.
Lighthouse Tabernacle notified Church Mutual that it
sought payment at the higher replacement-cost value of its
loss. The policy sets clear limits on the recovery of
replacement-cost benefits. It states that Church Mutual “will
not pay” on a replacement-cost basis (1) “[u]ntil the lost or
damaged property is actually repaired or replaced” and
(2) “[u]nless the repairs or replacement are made as soon as
reasonably possible after the loss or damage.” In other
words, the policy’s baseline measure of loss is the actual cash
value of the damaged property; the insurer promised to pay
replacement costs in excess of actual cash value only if the
insured promptly repaired or replaced the damaged
property. The policy also limited replacement-cost payments
to the lowest of the following: the cost to replace the
property with similar materials; the amount the insured
actually paid to repair or replace the property; or the policy
limit—here $2.3 million.
Soon after the fire, Church Mutual retained a building
consultant to estimate the cost of replacing the church
building. In August the consultant returned an estimate of
$1.4 million. Lighthouse Tabernacle’s public adjuster object-
ed and in September sent a replacement-cost estimate of
over $2.2 million—close to the policy limit. Church Mutual
then reconsidered and increased its replacement-cost esti-
mate by almost $200,000. Lighthouse Tabernacle submitted a
No. 22-1082 5

“proof of loss” form in November listing a replacement cost
of $1.7 million and an actual cash value of $1.2 million.
In early December—five months after the fire—Church
Mutual sent the church a $1.2 million check for the undis-
puted actual cash value of the property. The insurer had
previously sent several separate payments for loss of busi-
ness property. Each of these checks was accompanied by a
letter explaining that the payment was based on actual cash
value, and that to recover replacement costs in excess of that
amount, the insured should complete its repair or replace-
ment of the property within 180 days and provide receipts,
which would be used to determine additional payments. The
letter also asked the insured to notify the adjuster if it was
unable to complete the repairs or replacement within that
timeframe.
Church Mutual revised its estimate of replacement costs
again in February 2019, increasing it to over $1.7 million.
Lighthouse Tabernacle objected to this new estimate too; the
dispute centered on the projected cost for the new sanctuary
ceiling. In August Church Mutual told Lighthouse Tabernac-
le that it would hire an engineering firm to review the matter
and provide another estimate. That same month, the church
sent another proof of loss, but Church Mutual rejected it as
incomplete. Two months later, Church Mutual paid another
$170,000 in additional undisputed actual cash value.
As Lighthouse Tabernacle continued to criticize Church
Mutual’s estimate for the ceiling, its agent notified the insur-
er in December 2019 that the church wanted to proceed with
demolition. Church Mutual responded that Lighthouse
Tabernacle could move forward with demolition and re-
placement as it saw fit, but that the “remaining claim” was
6 No. 22-1082

still under review and the insurer could not “make any
commitments” about additional payments until it received
and reviewed the new engineer’s report. The church did not
proceed with demolition and replacement.
The engineer’s estimate arrived later in December. It was
higher than Church Mutual’s but not close to Lighthouse
Tabernacle’s. The church objected to the new report and
questioned the engineer’s qualifications and expertise. In
March 2020 Lighthouse Tabernacle requested an appraisal to
resolve the dispute about the estimate. The insurer respond-
ed with the name of its appraiser. In late March Church
Mutual sent Lighthouse Tabernacle a check for an additional
$20,000, which reflected the difference between the engi-
neer’s estimate and the total amount the insurer had already
paid. With that payment, which was its last, Church Mutual
had paid the church nearly $1.7 million on its claim. And
Lighthouse Tabernacle still had not begun to repair or
replace the church building.
That’s where things stood in early June 2020 when
Lighthouse Tabernacle sued Church Mutual in state court for
breach of contract and bad-faith denial of replacement-cost
benefits. The insurer removed the case to federal court and
eventually moved for summary judgment, noting that
Lighthouse Tabernacle had not complied with the policy’s
prompt-repair requirement and thus was not entitled to
further replacement-cost payments. In response Lighthouse
Tabernacle raised factual issues—namely, disputes over the
estimates and the credibility of Church Mutual’s adjusters.
The church cited no cases except a few describing the
summary-judgment standard.
No. 22-1082 7

The district judge granted the motion, explaining that
Lighthouse Tabernacle had utterly failed to engage with
Church Mutual’s key argument, which centered on the
church’s failure to comply with the contractual prerequisites
for replacement-cost recovery. Any factual disputes between
the parties over replacement-cost estimates or the credibility
of the adjusters were irrelevant and not responsive to that
argument. Lighthouse Tabernacle hadn’t explained why it
was entitled to additional replacement-cost proceeds despite
its failure to begin repairs as required by the policy, so the
judge entered judgment for Church Mutual.
This appeal followed. One further development bears on
the argument the church raises here. Lighthouse Tabernacle
was represented by attorney Jason Smith in the district court
and initially on appeal. After Smith filed his opening brief,
we suspended him from the bar of this court based on his
troubling performance in two unrelated appeals, as well as
his history of disciplinary sanctions in the Indiana Supreme
Court and the district court in Southern Indiana. See In re
Attorney Jason Smith, No. D-22-01 (7th Cir. Mar. 31, 2022); see
also FED. R. APP. P. 46(b). Because he was prohibited from
practicing law in this court, we suspended briefing to permit
the church to obtain new counsel. Its first replacement
attorney withdrew a few months after filing his appearance
because he was not admitted to practice in our court. Light-
house Tabernacle eventually found new counsel, who
briefed and argued the appeal.
II. Discussion
With the assistance of new counsel on appeal, Lighthouse
Tabernacle mounts a belated response to the summary-
judgment motion. The church maintains that it was unable
8 No. 22-1082

to begin repairs while the dispute over the replacement-cost
estimates remained unresolved. Relying on two cases from
the Indiana Court of Appeals—Rockford Mutual Insurance Co.
v. Pirtle, 911 N.E.2d 60 (Ind. Ct. App. 2009), and Westfield
National Insurance Co. v. Nakoa, 963 N.E.2d 1126 (Ind. Ct.
App. 2012)—Lighthouse Tabernacle now argues that this
ongoing dispute relieved it of its contractual obligation to
promptly repair or replace the property as a condition to
receipt of replacement-cost payments.
The church concedes, as it must, that this argument is
completely new on appeal. So at best, our review is narrowly
circumscribed by the plain-error doctrine, if review is avail-
able at all.
We haven’t always been consistent in the articulation and
application of the civil version of plain-error review. Our en
banc decision in Henry v. Hulett, 969 F.3d 769 (7th Cir. 2020),
covered substantial ground in clarifying the doctrine. Like
the more familiar version that applies in criminal cases, the
threshold inquiry in civil cases turns on the distinction
between waiver and forfeiture, which are “distinct legal
concepts.” Henry, 969 F.3d at 786.
Though “often used interchangeably” by lawyers and
judges alike, the terms waiver and forfeiture “are not synon-
ymous.” Hamer v. Neighborhood Hous. Servs. of Chi., 583 U.S.
17, 20 n.1 (2017). “[W]aiver is the ‘intentional relinquishment
or abandonment of a known right’”; “‘forfeiture is the mere
failure to raise a timely argument.’” Henry, 969 F.3d at 786
(quoting United States v. Olano, 507 U.S. 725, 733 (1993)).
In criminal cases “waiver precludes review,” but forfeited
errors are entitled to limited appellate review: “forfeiture
No. 22-1082 9

permits a court to correct an error under [the] plain error
standard” set forth in Rule 52(b) of the Federal Rules of
Criminal Procedure. Id. (citing Olano, 507 U.S. at 731–35); see
United States v. Flores, 929 F.3d 443, 447 (7th Cir. 2019) .
In the civil context, waiver is also the end of the line: “we
can’t review waived issues at all.” 1 Ricci v. Salzman, 976 F.3d
768, 771 n.2 (7th Cir. 2020). In contrast to criminal cases,
however, in the civil context forfeited issues are not review-
able for plain error as a general matter; there is no civil
counterpart to Criminal Rule 52(b). Rather, “our ability to
review for plain error in civil cases is severely constricted”
because “a civil litigant should be bound by his counsel’s
actions.” Henry, 969 F.3d at 786 (quotation marks omitted).
So “in civil cases, we typically will not entertain an argu-
ment raised for the first time on appeal, even for the limited
purpose of ascertaining whether a plain error occurred.” Id.
(quotation marks omitted). Though we have the discretion to
review forfeited issues and correct plain errors in civil cases,
we will do so only “in the rare situation where a party can
demonstrate that: (1) exceptional circumstances exist;
(2) substantial rights are affected; and (3) a miscarriage of
justice will occur if plain error review is not applied.” Id.
(quotation marks omitted).

1 Some of our decisions say or imply that we have discretion to consider

waived arguments in civil cases presenting “truly exceptional circum-
stances.” Lane v. Structural Iron Workers Loc. No. 1 Pension Tr. Fund,
74 F.4th 445, 450 (7th Cir. 2023); see Walker v. Baldwin, 74 F.4th 878, 883
(7th Cir. 2023) (“Finding waiver, however, does not end our inquiry.”).
These cases appear to conflate waiver with forfeiture or treat the terms as
synonymous—a common error, as the Supreme Court noted in Hamer v.
Neighborhood Housing Services of Chicago, 538 U.S. 17, 20 n.1 (2017).
10 No. 22-1082

Church Mutual contends that Lighthouse Tabernacle has
waived rather than forfeited its new argument. If that’s
right, then review is precluded, and we need not even
consider whether to exercise our discretion to review for
plain error.
“An appellant may waive [an] issue or argument in
many ways,” including “by failing to raise the issue or
argument in the district court, either at all or in a timely
fashion.” Bradley v. Village of University Park, 59 F.4th 887, 897
(7th Cir. 2023). This rule applies in full force when a litigant
fails to advance an argument at summary judgment and
then presses it on appeal. See Nichols v. Mich. City Plant Plan.
Dep’t, 755 F.3d 594, 600 (7th Cir. 2014) (“The non-moving
party waives any arguments … not raised in its response to
the moving party’s motion for summary judgment.”). This
follows from the nonmoving party’s obligation to “inform
the trial judge of the reasons, legal or factual, why summary
judgment should not be entered.” Mahran v. Advoc. Christ
Med. Ctr., 12 F.4th 708, 713 (7th Cir. 2021) (quotation marks
omitted).
The raise-it-or-lose-it rule serves several key interests.
Enforcing waiver “prevent[s] parties from getting two bites
at the apple by raising two distinct arguments before each
court”—precisely what Lighthouse Tabernacle seeks to do
here. Fleishman v. Cont’l Cas. Co., 698 F.3d 598, 608 (7th Cir.
2012). The waiver rule also incentivizes litigants to provide
the district judge with “well-reasoned motions,” id., a prac-
tice that helps “fully flesh[] out” cases before appellate
review, Wheeler v. Hronopoulos, 891 F.3d 1072, 1073 (7th Cir.
2018). And the rule preserves the resources of courts and
litigants by avoiding the unnecessary costs of appeals and
No. 22-1082 11

remands to address arguments that should have been raised
earlier. Fleishman, 698 F.3d at 608. In sum, “[w]aiver doctrine
rests on concerns about fair notice and the proper roles of
the trial and appellate courts in our adversarial system,”
Johnson v. Prentice, 29 F.4th 895, 903 (7th Cir. 2022), and it is
“critical to the proper functioning of our judiciary,” Wheeler,
891 F.3d at 1073.
Lighthouse Tabernacle urges us not to find waiver be-
cause nothing in the record suggests that its former counsel
made a strategic choice to omit the argument now advanced
on appeal. As the church sees things, Smith’s performance
was so poor—in this case and others—that we should as-
sume he was incapable of making a tactical decision to forgo
an argument under Pirtle and Nakoa.
We have at times framed waiver in terms of “strategic”
choice, see, e.g., Bourgeois v. Watson, 977 F.3d 620, 630
(7th Cir. 2020), but Lighthouse Tabernacle’s reasoning
reflects a misunderstanding of what that language means for
purposes of the waiver doctrine. When a litigant selects
among possible arguments at summary judgment, the
normal consequence is that he waives those not advanced.
Whether the choices were misguided is irrelevant. In other
words, “[t]hat the strategy was not entirely successful …
does not mean that it was not a strategy.” United States v.
Picardi, 950 F.3d 469, 475 (7th Cir. 2020). Nor do we require
evidence that a litigant or his lawyer actually considered an
argument before failing to raise it—evidence that will rarely
exist. Here, Lighthouse Tabernacle “decided how to litigate
its case, offered the district court nothing at all on an entire
theory of the defendant[’s] case, and predictably lost.” Soo
Line R.R. v. Consol. Rail Corp., 965 F.3d 596, 602 (7th Cir.
12 No. 22-1082

2020). That’s a textbook waiver of the new argument it
presses on appeal.
There’s another problem with Lighthouse Tabernacle’s
view of the line between waiver and forfeiture. If waiver
required us to find (or construct) a good or even neutral
strategic reason for omitting the argument below, then
waiver would rarely if ever apply. We reiterate, then, that
when a party in a civil case exercises judgment by advancing
certain arguments at the expense of others in the district
court, he waives the arguments not raised. Lighthouse
Tabernacle waived its argument that it was relieved of its
contractual obligation to promptly repair or replace the
damaged property as a prerequisite to receiving
replacement-cost proceeds.
We add for the sake of completeness that even if the
church’s new argument were merely forfeited rather than
waived, we would not review it. To repeat, plain-error
review in civil cases is reserved for rare cases in which the
proponent has demonstrated “exceptional circumstances”
affecting his “substantial rights” such that refusing to review
and correct the claimed error will cause a “miscarriage of
justice.” Henry, 969 F.3d at 786 (quotation marks omitted).
This demanding standard will seldom be met, and for
good reason. Limiting review of forfeited issues serves many
of the interests that waiver doctrine serves. And it makes
sense for the limitations on plain-error review to be more
stringent in civil cases. We have long recognized that “a
party who chooses his counsel freely”—as Lighthouse
Tabernacle did—“should be bound by his counsel’s actions.”
Deppe v. Tripp, 863 F.2d 1356, 1360 (7th Cir. 1988); see Link v.
Wabash R.R., 370 U.S. 626, 633–34 (1962) (explaining that
No. 22-1082 13

permitting a party to “avoid the consequences of the acts or
omissions of [his] freely selected agent” is “wholly incon-
sistent with our system of representative litigation”). This
principle is particularly strong in civil cases, which—unlike
criminal cases—rarely implicate “substantial liberty inter-
ests.” In re Under Seal, 749 F.3d 276, 286 n.13 (4th Cir. 2014)
(quoting Deppe, 863 F.2d at 1364). A civil litigant can also
“sue for malpractice if his counsel’s work is bad enough,”
which is “an option that rings hollow for criminal defend-
ants.” SEC v. Yang, 795 F.3d 674, 679 (7th Cir. 2015); see
Deppe, 863 F.2d at 1360 (“[A] party may institute an inde-
pendent action against the trial attorney whose omission(s)
rendered the issue(s) unappealable.”). 2
Moreover, civil plain-error review is a judicially created
remedy, so “it should be narrowly construed.” In re Under
Seal, 749 F.3d at 286 n.13. As we’ve noted, there is no civil
counterpart to Criminal Rule 52(b). See Deppe, 863 F.2d at
1360 (“The conspicuous absence of a plain error doctrine
provision in the Federal Rules of Civil Procedure leads us to
believe that a plain error doctrine ordinarily is not available
in civil litigation.”). The Federal Rules of Evidence and the
civil-procedure rules provide for plain-error review of some
unpreserved objections, but these are exceptions that high-
light the absence of a general plain-error rule for civil litiga-
tion. See Walker v. Groot, 867 F.3d 799, 802 (7th Cir. 2017); see

2 We do not address here the many doctrines that apply to preservation

and presentation of issues in habeas corpus cases in federal court,
including exhaustion of state remedies, fair presentment to state courts,
procedural default, and exceptions for “cause and prejudice” and actual
innocence, all of which are the subjects of specific statutes and extensive
case law.
14 No. 22-1082

also FED. R. CIV. P. 51(d)(2) (providing for plain-error review
of unpreserved objections to jury instructions); FED. R. EVID.
103(e) (same for rulings on the admission or exclusion of
evidence).
Lighthouse Tabernacle offers several reasons why plain-
error review is warranted. The church contends that without
review, Church Mutual will reap an unjustified win. It also
emphasizes that its new argument under Pirtle and Nakoa
raises a pure question of law and that Smith’s poor perfor-
mance as counsel creates exceptional circumstances. These
contentions do not satisfy the demanding standard for
accessing civil plain-error review.
Lighthouse Tabernacle’s first argument boils down to a
claim of unfairness because the church thinks it has a slam-
dunk argument under Pirtle and Nakoa. This contention
vastly overstates the strength of the argument, which is far
from compelling and straightforward. Pirtle and Nakoa
involved insurers that delayed all payments—even actual
cash value payments—until it was impossible (or at least
nearly impossible) for the insured to begin repairs. See Pirtle,
911 N.E.2d at 66 (describing how the insurer placed the
insured “in a very bad position to start any repairs” by not
making an actual cash value offer under the relevant policy
provision until “after the mortgage foreclosure process had
started … and the property had been condemned”); Nakoa,
963 N.E.2d at 1133 (“[I]t seems unreasonable and unrealistic
for [the insurer] to have expected [the insured] to begin
reconstruction … when [the insurer] never paid anything to
her towards her real property loss—not the actual cash value
of the loss, not replacement cost, nothing at all.”).
No. 22-1082 15

This case is not at all similar. Church Mutual paid almost
$1.7 million, representing the actual cash value of the loss
and other undisputed amounts, yet Lighthouse Tabernacle
did not even begin to repair or replace its property before it
filed suit—not because it was impossible to do so but be-
cause the church decided to wait and see if it could recover
more for the new ceiling, just one component of the project.
We raise this point not to say that one side has a better
understanding of Indiana insurance law. The material point
is that that the issue is debatable, which shows that this is an
ordinary, garden-variety insurance dispute. There is nothing
exceptional about it.
Lighthouse Tabernacle’s second contention—that we
should review the new argument because it presents a pure
question of law—fares no better. For support the church
points to some of our older cases in which we reviewed
unpreserved arguments presenting legal questions. See, e.g.,
Amcast Indus. Corp. v. Detrex Corp., 2 F.3d 746, 749–50 (7th
Cir. 1993).
But legal arguments do not have some talismanic quality
that exempts them from the normal rules governing the
preservation of arguments for appeal. On the contrary, “[a]
question of law is not an express ticket to the court of ap-
peals that permits passing by the district court.” Soo Line
R.R., 965 F.3d at 601. As we have explained, “legal contentions
must be presented in the district court … before the district
judge acts, rather than as afterthoughts.” Builders NAB LLC
v. FDIC, 922 F.3d 775, 778 (7th Cir. 2019) (emphasis added);
see Mahran, 12 F.4th at 713 (“[A] party opposing … summary
judgment … must inform the trial judge of the reasons, legal
16 No. 22-1082

or factual, why summary judgment should not be entered.”
(emphasis added) (quotation marks omitted)).
We’ve observed that litigants who “do not do their legal
research until after losing in the district court have wasted a
judge’s valuable time,” Builders NAB, 922 F.3d at 778, just
like litigants who fail to develop the facts until appeal.
Reviewing unpreserved legal arguments also deviates from
the “significant but limited job of our appellate system,”
which is “to correct errors made by the district court in
assessing the legal theories presented to it, not to serve as a
second-shot forum” for “back-up theories” of the case.
Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir.
2011) (quotation marks omitted). That’s why we rarely
review unpreserved arguments, whether legal or factual, in
the civil context.
Finally, Lighthouse Tabernacle takes aim at its former
counsel, arguing that Smith’s particularly shoddy perfor-
mance was so substandard that plain-error review is war-
ranted. But errors by counsel—even egregious errors—do
not alone constitute exceptional circumstances. Lawyers
make mistakes all the time, so more is needed to justify
plain-error review under the civil version of the doctrine. If
omitting the Pirtle/Nakoa argument was as big a mistake as
Lighthouse Tabernacle says, then the church’s recourse is a
malpractice suit—not an exemption from the principle that
plain-error review “is rarely applied in civil cases.” Jackson v.
Parker, 627 F.3d 634, 640 (7th Cir. 2010).
AFFIRMED